The Issue At issue in these consolidated proceedings is whether certain development orders (permits) issued by Monroe County to the respondents, as owners and Your Local Fence, Inc., as contractor, for the construction of fences in the Big Pine Key Area of Critical County Concern are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, Charles and Kathleen Moorman (Moorman), Nicholas and Jean Hornbacher (Hornbacher), James and Kathryn Daniels (Daniels), and Raymond and Rosemarie McRae (McRae), are the owners of certain real property, described more full infra, that is located within the Big Pine Key Area of Critical County Concern and the Florida Keys Area of Critical State Concern, and upon which they have received development orders (permits) from Monroe County to erect fences. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by Mr. Moorman and is the contractor that applied for the permits on behalf of the Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and proposed to install the fence themselves. Respondent, Monroe County, is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permits, and contends that construction of the fences authorized by such permits is inconsistent with the Monroe County comprehensive plan and land development regulations. The Moorman permit The Moormans are the owners of Lots 15, 16 and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within, and surrounded by, native pine lands; natural habitat for the Key Deer. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a front setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. The Hornbacher permit The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on a cul-de-sac, at the terminus of a dead end street, and is bordered on the north and west by a canal and on the east by a neighbor's fence. On May 20, 1991, Monroe County issued to the Hornbachers, as owners, and your Local Fence, as contractor, building permit No. 9110002807 to construct a fence along the south side of their property. As permitted, the fence would be chainlink construction, 4 feet high, and would extend from their neighbor's fence on the east, around that portion of their property that abuts the cul-de- sac, and then along their southern boundary to the canal. So constructed, the fence would run a total of 90 linear feet. The Daniels permit The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and along the rear by a canal. On July 17, 1991, Monroe County issued to the Daniels, as owners, and Your Local Fence, as contractor, building permit No. 9110003165 to construct a fence along the rear portion of their property that abuts the canal. As permitted, the fence would be of chainlink construction, 4 feet high, and run a total of 158 linear feet. The McRae permit The McRaes are the owners of Lot 6, Block 17, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on the north and south by vacant lots, and on the west by a canal. On June 12, 1991, Monroe County issued to the McRaes, as owners and contractors, building permit No. 9110002853 to construct a fence along the front, as well as the north and south sides of their property. As permitted, the fence would be of chainlink construction, 4 feet high, and, except for a set back of 29.5 feet, would enclose the front and side property lines of the property. So constructed, the fence would run a total of 157 linear feet. Consistency of the permits with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: he purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expectations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habita-tion and the survival of the Florida Key Deer; The role and importance of fresh-water wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of plan-ning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publi-cation of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed with-in twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it must be concluded that the subject permits issued by Monroe County for the construction of fences in the Big Pine Key Area of Critical County Concern are not consistent with the Monroe County comprehensive plan and land development regulations. Extra legal action and the applicants voiced rationale for fencing their properties Notwithstanding express knowledge by the Moormans, Hornbachers, Daniels and Your Local Fence, that the subject permits were not effective until expiration of the time within the Department was authorized to appeal their issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local Fence. However, the McRaes, likewise knowledgeable about the time delay in the effectiveness of their permits, abided by existent law, and deferred erecting their fence pending resolution of this dispute. At hearing, proof was offered by the applicants to explain why they desired to fence their property. Proof was also offered to explain why the Hornbachers and Daniels felt a sense of exigency to erect their fences, and why they prevailed on Your Local Fence to erect such fences in the face of express notice from Mr. Moorman (the principal of Your Local Fence) that the permits were not effective and subject to appeal by the Department. According to the Hornbachers, the purpose for their fence was to keep stray dogs and their "leavings" from the yard, to keep the Key Deer that populate the area from eating their vegetation, and to keep uninvited persons and vehicles from entering their property. The later reason was of particular import to the Hornbachers since they were about to leave for their annual vacation in Michigan, and strangers had entered onto their property during their prior absences. Therefore, to provide their residence with a degree of security, they insisted the fence be installed before they left, and before their permit was effective. According to the Daniels, the purpose for their fence was primarily to provide a secure environment for their children.2 In this regard, the proof demonstrates that the Daniels are both police officers with the City of Key West and work the same shift; that they have three children, ages, 7, 4, and 2, that reside at the home and are cared for by an elderly woman in their absence; and that the canal that abuts their backyard, as well as an existent boatramp, represents a potential hazard to the children's safety. Cognizant of such hazard, which was magnified by one child having already slipped down the boat ramp, the Daniels insisted that the fence be installed, and Your Local Fence acquiesced, before their permit was effective. The Moormans offered no compelling reason for having erected their fence prior to the effective date of their permit, but did espouse its purpose. According to Mr. Moorman, the purpose for their fence was to keep the neighbors' two children from playing under his house where he had installed a hot tub, and to keep the Key Deer that populate the area from entering his property and eating any vegetation he might choose to cultivate. According to the McRaes, who have not yet erected their fence, they desire a fence to prevent neighbors' dogs from leaving "droppings" in their yard, and to keep the Key Deer from eating their plants. While each of the applicants have articulated logical reasons to fence their yards, such reasons are not relevant where, as here, the permits were issued as of right. Rather, with regard to the Big Pine Key Area of Critical County Concern, the erection of fences is strictly prohibited until such time as the plan and regulations are amended to allow such use.3 Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of the subject permits. Mr. Moorman's contention is not, however, persuasive. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments.4 Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the subject permits is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area.5 Moreover, neither the applicants nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fences. Under such circumstances, it cannot be reasonably concluded that the Department misled any applicant so as to bar it from contesting the propriety of the subject permits, and those who chose to erect their fences knowing their permits were not yet effective acted at their peril.6
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue building permit Nos. 9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local Fence, as contractor, where pertinent, for such permits. It is further recommended that such final order specify that there are no changes in the subject proposals that would make them eligible to receive the permits as requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of April 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 30 day of April 1992.
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 is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
Findings Of Fact Counsel for the respective parties stipulated to the following facts: Quayside Associates, Ltd., is a Florida limited partnership whose address is 10670 N.E. Quay Plaza, North Miami, Florida 33134. Respondent is the Department of Environmental Regulation, an agency of the State of Florida as defined in Section 120.52(1), Florida Statutes. This Petition relates to the Department's File No. DF13-28371-6E. Petitioner was the applicant for the subject permit and will, as applicant, be directly affected by a denial thereof. On February 28, 1980, Petitioner applied to the Department for approval of its Phase II Docking Facility which included an elevated walkway with wave break panels, nineteen (19) new wet slips and twenty-five (25) davits. (Exhibit "1") On March 6, 1980, a completeness review form was sent to the applicant's representative by the Department. (Exhibit "2") On March 6, 1980, the applicant's representative responded to the comments of the Department and completeness summary by letter from J. Frederic Blitstein to the Department's Subdistrict Office. (Exhibit "3") As shown by the Department letter of May 29, 1980, response to the completeness summary were received by the Department from the applicant on March 7 and 11, 1980, with final Department of Natural Resources clearance, as requested by the completeness summary, received by the Department of March 14, 1980 (see Exhibit 4). The response of the Depart- ment of Natural Resources is attached hereto as Exhibit "5". On March 20, 1980, the representative of the Department made an on-site visit to the site as shown by the Departmental Summary Permit Processing Worksheet attached as Exhibit "6". On April 9, 1980, the Department received the comments and recommendations of the Dade County Department of Environmental Resources Management which indicated that it had "no objection to the issuance of the Permit" subject to certain stipulations and conditions. (Exhibit "7") On June 25, 1980, the Department held its scheduled Biscayne Bay Aquatic Preserve Hearing in Miami, Dade County, Florida. On July 2, 1980, the Department issued a completion notice to the applicant indicating completion of the application on June 25, 1980. (Exhibit "8") On September 9, 1980, the Department issued its Letter of Intent to Deny which gives rise to the subject proceeding. (Exhibit "9") This Petition ensued and was filed with the Department on September 24, 1980. The State of Florida, Division of Administrative Hearings has jurisdiction over this matter and has jurisdiction to make an Interlocutory Ruling regarding same. This Stipulation may be utilized for interlocutory purposes or for all subsequent purposes.
The Issue The central issue in this case is whether Petitioner's request to modify permit no. 5601095728 should be approved or denied.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, William Schulman, as trustee, is the owner of a parcel of real property consisting of approximately ten acres located on Hutchinson Island in St. Lucie County, Florida. On July 3, 1986, Petitioner was issued permit no. 5601095728 and became authorized to fill 1.5 acres of impacted wetlands in accordance with specifications and drawings which had been approved by the Department. Petitioner was required to provide mitigation in connection with the permit which included: the installation of culverts to allow tidal circulation to adjacent wetlands; scraping down a .5 acre area and planting smooth cordgrass; and dredging an area approximately sixty feet wide to allow an access to the Indian River. Petitioner has performed the above-described mitigation. The permit also required Petitioner to execute and record a Conservation Easement which included the .5 acre to be scraped and planted with cordgrass. This easement has not been recorded in accordance with the permit guidelines. Instead, Petitioner sought to modify the permit to allow an additional 1.5 - 2.0 acres to be filled. This proposed area encompassed the smooth cordgrass and an area of mangroves which were to be part of the conservation easement. By letter dated July 10, 1987, Petitioner provided drawings to the Department to further identify the area subject to the requested modification. The proposed modification would result in the permanent loss of white mangrove and cordgrass marsh. This marsh is connected to Class II waters (Indian River) via the dredged opening described in paragraph 2. Petitioner's ten acre parcel is bounded to the north by the platted Windmill Village subdivision; to the east is a commercial area which fronts on SR A-1-A; to the southwest of the property is a diked area known as Impoundment 12; to the west is a man-made lake referred to as "Black's Lake" at the hearing; and further to the west is the Indian River. As part of the original mitigation, Petitioner dredged a sixty foot opening connecting Black's Lake to the Indian River. The culverts required by the original mitigation connected Black's Lake to Impoundment 12, Petitioner's parcel to Black's Lake, and Impoundment 12 to the Indian River. As mitigation for the modification sought, Petitioner has proposed to provide four additional culverts to connect Impoundment 12 with Black's Lake. The record in this cause is unclear as to the present ownership of Impoundment Further, no owner has given consent to the proposed installation of additional culverts. The mitigation proposed for Impoundment 12 is not on Petitioner's property. As additional mitigation for the modification, Petitioner has proposed to provide two culverts which would connect a ditch on Petitioner's property to Black's Lake. On September 4, 1987, Petitioner provided materials from the St. Lucie County Mosquito Control District to the Department in support of the requested modification. The information suggested that with the installation of additional culverts, the tidal activity within Impoundment 12 would be improved and would thereby eliminate most of the mosquito breeding within that area. On October 14, 1987, the Department notified Petitioner of its intent to deny the modification to permit no. 5601095728. Thereafter, Petitioner timely filed for a formal review and these proceedings resulted. By stipulation, the parties agreed that the Department has jurisdiction of the project and the proposed modification to the permit. The proposed mitigation seeks to increase tidal exchange within Impoundment 12. Petitioner has not offered evidence to illustrate how the mitigation would directly benefit Petitioner's property. The tidal replication in Black's Lake is approximately 90 percent of that within the Indian River. The tidal replication within Impoundment 12 is approximately 60 percent of that within Black's Lake. Petitioner anticipates that the addition of culverts connecting Black's Lake to Impoundment 12 would increase the tidal exchange to the impoundment. Impoundment 12 consists of approximately 120 acres. Due to a dike which divides the property, only 80 + or - acres would be affected by the proposed mitigation. To effect 100 percent tidal replication within Impoundment 12 the dike separating it from the Indian River to the west would have to be removed. Since that solution is highly unlikely, authorities have sought to achieve tidal exchange via 40' culverts which are 30 inches in diameter and which have been placed to breech the dikes surrounding the impoundment. The most desirable locations for these culverts would be directly connecting Impoundment 12 to the river. That is not Petitioner's proposal. Petitioner proposes to connect Impoundment 12 with additional culverts to Black's Lake. The opening to the river from the lake would not be increased. Consequently, it is unlikely the replication within the lake will increase. The sole objective of Petitioner's proposed mitigation would simply cause more water to tidally flow from the lake to Impoundment 12. Increased flow to Impoundment 12 would enhance the likelihood of achieving tidal inundation which would make mosquito breeding less frequent. While it is expected that the Mosquito Control District would have to continue applying larvicide to Impoundment 12, its use may be less often. Optimally, tidal inundation would occur at least once a week. Currently, Impoundment 12 receives this desired inundation only during the fall season when the waters are high enough to flood the remote areas. Increasing the number of culverts would also increase the points of access and would allow the water to move more slowly through the openings. While there is no evidence to establish the locations for the placement of the proposed culverts, in theory, the placement would be to maximize the tidal exchange. A slower exchange through the culverts would benefit organisms moving through the system. The slower rate would also enhance the use of the passages by fish. To be lost by the modification are .5 acre of smooth cordgrass and 1.25 - 1.50 acres of mature, functioning mangroves. The mangroves are predominantly of the white variety with some reds scattered. They are approximately 20 feet in height. If allowed to remain undeveloped, it is anticipated that the cordgrass area will aid in the recruitment of additional mangroves. Mangroves provide several benefits to estuarine systems. The leaf litter is a primary source of food for organisms in the lower end of the food chain such as fish and crabs. Fish, birds and mammals use mangroves for cover from predators. Birds also use the mangroves for perching and nesting and feed on insects and crabs associated with the trees. Mangroves in Impoundment 12 and the Petitioner's property (which will be lost by the modification) currently provide these benefits. It has not been demonstrated that the increased tidal flow to Impoundment 12 will quantitatively improve the benefits offered by mangroves to the existing system. Smooth cordgrass is a food source for birds, fish and mammals. Not only do organisms feed on the cordgrass, but they also feed on the leaves and seeds of the associated growth of spike rush and fungus. Mammals use the cordgrass for cover and some birds nest there. The following listed birds have been identified on Petitioner's property and Impoundment 12: snowy egret and little blue heron, which are species of local concern, and the brown pelican which is on the federal list of endangered species. Also observed at the location was the roseate spoonbill. Mammals identified on the Petitioner's property included raccoon, marsh rabbit and rat. The loss of the Petitioner's mangroves and cordgrass will decrease the habitat area currently used by mammals, fish and birds. Moreover, the mangrove population on Hutchinson Island is on the decline. Wetland areas have been decreasing due to development over the last 20 years. Numerous dredge and fill projects previously permitted by the Department have allowed filling of mangrove areas. Fish currently inhabiting the area which are expected to be adversely affected by the loss of the mangroves and ditch area include: snook (a species of special concern), tarpon, mojarra, and striped mullet. The increased water flow to Impoundment 12 does not offset this loss. Windmill Village By The Sea Homeowners Association, Inc., is a nonprofit corporation consisting of property owners occupying approximately 46 duplexes to the north of Petitioner's property. The 13 individual intervenors (Sophie Holler, Jackson and Mildred Gray, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler) are homeowners on Aqua Ra Drive north of and contiguous to Petitioner's property.
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
