Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact The Parties Manatee Palms is an existing 60 bed residential treatment center located in Bradenton, Manatee County, Florida, which opened on January 12, 1987. It is a wholly owned subsidiary of PIA Psychiatric Hospitals, Inc., which owns or operates 51 psychiatric hospitals and three residential treatment centers throughout the United States. The Department is the state agency with the authority and responsibility to consider CON applications. MMH is an existing acute care hospital with a 25 bed short-term psychiatric unit which consists of approximately ten adolescent beds. It is the Manatee County contract provider of in-patient psychiatric services to the medically indigent, and provides approximately 91% of the indigent care in manatee County. MMH does not have, and has never sought, a CON as an IRTP, but does have earlier batched applications pending for additional short an d long term psychiatric beds. Its average length of stay is 35-40 days, and its utilization rate is approaching 100%. MMH provides services similar or identical to those offered or proposed by Manatee Palms and FRTC, and its program also utilizes a "Levels System", as does the program at Manatee Palms and the one to be offered at FRTC. FRTC is a wholly owned subsidiary of Charter Medical Corporation, which received a CON through Final Order of the Department on February 15, 1988, for a 60 bed intensive residential treatment facility located in Bradenton, Manatee County, Florida. The facility is currently under construction, and is projected to begin operations in March, 1990. The Application and the Project Manatee Palms is licensed as a child caring facility and holds a license entitling it to various services relating to alcohol and substance abuse to adolescents between the ages of 8 and 18. The facility is JCAH accredited as a residential treatment center. In April, 1987, Manatee Palms filed CON application number 5148 with the Department. It seeks to obtain specialty hospital licensure as an IRTP for its existing facility, and must receive a CON before it can be so licensed. The Department reviewed Manatee Palms' application and preliminarily denied CON 5148. Manatee Palms timely sought review of the Department's preliminary decision, and requested this formal hearing. By Order entered on May 3, 1988. leave to intervene was granted to MMH and FRTC. At hearing, relevant information that updates a CON application, and is the result of extrinsic circumstances beyond the applicant's control, is admissible, according to the Department's expert in CON review, Liz Dudek. The existing facility which is the subject of these proceedings is divided into two 30-bed wings based upon two separate clinical programs provided at the facility. One 30-bed unit is the psychiatric unit where a program for patients suffering only from psychiatric illnesses reside and are treated. The other unit is for dual diagnosis patients suffering from both psychiatric and substance abuse disorders. The primary service area for Manatee Palms includes Manatee, Sarasota, Pinellas, Hillsborough, Pasco, Polk, Hardee, Highlands, Charlotte, Lee, Collier and Orange Counties, with the secondary service area covering all eleven service districts of the Department, as well as out-of-state. Approximately 25% of the patients at Manatee Palms are from District VI. The facility encompasses 23,500 gross square feet, and contains classrooms, bedrooms, activity rooms, a dining facility and fully equipped kitchen, pharmacy, offices, a medical examining room, timeout rooms, and a service wing. The outside area covers 15 acres and consists of a swimming pool, ball field and a ROPES course, which is also available for non-residents in the community. A fully accredited school is operated at the facility, and some of the residents also attend a public high school which is located across the street. Classes are taught by EH and SED instructors provided by the Manatee County School Board. The facility supplies an aide for each class. The treatment program at Manatee Palms includes: comprehensive and individualized treatment; individualized, group and family therapy; the fully accredited school program; psychological testing and evaluation; creative and expressive arts; occupational and recreational therapy; alcohol and substance abuse education and counseling; vocational counseling; language, speech and hearing therapy; and structured after care. Therapy is provided in both a group and individualized setting, in accordance with an individual treatment plan for the resident which is developed by his treatment team. Additional services are provided to residents through contracts with outside physicians. A Levels System is followed which allows each resident to move up the Levels and gain increased privileges as the resident improves his behavior. Manatee Palms is extensively involved with the community through clinical workshops, the District VI Severely Emotionally Disturbed Network, Advisory Councils, counseling sessions for adolescents who are not in need of psychiatric care but are in need of counseling, and drug screening services which are provided at no charge. The facility's stated goal is to provide services that will enable program participants to return to their communities under less restrictive treatment requirements as soon as possible. The average length of stay is approximately 61 days in the dual diagnosis unit, and approximately 147 days in the psychiatric unit. Combining both units, the average length of stay at the facility is approximately 120 days. Admissions are accepted from mental health and social service agencies, schools, hospitals, and private practitioners. Patients are admitted upon the order of a psychiatrist/physician. Manatee Palms has three psychiatrists on staff and other non-psychiatric physicians providing services at the facility, include family physicians, a podiatrist, gynecologist, optometrist, podiatrist, as well as several dentists. The clinical staff to patient ration is approximately 1.25 to 1.0, and the overall staff to patient ratio is 1.8 to 1.0. The facility experienced an 86.8% occupancy from its opening in January, 1987, through April 30, 1988. At the time of its omissions response in June, 1987, its occupancy was 85.5%. Occupancy for 1989 is projected to be 89- 90%. Approximately 25% of the patients treated at Manatee Palms reside within District VI, while the rest reside in other Districts, or out of state. Manatee Palms has a contract with the Department to treat "chronically disturbed" adolescents, who have long term problems and have been treated in multiple settings before their admission to Manatee Palms. These patients generally require a longer average length of stay, and although they comprises half of all admissions in 1987, they now represent about 35% of the patients at Manatee Palms. The facility is committed to serving the same number of patients under its contract with the Department for the next two year, even with a CON. The gross charge per patient day at Manatee Palms is $255.00, which includes room, board and nursing, and ancillary charges are about $12.00 per day. The average gross patient charge per admission is $45,000. Rates for patients admitted under the contract for services with the Department are reduced to $185.00 per day, including ancillary charges, and this is below actual costs. Payor classes include insurance patients, private pay patients, and patients admitted under the contract with the Department. The number of insurance companies providing reimbursement for private pay patients has substantially increased since 1987, and there are approximately 40 insurance companies that have provided coverage for patients at Manatee Palms. Non-Rule Policy for IRTP The Department has no rule governing the approval of IRTP applications for a CON. Since February, 1987, the Department followed a non-rule policy which presumed there is a need for at least one licensed IRTP of reasonable size in each Departmental service district, and which did not consider the existence of unlicensed residential treatment beds in a district in determining if the presumed need had been met. Nothing in the record of this proceeding serves to explicate any rational basis for this non-rule policy based upon health planning concerns, considerations, or any other factors. The stated non-rule policy, therefore, provides no guidance for review of the application at issue in this case. FRTC received a Final Order of the Department in February, 1988, granting it a CON for a new IRTP to be located in Manatee County. Therefore, Manatee Palms is seeking licensure for the second IRTP in District VI. It is, however, an existing facility which does not seek to add new beds or provide new services at its facility, but seeks to change the status of its existing beds to "hospital" beds through licensure. In order to be licensed as a "specialty hospital", a facility must first receive a CON. The stated non-rule policy of the Department provides no guidance for review of the application at issue in this case, since even had it been explicated on the record of this proceeding, it does not apply to the review of a second IRTP application in a service district. Need and Consistency with State and Local Health Plans The Florida State Health Plan sets forth several relevant goals, including: encouraging the availability of the least restrictive treatment setting for all residents in need of mental health services; developing a continuum of services for mental health and substance abuse treatment, and a complete range of public mental health services in each service district; promoting third party reimbursement for non-hospital settings; and developing a network of residential treatment settings for severely emotionally disturbed children. The District VI Local Health Plan also encourages the use of the least restrictive and most cost effective treatment settings. No specific goals are identified in the Local Plan for residential treatment programs. The Manatee Palms application is consistent with these relevant portions of the State and Local Health Plans. It would increase access for patients with a dual diagnosis of both psychiatric and substance abuse problems, and would thereby encourage treatment in a facility with a shorter average length of stay than an acute inpatient hospital. It provides a less costly alternative to hospitalization. Manatee Palms accepts patients through a service contract with the Department, and thereby assists the development of a complete range of public mental health services. Insofar as approval of this application will increase the level of commercial insurance reimbursement for services at Manatee Palms, it will thereby improve the financial viability of the facility, and allow it to continue to serve patients under its contract with the Department, which currently does not allow for the recovery of actual costs associated with those services. Approval of this application will insure that Manatee Palms, which accepts publicly financed patients, will be able to compete on an equal basis with FRTC, which has made no commitment to serve patients under a service agreement with the Department. A numeric need methodology for IRTPs is not set forth by rule or incipient policy of the Department. For this reason, Manatee Palms presented three analyses to establish the need for this facility. First, competent substantial evidence was presented that referral sources and other knowledgeable individuals in the community believe that Manatee Palms does fill an existing gap in services by providing long-term psychiatric and substance abuse services locally to adolescents who require this level of treatment, and that the facility has a very good reputation in the community, with extensive involvement in the community. Second, a bed-to-population ratio analysis was performed, and established that if Manatee Palms' application is approved, the ratio of beds to population would be .32 beds per thousand for the 0-17 age group in District VI, even allowing for the already approved FRTC beds. This ratio analysis was adopted by the Department in its Final Order issued in February, 1988, granting FRTC a CON for an IRTP in Manatee County, and in that case 1991 population projections were used by the Department. Since this application was filed later than the FRTC application, 1992 population projections have been used to arrive at the .32 beds per population ratio. Thus, the same five year population projection has been used in this case, for purposes of this bed-to-population ratio analysis, as was applied by the Department in the FRTC case. This would be well within the range of bed-to-population ratios for areas with the existing IRTPs which is from .07 to 1.33 beds per thousand population for ages 0-17. This ratio analysis was adopted by the Department as a method to establish need in IRTP cases subsequent to the Manatee Palms application being deemed complete. The utilization and adoption of this methodology in the FRTC case was not within the control of Manatee Palms, and there was no way this could have been foreseen when it filed this application. It is, therefore, appropriate and necessary for Manatee Palms to address, and rely upon, this subsequently adopted methodology at hearing, although it was not addressed in its application. Third, the services which are offered at Manatee Palms were distinguished from those to be offered at FRTC to establish that a different type of patient would be treated FRTC than is currently treated at Manatee Palms, and that, therefore, existing occupancy rates would not be reduced at Manatee Palms due to the FRTC facility. Specifically, it was shown that the proposed average length of stay at FRTC would be three times longer than the actual average length of stay at Manatee Palms, and FRTC does not propose to serve substance abuse patients or provide services to publicly financed patients under a contract with the Department, both of which comprise a significant portion of Manatee Palms' patient census. Manatee Palms could not have addressed the FRTC facility when its application was filed since the FRTC CON was not issued until February, 1988. It is, therefore, appropriate for this to be addressed for the first time at hearing since it is a fact not under the control of Manatee Palms which has developed subsequent to this application being deemed complete. The need for this facility is also evidenced by the rapid increase in actual utilization rates since it opened in January, 1987, and by testimony from local support witnesses from the school system and local law enforcement. Since the primary and secondary service areas of Manatee Palms extend beyond District VI to include the entire state, as well as service to out-of- state residents, the fact that FRTC will serve primarily the residents of Manatee County will not substantially reduce the need which Manatee Palms is meeting in its existing services area. Accessibility to All Residents The clear purpose of this application is to enable Manatee Palms, an existing facility, to become licensed as a hospital under Section 395.002, Florida Statutes, and thereby enable it to be called a "hospital". If a facility is licensed as a hospital, it has a significant advantage for reimbursement from third parties who more readily reimburse for care in a licensed facility than in an unlicensed residential treatment center. Therefore, accessibility is increased for those children and adolescents in need of treatment whose families have insurance coverage, since it is more likely that payments under such third party coverage will be made at an IRTP licensed as a "hospital" than otherwise. Since it has already been in operation for a year and a half, and has developed an excellent reputation in the community and among insurance carriers, the number of insurance companies willing to reimburse for services at Manatee Palms has increased over that time to approximately 40, and by early 1988, almost 52% of Manatee Palms' patients had commercial insurance coverage. There is evidence, however, that additional carriers would be willing to reimburse for services at this facility if it were to be licensed. An increase in the number of third party carriers willing to reimburse for treatment at Manatee Palms will promote and improve the financial viability and stability of the facility, and result in an increased number of Florida residents receiving treatment at the facility, with a similar reduction in out- of-state patients being treated at Manatee Palms. This, in turn, will inure to the benefit of publicly financed patients served at this facility under its contract with the Department by assuring the continued operation of the facility. As a result, this application increases accessibility to treatment for such patients, particularly since the facility has committed to serve the same number of these patients for the next two years, even with a CON. Quality of Care The applicant has clearly demonstrated that it has been providing quality care in its existing facility, and that it will continue to do so if it receives the CON, and is licensed as a "specialty hospital". In fact, licensure will require the applicant to meet more stringent standards than those under which it is currently operating. Manatee Palms performs extensive pre-admission screenings, and develops treatment plans for each patient early in their course of treatment. The patient's treatment team continues to monitor progress under the treatment plan, and to make revisions in the plan, when necessary. Treatment is provided seven days a week, and includes an extensive educational component. Family involvement in treatment is maximized, and discharge planning begins upon admission. The goal of treatment is return of the resident to the community as quickly as possible. Availability and Adequacy of Alternatives The approval of this application would increase the availability and accessibility of residential treatment services to patients with dual diagnoses, publicly financed patients, and those who may be treated in a shorter period of time. Although a CON for FRTC has already been approved, that facility will not serve the same types of patients as are presently served at Manatee Palms, as previously noted above. The average length of stay at FRTC will be one year, while at Manatee Palms it is 120 days. Additionally, the service area of FRTC will comprise District VI, while Manatee Palms has a far broader service area. Manatee Palms is an existing facility serving patients in need of the treatment rendered. It is meeting an existing need which cannot be met through other existing or approved facilities. Availability of Resources Since Manatee Palms is an existing facility which has been in operation since January, 1987, and has achieved an excellent reputation in the community, as well as almost 87% occupancy, there is no question that it has sufficient available resources, including health manpower and management personnel, to continue its operation. The applicant proposes no additional beds or services with this application. Services Accessible In Adjoining Areas There are no licensed IRTPs in adjoining Districts V or VIII. Manatee Palms has served patients from these adjoining areas, as well as from throughout the state. There are no viable options in adjoining districts for District VI residents in need of the types of services Manatee Palms renders. The granting of this CON, and subsequent licensure, will improve Manatee Palms' ability to continue to render these services. Financial Feasibility David J. Rabb, an expert in the financial feasibility of medical facilities, prepared pro formas for 1989 and 1990 based upon the issuance of this CON, which show net revenues of $80,000 in 1989 and $106,000 in 1990. This represents a fair after tax profit each year, and establishes the financial feasibility of the project. These pro formas represent updates of pro formas contained in the application, and are admissible in this de novo hearing since they are based upon actual operating experience which was not available when this application was filed, and reflect economic conditions and rates of inflation not within the control of the applicant. Reasonable assumptions were used by Rabb in preparing his pro formas. He assumed 89.6% occupancy in 1989 and 90% in 1990. Patient revenues were reasonably projected at $286 in 1989 and $303 in 1990. Utilization by payor class was projected for 1989 to be: 52% commercial payor, 34% HRS patients, 7% Blue Cross, 4% Champus, 2% out-of-state, and 1% self pay. For 1990, it was assumed the facility would no longer serve out-of-state patients, and therefore the commercial pay patients were increased to 54% in 1990, out-of-state patients were eliminated, and all other payor classes remained the same. Rabb's expense projections for 1989 and 1990 were also reasonable. Based upon a study performed by Rabb of the impact of licensure upon the financial position of Manatee Palms, it is established that hospital licensure would improve the financial position of the facility. Jay Cushman, who was presented by MMH and was accepted as an expert in health planning and financial feasibility, concurred that licensure will enhance commercial pay patients beyond the level possible without licensure, and that this in turn will improve the financial viability of the facility. Liz Dudek, the Department's health facilities consultants' supervisor and an expert in health planning, confirmed that it is the Department's position that licensure as an IRTP increases accessibility to patients because of the increased likelihood of insurance reimbursement. Impact on Costs and Competition Competition among health care facilities serves to enhance quality of care and to assure cost effectiveness in the delivery of services. Since FRTC has already received a CON as the first IRTP to seek licensure in District VI, granting this application will allow Manatee Palms to compete equally with FRTC by also being able to obtain a licensure as a "specialty hospital". This should have a positive effect on the quality of care and cost effectiveness of both facilities. Since no new construction or services are to be offered at Manatee Palms as a result of this application, and since it has an established room rate structure which is already in place, and which was used for projections in the pro formas, the approval of this application will have a minimal, if any, impact on any increased costs for the delivery of health care. It was not established by competent substantial evidence that either MMH and FRTC would be injured or negatively impacted by the approval of this application. Actual patient days and average daily census at MMH's adolescent unit have gone up since Manatee Palms opened. MMH maintains, however, that since its patient mix has changed during this time to reflect a decrease in commercial pay patients and an increase in Medicaid patients, it is being adversely affected, despite the increase in gross patient numbers. However, the increase in Medicaid patients which MMH has experienced cannot be attributed to Manatee Palms. MMH is the only Medicaid approved hospital in the area, and Manatee Palms will not be able to accept Medicaid patients, with or without a CON and licensure. Therefore, approval of this CON will have no effect upon the level of Medicaid admissions experienced at MMH. There is evidence that the decrease in commercial pay patients at MMH is due to physician admitting practices, rather than the opening of Manatee Palms. Specifically, Dr. Howard Goldman, is on staff of both MMH and Sarasota Palms, but not Manatee Palms. Dr. Goldman has been admitting most of his commercial pay patients to Sarasota Palms and Medicaid patients to MMH. MMH presented the testimony of Jay Cushman, who was accepted as an expert in health planning and financial feasibility, concerning the impact which approval of this application would have on MMH. Cushman estimated that MMH will loose a total of ten patients, or 1.2 patients per day, if Manatee Palms receives a CON, and he further stated that other patients would not be available to fill this gap. At the same time, however, he testified that MMH is presently seeking a CON for additional psychiatric beds, even though it was fully aware of FRTC and Manatee Palms' applications when its application was filed. MMH's application is for six short term adolescent beds, ten long term, and eleven substance abuse beds. Despite being fully aware of FRTC and Manatee Palms, Cushman supported MMH's application for 27 new beds, and yet testified in this proceeding that no patients would be available to make up for patients MMH might lose to Manatee Palms. Due to this obvious and unexplained contradiction, Cushman's testimony is discredited, and his credibility impaired. Accordingly, this testimony has been given little weight. On the basis of Cushman's analysis, Eric Long, an expert in hospital finance, estimated the financial impact to MMH of this patient loss projected by Cushman. Since the Cushman testimony has been given little weight, Long's impact analysis is also discredited. Long simply took Cushman's figures of patient loss and translated them into a dollar impact, but made no independent analysis of patient loss. Since his starting point was faulty, his analysis is faulty. FRTC did not show any adverse impact on its facility as a result of CON approval and licensure of Manatee Palms. Because of the difference in the services to be provided, the average length of stay, and service areas of the two facilities, FRTC and Manatee Palms are not in direct competition for every patient. To the extent there is competition, however, this should have a positive effect on the delivery services in District VI. Services To Indigents Manatee Palms is not eligible to accept Medicaid patients, but it does serve the medically indigent through a service contract with the Department. Licensure will enhance the applicant's ability to continue to serve the medically indigent under this contract with the Department. Although the percentage of HRS patients at Manatee Palms has decreased in 1988, there is no evidence that Manatee Palms has every turned an HRS patient away in favor of a commercial pay patient. While occupancy has been almost 87%, there are still beds available at Manatee Palms, and therefore, there has been no need to turn any patients away since beds are available. The facility is dedicated to continue its current level of commitment to serve publicly financed patients under a service contract with the Department for the next two years if this CON is approved.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order approving Manatee Palms' application for CON 5148. DONE and ENTERED this 29th day of September, 1988, in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX (DOAH Case Number 87-4731) For purposes of this Appendix, the following abbreviations shall be used: "A" means Adopted, "R" means Rejected, and "fof" means finding of fact contained in this recommended order. Rulings 1. on R Manatee Palms' Proposed Findings of Fact: as a statement of position rather than a fof. 2. A fof 1. 3. A fof 2. 4. A fof 4. 5. A fof 3. 6. A fof 6,7. 7-8. R as unnecessary, and as simply a statement of position. 9. A fof 8. 10. A fof 9. 11. A fof 5. 12. A fof 10. 13. A fof 11. 14. R as irrelevant. 15-16. A fof 14. 17-18. A fof 15. 19. A fof 12. 20. A fof 13. 21. A fof 15. 22. A fof 17. 23. A fof 17, 29, 30. 24. A fof 18, 19. 25. A fof 28, 30, 39. 26-28. A fof 20. 29-30. A fof 21. 31. A fof 25. 32. R as a conclusion of law rather than a fof. 33. A fof 22, 23. 34. A fof 24. 35-39. A fof 22, 24. 40. A fof 23, 24. 41. A fof 24. 42. A fof 25. 43-44. A fof 28. 45-46. A fof 25. 47-48. A fof 26. 49. A fof 28, 29, 30. 50. R as simply a statement of position and argument on the evidence rather than a fof. 51. A fof 30, 39. 52-53. R as unnecessary. 54-56. A fof 33, 34. R as a conclusion of law and not a fof. A fof 31. R as not based upon competent substantial evidence. 60. A fof 31. 61. A fof 32. 62. A fof 31, 32. 63-64. A fof 31. 65-66. A fof 33, 34. 67-68. A fof 36. 69-70. A fof 35. 71-72. A fof 37. 73. A fof 38. 74. A fof 39. 75. A fof 28, 39. 76-77. A fof 9, 27, 33. 78-81. A fof 40, 41. 82-25. A fof 48-50. 86-88. R as irrelevant and unnecessary. 89. A fof 42. 90-92. A fof 43. 93. R as unnecessary. 94. A fof 44. 95-97. A fof 45. 98-100. A fof 46. 101. A fof 47. Rulings on the Department's Proposed Findings of Fact: 1. A fof 1. 2. A fof 6. 3. A fof 5. 4-6. A fof 17, 18. 7-8. R fof 38. 9. A fof 29. 10. A fof 17. 11. A fof 16. 12. A fof 30. 13. A fof 4. 14. A fof 3, but otherwise R as speculative. 15-18. R fof 25, 33, 34, and as irrelevant and not based upon competent substantial evidence. 19. A in part fof 20, but otherwise R as a conclusion of law rather than a fof. 20. R fof 24, 25, 30, 39, 48. A fof 20. R as unnecessary and irrelevant. R fof 25. R as unnecessary and irrelevant. 25. A fof 9, 16. A in part in fof 4, but otherwise R as irrelevant. R fof 7. A fof 7. R as a conclusion of law rather than a fof. Rulings on MMH's Proposed Findings of Fact: A fof 1. A fof 4. A fof 3. A fof 2. A fof 1. A fof 5. 7-8. A fof 6. A fof 16. R as unnecessary and irrelevant. A fof 7. R as unnecessary and irrelevant. A fof 7. A fof 8. A fof 10. 16. A fof 11, 12. 17. A fof 12. 18. A fof 15. 19. A fof 11. 20. A fof 14. 21. A fof 14, 16. 22-23. A fof 16. 24-26. A fof 17. 27. A fof 19. 28. A fof 18. 29. R fof 17, 30, 38. 30. A fof 17, but also R in part fof 17, 30, 50. 31. A fof 20. 32-34. R as a conclusion of law rather than a fof. 35. R as simply a statement of position and not a fof. 36-37. A fof 20. A and R in part fof 21. R fof 21. R fof 25. A in part fof 17, but otherwise R fof 17, 30, 50. R as simply a statement of position and not a fof. A fof 25. 44. R fof 25, 26. R fof 20. A fof 25. A fof 27. R as a conclusion of law and not a fof, and otherwise without citation to the record. R fof 25, and as argument on the evidence without citation to the record rather than a fof. R as simply an excerpt of testimony and not a fof. 51-52. A and R in part in fof 25. 53. R as argument on the evidence without citation to the record rather than a fof. 54-55. R fof 28, 29, and otherwise as irrelevant. 56. A fof 22, 24. A fof 22. R fof 22. 59-60. R fof 24. 61. R fof 23, 24. 62-63. A in part fof 16, but otherwise R fof 25, 26, 28, 29. 64. R fof 30, 48, 50. 65. R as simply a statement of position and not a fof. 66. R fofo 30, 50. R as irrelevant and not based on competent substantial evidence. A and R fof 27. R as simply a statement of position and not a fof. 70. R fof 30, 50. 71. A fof 18, 30, but R fof 30, 50. A and R fof 30, 48. R as a conclusion of law and not a fof. A fof 9, 16, but R fof 25-29. 75-80. R fof 31, 32, 35, and otherwise as irrelevant and not based on competent substantial evidence. A fof 37. R as simply a statement of procedural matters and not a fof. 83-85. A and R fof 37, and otherwise R as irrelevant. R fof 37. R as irrelevant. R as simply a statement of position and not a fof. A fof 3. R fof 45. R fof 44. R fof 46. 93-94. R as irrelevant and not based on competent substantial evidence. Rulings on FRTC's Proposed Findings of Fact: 1-4. R as unnecessary preliminary matters. 5. A fof 1, 5. 6. A fof 8. 7-9. A fof 9, 16. 10. A fof 17, 48. 11. R as irrelevant and unnecessary. 12. A fof 16. 13. A fof 14. 14. A fof 6. 15. A fof 28. 16. A fof 26, 28, but R fof 25. 17. A fof 7. 18. A fof 3, 7. 19. A fof 4, 7. 20-23. R as unnecessary and not a fof. 24. A fof 30. 25. R fof 28, 30, 48. 26. A fof 19, 29. 27-28. A fof 38. A fof 29. R as irrelevant and as argument on the evidence rather than a fof. R fof 49 and as not based on competent substantial evidence. A in part fof 29, but otherwise R fof 28, 39. R as irrelevant and unnecessary. R fof 28, 39, and otherwise as irrelevant and unnecessary. R fof 49. A fof 38. 37-38. R fof 33, 34. 39-40. R fof 25, 27, 33. 41. R fof 25, 27, 33, 34. A in part fof 20, but otherwise R as simply an argument on the evidence and not a fof. R fof 20, 21, and as not based on competent substantial evidence. 44-45. A in part fof 33, but R fof 34 and as irrelevant and unnecesasary. 46. A fof 25, 33. A in part fof 25, 33, but otherwise R as argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. A fof 17, 30, but otherwise R as unsupported argument on the evidence and not a fof. R as speculative and not based on competent substantial evidence. 51. R fof 40, 47. 52. R as unnecessary and cumulative. COPIES FURNISHED: Michael J. Cherniga, Esquire P. O. Drawer 1838 Tallahassee, Florida 32302 Michael J. Glazer, Esquire R. Stan Peeler, Esquire P. O. Box 391 Tallahassee, Florida 32302 John T. Brennan, Jr., Esquire 900-17th Street, N.W. Suite 600 Washington, D. C. 20006 Jean Laramore, Esquire P. O. Box 11068 Tallahassee, Florida 32301 Stephen M. Presnell, Esquire O. Box 82 Tallahassee, Florida 32302 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.
The Issue Whether the Buntins and the Stovalls should receive an after-the-fact coastal construction control line (CCCL) permit to allow a sand-filled HESCO Basket System constructed in the aftermath of Hurricane Dennis in 2005 and that is now primarily a vegetated dune to remain as a permanent structure in Walton County?
Findings Of Fact Sea Turtle Nesting Habitat on a Hurricane-battered Coast Along the northernmost reaches of the Gulf of Mexico, roughly in the center of the Florida Panhandle coast, the beaches and shores of Walton County have been subject to the many vicissitudes of coastal climate over the years. So have marine turtles, several species of which have relied through the ages on Florida beaches and shores, including those in Walton County for nesting habitat. Survivors of shifting circumstances brought by weather, sea turtles are now imperiled by exposure to man-made dangers. Anthropogenic turtle hazards on populated beaches are numerous and, without educational efforts of the Department and the Commission, not likely to be recognized by beach-goers interested in the enjoyment of surf and sun. Folding beach chairs and canopies, board walks designed to protect the dune system, and other seemingly-harmless by- products of human beach activity, even holes dug by children building sand castles, can contribute to sea turtle injury and cause sea turtle fatality. While sea turtles in recent times have made their way across the Walton County beach toward their nests through obstacles set up by human beings and hatchlings have scurried toward the sea through these same impediments, owners of beachfront property have had to contend with powerful tropical storms, particularly in the relatively recent past. Especially damaging to property along the Walton County Coastline have been three hurricanes that hit in the span of a decade: Opal in 1995, Ivan in 2004 and Dennis in 2005. The intense storm surge of Hurricane Opal destroyed much of the dune system along the stretch of Seagrove Beach in Walton County that is the subject of the aerial photography introduced into evidence in this case. Ivan, which made landfall just west of Gulf Shores, Alabama, as a Category 3 Hurricane on September 16, 2004, caused heavy damage to the Walton County coastline and areas west. Of the three, though, the damage done by Dennis is the sine qua non of this proceeding brought by Petitioners to preserve and protect their property. The Stovall and Buntin Property When Hurricane Dennis hit, the Stovalls had owned the property located at 711 Eastern Lake Road, Santa Rosa Beach, Walton County, for some time. Purchased by both Mr. and Mrs. Stovall and in both their names at the time the petition was filed, by the time of hearing, the property had been transferred into Mrs. Stovall's name only. The Stovalls bought the lot around 1997 give or take a year. "[T]he house itself is about 11 years old," tr. 17, built in 1998 or thereabouts. Seaward of the CCCL established on December 29, 1982, construction of the house required a CCCL permit from the Department. In the words of Mr. Stovall, the permitting process required "hundreds of hoops to jump through." Tr. 18. The lot had been in foreclosure and the permit was obtained through the services of a reputable architectural firm. The house, therefore, was designed and constructed to survive a major hurricane, a requirement of the permit. The house was built on pilings sturdy enough to support the house in the event of a major hurricane. High enough to allow the bottom floor of the house to be above storm surge, the pilings' height and house elevation also allowed ample parking for vehicles beneath the house. At the time the Stovall house was built, despite the damage done by Opal, there remained a good natural dune system seaward of the house, one that was "beautiful . . . wonderful," tr. 19, in the words of Mr. Stovall. After the house was constructed, Mrs. Stovall took particular pleasure in the dune system and worked to preserve and cultivate sea oats in its support. She also was thrilled by the presence of two turtle nests not long after the purchase of the lot, one nest found in 1998 and the other discovered on July 22, 1999. After the discoveries, Sharon Maxwell, the County- authorized "local turtle coordinator," tr. 295, and "the only person in the County permitted to touch . . . turtles," tr. 296 was contacted. Ms. Maxwell measured the nests from points related to the Stovall house. They were at least 20 feet seaward of the toe of the most seaward dune. Because the nests were on a busy stretch of the beach, protective measures were implemented. Among the protective measures were actions by Mrs. Stovall. In addition to working with the local turtle coordinator, Mrs. Stovall became involved in circulation of information to neighbors about sea turtle conservation. She was part of an effort to encourage the information to be placed in rental units in the neighborhood. The information recommended turning out lights on the beach that interfered with turtle nesting, "brought out the importance of a single . . . beach chair [that] can misdirect and kill over hundreds of endangered hatchlings . . . [and] umbrellas . . . left overnight [that] can interfere with nesting." Tr. 293. She called local government commissioners and attended commission meetings where she advocated beach removal of items hazardous to sea turtles, their nests and their offspring. Her efforts have extended off-shore as well. As a scuba diver, she learned how to respect sea turtles and their marine habitat and "encouraged others to stay away and not harass the turtles, which many divers do." Tr. 195. The Buntin property, located at 701 Eastern Lake Drive, is adjacent to the Stovall property on the east side. Owned by the Buntins since 1990, the house on the lot was built in 1991 or early 1992. Like the Stovall house, the Buntin house is seaward of the CCCL and built to withstand the forces of major tropical storms. The Buntins, similar to the Stovalls, care about the beaches and shores of Walton County and particularly the beach adjacent to their property. Their intent with regard to the coastal environment is to protect it. There have been times over the past two decades when the Buntins greatly enjoyed their property. Their relationship to it, however, has changed. As Mr. Buntin put it at hearing, "[I]t's a situation we put ourselves in [but] I wish we didn't have any beach property. And I imagine there's a lot of other folks that wish that, too,. . ." Tr. 54. A major factor in Mr. Buntin's change-of-attitude is damage done by Hurricane Dennis. Hurricane Dennis Hurricane Dennis made landfall near Navarre Beach not far west of the Stovall and Buntin Properties on July 10, 2005, having struck the tip of peninsular Florida the day before. Classified according to the Saffir-Simpson Scale as a Category 4 Hurricane at moments in its journey through the Caribbean and the Gulf of Mexico, it came ashore in the northern Gulf as a Category 3 hurricane. Some of the worst damage it caused was along the panhandle coast. One of its damaging effects was enormous erosion of the beaches and shores along the coastline where the Stovall and Buntin property is located. That stretch of beach remains classified as a "critically eroding beach." After the storm, there was nothing left of the dunes seaward of the Stovall and Buntin houses. The Stovall house, itself, was not structurally damaged; there was not "a crack in the Sheetrock. The house stood solid." Tr. 30. It had lost its bottom deck and the deck on its western side but true to the CCCL permitting criteria, the house, perched on pilings about the storm surge, had also withstood the Category 3 force winds of the hurricane. Dennis had caused more damage to the property, however, than just the loss of a few decks. It had eroded the beach as far up as landward of the Stovall's house. At hearing, Mr. Stovall described his first view of the property post-Dennis: [T]he water was lapping back . . . behind the house. And if anybody walked up to where it was, it would just cave in. I fully believed that if that storm would've gone on another two hours, it would have been in the man's house behind me[.] . . . [W]e had no access to the front door and one of the neighbors down the street brought in a ladder . . . It would have taken a 20 or 21-foot ladder to have gotten up to [the] first deck level . . . . Tr. 25. Without a ladder, the house was not accessible. Most pertinent to the Stovall's persistence in bringing this proceeding, there was nowhere to park their vehicles. The parking area under the house had been scoured out. The Buntin property likewise suffered the impact of the hurricane's scour. Mr. Buntin was contacted by a neighbor and told that the scouring under his house was so bad that the air-conditioners midway between the seaward and landward sides of the house were "hanging over a 20-foot drop-off." Tr. 45. Mr. Buntin did not give the report much credibility at first but, to his dismay, found it true when he visited the property shortly after the storm. Just as in the case of the Stovall property, a car could not be parked under the house in the space that had served as the parking area prior to Dennis. Half of a car could be parked under the house but the rest of the sand- based parking area was gone. In its place was a steep embankment that "dropped off 20 feet." Tr. 46. A Serious Parking Problem Eastern Lake Road runs roughly east-west just north of the Stovall and Buntin properties. The roadbed lies in a roadway and utility easement. Because of the easement, property owners along the roadway are not allowed to use it for permanent parking. The restriction includes the entire right-of-way that extends beyond the roadbed. As a combination of the easement and the parking restriction, under-story parking is the only permanent parking place that can serve the properties. Aware that their properties were seaward of the CCCL, the Stovalls and Buntins sought guidance as to how to re- establish parking for their beach front property. They turned both to local government and to DEP. DEP's Emergency Order On the same day that Hurricane Dennis hit South Florida (the day before it made landfall on the panhandle coast), the Department issued an Emergency Final Order (the "Emergency Final Order." Styled, In re: EMERGENCY AUTHORIZATION FOR REPAIRS, REPLACEMENT, RESTORATION AND CERTAIN OTHER MEASURES MADE NECESSARY BY HURRICANE DENNIS and dated July 9, 2005, the Emergency Final Order followed a declaration by Governor Jeb Bush of a state-wide emergency. By State of Florida Executive Order No. 05- 139, the Governor declared that a state of emergency exists throughout the State of Florida, based upon the serious threat to the public health, safety and welfare posed by the Hurricane. Department Exhibit 9, paragraph 2., at 1. The Department's Emergency Order, therefore, had state-wide application and applied to Walton County even though Dennis had not yet come ashore onto the panhandle coast. The Final Emergency Order made the following findings: The Department finds that the Hurricane has created a state of emergency threatening the public health, safety, welfare and property throughout the Emergency Area. As a result of the emergency, immediate action by Florida's citizens and government is necessary to repair, replace, and restore structures, equipment, surface water management systems, works, and operations damaged by the Hurricane. The Department finds that an emergency authorization is required to address the need for immediate action because the normal procedures for obtaining the necessary authorizations would not result in sufficiently timely action to address the emergency. The Department finds that immediate, strict compliance with the provisions of the statutes, rules, or orders noted within this Order would prevent, hinder, or delay necessary action in coping with the emergency, and that the actions authorized under this order are narrowly tailored to address the immediate need for action and are procedurally fair under the circumstances. Department Exhibit 9, at 2. With regard to "Coastal Construction Control Line Activities," Section 3., of the order was clear. It did not "authorize the construction of structures that did not exist prior to the emergency . . . ." Id. at 17. The Final Emergency Order contained a provision, however, that may have related directly to the predicament of the Stovalls and the Buntins. Paragraph 3.b., entitled "Activities Requiring Local Authorization," opens with an introductory statement with regard to certain activities and then lists those activities as follows: Local governments are authorized to issue permits in lieu of Department permits to private and public property owners for the activities listed below. * * * (4) Return of sand to the beach dune system which has been deposited upland by the Hurricanes. Id. (emphasis added). The activity of returning sand to the beach dune system is subject to a section of the Final Emergency Order dedicated to "General Conditions." Id. at paragraph 4., pp. 20- In addition to the requirement that the activities "be performed using appropriate best management practices" id. at 20, in accord with the Florida Land Development Manual, the General Conditions section contained explicit provisions with regard to sea turtles: The nature, timing, and sequence of construction activities authorized under this Order shall be conducted in such a manner as to provide protection to, and so as to not disturb . . . listed species and their habitat, including threatened or endangered sea turtles If activities under C.3 of this Order occur during the marine turtle nesting season (March 1 through October 31 in Brevard and Broward County, May 1 in all other coastal counties), such activities must be coordinated with the Florida Fish and Wildlife Conservation Commission's Imperiled Species Management Section to ensure that all activities comply with state and federal requirements for the protection of seat turtles, their nests, hatchlings, and nesting habitat. Nothing in this order authorizes the taking, attempted taking, pursuing, harassing, capturing or killing of any species (or the nests or eggs of any species) listed under Rule 68A-27 of the Florida Administrative Code or under the Federal Endangered Species Act. Id. at 21-22. Under Section D., "GENERAL PROVISIONS," of the Emergency Final Order, the order cautioned, "[u]nder no circumstances shall anything contained in this Order be construed to authorize the repair, replacement, or reconstruction of any type of unauthorized or illegal structure, habitable or otherwise." Id. at 27, 28. The Emergency Final Order declared its effectiveness for 60 days following its execution on July 9, 2005, by the Secretary of the Department. Expressly set to expire on September 7, 2005, therefore, it promised in the meantime, "to act on requests for field authorizations in a timely and expeditious manner." Id. at 28. The Field Permit True to its word, the Department issued a field permit to Mr. Stovall on August 16, 2005. See Department Exhibit 10. The project is described in the field permit as repair and replacement of wooden decks and "repair/replace understructure concrete/brick paver parking area to original condition." Id. The repairs included electrical, plumbing and HVAC work and replenishment of approximately 1800 yards of sand for foundation pilings. The permit stressed, "[n]o other activity is authorized." Id. And, as part of its special conditions, the permit listed, "all construction shall comply with attached marine turtle conditions." Id. In the attempt to return the understory parking to its original condition, simply replacing sand did not work. "[I]t became pretty obvious to us as we put the sand in there," Mr. Stovall testified at hearing, "the sand was running out." Tr. 31. The Buntins were experiencing much of the same difficulties. Mr. Buntin compared the situation right after the hurricane to four years later at the hearing: There was so much confusion going on . . . we are so far after the fact now [August of 2009]. It's kind of hard to put yourself back in the position we were in at the time [summer of 2005] because there were an awful lot of questions and very few answers. You would get referred . . . this is what the regulations say. Well, you read the regulation and it is left to interpretation . . . the written word is . . . wonderful, but if you've got three people reading it, it's kind of hard to figure out exactly what it means. Now [August of 2009], after the fact . . ., we [have] answers . . . we didn't have at the time. Tr. 51 (emphasis added). Mr. Buntin knew one thing for sure: placing sand under the house would not be enough, "you've got to have some way to keep it underneath . . . because you're going to have to build a parking pad on top of it." Tr. 47. Neither an expert in CCCL regulations nor a coastal engineer, Mr. Buntin had no doubt "[y]ou can't just pile up sand and park the car on sand." Tr. 48. Mr. Buntin knew that in a coastal environment the understory parking would require a base of sand and a means of retaining the sand base under the house. The answer to the quandary was presented by Mike Jones, a contractor hired initially by the Stovalls and eventually by the Buntins, too. Mr. Jones suggested a HESCO Basket System. The HESCO Basket System In the aftermath of the storm, it was difficult to get assistance from repair companies. Mr. Stovall described the difficulty at hearing: "That was a tough job because everybody along the beach had damage, too, and getting someone to even come out there and give you a bid on it was like pulling eye teeth." Tr. 30. Eventually, through his brother, Mr. Stovall learned about Michael Alan Jones ("Mike Jones"), a general contractor licensed in Georgia. Mr. Jones agreed to look at the property. At hearing, he recalled his initial assessment of the Stovall and Buntin repair jobs: [T]here was a crater below the residences. We had to use an extension ladder to gain access to the Stovall property and we had to use some unique engineering to be able to access Mr. Buntin's property. There was no place to park. I noted on the Stovall property that . . . a paver system . . . was used for his parking area and the end of Eastern Lake Road as well, and the majority of that system was either currently . . . in the ocean or was in various stages of disrepair. It was falling apart. It was sagging one foot, 18 inches in many areas. It appeared . . . unsafe. * * * Some of . . . the pressurized [water] lines had been broken. The drain lines that lead into the septic or the county sewer were broken . . . the same on both properties. The air conditioning units were hanging by the power cables [I'd guess] 15 to 20 feet in the air, which, of course, poses a serious threat to anybody that walks . . . underneath them when the cable . . . unhook[s] itself from whatever connector or breaks. I noted at Mr. Stovall's, the whole bottom level of his deck was missing. * * * Mr. Buntin's dune walkover and much of his deck were sagging and unsafe [with] pieces missing. There was no . . . foundation on which to place a vehicle or anything for that matter underneath . . . the houses. I also noted . . . several onlookers . . . were using the area underneath the Stovalls' and Buntins' houses to access the beach, which was, in my opinion, extremely unsafe . . . [because of] falling five pound bricks and air conditioners hanging and wood falling off the side of the house. Tr. 82-83. The "crater" under the houses was not just a parking problem. Before the necessary repairs could be started, the understory had to be shored up. In the meantime, efforts were made to keep "onlookers" from using the area under the houses but they were not completely successful. Every morning that Mr. Jones visited the site at the beginning of his efforts, there was evidence left behind by people under the house the night before. Mr. Jones was of the same opinion as the Stovalls and the Buntins. For replacement of sand to work, there had to be a system for retaining the sand under the house. For several weeks, he conducted research by traveling up and down the beach discussing the issue with other contractors. Ultimately, Mr. Jones reached the conclusion that "the least invasive, most efficient . . . , environmentally friendly" system was a HESCO Basket System. HESCO Baskets HESCO Baskets are wire-framed open cell structures. One cell consists of four flat panels of wires of the same gauge. The "top" of the cell or basket is completely open as is the "bottom." Each of the four sides consist of horizontal wire rods spaced equally apart and welded to four similar-sized rods in a vertical position to form a panel of squares framed by the rods but which are mostly open space. The fours sides are bound together by a coil of wire of a gauge identical to the wire used in the rest of the structure. Attached to the sides on the inside of the cells is felt-like material that is water- permeable. Two baskets are created by joining three wire panels to an existing basket. Only seven panels, therefore, are needed to create two baskets since one of the panels is shared. Used in military applications to create revetment structures to protect aircraft and personnel and in river settings for flood control in places as diverse as Alaska and the Middle East, HESCO baskets also have commercial applications. These were investigated by Mr. Jones as he talked to other contractors in the area. Ultimately, he viewed the process of installation of HESCO baskets locally, obtained a list of installers from a HESCO basket distributor and picked Robert Klemen, an installer who worked in the area of the Stovall and Buntin properties to hire as a subcontractor under his supervision. Before installation, however, a permit was required. Under the DEP Final Emergency Order authorizing local governments to issue permits for temporary emergency protection seaward of the CCCL, separate permits for the Stovall and Buntin properties were issued by Walton County. The Walton County Permits On October 28, 2005, Billy Bearden, Building Official for Walton County, issued two building permits to Robert Klemen. The first, Permit No. SW398Dennis, (the "County Stovall Permit") was for 711 Eastern Lake Dr., the Stovall Property. The second, SW400Dennis, (the "County Buntin Permit") was for 701 Eastern Lake Dr., the Buntin Property. The County Stovall Permit gives Mr. Kleman permission for "TEMP SEAWALL STABLILIZING BASKETS." Department Exhibit 8. Similarly, the County Buntin Permit gives Mr. Kleman permission for "TEMP Stabilizing BASKETS." Each permit recited that "[t]he Florida Department of Environmental Protection in Hurricane Dennis Emergency Final Order 05-1700 is attached," and warned that "[p]ursuant to the FDEP emergency order, care must be taken for the protection of sea turtles, their nests, hatchlings and nesting habitat." Department Exhibit 8, the 7th and 15th pages of fifteen un- numbered pages. The two permits also recited the following: All temporary retaining walls (or other types of beach armoring), permitted as an emergency measure as a result of Hurricane Dennis and Katrina, must be removed within 60 days of completion or applied to be permitted through DEP as a permanent structure. * * * For ease in monitoring and control, Walton County will consider all temporary restraining walls complete no later than October 28, 2005 and therefore must be removed within (sic) 60 days of completion or by December 27, 2005, whichever is sooner (unless complete application made to DEP). Department Exhibit 8 (emphasis added.) Each permit contained a drawing of the permitted activity. The County Stovall Permit drawing depicts a system consisting of three rows of baskets, two on bottom and one on top, that runs for 70 feet seaward of the Stovall House and then in an "L-fashion" 30 feet to the west of the house. The baskets are shown to be 3 feet wide each so that the bottom row is 6 feet wide. The height of each basket is depicted as 4 feet so that the height of the structure would be 8 feet. The drawing is consistent with the representation at hearing that each basket within the vegetated dune the structure now supports is 3 feet by 3 feet by 4 feet. The drawing also shows a connection to the Buntin system to be installed to the east. The County Buntin Permit shows the same type of structure with three rows of baskets, two on bottom and one on top. The structure extends 60 feet to the east of the Stovall structure seaward of the Buntin house. Prior to construction, it was made clear to Mr. Jones that the "system needed to be as much within the footprint of the house," tr. 93, as possible. The information was communicated from both county representative who conducted inspections and DEP representatives who "were around the property during the process of doing the beach walkovers, as well as the HESCO systems . . .". Id. The HESCO Basket System was not designed to meet coastal armoring standards. Nor was it designed to minimize impacts to sea turtles. Installation Pursuant to the County permits, the Hesco Basket Container Systems were installed on the Stovall and Buntin properties over the course of several weeks. The official CCCL location of the installation is approximately 285 to 399 feet east of DEP's reference monument R-93 in Walton County with a project address of 701 and 711 Eastern Lake Road, Santa Rosa Beach. The purpose of the installation of the man-made structures, consistent with their design, is to assist the retention of sand beneath the understory parking area of the two houses. As depicted on the permit drawings, the Stovall and Buntin systems were unified into one structure, that is, connected so that the structure ran without a break seaward of the Stovall and Buntin houses. During the construction process, Mr. Jones saw and conversed with several DEP representatives who were taking pictures along the beach. Although Mr. Jones "acted firmly in the belief that there would be no problem getting a permanent permit for [the HESCO] structure," tr. 96, he was never told by any DEP representatives, either on site or in phone conversations with Department employees in Tallahassee, that the structure would be permitted permanently by the Department. He was not told that such a permit application would be denied, either, he simply "was never able to get an actual answer . . .". Id. The structure on the Buntin property was constructed as depicted on the permit drawing. There were two rows installed on the bottom and one row on top for a total height of 8 feet. The structure installed on the Stovall property, however, was more elaborate than what was shown on the permit drawing. "[T]he Stovall property has three on the bottom, then two in the middle and then one on the top stacked pyramid style." Tr. 97. Twelve feet tall, the HESCO structure installed on the Stovall property was four feet higher than specified by the County permit. The structures were covered with sand in order to "rebuild the dune," tr. 109, in other words, the HESCO Baskets were installed in such a way as to serve as the core of a restored dune feature. The purpose of the installation was to provide a means of stabilizing the sand under the houses to restore the under-story parking. The installation was complete on November 4, 2005. The sand wall installed by Mr. Jones and his crew was then plugged with sea oats that were watered in the hope that their establishment would encourage the creation of a dune. A Vegetated Dune Pictures introduced into evidence reveal that the HESCO structure installed by the Stovalls and the Buntins, the sand installed on top and around it and the planting of the sea oats has resulted in a well-vegetated dune. As Mrs. Stovall put it at hearing, "y'all have got to admits that's the prettiest set of sea oats y'all [have] ever seen in your lives." Tr. 296. By the time of hearing, the dune had been maintained for nearly four years without any more sand imported by human hands. There has occurred, however, some exposure of wires of the HESCO system. A corner of one of the baskets in front of the Stovall house was exposed at the time of hearing and a picture introduced into evidence showed exposure of the top of several baskets in 2007. Mrs. Stovall expressed a desire to add more sand and ultimately to restore the dune to its pre-Opal status which "would add five-and-a half feet and make [the dune] level with the deck." Tr. 298. No sand has been added since the installation in November of 2005, however, because of the uncertain outcome of this proceeding. The exposure to date of the HESCO Baskets is in all likelihood the result of wind. Wave action, should it reach the system and be strong enough, will cause even more exposure. In fact, the HESCO Basket dune is not likely to be able to withstand wave action from 15 and 25-year return storms and a storms of such strength could expose the entire HESCO Basket structure leaving a jumble and tangle of wires on the beach. A recent series of aerial photographs from 2004 to 2007 show that the dune position to the west of the Buntin/Stovall property is approximately 30-to-50 feet further landward. The dune created by the HESCO baskets, therefore, is more seaward and more interactive with coastal processes than the dune to the west making the HESCO basket dune less likely to survive wave action than the dunes to its west. Nonetheless, as of the time of hearing, the system has maintained its integrity since installation. After the installation, the Stovalls and the Buntins were under no illusion that they had done all that was required in the way of governmental permitting. They knew that the County permits were good for only 60 days. They knew that they needed a CCCL permit from the Department if the structure were to achieve permanent permitting status. For that, they turned to their Qualified Representative in this proceedings, Ong-In Shin. Mr. Shin duly filed a CCCL permit application. The Application and Action by DEP On June 28, 2006, the Department received two applications for permits for construction seaward of the CCCL. Both were filed by Mr. Shin. One was filed on behalf of the Stovalls, the other on behalf of the Buntins. Section 4., of the applications, which called for "[a] brief description of the proposed work, activity or construction," contains the description: "Coastal Armoring." By letter dated July 11, 2006, the Department requested additional information related to the application. Among the eight separate requests was a request for a description of the proposed activity: "Please describe the work done at the subject property for which this After-the-Fact application has been submitted." Department Exhibit 7, at 80. In the notes of the request for additional information there appears the following: Please be advised that structures to be protected must be eligible and vulnerable as per Rule 62B-33.051, F.A.C. * * * Id. at 82. DEP has been notified by the Florid (sic) Fish and Wildlife Conservation Commission that Hesco box structures require an incidental take permit from the U.S. Fish and Wildlife service. The application was deemed incomplete a number of times and specific information was requested for it to be deemed complete. During the course of DEP's correspondence and additional submittals by Mr. Shin on behalf of the Stovalls and the Buntins, the Commission wrote to the Department on May 10, 2007, about its concern with regard to sea turtles. Based on Mr. Shin's representation that HESCO boxes are designed to collapse if subject to wave attack, Robin Trindell, Ph.D., wrote on behalf of the Commission to DEP, "Sea turtles attempting to nest or hatchlings in an area with HESCO containers could become entangled in these collapsible structures. Therefore, we do not recommend that these blocks be installed in sea turtle nesting habitat." Id. at 49. The application was deemed complete on August 30, 2007. On November 28, 2007, the Department issued a notice of denial that was received by Mr. Shin on December 4, 2007. While the HESCO Box System was found to meet applicable siting requirements, it was found to have failed to meet coastal armoring criteria related to eligibility, vulnerability, and design. Furthermore, the Department concluded that "the construction of the HESCO Box Container System does not meet the Department requirements for . . . absence of significant adverse impact to marine turtles." Id. at 9. A December 17, 2008, memorandum from Mr. Shin, received by the Department on December 24, 2007, put DEP on notice of his clients' intent to appeal the denial of the permit. The memorandum requested a 60-day extension of time to research the issues associated with the denial before beginning the "formal appeal process." Id. at 2. Mr. Shin filed the Petition for Formal Administrative Hearing with DEP on February 15, 2008. It initiated this proceeding at DOAH when the Department on February 29, 2008, requested assignment of an administrative law judge to conduct the proceedings. The issues in this case fall under two broad categories: Coastal Armoring and impacts to marine turtles. Coastal Armoring "Armoring" is defined by Florida Administrative Code Rule 59C-33.001(5): "Armoring" is a manmade structure designed to either prevent erosion of the upland property or protect eligible structures from the effects of coastal wave and current action. Armoring includes certain rigid coastal structures such as geotextile bags or tubes, seawalls, revetments, bulkheads, retaining walls, or similar structures but it does not include jetties, groins, or other construction whose purpose is to add sand to the beach and dune system, alter the natural coast currents or stabilize the mouths of inlets. (emphasis added). There is no question that the Stovall/Buntin Hesco Basket System is a manmade structure. Its purpose is to retain the sand under the Stovall and Buntin houses. At the same time, its construction resulted in sand added to the beach and dune system. One thing is clear: the HESCO Basket System is not conventional coastal armoring. Unlike "seawalls, revetments, bulkheads, retaining walls or similar structures" listed in the rule as examples of coastal armoring, the construction of the HESCO System led to a vegetated dune. Coastal armoring is closely regulated under Chapter 161 of the Florida Statutes by the Department and its Bureau of Beaches and Shores because that chapter is "all about protection of the beach dune system." Tr. 337. Coastal armoring usually contravenes such protection. "Coastal armoring does not protect the beach dune system. It's purpose . . . is to protect upland development." Id. While the purpose of the HESCO Basket System is to protect upland development unlike typical coastal armoring, it has added not only sand to the beach but has resulted in the creation and presence of a well-vegetated dune. Prior to 1995, "coastal armoring was only authorized as a last case possibility . . . ." Tr. 337-338. And it was only authorized when approval was given at the highest level of the state executive branch of government, the Governor and Cabinet. But the law was changed in 1995 in recognition that property owners have a right to protect their property. The Coastal Armoring Rule was amended to set up eligibility, vulnerability, siting and design criteria that would strike a reasonable balance between protection of the beach dune system and a property owner's right to protect his or her property. The law was amended again in 2006 to incorporate a new technology for dune restoration: geotextile systems. HESCO Basket Systems use in coastal armoring is also a new technology when it comes to Florida's beaches and shores. Use of HESCO baskets was described at hearing as "very new", tr. 344, relative to the time of the filing of Stovall and Buntin application. If the HESCO Basket System constructed on the Stovall and Buntin properties constitutes "armoring," then it must meet the requirements of Florida Administrative Code Rule 62B-33.051 which govern "Coastal Armoring and Related Structures" (the "Coastal Armoring Rule"). These requirements include conditions related to "eligibility", "vulnerability", and "design," some of the bases upon which the Department's denial of the after-the- fact permit rests. See Fla. Admin. Code R. 62B-33.0051(1)(a) and (2). Mr. McNeal's testimony established that the HESCO Basket System does not meet the "eligibility," "vulnerability," and "design," criteria for coastal armoring. But the Coastal Armoring Rule also encourages applicants for coastal armoring to "be aware that armoring may not be the only option for providing protection." Fla. Admin. Code R. 62B-33.0051(1). To that end, applicants for would-be armoring "are encouraged to evaluate other protection methods . . . such as dune restoration." Id. The HESCO Basket System installed by the Stovalls and Buntins follows the encouragement of the rule: it is a protection method that has resulted in dune restoration. CCCL Permit General Criteria Regardless of whether the HESCO Basket System and the vegetated dune it now supports constitutes coastal armoring, the structure on the Stovall and Buntin property must meet the General Criteria contained in Florida Administrative Code Rule 62B-33.005 for issuance of CCCL permits. Applications for those permits must be denied "for an activity which . . . would result in a significant adverse impact . . .". Fla. Admin. Code R. 62B-33.005(3)(a). Impact assessments conducted by the Department "shall include the anticipated effects of the construction on . . . marine turtles." Id. Marine Turtle Behavior Marine turtles spend most of their lives at sea often foraging hundreds of miles from their nesting habitat. Adult females migrate from feeding grounds and their foraging areas and aggregate off shore beginning in May of nesting season, generally from May through August. Off shore, the female turtles wait for nightfall to swim ashore and crawl landward in search of a spot to nest. Four species of marine turtles typically nest in Walton County: the Loggerhead, the green turtle, the Leatherback and Kemp's Ridley. Because the Loggerhead and green turtle are by far the most prevalent on Walton County beaches, the Commission focused on their specific behavior when it presented the testimony of Dr. Witherington. The mechanics of crawling differ between Loggerhead and green turtles. Loggerheads use an alternating gait while green turtles have simultaneous butterfly-style strokes. Both species drag the plastron or "belly shell" using all four flippers. Their crawls enable them to scale slopes and penetrate dune vegetation but they are not able to crawl backward. They are capable of crawling up a slope that is steeper than one to one. At a location between the recent high water mark, often observable by a wrack line (floating seaweed washed ashore) and the crest of the primary dune, the female selects a spot. The female creates a pit that she can slide her body into it. Loggerheads do so by scraping sand from the front with their front flippers and by gathering sand from beneath at the posterior to push it behind. This behavior referred to as "body pitting" tr. 474, results in a pit that the turtle eases into at a slight angle posterior end-downward at the deepest part of the pit. Green turtles have similar body-pitting behavior but it is more elaborate. "A green turtle will . . . blast the sand out in front of it, dig an enormous pit . . . two or more feet deep and create a very large mound." Tr. 475. Beneath the body pit, the turtle digs an egg chamber. For Loggerheads the depth of the egg chamber is "a little over two feet . . . say 26 inches or so," tr. 482 from the surface of the sand. For a green turtle, the depth is closer to 3 feet. On average, clutch size for a Loggerhead is 115 eggs. The range is from 70-to-170 eggs per clutch. Average clutch size for green turtles in Florida is roughly 128 with a range from 70 to 200. Turtles and the Stovall/Buntin Property Assuming no obstacles such as an exposed HESCO Basket, a sea turtle would have no trouble making its way to the crest of the HESCO Basket dune on the Stovall/Buntin property. The Stovall/Buntin dune supported by HESCO baskets is mostly vegetated with sea oats. There is Seaside Evening Primrose and some Beach Morning Glory, too. As long as the turtles are not interfered with by the HESCO baskets, a sea turtle would have no problem nesting amidst the vegetation on the Stoval/Buntin dune. Heavily eroded beaches do not discourage sea turtle nesting behaviors. But where sea turtles choose to nest on a heavily eroded beach is altered by the erosion. Dr. Witherington explained: [F]ollowing a severe erosion event, . . . [t]he beach tends to be flatter and in some cases broader and with escarpment from erosion that has occurred. And almost invariably following severe erosion events . . ., sea turtles aim for the high ground. In part, because that is the only dry sand remaining on the beach, . . . [a]nd they're choosing the safest sites on the beach to nest. Tr. 485. Thus, the erosion that has occurred on the Stovall/Buntin property is not likely to deter sea turtles from nesting there. Almost all of the area seaward of the Stovall and Buntin houses is nesting habitat, but if a sea turtle chooses to nest there, the most likely place is somewhere on the dune created by the HESCO Baskets. Threats to Sea Turtles Sea turtles encounter numerous threats, impediments and hazards when they are attempting to nest on beaches visited by human beings as much as the beaches of Walton County currently. Coastal armoring is commonly recognized as a threat to sea turtle nesting because it serves as a barrier to sea turtle nesting habitat -- precisely the opposite of the Stovall/Buntin HESCO Basket-supported dune which is an appealing place along a severely eroded beach in which to nest. Man-made debris is a threat to sea turtles. There are numerous types of debris: monofilament line is one example. Holes in the sand dug by beachgoers, beach furniture and walkways are either barriers or can cause entanglement that can lead to sea turtle injury or death. If a turtle gets up on a sea wall and falls, the fall can seriously injure the turtle or result in death. Artificial lighting is a particularly dangerous and prevalent threat. The lighting can disorient both nesting turtle and hatchlings causing them to move away from the ocean or gulf. Death can result from dehydration in the morning sun, wandering inland and falling prey to predators, or ending up on highways and being struck by cars. In addition, there are natural threats to sea turtles. A variety of predators dig into sea turtle nest for the eggs. The eggs may be swept away when the sediment around the clutch is washed away. Inundation, as well, if over too long a period can destroy the eggs. Exposed HESCO baskets are a threat to sea turtles and their hatchling in multiple ways. The ways in which they could injure or kill a turtle were described by Dr. Witherington: HESCO baskets accessible to sea turtles would act as a barrier to a sea turtle reaching an appropriate nesting habitat. An open HESCO basket . . . could act as a trap, . . . [for] turtles that might end up inside the top of the basket itself, and then there's an entanglement effect that would probably be of very little concern for HESCO baskets that were not exposed, but when they do become exposed, the entrapment effect would be much . . . larger . . . Tr. 502. Dr. Witherington also described three problems that could be posed by an exposed HESCO basket shown in a photograph taken on the Stovall property and attached to a Site Inspection Report date November 19, 2007. See Department Exhibit 16P, at 9. These were first, "the pitfall hazard," tr. 504, second, a vertical fall that the turtle might take from atop an exposed basket, and, third, entrapment. As for entrapment, Dr. Witherington opined, "it may look to many that the open HESCO baskets don't leave much opportunit[y] for the sea turtle to become entrapped, but one thing we learned is that sea turtles often make their own traps," id., when presented with situation similar to that of an exposed HESCO basket. There is another hazard to sea turtles posed by a HESCO basket if the baskets were buried beneath where a nesting turtle was digging its nest. If the turtle were to dig into the basket and strike it, it could cause the turtle to abandon the site and return to the sea. If the dune that the HESCO Baskets support were to be washed away in a storm and the basket structure were to fail, the debris left would be a "particularly pernicious tangle of wire and mesh that would very much have the potential to ensnare sea turtles." Tr. 507. A Sea Turtle Take In Dr. Witherington's opinion, HESCO baskets constitute significant habitat modification or degradation that could significantly impair the essential behavioral pattern of breeding. If HESCO baskets killed or injured a marine turtle, therefore, they would constitute a "Take," as defined by Section 373.2431(1)(c)2., Florida Statues: "'Take' means an act that actually kills or injures marine turtles, and includes significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering." "Any person . . . that illegally takes . . . any marine turtle species, or the eggs or nest of any marine turtle species . . . commits a third degree felony, punishable as provided [by law.]" § 379.2431(1)(e)5., Fla. Stat.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Coastal Construction Control Line Permit applied for by the Stovalls and Buntins be issued with the conditions listed in paragraph 110, above. DONE AND ENTERED this 30th day of November, 2009, 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 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, 2009. COPIES FURNISHED: Stanley M. Warden, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building, Room 108 620 South Meridian Street Tallahassee, Florida 32399-1600 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ong-In Shin Florida Coastal Development Consulting, Inc. 4654 East Highway 20 Niceville, Florida 32578 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Conclusions The Florida Fish and Wildlife Conservation Commission (“FWC” or ‘““Commission’) hereby enters the following Final Order. ISSUE AND SUMMARY The Commission issued a permit to Chris Johnson to conduct leatherback turtle research through the Loggerhead Marinelife Center, Inc. (hereinafter “LMC’”) in 2001 and has continuously reissued this permit. However, Chris Johnson’s employment with LMC was recently terminated. On January 22, 2014, the Commission issued Marine Turtle Permit #14-157A to Chris Johnson, Filed October 2, 2014 3:57 PM Division of Administrative Hearings authorizing him to conduct leatherback turtle research on Palm Beach County beaches, effective January 1, 2014. On December 20, 2013, the Commission issued a permit to Sarah Hirsch, Data Manager for LMC, to conduct marine turtle research on Palm Beach County beaches, effective January 1, 2014. On May 27, 2014, the Commission issued Marine Turtle Permit #14-211 to Dr. Charles Manire, who works for LCM, to conduct a subset of the same activities that Chris Johnson’s permit authorizes Chris Johnson to perform with leatherback turtles. On February 12, 2014, LMC filed a Request for Enlargement of Time to File Petition. On February 28, 2014, LMC filed a Petition for a Formal Administrative Hearing, and on April 25, 2014, LMC filed an Amended Petition for Formal Administrative Proceeding (hereinafter “LMC Petition”), challenging the issuance of Marine Turtle Permit #14-157A to Chris Johnson. The LMC Petition states that the activities Chris Johnson proposes to conduct under his permit are not in the public interest as his activities would interfere with the research LMC conducts under contract with Palm Beach County, and would duplicate research that LMC employees have conducted for more than 20 years on the same beaches. The LMC Petition states that Chris Johnson has demonstrated no need for his research. The LMC Petition disputes that Chris Johnson has the necessary permits or concurrence from the appropriate park management units to conduct the research and claims that Chris Johnson submitted materially false information in his application for a permit. The LMC Petition states that following his termination by LMC, Chris Johnson misappropriated LMC’s leatherback sea turtle data set to start his own organization, and that Section 379.2431, Florida Statutes, Chapter 68E-1, and Rule 68-1.010, Florida Administrative Code, require denial of the permit. LMC has filed a separate civil action against Chris Johnson alleging, among other things, the misappropriation of turtle data from LMC. The Commission transferred the case to the Florida Division of Administrative Hearings (DOAH) on April 17, 2014, which was assigned DOAH Case No. 14-001651. The permittee, Chris Johnson, filed a Motion to Intervene in the case on April 29, 2014, and was granted party status on April 30, 2014. On June 3, 2014, Chris Johnson filed a Petition for Formal Administrative Proceeding (hereinafter “Johnson Petition’’) challenging the issuance of Marine Turtle Permit #14-211 to Dr. Manire at LMC, The Johnson Petition primarily states that the application for this permit was an attempt to keep Chris Johnson from being able to conduct his research, that Dr. Manire’s permit interferes with Chris Johnson’s permit, that Dr. Manire does not have the requisite knowledge and skill to conduct the permitted activities, that the public’s interest is best served by having Chris Johnson conduct the research and that Section 379.2431, Florida Statutes, and Rules 68E- 1002(2), 68E-1.004(6) and (17), and Rule 68-1.010, Florida Administrative Code, require denial of the permit. On June 12, 2014, the permittees, Dr. Charles Manire and LMC, filed a Petition to Intervene, and were granted party status on June 19, 2014. This case was transferred to DOAH and assigned DOAH Case No. 14-002806. On June 23, 2014, this case was consolidated with LMC v. Chris Johnson and FWC, DOAH Case No. 14-001651, which was pending before DOAH. On July 22, 2014, Christopher Johnson filed a motion seeking sanctions, including attorney’s fees, On September 8, 2014, LMC, stating that the administrative action is negatively impacting LMC’s civil action and the turtle nesting season has passed, voluntarily dismissed its petition without prejudice, thereby withdrawing its challenge to the issuance of the permit to Chris Johnson. On September 8, 2014, Dr. Manire withdrew his application for a permit. As the substantive issues in the case were rendered moot by LMC’s dismissal of its petition and Dr. Manire’s withdrawal of his application, on September 11, 2014, DOAH relinquished jurisdiction over the permitting issues back to the Commission. However, DOAH retained jurisdiction over the issue of attorney’s fees. WHEREFORE, as LMC has voluntarily dismissed its Petition, thereby withdrawing its challenge to the issuance of Marine Turtle Permit #14-157 to Chris Johnson, the permit is hereby GRANTED. As LMC and Dr. Charles Manire have voluntarily withdrawn their application for the permit, the issuance of Marine Turtle Permit #14-211 to Dr. Charles Manire at LMC is hereby DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida this 30 day of September, 2014. t= Eric Sutton Assistant Executive Director Florida Fish and Wildlife Conservation Commission Filed with The Agency Clerk MULL, This 2 day of-September, 2014 LIFE Oe Sbtobe 7 enrol ATTEST: yy % ono Agency Clerk Cyriteeesanst CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER has been furnished by U.S. Mail to Rachael M. Bruce, 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Alfred Malefatto, Lewis Longman and Walker, P.A., 515 N. Flagler Dr Ste 1500, West Palm Beach, FL 33401-4327; Edwin A. Steinmeyer, Lewis Longman & Walker, 315 S. Calhoun St Ste 830, Tallahassee, FL 32301-1872; Frank Rainer, Broad and Cassel, PO Box 11300, Tallahassee, FL 32302-3300; and David ge Broad and Cassel, 2 S Biscayne Blvd Ste 21, Miami, FL 33131-1800, on this day “ane Copies furnished to: Ryan Smith Osborne (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Michael Yaun (via email) Florida Fish and Wildlife Conservation Commission Legal Office 620 South Meridian St. Tallahassee, FL. 32399 Florida Bar No. 956953 Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (850) 487-1764 NOTICE OF APPELLATE RIGHTS The foregoing constitutes final agency action in this matter. Any party adversely affected has the right to seek judicial review of this Final Order pursuant to section 120.68 Florida Statutes, and rule 9.030(b)(1)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Florida Fish and Wildlife Conservation Commission, Office of the General Counsel, and the appropriate District Court of Appeal within thirty (30) days of the date of that this Final Order is filed with the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the appropriate filing fee required by law.
Findings Of Fact Respondent is permitted by Petitioner to treat sick and injured wildlife under a wildlife rehabilitation permit, the latest and current permit being issued to Respondent on January 21, 1983. Respondent has been engaged in the business of treating sick and injured wildlife -- including both birds and mammals -- under permit from Petitioner for at least three (3) years. Petitioner issues wildlife rehabilitation permits to those persons demonstrating to Petitioner the degree of expertise in treating sick and injured wildlife necessary to assure safety to the treated animals. In addition, Petitioner monitors wildlife rehabilitation permittees to assure that sick and injured wildlife are treated humanely and caged in a safe and sanitary manner so as to protect the health and safety of the wildlife treated and the public. In order to monitor such permittees, periodic inspections of the premises where sick and injured wildlife is treated are made by Petitioner. In addition, Petitioner required such permittees to maintain records and to submit the same to Petitioner upon Petitioner's request. Wildlife rehabilitators are notified of this requirement through an informational packet provided them by Petitioner, which specifies that permittees must keep records of specimens cared for and submit reports of same to Petitioner upon request. The requirement that records be maintained and reported to the Petitioner upon request is applied to all of the one hundred (100) wildlife rehabilitators permitted by Petitioner. Examination of records is routinely requested by Petitioner when inspecting the premises where sick and injured wildlife is kept. On at least two occasions, Petitioner requested the production of records maintained by Respondent in connection with Petitioner's inspection of Respondent's wildlife rehabilitation facilities. On neither occasion did Respondent produce records for Petitioner's inspection. On February 3, 1983, Petitioner notified Respondent by letter that Respondent should submit a report of the numbers and types of wildlife accepted for rehabilitation and the disposition of said wildlife. The letter directed Respondent to submit his report immediately and to maintain records for examination by Petitioner in conjunction with future inspections. No report was submitted to Petitioner by the Respondent. On September 8, 1983, in response to a citizen complaint, Petitioner initiated an investigation of the wildlife rehabilitation operation of Respondent. In conjunction with its investigation of Respondent, Petitioner requested of Respondent the production of the wildlife rehabilitation records on September 22, 1983. Respondent did not produce the records as requested. Petitioner again requested Respondent to produce the records on September 23, 1983, and again Respondent failed to produce the records for Petitioner. Respondent did provide, on two separate occasions, documents to the U.S. Fish and Wildlife Service, a federal agency. The documents submitted to the U.S. Fish and Wildlife Service purported to reflect numbers of birds treated by Respondent during 1982. The documents failed to reflect the type of treatment, the specific disposition of said birds, any reference to mammals, or any recording of numbers or types of mammals. The two separate documents submitted are in irreconcilable conflict as to numbers and types of birds treated. In addition, the documents contain no reference to certain birds delivered by Petitioner to respondent's wildlife rehabilitation facility during 1982. Said documents were never submitted by Respondent to Petitioner. On no occasion has Respondent produced any records or reports for 1982 to Petitioner in connection with Respondent's wildlife rehabilitation. On November 1, 1983, Respondent was informed by letter dated October 27, 1983, that Petitioner intended to revoke Respondent's wildlife rehabilitation permit due to Respondent's failure to comply with the record keeping and reporting requirements of the wildlife rehabilitation permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Game and Fresh Water Fish Commission enter a final order revoking the wildlife permit of the Respondent Jack Kassewitz, Jr. DONE and ORDERED THIS 15th day of May, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1984.
The Issue The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on June 15, 2001, are an invalid exercise of legislative authority.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found. Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes. STANDING OF THE PARTIES McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere. Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located. Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area. Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule. The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing. Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County. ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida. On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida. On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida. On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000. On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly. On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly. There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question. Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as follows: 1991 1,268 manatees 1991 1,465 manatees 1992 1,856 manatees 1995 1,443 manatees 1995 1,822 manatees 1996 2,274 manatees 1996 2,639 manatees 1997 2,229 manatees 1997 1,709 manatees 1998 2,022 manatees 1999 2,034 manatees 1999 2,354 manatees 2000 1,629 manatees 2000 2,222 manatees 2001 3,276 manatees During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations. The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999. General Description of Brevard County. Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River. Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River. The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America. The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches). The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water. In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall, storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually. The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level. Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year. THE MANATEE The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act. The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction. In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas. Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year. Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs. Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County. For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation. Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs. Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours. The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals. Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees. Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating. Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline. The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules. MANATEE PROTECTION PLANS The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996. A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001. The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state: Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions. Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community. The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes. HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR"). In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993. After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code. In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan. In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant. THE PROPOSED MANATEE PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY 1906 Section II - Proposed Rules THE FULL TEXT OF THE PROPOSED RULES IS: (Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones. The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas. The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made. The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003. NO ENTRY (November 15 – March 31) Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the jetty on the north side of the power plant intake canal. Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal. MOTORBOATS PROHIBITED (All Year, except as noted) Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River 95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31. C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal 54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. IDLE SPEED (All Year, except as noted) Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November 15 through March 31. Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401). Section II - Proposed Rules 1907 Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road 520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline. Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point. Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove. Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. SLOW SPEED (All Year) Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon. Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36" North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2. Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road 402 Bridge and Causeway. Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3. Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway): All waters north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal, and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528. Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road 404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway). Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within 500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker “14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar. Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.” Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel. Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River. Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River. Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520. Section II - Proposed Rules 1909 Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point. Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River. Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39' 30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex. Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road 520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base. Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude 28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road 404 and within 2,000 feet of the State Road 404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5. Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5. 25 MPH (All Year) Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal). Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW. Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW. South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line. South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge. Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code. Permits shall be limited as follows: Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18. Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S. Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330). Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees. The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions. FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions. MANATEE MORTALITY DATA FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death). AERIAL SURVEY DATA In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations. Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others. Aerial Surveys Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys. SYNOPTIC AERIAL SURVEYS Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above. The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge. The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina. MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas. Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations. FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path. Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor. Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990- November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990. SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data. The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available. Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year. The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees. The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time. Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast. MIGRATORY RANGE OF TAGGED MANATEES The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not. Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location. In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997). MANATEE SIGHTING DATA FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure. STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION. FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs. The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon. SCAR CATALOG DATA FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider. EXPERT OPINIONS FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team. OTHER AVAILABLE SITE-SPECIFIC INFORMATION FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations. DATA ANALYSIS Threat Analysis Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees, with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered. Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database. From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County. FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent. Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns. Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees. Geographic Scope of Threat Analysis Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.) Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the "characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation." The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers. The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones. The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose. Proximity and Degree of Known Boating Activities FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps. Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes. The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass. In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994. At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats. At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.) A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats. INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY In general, the level of boating activity in Brevard County continues to increase with the increasing population, launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties. In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents. Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats. SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED TO OCCUR IN, OR SEASONALLY USE THE AREA FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal. The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000, 29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees. Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly. MANATEE MORTALITY TRENDS WITHIN THE AREA Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions. The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of these nine critical east coast counties, Brevard County had the highest mortality trend. During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year. EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR WARM WATER SOURCES Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order. Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less. As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway. The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources. FAVORABLE WATER DEPTHS Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline. FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels. Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting. The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map. The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet. The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line." Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules. FRESH WATER SOURCES FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals. WARM WATER SOURCES FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals. CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel. In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet. Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make deliveries to the Space Center, according to the Lockmaster, Mr. Querry. Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities. Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park. BOAT-MANATEE INTERACTIONS FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision. Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH. Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels. The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation. TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas. Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels." Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that 95 percent of the time the manatees had scars from boat propellers or skegs. Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues. Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom. Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away. Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee. STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision. A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH. The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off." PROTECTION OF MANATEE-SEA GRASS HABITAT FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes. The Florida Guide To Recreational Boating notes that: Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water. The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds." Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds. The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE Differing Opinions About Manatee Protection Areas FWCC's Opinion The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats. The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County. The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH. The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20- 25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH. Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS. Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels. Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted. PETITIONERS' OPINIONS The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum 25 MPH channels." Petitioners' challenge to many of the protection zones alleges that FWCC's basic regulatory mechanisms are flawed. FEDERAL LAWSUIT-SETTLEMENT AGREEMENT On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County. Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence. Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule. Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part: (d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule. * * * 3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2). THOMAS MCGILL PETITIONERS Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of "maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers. The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge. STANDING WATCH, INC. Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH. The Guides recommended that motorboat speed and operation be limited as follow: Mosquito Lagoon-make no changes to existing rule Turnbull Basin, North Indian River Create two "slow speed" zones in Turnbull - one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin; Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet; Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge; Take no further action [to change regulations]. Indian River, NASA railroad bridge to S.R. 402 Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet; Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1; Set a maximum 25 MPH in the ICW; Take no further action [to change regulations] Indian River, State Road 406 to State Road 402 (1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water; Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet; Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline; Take no further action [to change regulations]. Indian River, State Road 405 to State Road 528 Bridge Close the warm water refuge sites at the power plants to manatees, not to boats; Deliver fuel to the power plants by land; Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore; Take no further action [to change regulations]. Canaveral Barge (and Banana River to Locks) Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina; Take no further action (to change regulations). Banana River (1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit; Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore; Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area]; Take no further actions [to change regulations]. Newfound Harbor (1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit; Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands; Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point; The east and west "slow speed" zones be 500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520; Take no further action. Sykes Creek North State Road 520 Set speed limit in marked channel at 20 MPH; All residential canals should be "slow speed"; Take no further action. Indian River State Road 528 to State Road 520 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 520 to State Road 404 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges; Take no further action. Indian River State Road 404 to State Road 518 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 518 to State Road 192 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night; Take no further action. Indian River (1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; (2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed"; Take no further action. Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules. SPECIFIC PROPOSED ZONES CHALLENGED The Petitioners' Challenge All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes. MCGILL PETITIONERS The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes. McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation. At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. The McGill Petitioners' position as set forth in their Prehearing Stipulation states: The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added] The McGill Petitioners' Amended Petition alleged in paragraph 6: The Commission has not employed the best available science or even reasonable science. . . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage . . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee activity. . . . In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr. Deutsch's analysis presented for Respondent, FWCC. The Amended McGill Petition, paragraphs 10 and 12, stated: The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions." McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions. The McGill Petitioners further stated in paragraph 11 that: The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment. McGill Petitioners presented the testimony of Dr. Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level. The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule. The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue. McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings. There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC) In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes. Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop. The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule 68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed. In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives. The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State. In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats. The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development. The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements. In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats. Sea Ray Boat, Inc. Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone. Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority. Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays." Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria, standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes. Standing Watch, Inc. Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed. Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County. Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule. The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes. Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious. Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious. City of Cocoa Beach Watersports Area Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area." In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area). Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees. Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat. The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000). All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
The Issue The issue is whether the Florida Game and Fresh Water Fish Commission (Commission) should renew Respondent's permit to possess captive wildlife.
Findings Of Fact Operating under the name of South Florida Reptile Exchange, Respondent, Alvin Weinberg, has been permitted since 1978 by the Commission to possess captive wildlife. On September 2, 1992, the Commission issued an Administrative Complaint seeking to deny renewal of Respondent's permit for violations of minimum pen specifications and unsanitary and inhumane conditions at his facility. Under Rule 39-5.004, Florida Administrative Code, the Commission may revoke or deny renewal of any license or permit if the licensee or permittee is convicted or found guilty, regardless of adjudication, of a violation of Chapter 372, Florida Statutes, or of the rules of the Commission. On June 16, 1992, Respondent's facility was inspected by Lt. Charles Dennis and Lt. John West. In the course of that inspection, they found a number of unsanitary and inhumane conditions. Specifically, most of the water bowls for the animals were empty. There were dead animals, maggots and an accumulation of fecal matter in many cages. Up to 150 turtles were kept in one pit that measured only 5' X 5'. Many reptiles had not been fed properly. For instance, one Monitor lizard was so emaciated that the inspectors were surprised it was still alive. The conditions found at Respondent's facility on June 16, 1992, were the worst seen in the 17 years experience of Lt. Dennis. Respondent was issued two criminal citations on the basis of these observations, for violations of a Commission rule relating to sanitation requirements and the humane treatment of captive wildlife, Rule 39-6.0023(5), Florida Administrative Code. These citations resulted in a criminal conviction of Respondent in St. Lucie County Court, Cases 92-1754MM and 92-1755MM. Respondent was previously issued a criminal citation in July of 1991 for violation of a Commission rule relating to sanitation requirements and humane treatment of wildlife at his facility. This citation also had resulted in a criminal conviction in St. Lucie County Court, Case 91-1345MM. Before these criminal proceedings, Respondent had received warning citations from inspectors for violations of Commission rules relating to sanitation and the humane treatment of animals. During the pendency of these proceedings, Respondent's facility was inspected again on January 6, 1993. Some conditions at the facility had improved, but there were still deficiencies related to sanitation and the humane treatment of the animals. Respondent has consistently been below the industry standard with respect to sanitary conditions and the humane treatment of wildlife kept at his facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's application to renew his permit to possess captive wildlife be DENIED by Final Order of the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1993. COPIES FURNISHED: James T. Knight III Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mr. Alvin H. Weinberg South Florida Reptile Exchange 20510 Glades Cutoff Road Port St. Lucie, Florida 34987 Colonel Robert M. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600
