The Issue The issues are whether Respondent committed the violations alleged in Petitioner’s Second Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: The Parties and the Events of August 24, 2019 The Department is the state agency charged with encouraging the development of aquaculture3 in Florida. § 597.003(1), Fla. Stat. “When any qualified person desires to lease a part of the bottom, water column, or bed of any [state waters] for the purpose of growing oysters or clams . . . , he or she shall present to [the Department] a written application ” § 597.010(1), Fla. Stat. Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture lease in the 2 Petitioner’s Exhibit G is a flash drive containing video footage of Officer Travis’s traffic stop and subsequent arrest of Mr. Lee. 3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.” Section 597.0015(3), defines “aquaculture products” as “aquatic organisms and any product derived from aquatic organisms that are owned and propagated, grown, or produced under controlled conditions.” vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be used for the commercial cultivation of oysters and clams. The Department issued a ten-year lease, Sovereignty Submerged Land Aquaculture Lease No. 19-AQ-1465, to Mr. Lee and his father on February 3, 2016. One provision therein required the lessee to be bound by the current and future versions of the Florida Statutes and the Florida Administrative Code. Another provision stated that a violation of chapter 597 and/or chapter 5L-1 “may be cause for this lease to be terminated without further notice to the lessee and shall result in the forfeiture to lessor of the works, improvements, and shellfish in and upon the leased premises.” On June 15, 2017, Mr. Lee pled nolo contendere to several charges filed in Franklin County, Florida. Two of the aforementioned charges pertained to the criminal offenses of possessing untagged and undersized oysters, and Mr. Lee was adjudicated guilty of all charges. At approximately 3:00 a.m., on August 24, 2019, Officer David Travis of the Florida Fish and Wildlife Conservation Commission was on patrol in Carrabelle, Florida, and traveling west on US-98, 25 miles from Alligator Harbor. He observed a Chevrolet Tahoe pulling a boat4 that had no trailer lights. A Ford Fusion was closely following the Tahoe. Officer Travis then made a U-turn in order to initiate a traffic stop based on the lack of trailer lights and the failure of both vehicles to use their blinkers prior to making two turns. Mr. Lee was driving the Fusion, and a friend of Mr. Lee’s was driving the Tahoe. Upon inspecting the boat, Officer Travis saw four untagged baskets, one blue and three orange. The blue basket was completely full with at least 40 4 The boat was registered to Mr. Lee’s father. pounds of unculled5 oysters. The orange baskets were approximately the same size as the blue basket, and two of the orange baskets were at least 75 percent full with unculled oysters. The third orange basket contained 15 to 20 culled oysters. The boat and the contents therein were wet. Officer Travis found multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mud, sand, and live crustaceans. Officer Travis also found a mullet in a cooler that appeared to have been recently caught. During an inspection of the Tahoe, Officer Travis found a large, white cooler with a large quantity of culled oysters in a bed of ice. According to Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption. Mr. Lee told Officer Travis during the traffic stop that he had taken the oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a.m. and 6:00 p.m. Mr. Lee further stated to Officer Travis that he had transported the oysters at issue to his girlfriend’s house in Carrabelle where he had begun to cull some of them. According to Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home when Officer Travis pulled them over. Officer Travis arrested Mr. Lee and his friend. Ultimate Findings Count I of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-1.007(2) on approximately 5 Wild oysters commonly grow together in clumps. “Culling” refers to the process by which wild oysters are separated from each other. The term can also encompass the cleaning, grading, and sorting of oysters. August 23, 2019, by failing to label containers holding oysters. Neither Officer Travis’s arrest report nor his testimony mentioned any tags on the baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during the footage from Officer Travis’s body camera. While Mr. Lee testified that he had a bulk tag that applied to all of the containers at issue, the undersigned does not find Mr. Lee’s testimony to be credible. Accordingly, the Department proved Count I by clear and convincing evidence. Count II of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L- 1.008(7). The aforementioned rule requires that “shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service.” As noted above, Officer Travis observed that the contents inside the boat were wet and fresh, and that evidence convincingly undermines Mr. Lee’s assertion that the oysters at issue were harvested on August 23, 2019, prior to 6:00 p.m. While Mr. Lee asserted that the oysters in question were intended for personal consumption rather than for sale, that assertion is undermined by the large number of oysters Officer Travis observed in the boat during the August 24, 2019, traffic stop. Therefore, the Department proved Count II by clear and convincing evidence. Count III of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-3.004 on approximately August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease. As noted above, Officer Travis observed a large quantity of unculled oysters during the traffic stop. Those oysters had not been sorted and washed over Mr. Lee’s lease. Also, the allegation in Count III is consistent with what Mr. Lee told Officer Travis during the traffic stop. Accordingly, the Department proved Count III by clear and convincing evidence. Count IV of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rules 5L-1.008(5)(a) and 5L- 3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish stock on the submerged lands of his lease. However, the Department presented no clear and convincing evidence that Mr. Lee violated rules 5L- 1.008(5)(a) and 5L-3.007(8)(c). Count V of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee was adjudicated guilty on June 15, 2017, of possessing untagged and undersized oysters. The Department thus proved Count V by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a cumulative fine of $4,000.00 ($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074, jointly held by Mr. Lee and his father, be revoked. Finally, the undersigned recommends that Sovereignty Submerged Land Aquaculture Lease No. 19- AQ-1465 be terminated with Mr. Lee forfeiting all works, improvements, and shellfish in and upon the lease premises.6 6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at Alligator Harbor should not be extinguished because his father had no involvement with Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the undersigned’s independent research did not find anything to support Mr. Lee’s position. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2020. COPIES FURNISHED: Robert Kevin Lee Post Office Box 28 Carrabelle, Florida 32322 Darby G. Shaw, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Allan J. Charles, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Stephen M. James, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 531 Tallahassee, Florida 32399 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether the Respondent's decision to deny renewal of Petitioner's Alligator Farming License and Alligator Farming Agent's License was proper under the following circumstances: After the entry of the Petitioner's nolo contendere plea to the charges that he committed a violation of Rule 39-25.042, Florida Administrative Code, the trial court withheld an adjudication of guilt as to the charges filed against Petitioner.
Findings Of Fact On September 9, 1988, Petitioner was arrested and charged with Possession of Untagged Alligators, a misdemeanor, and a violation of Rule 39- 25.042, Florida Administrative Code. Petitioner pleaded nolo contendere to the charge on February 22, 1989. Adjudication of guilt was withheld by the court and Petitioner was fined $357.50. Petitioner applied for a renewal of his alligator farming license and alligator farming agent's license on June 20, 1989. Respondent denied Petitioner's application on June 21, 1989.
Recommendation Based upon the foregoing, it is RECOMMENDED: 1. That the Petitioner's application to renew its licenses be denied. DONE and ORDERED this 3rd day of January, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esquire General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James D. Sloan, Esquire LUCKY ELVER & SLOAN 461 Highway 29 South Post Office Drawer 2280 LaBelle, FL 33935 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600
The Issue As provided in the notice of hearing, the issues for disposition in this proceeding are whether agency statements within a memorandum and notice of Final Executive Order issued by the Department of Environmental Protection on July 5, 1996 are rules subject to sections 120.535 and 120.54, Florida Statutes, and if so whether the statements violate those sections. 1/ Petitioners pled only a violation of section 120.54, Florida Statutes, and contend that the remedy they seek, a determination of the invalidity of the agency statements, is available without recourse to section 120.535, Florida Statutes. At hearing, the parties, including Petitioners, availed themselves of the opportunity to elicit evidence related to section 120.535, Florida Statutes.
Findings Of Fact Petitioners are shellfishers who harvest and relay in the affected areas in Brevard County, Florida. Intervenor is a resident of Indian River County who utilizes the areas affected by the Department of Environmental Protection (agency, or DEP) statements at issue in this proceeding. The standing of these parties is uncontroverted. Respondent, DEP, is the state agency charged with the administration, supervision, development and conservation of the natural resources of the state, as provided in section 370.013, Florida Statutes. "Saltwater fish" includes shellfish, among others. Section 370.01(2), Florida Statutes. DEP is given the authority in section 370.021, Florida Statutes, to make, adopt, promulgate, amend and repeal all [rules and regulations] necessary or convenient for the carrying out of the duties, obligations, powers, and responsi- bilities conferred on the department or any of its divisions. [Emphasis added] Persons violating any of the rules and regulations adopted under the agency's authority are guilty of a misdemeanor. Section 370.021(2), Florida Statutes, describes penalties for various violations of Chapter 370 or the rules of the agency or any rule of the Marine Fisheries Commission. Section 370.021(3), Florida Statutes, provides that [[r] ules and regulations] shall be admitted as evidence in the courts of the state when accompanied by an affidavit from the secretary of the department certifying that the [rule or regulation has been law- fully adopted, promulgated, and published]; and such affidavit shall be prima facie evidence of proper adoption, promulgation and publication of the rule or regulation. [Emphasis added] Section 370.071(l), Florida Statutes, provides, in pertinent part, that DEP ... is authorized to adopt by rule regulations, specifications, and codes relating to sanitary practices for catching, handling, processing, packaging, preserving, canning, smoking, and storing of oysters, clams, mussels, and crabs. Consistent with its specific authority in sections 370.021 and 370.071, DEP has adopted Chapter 62R-7, Florida Administrative Code, "The Comprehensive Shellfish Control Code." Included in the comprehensive code is rule 62R-7.004, Florida Administrative Code, which defines various classifications of harvesting areas, adopts by reference Shellfish Harvesting Area Atlas maps, and describes circumstances for opening or temporarily closing harvesting areas in the event of red tide outbreak or other emergencies or when other criteria are met. Rule 62R-7.005, Florida Administrative Code, also adopts by reference specific maps of growing areas and harvesting areas in the Shellfish Harvesting Area Atlas published by the agency. Rule 62R-7.005, Florida Administrative Code, describes boundaries of classified areas throughout Florida, county by county, and establishes operating procedures. Rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code, establishes conditionally approved, conditionally restricted and prohibited areas of Body D waters in Brevard County, Florida. The boundaries of each are described in explicit detail; further, temporary closing to shellfishing is provided for when ... five day cumulative rainfall as measured in the immediate vicinity meets or exceeds 2.68 inches. The area will be reopened when bacteriological levels meet standards as described in Rule 62R-7.004 and fecal coliform levels in shellfish return to normal background levels so that consumption of shellfish will not be a hazard to the public health. The history note to Rule 62R-7.005, Florida Administrative Code, reflects that the rule was new on January 4, 1987 and was amended May 21, 1987, August 26, 1987, August 10, 1988, August 31, 1988, October 27, 1977, July 18, 1989, August 30, 1989, November 11, 1990, January 9, 1991, November 5, 1992, May 6, 1993, May 31, 1994 and May l, 1995. Body D is a shellfish harvesting area located in the Indian River, south of the State Road 528 bridge and north of the State Road 518 bridge, in Brevard County. DEP conducted a sanitary survey of Body D pursuant to the National Shellfish Sanitation Program Manual and released its findings in a document dated June 13, 1996. The first sentence of the document, in a narrative introducing the detailed survey procedures and results, states: Reclassification of the Body D Shellfish Harvesting Area in Brevard County is proposed for the harvest of oysters, clams and mussels [through amendment to 62R-7.005 (29)], the Comprehensive Shellfish Control Code. [Respondent's exhibit no. 5, emphasis added] The narrative summarizes the proposed classification changes, by total acreage, and projects an adverse economic impact due to increased closures. The narrative further states that the current classification of Body D is based on a comprehensive survey conducted in 1988. The National Shellfish Sanitation Program, of which Florida is a voluntary member, requires that a complete survey be conducted at least every twelve years, with updates annually and triennially (every three years). On July 5, 1996, DEP issued a Notice of Final Executive Order with an attached detailed description of the boundaries of conditionally approved, conditionally restricted and prohibited areas within Body D, "Effective August l, 1996." The attachment to the notice describes the management procedures governing temporary closings. Also attached to the notice was a map of the new classifications boundaries. The notice states that "[t]he order will remain in effect until administrative procedures are completed to amend rule 62R-7.005, Florida Administrative Code." DEP also issued on July 5, 1996 a memorandum to "Interested Parties," describing the reclassification of Body D for harvest of shellfish as follows: Effective August l, 1996, the Department of Environmental Protection reclassified Body D for the harvest of oysters, clams, and mussels. Body D is located in the Indian River, south of State Road 528 Bridge and north of the State Road 518 Bridge. A public workshop was conducted March 22, 1996 in Melbourne to get input on the proposed reclassification. The reclassification will increase the Conditionally Approved area by 404 acres, increase the Conditionally Restricted area by 6,075 acres, and increase the Prohibited area by 1,979 acres. Also, 9,116 acres were classified that were Unclassified; portions of this area were used for relay activities. Currently, the Conditionally Approved and Conditionally Restricted areas close when five-day cumulative rainfall measured at the DEP Rockledge Gauge exceeds 2.68 inches. Beginning August 1, 1996, the Conditionally Approved management plan will temporarily close when two-day cumulative rainfall measured at the Rockledge Waste Water Treat- ment Plant exceeds 0.44 inches, and the Conditionally Restricted management plan will temporarily close when two-day cumulative rainfall measured at the Rock- ledge Waste Water Treatment Plant exceeds 1.29 inches. The estimated number of days per month that the Conditionally Approved area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 21 days and an average 8.2 days per month. The estimated number of days per month that the Conditionally Restricted area will be closed will increase from a range 0 to 8 days and an average of 0.8 days per month to a range of 0 to 15 days and an average 2.9 days per month. Maps are available that illustrate the shellfish harvesting area classifications at the DEP shellfish office in Palm Bay. The mailing address of this office is 250 Grassland Road, SE, Room 149, Palm Bay, Florida 32909. You may call your local DEP Marine Patrol Office or the DEP Shellfish Office at 407/984-4890 to the open/closed status of the area for shellfishing. (Petitioners' exhibit no. 2) As described in the Notice of Final Executive Order and the memorandum, the reclassification substantially altered the classification descriptions and the management practices found in rule 62R-7.005(29), Florida Administrative Code. The reclassifications were not adopted as a rule amendment pursuant to section 120.54, Florida Statutes. Instead, on September 20, 1996 DEP published notice in the Florida Administrative Weekly, Volume 22, number 38, page 5397, that it proposed repealing rule 62R-7.005, Florida Administrative Code, in its entirety, and amending rules 62R-7.001 and 62-7.004, Florida Administrative Code: * * * PURPOSE, EFFECT AND SUMMARY: This amendment proposes to repeal a rule containing references to shellfish harvesting area maps, the detailed verbal descriptions of shellfish harvesting areas classification boundaries, and criteria for temporary closure, reopening, and monitoring of shellfish harvesting areas. The rule proposed for repeal is 62R-7.005 because it was identified as procedural. An address and telephone number were provided in 62R-7.004 where the information currently contained in 62R-7.005 will continue to be made available to the public. This approach provides for reclassifications through the Governor's delegation of authority to the Division of Marine Resources. Repeal of the rule is in accor- dance with Governor Chiles' rule reduction initiative. The Department will continue to conduct public workshops and hearings and incorporate pubic input that is consistent with maximizing the harvest of shellfish and protection of public health. Additionally, this amendment proposes to update a 1993 version with a 1995 version of the National Shellfish Sanitation Program Manual of Operations, Part I and Part II, that is incorporated by reference. SPECIFIC AUTHORITY: 370.021(l), 370.071(l) FS. LAW IMPLEMENTED: 370.071 FS. DEP has closed harvesting areas in the past without following the section 120.54, Florida Statutes, amendment procedures. The record in this proceeding does not reflect whether those changes or closures were on a temporary or emergency basis as provided within rules 62R-7.004 and 7.005, Florida Administrative Code. DEP has never opened up new, previously unclassified, areas for harvesting without a formal rule amendment and has not been challenged in the past. DEP concedes that the regulatory content of the Final Executive Order supersedes rule 62R-7.005(29) (j), (k), and (l), Florida Administrative Code: Q. I want to clarify one aspect of your testimony, Mr. Heil, because I think you suggested that if a hypothetical individual were to go into Body D today and to harvest shellfish pursuant to a classification contained in Rule 67R-7.005, that is to say his conduct would have been lawful under the standard contained in that administrative rule, but his conduct is in discord or isn't in compliance with the standard for Body Water D contained in the final executive order which is the subject of this dispute today. Am I correct that it was your view that that person would be subject to present criminal prosecution for that act? A. If the area in question from harvest was previously allowed in the classification effective August 1st by the July 5th memorandum was not now allowed for harvest, then that person would be subject to arrest by the Florida Marine Patrol. Q. And prosecution and conviction? A. Correct. (Transcript, pp. 131-2) The National Shellfish Sanitation Program (NSSP), of which Florida is a voluntary member, is a consortium of federal officials (including the Food and Drug Administration, Environmental Protection Agency and National Marine Fisheries), state officials from state shellfish control agencies, and members of the shellfish industry. DEP contends that its participation in the NSSP and obligation to comply with the National Shellfish Sanitation Program Manual of Operations (the manual) precludes compliance with section 120.54, Florida Statutes, rulemaking requirements. Florida has been criticized for moving too slowly in reclassifying areas, but the record in this proceeding does not establish that delay is because of rulemaking requirements. The manual is adopted as a rule by reference in rule 62R-7.001(5), Florida Administrative Code. The manual provides, in pertinent part: (Both the 1993 version currently adopted and the 1995 version proposed for adoption are precisely the same in this regard.) Public Health Explanation The NSSP gone [sic] beyond the original objective set forth in the 1925 Conference of insuring that shellfish shipped interstate would not be the cause of communicable disease. In the 1940's paralytic shellfish poison became a matter of public health concern and steps were taken to protect the public against this hazard. In 1957 it was recognized that shell- fish might concentrate certain radionuclides and that a radiation surveillance activity might become a necessary addition to the established procedures. In the 1960's and 1970's it became apparent that shellfish have the ability to concentrate poisons and deleterious substances such as metals, pesticides, hydrocarbons, etc. to potentially unsafe levels. To ensure the safety of shellfish, the State must supervise the growing, harvesting, relaying and transportation of shellfish. It is also important that shellfish be protected against contamination. [If State supervision is to be effective, the activity must be supported by legal authority. This authority may be either a specific law or a regulation]. The success with which the State is able to regulate the several components of the shellfish industry provides a measure of the adequacy of the statutory authority. [The unique nature of shellfish as a food also makes it necessary for the State shell- fish control agency to have authority to take immediate emergency action without recourse to lengthy administrative procedures, to halt harvesting and processing of shell- fish]. This authority should include placing restrictions on harvesting on the basis of a potential as well as an actual public health hazard. As examples, a State may find it necessary to close a shellfish growing area following a breakdown of a wastewater treat- ment plant or the unexpected finding of marine toxin(s), or when a growing area is implicated in confirmed illness. [Periodic revisions of State shellfish laws or regulations may be necessary to cope with new public health hazards and to reflect new knowledge]. Examples of changes or develop- ments which have called for revision of State laws include: (1) the increased used of pleasure boats with the resulting probability of contamination of shellfish growing areas with fresh untreated fecal material, (2) the conditionally approved area concept resulting from the construction of wastewater treatment facilities, (3) the effect of non-point source pollution, and (4) the ability of shellfish to concentrate certain radionuclides and hazardous chemicals. Experience has demonstrated that all actual and potential shellfish growing waters of the State must be classified by their sanitary suitability for shellfish harvesting. Harvesting should be permitted only from those areas which have been found by sanitary survey to meet the criteria of this Manual. Harvesting should accordingly be specifically prohibited from areas which do not meet the criteria, or which have not been surveyed, or which have outdated survey information. [Respondent's exhibit no. 4, pp. A2 and A3, emphasis added] CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to section 120.535, Florida Statutes. Standing of all parties has been established by stipulation. Petitioners allege that the Final Executive Order issued by the agency on July 5, 1996 is a rule that has not been promulgated by the procedures in section 120.54, Florida Statutes, and is therefore invalid. At the time that the Petitioners filed their challenge, the agency action was proposed to take effect on August 1st; thus, Petitioners invoked section 120.54(4), Florida Statutes, which provides: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Pursuant to section 120.52(8), Florida Statutes, a proposed rule is an invalid exercise of delegated legislative authority when the agency has materially failed to follow applicable rulemaking procedures set forth in section 120.54, Florida Statutes. The agency readily admits that it has not promulgated the material styled Final Executive Order as a rule. Nor has it commenced rulemaking proceedings to adopt the material. On the contrary, it has commenced proceedings to repeal all of rule 62R-7.005, Florida Administrative Code, including the portion which conflicts with the Final Executive Order. The agency claims foremost that the material in the Final Executive Order is not a rule; but that if it is a rule, the agency is entitled to the section 120.535, Florida Statutes, defense that rulemaking is simply not practicable. This latter argument is based, at least partially, on the insistence by federal members of the Interstate Shellfish Sanitation Conference that the agency improve its procedures. It is appropriate to consider this case under section 120.535, Florida Statutes. In Christo v. State Department of Banking and Finance, 649 So.2d 318 (Fla. 1st DCA 1995), the court determined that section 120.535, Florida Statutes, was the exclusive mechanism for challenging an agency's failure to promulgate rules. The case cited by Petitioners, Matthews v. Weinberg, 645 So.2d 487 (Fla. 2nd DCA 1994) Rev. denied (654 So.2d 919 (Fla. 1995), arose under substantially different procedural circumstances (an appeal from a circuit court decision in an injunctive proceeding) and does not establish authority for section 120.54 or 120.56 challenges to agency statements based on their non- promulgation as rules. Without citing section 120.535, Florida Statutes, Petitioners' petition still included the three allegations required by subsection 120.535(2)(a), Florida Statutes: that Petitioners are substantially affected by the statement; that the statement constitutes a rule under section 120.52(16); and that the agency has not adopted the statement by the rulemaking procedure provided in section 120.54. The parties had ample notice that the hearing was to be conducted pursuant to section 120.535, and testimony and evidence was presented with regard to the defenses available to an agency. Because section 120.535, Florida Statutes, in general, and more specifically in this proceeding, permits the consideration of factual matters presented by the agency, Petitioners' motion for summary final order is DENIED. Petitioners, however, still prevail in their challenge to the Final Executive Order. Section 120.535(1), Florida Statutes, provides: 120.535 Rulemaking required.- Rulemaking is not a matter of agency discretion. Each agency statement defined as a rule under s. 120.52(16) shall be adopted by the rulemaking procedure provided by s. 120.54 as soon as feasible and practicable. Rulemaking shall be presumed feasible and practicable to the extent provided by this subsection unless one of the factors provided by this subsection is applicable. Rulemaking shall be presumed feasible unless the agency proves that: The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rulemaking; or Related matters are not sufficiently resolved to enable the agency to address a statement by rulemaking; or The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement. Rulemaking shall be presumed practi- cable to the extent necessary to provide fair notice to affected persons of relevant agency procedures and applicable principles, criteria, or standards for agency decisions unless the agency proves that: Detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable under the circumstances; or The particular questions addressed are of such a narrow scope that more specific resolution of the matter is impractical out- side of an adjudication to determine the substantial interests of a party based on individual circumstances. The material contained in the Final Executive Order is a rule, defined in section 120.52(16), Florida Statutes, as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any require- ment or solicits any information not specifi- cally required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. It does not matter how the agency seeks to characterize its statement. Amos v. Department of HRS, 444 So.2d 43 (Fla. 1st DCA 1983). Proper characterization of a statement depends on the effect of the statement, not on the agency's appellation. Thus, the fact that DEP adopted similar statements as rules, then disavowed the necessity for such procedural refinements is immaterial. In twenty-plus years of experience under the Administrative Procedures Act, Chapter 120, Florida Statutes, the distinction between rule and order has been immutable. An agency statement is a rule if it purports in and of itself to create certain rights and adversely affect others, or serves by its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. Balsam v. Dept. of HRS, 452 So.2d 976, 977-78 (Fla. 1st DCA 1984) The agency statement contained in the Final Executive Order is generally applicable. Anyone intending to harvest shellfish within the many thousands of acres of water described in Body D is subject to the classifications. Anyone failing to comply is subject to criminal prosecution. The statement implements, interprets or prescribes law or policy: it establishes where, and under what conditions, shellfish may be taken; it establishes rainfall standards which affect temporary closings; it plainly, as stated in its counterpart rule 62R-7.005, implements section 370.071, Florida Statutes; it also implements rule 62R-7.004, Florida Administrative Code, and the National Shellfish Sanitation Program Manual of Operations, which is, itself, a rule. Significantly, the statement does not fall within one of the exceptions described in section 120.52(16)(a)-(g), Florida Statutes. It most closely resembles the specific exception provided in section 120.52(16)(d), Florida Statutes, for agency action which alters established annual harvest limits for saltwater fishing. This latter statutory exception underscores the notion that the legislature intended to otherwise include such statements within the definition of a rule. Since the statement at issue is found to be a rule, the agency is entitled to prove that rulemaking was not feasible and practicable. The circumstances surrounding the issuance of the Final Executive Order and the testimony of the agency's witness establish that rulemaking is both feasible and practicable. As provided in the document describing the comprehensive survey of Body D, Brevard County, Florida, the survey was conducted over many months and culminated in the survey report and in the reclassifications and changes in procedure described in the Final Executive Order. Prior to issuance of the Final Executive Order, the agency conducted a workshop. The agency had ample time to acquire knowledge and experience reasonably necessary to address its statement by rulemaking. The specificity of the text reflects that related matters have been sufficiently resolved to enable the agency to address the statement by rulemaking. Indeed, the agency has, in the past, addressed such statements by rulemaking and, for the present, still has such rules in effect. At the time of hearing, the agency had not proceeded with rulemaking procedures addressing the statement, although the text of the Final Executive Order disclosed an intention to so proceed. In the material filed post-hearing and officially recognized upon the request of the Intervenor and agency, the agency "addressed the statement" by announcing its intent to repeal the whole of rule 62R-7.005, Florida Administrative Code, including, of course, the subsection which is substantially amended in the Final Executive Order. The principles, criteria or standards for agency decision based on the Final Executive Order are detailed and precise and are established by agency fiat, rather than through an adjudicative process in which the substantial interests of a party are determined based on individual circumstances. Evidence in this proceeding establishes that the agency plainly intends to rely on the Final Executive Order as its basis for enforcement and prosecution and does not intend to develop on a case by case basis the standards it has already created. Nothing in the record of this proceeding supports the argument by the agency that its Final Executive Order is legally compelled by a higher federal authority or that the shellfish industry in Florida is jeopardized by rulemaking requirements. The National Shellfish Sanitation Program Manual of Operations supports, rather than discourages, the adoption of regulations. (See paragraph 17, above). Throughout Chapter 370, Florida Statutes, are references to regulations. (See, paragraphs 3 and 4, above.) Section 370.103, Florida Statutes, authorizes the agency to enter into cooperative agreements with the Federal Government, but also includes this manifest intent: When differences between state and federal laws occur, state laws shall take precedence. None contests the need for the agency to act promptly under certain circumstances to meet the exigencies of a reasonable enforcement program. According to the record in this proceeding, the Final Executive Order was not developed under such compulsion. Existing rules, the manual and even the Administrative Procedures Act provide for emergency responses to threats to public health, safety and welfare. Those are the procedures which the agency must employ. The "impressive arsenal" of remedies in the Administrative Procedures Act, acknowledged in State, ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) exists for the benefit of agencies as well as citizens at large.
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers' compensation, as alleged in the Amended Order of Penalty Assessment; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers' compensation coverage for the benefit of their employees. Respondent is a Florida, for-profit corporation, incorporated on June 16, 1995, with its principal office located at 821 Southeast Highway 19, Crystal River, Florida 34429. Since incorporation, Respondent has been continuously engaged in business as a scuba diving tour and retail shop. In August 2014, Department Compliance Officer Dale Russell (Investigator Russell) commenced an investigation to determine whether Respondent employed more than three employees; and, if so, whether Respondent had secured workers' compensation insurance coverage for its employees. The investigation of American Pro Diving was not instituted because of any public referral or reported injury. Rather, Investigator Russell was alerted to American Pro Diving based on "data mining." Data mining is conducted by the Department by comparing information in its computer system's workers' compensation insurance coverage database with reports provided by businesses to the Florida Department of Revenue in the form of Re- employment Assistance Tax reports known as "UCT-6s." UCT-6 information on American Pro Diving during the pertinent time period indicated that Respondent was paying unemployment insurance tax for 12 to 18 workers. The Department's database revealed that Respondent had no workers' compensation coverage. On August 11, 2014, Investigator Russell visited American Pro Diving in Crystal River, Florida. On that day, Respondent's owner, Ron Goodenow, was not present or available. Mike Perry was at Respondent's service desk. Investigator Russell introduced himself to Mr. Perry and informed him that he was looking into whether employers were providing workers' compensation. Investigator Russell left his card and asked Mr. Perry to tell Respondent's owner to contact him. During his investigation, Investigator Russell discovered that, in addition to paying unemployment taxes, Respondent was making W-4 withholdings for all those working at American Pro Diving, instead of issuing Form 1099s and having workers pay their own taxes and withholdings as is typical for independent contractors. On August 13, 2014, Investigator Russell spoke to Mr. Ron Goodenow, on the telephone. Mr. Goodenow informed Investigator Russell that Respondent had no employees because all of those working at American Pro Diving were independent contractors. Mr. Goodenow explained to Investigator Russell that because of the business model, workers' compensation insurance was not available to dive shops. During the telephone conversation, Investigator Russell warned Mr. Goodenow that the Department would issue a stop-work order and shut down Respondent's operations if Respondent was out of compliance with the workers' compensation laws. Investigator Russell provided Mr. Goodenow with the name of the Florida Joint Underwriters Association and some companies that provided workers' compensation coverage. Investigator Russell also suggested, as an alternative to obtaining workers' compensation coverage, that Respondent use an employee leasing company. Investigator Russell further suggested that Mr. Goodenow exempt himself from the requirements of workers’ compensation and designate three other people as employees. Investigator Russell recommended that Respondent stop paying UCT-6 unemployment taxes on the rest of the people, stop paying their withholding taxes, and transition to a Form 1099 method of payment. He also suggested that American Pro Diving enter into signed contracts with its independent contractors. In response to warnings and suggestions that he had received from Investigator Russell, Mr. Goodenow acquired an exemption from workers’ compensation for himself on September 18, 2014,3/ and contacted the Florida Joint Underwriters Association to inquire about workers' compensation coverage. Mr. Goodenow also retained Michael Dean, Esquire, as legal counsel for American Pro Diving.4/ According to Investigator Russell, during a conversation with Mr. Dean after Mr. Goodenow had advised that Mr. Dean was Respondent's counsel and spokesperson, Mr. Dean admitted that American Pro Diving employed, not as independent contractors, but as employees, Ron Goodenow, Sarah Huggett, James Corbin Straub, Maria Ellis, and Michael Strmiska. A related e-mail dated September 22, 2014, from Mr. Dean's legal assistant stated: Mr. Russell, In response to your telephone conference with Mr. Dean this morning, here is the status of the employees you requested: Sarah Huggett-See attached documents. James Corbin Straub-Shop Staff, part-time-on an "as needed basis" only. Maria Ellis-Shop Staff. Michael Strmiska-Shop Staff. Stephanie Perry-our daughter-helps mom with payroll only for extra pocket money. (Does not have to do payroll as Michele usually does it.) Attached to the e-mail was a "Captains License Receipt.pdf; Sarah Huggett-TWIC Card.pdf." Rather than finding that Mr. Dean's discussions and his legal assistant's follow-up e-mail amount to admissions that American Pro Diving had employees required to be covered by workers' compensation insurance, it is found that they amount to nothing more than settlement discussions and negotiations.5/ This finding is based upon the fact that, at the time, American Pro Diving was trying to react to Investigator Russell's warnings, as well as upon the content of e-mail attachments, which are consistent with Mr. Goodenow's unwavering assertion that those working with American Pro Diving were independent contractors. In the meantime, Mr. Goodenow's attempt to acquire workers’ compensation coverage was being frustrated. In response to his inquiry, the Florida Joint Underwriters Association suggested that Respondent be issued a class code for oil-spill cleanup workers, as opposed to a code that would reflect American Pro Diving's operations. Mr. Goodenow contacted Investigator Russell by telephone on September 26, 2014, and explained his frustration. During the conversation Mr. Goodenow reiterated his position that American Pro Diving did not have employees. After conferring with his supervisors, Investigator Russell called Mr. Goodenow back and informed him that if Respondent did not come into compliance, a stop-work order would be issued. Thereafter, without interviewing any of the "employees" purportedly identified by Mr. Dean, other than Mr. Goodenow, on October 1, 2014, the Department issued the Stop-Work Order against Respondent. It was served on October 15, 2015. Prior to service of the Stop-Work Order, on October 2, 2014, Respondent submitted workers' compensation application information to Investigator Russell with the assistance of its new legal counsel, Kristian Dunn. Although the Department introduced the submission and argued that it was an admission by Respondent that it had employees, it is found that the submission is nothing more than another attempt at settlement. See Endnote 4, below. The Department entered the Revocation on October 20, 2014, releasing the Stop-Work Order “effective back to the date of issuance.” A related Department memo dated October 20, 2014, signed by Investigator Russell and his supervisor, explained, "SWO [Stop-Work Order] was served after the employer obtained his exemption which brought the total number of employees to under four." On November 18, 2014, the Department issued the Order of Penalty Assessment against Respondent in the amount of $35,429.50, without an accompanying stop-work order. The amount of the assessment was based on imputed payroll during an alleged penalty period from October 2, 2012, through October 1, 2014, for alleged employees Ron Goodenow, Sarah Huggett, James Corbin Straub, Maria Ellis, and Michael Strmiska. There is no evidence that any of the alleged employees, other than Ron Goodenow, were interviewed prior to the issuance of the Order of Penalty Assessment. The Department's Order of Penalty Assessment was amended at the beginning of the hearing upon the granting of the Department's Motion to Amend Order of Penalty Assessment, filed June 5, 2015, just one week before the final hearing. The Department's Amended Order of Penalty Assessment reduced the Order of Penalty Assessment from $35,429.50, which was based on imputed payroll, to $3,581.96, based upon actual payroll information. The penalty period under the Amended Order of Penalty Assessment is from December 5, 2013, through October 1, 2014. Nicholas Thomas, penalty auditor for the Department, calculated the Amended Order of Penalty Assessment against Respondent based on the Department's allegation that Ron Goodenow, Mariah Ellis, James Corbin Straub, Michelle Goodenow, and Michael Strmiska were Respondent's employees. In the Amended Order of Penalty Assessment, Mr. Thomas used the payroll information in Respondent's bank records and Department of Revenue UCT-6 employment tax reports to calculate the payroll for Respondent's alleged employees. Mr. Thomas explained that, although he had the tax reports for over five months, the delay in calculating the Amended Order of Penalty Assessment was because Respondent's bank records, alone, had been determined insufficient, and he was initially unsure whether he could use tax report information to assist in the calculation of actual payroll. Upon determining that he could use the tax reports, Mr. Thomas then applied the premium rate associated with retail shop operations to Respondent's payroll to determine the amounts that Respondent would have paid in workers' compensation insurance premiums for the alleged employees had Respondent secured coverage during the penalty period. As it was alleged that Respondent did not secure required workers' compensation coverage for the named employees, Mr. Thomas doubled this amount, pursuant to section 440.107(7)(d)l., Florida Statutes, to arrive at the penalty of $3,581.96. In his testimony, Mr. Thomas admitted that a person having their UCT-6 taxes paid by a company does not automatically make that person an employee of that company. Although Mr. Thomas had made an assumption that one of the payments in Respondent's records indicated that it had paid for one of its worker’s Coast Guard certifications, at the final hearing, he admitted that the records provided by American Pro Diving did not prove that any certifications or equipment for the alleged employees was ever bought by Respondent. Mr. Thomas accurately explained that for a non- construction entity, a business with three or less employees is not required to obtain workers' compensation coverage. Mr. Thomas also correctly stated that independent contractors are not considered employees for purposes of workers’ compensation, and that such persons should not be listed on a penalty worksheet. Mr. Thomas obtained the names of the five alleged employees for the penalty calculation from Investigator Russell. Mr. Thomas did not know whether the persons he listed on the penalty worksheet had been interviewed by Investigator Russell. Although Mr. Thomas spoke to Investigator Russell's supervisor, he never spoke to Investigator Russell about the people named on the penalty worksheet. And, other than Mr. Goodenow, Mr. Thomas did not know whether the other four people listed on the penalty worksheet were independent contractors or employees. In conducting the investigation, Investigator Russell did not follow the Department's training procedures which direct its investigators to interview all alleged independent contractors. It is clear that Mr. Goodenow told Investigator Russell that all workers at American Pro Diving were independent contractors. Other than his interview of Mr. Goodenow, however, Investigator Russell did not interview any of the alleged employees listed on the penalty worksheet. In contrast, with the exception of Ron Goodenow, all of those workers at American Pro Diving interviewed by Investigator Russell were determined to be independent contractors or otherwise excluded from the penalty worksheet. According to the testimony of Kathleen Petracco, a 10- year employee of the Department, who also worked in its Bureau of Enforcement for the Division of Workers’ Compensation, it is improper and against Department procedure to assume the status of a worker by looking only at UCT-6 forms and the W-4 applications without interviewing the workers to hear how the workers describe themselves. That testimony is credited. Although there were up to 18 workers at American Pro Diving who had their UCT-6 taxes paid by Respondent, only the five listed on the penalty worksheet were deemed employees. And, for those ultimately determined to be independent contractors or otherwise absent from the penalty worksheet, Investigator Russell advised that his supervisors, not him, made the determination. He did not know the basis of that determination. During his investigation, the only person Investigator Russell observed working at the shop was Mike Perry, but Mike Perry was not classified as an employee or listed on the penalty worksheet. Investigator Russell attempted to explain the decision of who to list on the penalty worksheet by referencing information he had seen on Respondent's website, which describes the various backgrounds and talents of those working at American Pro Diving. It is found, however, that the website information was insufficient to establish whether those workers were employees when compared to the actual testimony and other evidence adduced at the final hearing. Respondent's owner, Goodenow, gave credible testimony regarding his dive shop's business model and its dependence on independent contractors. Mr. Goodenow bought the dive shop 15 years ago. Since that time, he has been its president and only officer. Before he bought it, Mr. Goodenow was an independent contractor for the previous owners of the dive shop, not an employee. As now-owner and president, Mr. Goodenow was an employee of American Pro Diving prior to receiving his exemption. American Pro Diving’s business depends on tourists in the Crystal River area for recreational diving tours. The tours, in turn, are dependent on the seasons, the weather, and manatee availability. As usual and customary for American Pro Diving and other dive tour businesses in the industry, Respondent utilizes individual independent contractors, as opposed to employees, in order to remain profitable and competitive. With the use of independent contractors, labor costs remain flexible and can adapt to seasonal and weather fluctuations which impact the number of tourists. In addition, the dive industry traditionally has been populated by individuals that prefer to be independent contractors because of the increased independence, mobility, and schedule flexibility. The independent contractors utilized by American Pro Diving provide their own gear and are responsible for the acquisition and maintenance of their educational and professional credentials. None of the workers at American Pro Diving have fixed employment schedules, there are no hourly wages, and everyone is paid based on tasks they undertake, such as participating in dive tours, handling boats, or cleaning the pool utilized for instruction. In addition, the workers’ pay is dependent on the number of customers on a boat, commissions from gear sold, tips received from customers, or the numbers of videos sold to the tourists. Under Coast Guard regulations, vessel captains are ultimately responsible for their passengers. All captains working with American Pro Diving carry, and personally pay for, insurance to cover that potential liability. In fact, all of the workers at American Pro Diving carry their own liability insurance, with the exception Mr. Straub and Mr. Strmiska, who are teenagers without requisite experience. America Pro Diving is insured for up to $2,000,000 for the building and $2,000,000 for the business to cover its customers and independent contractors. The coverage is specifically designed to cover independent contractors and customers, not employees. All of those working at American Pro Diving, with the exception of Mr. Straub and Mr. Strmiska, possess Transportation Worker Identification Cards (TWIC) issued by the Department of Homeland Security. Those workers paid for the card application, background check, and renewal. No portion of the expense was paid by Respondent. Mr. Goodenow gave those working at American Pro Diving the option of receiving payments using the W-4 tax form method whereby Respondent took out withholdings, as opposed to the form 1099 method. For convenience, all of the workers initially chose the W-4 method. The reason that Respondent also paid unemployment taxes, evidenced by UCT-6 reports for the workers, was because Respondent’s accountant advised Mr. Goodenow to do so to be consistent with the W-4 form withholdings. During the investigation in this case, however, Respondent began using the form 1099 method of payment and stopped making withholdings. Ms. Michelle Goodenow is Mr. Goodenow’s wife. Although married to Mr. Goodenow, she is not an owner or officer of American Pro Diving and shares no financial accounts with Respondent or her husband. Ms. Goodenow is a licensed captain who maintains her own gear and pays for her own insurance, TWIC card, dive certifications, captain’s credentials and training costs. She also developed a school outreach program and makes school presentations to bring in school groups to American Pro Diving for tours. The amount of her pay is not by hourly wage or salary, but based upon the amount of business she brings to American Pro Diving. She makes no money if no customers are booked and could suffer a financial loss if any of the equipment is damaged. She receives no sick leave or vacation. She is free to take her business to another dive shop if she chooses. Ms. Goodenow chose to have her taxes withheld by Respondent via the W-4 method out of convenience, not because she considered herself to be an employee. She has always viewed herself as an independent contractor and never considered herself to be an employee. The Department excluded all other licensed captains from its list of Respondent’s alleged employees. The evidence otherwise demonstrates that Ms. Goodenow is not an employee of American Pro Diving, but rather, is an independent contractor. Michael Strmiska is Mr. and Mrs. Goodenow’s son. There is no evidence that he has ever had an ownership interest in American Pro Diving. He was 17 years old at the time of Investigator Russell’s investigation and 18 years old at the final hearing. He possesses his own open-water diving credentials and equipment for work. Mr. Strmiska works at American Pro Diving in “tour support.” Tour support encompasses a variety of tasks from helping customers with gear, helping tour operators with boat handling and summer snorkel camps, and loading and unloading the boats. While helping gear-up customers, he also sells gear and receives commissions for sales over $1,500. He has never received any hourly wage for the tasks he completed at American Pro Diving. A good portion of the money Mr. Strmiska made at American Pro Diving was through conducting snorkel camps in the summer with young children. If he did not have any attendees, he would make no money. If the attendees were few in number, his profits were less, because he was responsible for the cost of setting up the camp, gas for the trucks, and potential for damage to the equipment for which he was responsible. Like the others working at American Pro Diving, Mr. Strmiska never had a set schedule and would call in for available work. He has always viewed himself as an independent contractor due to the fact that he could work as much or as little as he wanted. His skill and training are not entry level. The money that he made was variable, depending on the number of customers going on trips or purchasing gear. He also had the option of accruing extra money on a per-task basis, as opposed to hourly, by completing extra tasks, such as cleaning the boats, washing the trucks, and cleaning the indoor pool area. The evidence showed that Mr. Strmiska was an independent contractor. Maria Ellis is a 28-year-old female, divemaster- certified videographer for American Pro Diving tours. Although not a licensed boat captain at the time of the investigation, she was working to get her hours to become a licensed captain. While receiving tips from customers for her work as a boat mate, the majority of her income was derived from sales of DVDs to customers from her videography. If she failed to execute a high-quality product, her sales would suffer. Although she had her own video equipment when she moved to Crystal River to work with American Pro Diving, she used Respondent’s camera to film the dive shop’s customers because it was compatible with the DVD copier at the dive shop. She was responsible for any damage to the equipment. Ms. Ellis brought her own particular videographer skills to American Pro Diving that she acquired on her own through hours of practice, personal expense, and trial and error. Ms. Ellis was otherwise responsible for her own gear, liability insurance, dive certifications, dive equipment, and was never paid by an hourly wage. Other than tips and payments as a mate on a per-capita basis, she made no money if no videos were sold and could suffer a financial loss if any of the equipment was broken. In order to work a tour, Ms. Ellis would call into American Pro Diving to see if work was available. Although Ms. Ellis chose to have her taxes withheld under the W-4 method for convenience, she always considered herself a sole proprietor, independent contractor, with her office at her home. The facts support this conclusion. James Corben Straub, who was at all pertinent times a teenager, was the only one listed on the Department’s penalty calculation sheet, other than Mr. Goodenow, who testified at the final hearing that he considered himself an employee, as opposed to an independent contractor. His testimony was different than his deposition testimony, wherein, in response to a question of whether he was an independent contractor, he testified that it could go either way. Mr. Straub testified that he changed his opinion about whether he was an independent contractor after doing some research and considering the fact that he had been required to sign a non-compete agreement with American Pro Diving.6/ During the time that he worked at American Pro Diving, Mr. Straub was never paid an hourly wage and was not on a work schedule, but rather found out whether there was work to be done by calling in. In fact, Mr. Straub was infrequently at American Pro Diving because of his involvement with the Four-H Club. While working at American Pro Diving, Mr. Straub’s pay was based on a task-by-task basis, even if the tasks took longer on some days than others. His tasks and opportunities at American Pro Diving were similar to those of Mr. Strmiska. Like Mr. Strmiska and other independent contractors at American Pro Diving, Mr. Straub could potentially suffer a loss from damaging a vehicle or equipment under his charge. Mr. Straub admitted that he chose to be paid on a W-4 tax withholding basis for convenience, instead of having to fill out a quarterly report, if paid under the Form 1099 method. He never received traditional benefits associated with employees. When he attempted to renegotiate with Mr. Goodenow for an employee-type position with traditional benefits, he was unsuccessful. Mr. Straub may not have considered himself an independent contractor when he testified at trial, but his work schedule, responsibilities and expectations were much the same as other independent contractors working at American Pro Diving.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, evidence of record, candor and demeanor of the witnesses, and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, dismissing the Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 7th day of October, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2015.
The Issue Whether STOP and the County have standing to challenge the issuance of the Modification? Whether the Department should issue the Modification as authorized in Permit No. BO-612 M1?
Findings Of Fact The Sand Mound The Sand Mound is located entirely on the property of the Applicants in the City of Fort Lauderdale on the southern portion of the city's beach. Oval shaped, it is approximately 176 feet long in a north-south direction parallel to the shore (shore-parallel direction) and 140 feet wide in an east-west direction perpendicular to the shore (shore-normal direction). The Sand Mound's peak at 13 feet NAVD rises between five-to-six feet above the surface of the beach. Gradually sloped, it supports approximately 12,000 square feet of mixed vegetation of varying density. The Sand Mound is an oddity. The width of the beach on the property of The Mayan Beach Club seaward (to the east) of the Sand Mound is approximately 300 feet. The width of the beach lying upland of the Sand Mound (to the west and landward) is approximately 400 feet, a distance of a third or so greater than the beach seaward of the Sand Mound. Unlike a dune, therefore, the Sand Mound lies seaward of an extensive expanse of upland beach. There are no dunes, moreover, in the immediate vicinity of the Sand Mound. The closest dune is several hundred feet to the south. North of the Sand Mound, the closest dune is approximately 800 feet away. Over-sized, recycled tractor tires had been deposited offshore of The Mayan Beach Club property years ago in an unsuccessful government attempt to create an offshore reef. Although not proven, the suggestion was made by the Applicants that the Sand Mound formed as the result of the tires that had washed ashore or ended up on the beach through the beach's advancement due to sand accretion. The suggestion was not disputed by the other parties. It is the only explanation offered by any of the parties for the Sand Mound's isolation from other dunes and its peculiar location seaward of an extensive expanse of upland beach. The Sand Mound's lack of "alongshore continuity" means it is not a "primary dune." It is not a "frontal dune" because there is no "interdunal trough" between it and a primary dune. See Fla. Admin. Code R. 62B-33.002(17)(b). The Sand Mound is not a "significant dune" because it does not have "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). In a major storm event, the Sand Mound would be unable to hold back storm surge. Water would flow over the Sand Mound or flank it so as to move around it. Despite the Department's reference to it as a "dune" in the Permit, the Modification and elsewhere, the Sand Mound is not a dune. It bears similarity to a dune in that is a mound of loose, sand-sized sediment deposited by natural or artificial mechanism which is bare or covered with vegetation and is subject to fluctuations in configuration and location. See Fla. Admin. Code R. 62B-33.002(17). Unlike a dune, however, it is seaward of an extensive expanse of beach. It is not "lying upland of the beach," see id., a characteristic of a dune, and, therefore, it is not a dune.3/ See id. The Permit and the Modification In December 2007, The Mayan Beach Club applied for a permit to reduce the Sand Mound (which it called a "berm") to existing beach level. In the application cover letter, The Mayan Beach Club's manager expressed "the opinion that a large tractor tire was washed onto shore, and never removed, thus causing the berm to evolve." Respondents' Ex. 4, Cover Letter. The cover letter also expressed a simple purpose: "to have the berm leveled to match up with all of the surrounding beaches." In mid-2008, Ocean Lane Villas, Inc., put in writing its support of the efforts to remove the Sand Mound and gave its permission to arrange for removal of the portion of it on Ocean Land Villas, Inc.'s property. The Department issued the Permit on October 2, 2009. But it did not authorize a leveling of the Sand Mound, as requested. The Permit contains a "Project Description" that opens with the caption "Dune Restoration." See Respondents' Ex. 27. The permitted activity is both excavation and restoration between approximately 395 feet and 535 feet seaward of the control line: A +13.0-foot (NAVD) dune feature is to be reduced to +10.0 feet (NAVD), with up to 1,442 cubic yards of excavated material to be spread adjacent to the feature and to construct a second dune feature (approximately 440 cubic yards) located to the north. Excavation and placement areas are to be planted with native salt-tolerant beach and dune vegetation. Id. The Permit authorization of a three-foot reduction in the Sand Mound allows about half of the Sand Mound's five to six-foot elevation above the beach surface to be reduced so that it would have a two to three feet elevation above grade. In January 2011, Coastal Systems International, Inc., submitted an application for a modification of the Permit. The application was received by the Department's Bureau of Beaches and Shores on January 18, 2011. The application proposed that the Sand Mound be removed in its entirety "restoring grade to match the typical conditions of the beach in the area." Respondents' Ex. 33, p. 2. The application's cover letter described the Sand Mound as "an anomaly, uniquely located more than 400 feet east of the landward edge of the beach." Id. The Modification application provided more compelling reasons for the need to remove the Sand Mound beyond the desire of The Mayan Beach Club as expressed in the Permit application to have its beach match the beach in the area. In addition to the contention that the Sand Mound had negative impacts to sea turtles, the cover letter asserted that it "obstructs resident views of the ocean . . . and is an 'attractive nuisance' encouraging trespass onto private property and trash accumulation, and resulting in negative impacts to the Permittee's property values and security." Id. On September 14, 2011, the Department issued the Modification. Its Project Description is markedly different from the Permit's. Rather than "Dune Restoration," the Project Description in the Modification is "Dune Redistribution." Instead of excavation and restoration, the Modified Project, as applied for, is one for "Removal": Dune Redistribution: Removal: Removal of the existing vegetated sand mound[4/] located approximately 514 feet seaward of the control line and redistribute approximately 1,730 cubic yards of the sand across the property. The mound is approximately 140 feet in the general shore- normal direction by 176 feet in the general shore-parallel direction. The removed sand is to be distributed between the Seasonal High Water Line and the western edge of the existing sandy beach to a maximum distance of 536 feet seaward of the control line. Id. at p. 2. Since all of the excavated sand will remain on the beach seaward of the CCCL, there will be no net excavation of in- situ sand or soil seaward of the CCCL. In sum, the primary effect of the Modification is to change the Permit from one that allows the Sand Mound's elevation to be reduced by three feet, to one that removes the Sand Mound in its entirety. The Modification calls for distribution of the excavated sand on the beach, but the Modification, unlike the Permit, calls for no restoration activity that would create a new sand feature. The Parties The Mayan Beach Club is a condominium association that operates and manages a 22-unit low-rise oceanfront residential condominium located along the southern part of Fort Lauderdale's beach. Shortly after its incorporation in 1953, The Mayan Beach Club assumed management of the condominium and its newly- constructed units. The Mayan Beach Club's condominium property is roughly 1/4 of a mile north of the ocean inlet to Port Everglades, a major seaport. Due primarily to a jetty that extends into the ocean along the edge of the inlet, beach sand has accreted in front of its property over a period of several decades. The Mayan Beach Club's property is bounded "on the East by the waters of the Atlantic Ocean." See Respondents' Ex. 11, Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344. Its fee title ownership includes nearly 700 linear feet of beach between the CCCL (seaward of the condominium residential improvements) and the mean high water line ("MHWL") of the Atlantic Ocean. Ocean Lane Villas, Inc., is an association that owns adjacent property to the south of The Mayan Beach Club property. It notified the Department that it supported the Permit and granted permission for the authorized activity to be conducted on its property. It joined The Mayan Beach Club in seeking the Modification. The Department is the state agency with the authority to establish CCCLs and to issue permits for construction activities seaward of a CCCL when an applicant has shown the permit "to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and [Florida Administrative Code Rule Chapter 62B-33] are met . . . ." Fla. Admin. Code R. 62B-33.005(4). Also see §§ 161.052 and 161.053. Incorporated in the State of Florida on August 31, 2010, STOP is a not-for-profit corporation. Its mission is to protect sea turtles, reduce hatchling mortality due to disorientation from artificial light sources, educate the public about marine turtle habitat and assist the State of Florida with its sea turtle conservation program. Broward County is a political subdivision of the state that has existed for more than one year prior to the date of the filing of the application at issue. Official recognition is taken that the population of Broward County is in excess of 25. The Charter of Broward County addresses its interests in natural resources and environmental protection. It has authority, for example, to adopt environmental rules and regulations that prevail over municipal ordinances with which they conflict. Standing STOP's Standing STOP was incorporated less than one year prior to the date of the filing of the application for the Modification. STOP has 120 permanent staff members. "Almost all of them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward County. All of STOP's permanent staff members are permitted by the Florida Fish and Wildlife Conservation Commission ("FWC") to monitor Broward County's beaches nightly during sea turtle nesting season. The members' work in the field is in shifts of a minimum of four hours between sunset and sunrise. Members work many shifts of more than four hours, some as long as ten hours. The activity of STOP includes recovering disoriented turtle hatchlings and documenting disorientations. To rescue sea turtles, FWC permittees must complete a written test and field training that requires 40 hours on the beach. STOP's program is unusual. It is one of the few organizations in Florida that recovers hatchlings at all hours of the night instead of in early morning daylight after hours of disorientation. According to STOP activity logs, at least 20 different members have patrolled the beach in the area of the Sand Mound. STOP has a website for public use and another accessible only to its members. It posts photos, videos, commentary associated with its activities and materials for public education to serve the conservation of sea turtles. Prior to filing its petition, STOP filed public comments with DEP that the Modification "is likely to cause harm to protected nesting adult sea turtles, and could prove deadly to numerous sea turtle hatchlings, in addition to harming other protected species." STOP Ex. 11. Broward County's Standing Broward County has established a Natural Resource Protection Code in Chapter 27 of the Broward County Code of Ordinances (the "BCC"). The Natural Resource Protection Code was adopted by the County to promote the preservation, protection, and enhancement of natural resources. These resources include coastal and marine animal and plant life. The County also relies on the Florida Statutes5/ and the Florida Administrative Code, including section 161.053 and chapter 62B-33, to protect the interests of the County and its residents in natural resources, plants, and wildlife that are present in the beach and dune system in Broward County. The County's eastern boundary is three miles east of the MHWL of the Atlantic Ocean. The beach area affected by the Modification is in the County. The County has an interest in protection of the area's natural resources, plant, and wildlife. The Sand Mound's Vegetation The Sand Mound's vegetation, in varying density, is spread over approximately 12,000 square feet of the Sand Mound. The vegetation is not as robust as typical dune vegetation. Vegetation on half of the Sand Mound is sparse. If the Sand Mound were part of a dune restoration project, it would require the planting of additional vegetation. In a 2011 Site Inspection Report, the Sand Mound was determined to support "Sea Oats, Panic Grass, Seashore Saltgrass, Beach Elder, Chamaesyce, Ambrosia, Railroad Vine, Dune Sunflower and Beach Star." Of the species growing on the Sand Mound only the beach star is endangered. After interaction with the Department of Agriculture, DEP, and the City of Fort Lauderdale, the Applicants agreed to plant several endangered species in another location as mitigation for the destruction on site of the beach star vegetation. The City of Fort Lauderdale agreed to partner with the Applicants as part of a dune restoration project at The Palms Condominium, north of the Applicants' property. The mitigation plan included removal of invasive exotic plants, and replanting the mitigation area with native plants, including several endangered species. The mitigation planting area is approximately 14,000 square feet, which is roughly 2,000 square feet more than the area of vegetation that will be lost through the removal of the Sand Mound. Minimization of Impacts The Applicants minimize impacts by not proposing activity beyond that which is necessary to remove the Sand Mound and distribute the excavated sand on the beach. Adverse Impacts "Adverse impacts" are defined by rule 62B-33.002(33)(a) as those "to the coastal system that may cause a measurable interference with the natural functioning of the coastal system." The "coastal system" is defined by rule 62B-33.002(13) as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction." Removal of the vegetation on the Sand Mound, which is seaward of the CCCL, will, of course, have an impact on the vegetation which is part of the coastal system. But it will not cause measurable interference with the natural function of the coastal system. Removal of the Sand Mound, itself, will not cause adverse impacts to the coastal system. Mitigation The Department must deny an application for an activity seaward of the CCCL if it does not provide for mitigation of adverse impacts. If a project causes no adverse impact, mitigation is not required. See Fla. Admin. Code R. 62B- 33.005(3)(b). Mitigation is not required for the removal of the Sand Mound. Furthermore, no mitigation is required by the Modification since the vegetation will be removed if the Permit is implemented without the modification. Nonetheless, the Applicants entered into the mitigation described above with regard to the planting of endangered species. As part of the effort to mitigate off-site, the Applicants made a one-time payment of $7,500 to the City of Fort Lauderdale. The mitigation plan was successfully implemented prior to hearing. Other General Criteria The proposed project will not cause any anticipated short-term or long-term direct or indirect effects on the coastal system and will not cause cumulative impacts to the coastal system. The proposed project is not inconsistent with siting and design criteria. It will not result in damage to existing structures and property or lower existing levels of protection. It will not destabilize a frontal, primary, or significant dune nor will it cause significant adverse impacts to the beach and dune system due to increased erosion by wind or water. The proposed project will not reduce the existing ability of the coastal system to resist erosion during a storm. It will not significantly interfere with the coastal system's ability to recover from a coastal storm. The proposed project will not affect the hydrology of the water flowing across the land and will not direct discharges of water or other fluids in a seaward direction. The proposed project will not result in the net excavation of the in situ sandy soils seaward of the CCCL. The proposed project will not cause an increase in structure induced scouring. The proposed project will not interfere with public access and will not interfere with lateral beach access. Marine Turtles Each night during late summer months, thousands of marine turtle hatchlings emerge from nests located on Broward County's beaches. If not all, nearly all of the nests belong to two of the five species of marine turtles protected by the Marine Turtle Protection Act, section 379.2431, Florida Statutes: the Atlantic loggerhead turtle and the Atlantic green turtle. Of these two species, the green turtle is more likely to be affected by removal of the Sand Mound. A significant number of the turtle nests in Broward County are green turtle nests, and a significant number of the hatchlings on Broward County's beaches and in the area of the Sand Mound are green turtle hatchlings. Marine turtles nest on a wide variety of beaches, but they tend to prefer steeply sloped beaches with prominent vegetated dunes. Dunes are a particular attraction for green turtles in search of a nest because green turtles prefer to nest at higher beach elevations than do loggerheads. The Sand Mound is a marine turtle nesting habitat. Removal of the mound poses the threat of three impacts to marine turtles: 1) promoting abandonment of nesting attempts by female turtles; 2) negatively affecting the survivorship of nests that would have been in the Sand Mound; and 3) disorientation of hatchlings emerging from nests where the Sand Mound would have been when the Sand Mound would have provided silhouette and shape cues that correctly orient hatchlings toward the sea. Sea turtle hatchlings orient toward the ocean and hatchling disorientation frequently results in death. The Sand Mound offers a visual cue to a female marine turtle that indicates the turtle has crawled far enough out of the water and can stop. Turtles that emerge and find no dune or other cover tend to wander longitudinally along the beach. They may return to the sea in what is known as a "false crawl." See Hearing Tr. vol. 2, 201-202, Mar. 9, 2012. False crawls have a cost to the female turtle's energy requirement for nesting. Dune elevation increases nest survivorship because it protects the eggs from storm events. Nests at higher elevations have a better chance of survival than nests at lower elevations because they are less likely to suffer effects from erosion and inundation, two of the main factors that determine nest survivorship. A dune also offers to hatchlings the benefit of a silhouette which blocks out artificial light from the low landward horizon that causes hatchling disorientation. Prominent vegetated dunes are especially helpful in assisting hatchling orientation. Dune vegetation also provides shade, which increases the nest survivability over nests in bare sand. Artificial lighting can disrupt the ability of hatchlings to find the sea from their nests. Hatchlings benefit from the silhouette of a dune that blocks out some of the disorienting lights that exist in an urban environment. Dune vegetation assists in scattering light, and the downward slope of a dune is a cue that orients hatchlings towards the water. Both Dr. Witherington and Dr. Rusenko testified that in their opinion, the removal of the Sand Mound would constitute a "take" as defined in section 379.2431. Isolating the impact of the removal of the Sand Mound is difficult, however, because there are so many factors that have a bearing on turtle nesting and hatchling disorientation along the southern stretch of Fort Lauderdale's beach. These factors include "night glow," predation, erosion form high-wave storms, weather, inundation, and direct artificial lighting. Dr. Witherington was more equivocal as to whether the Modification would be a take if the Permit had been implemented. See Hearing Tr. vol. 2, 252-255, Mar. 9, 2012. In contrast to the opinions of Drs. Witherington and Rusenko which were based on knowledge of marine turtle behavior in general, the Applicants' biological consultant, John James Goldasich, used Broward County data about turtle nesting and hatchling disorientation in the area of the Sand Mound to form his opinions. Mr. Goldasich also based his opinion on light measurements taken on site which indicated no distinction between the lux values of light on the east side of the Sand Mound and on the west side. Furthermore, night glow, which tends to disorient marine turtles, is significant near the Sand Mound and on the southern stretch of Fort Lauderdale's beach. The accuracy of the Broward County data used by Mr. Goldasich was verified by Lewis Edward Fisher, Jr., the County's lead employee for turtle management. Some of the data included turtle nests that were relocated onto The Mayan Beach Club property, but of the exhibits used by Mr. Goldasich, only Respondents' Exhibit 161 showed relocated nests. The inclusion is insignificant. Exhibit 161 depicts only two relocated nests. Mr. Goldasich offered opinions with regard to two issues: 1) whether the Sand Mound affects the location and pattern of turtle nesting; and, 2) whether the Sand Mound has an effect on hatchling disorientation. Three nest plotting maps used by Mr. Goldasich illustrate that the Sand Mound has had little, if any, impact on the location and pattern of turtle nesting: 1) Applicants' Exhibit 99, which plots nesting data of loggerhead and green marine turtles in the vicinity of the Sand Mound from 2002 to 2011; 2) Applicants' Exhibit 128, which plots nesting data in a broader area than Applicants' Exhibit 99 from 2001 through 2011; and 3) Applicants' Exhibit 133, which plots nesting data of loggerhead and green turtles along southern Fort Lauderdale beach for the year 2011. The three exhibits show no concentration or pattern of loggerhead nesting in the vicinity of the Sand Mound. The absence of effect on loggerhead nesting is expected because they do not exhibit the preference for nesting in dunes that green turtles exhibit. Of approximately 34 green marine turtle nests plotted on Applicants' Exhibit 99, only six have nested in the immediate vicinity of the Sand Mound. The locations of the other 28 nests demonstrate the preference of green marine turtles to nest at higher elevations in the upland beach. Respondents' Exhibit 133, that contains FWC data, supports the finding that the Sand Mound has been a negligible factor for the nesting of green turtles. Of the 15 green turtle nests depicted in Respondents' Exhibit 133, two are located in the vicinity of the Sand Mound. Four are concentrated in a small contained beach area next to tall buildings near the mouth of Port Everglades in an area of greater light disturbance, but with no dune influence. The remaining nine are spread over the hundreds of meters to the north and south of the Sand Mound. They do not depict any concentration of green turtle nesting close to the Sand Mound. Applicant Exhibits 99, 128, and 133 establish that the Sand Mound has had little, if any, bearing on marine turtle nesting. To evaluate whether the Sand Mound had any discernible effect on hatchling disorientation, Mr. Goldasich analyzed FWC Marine Turtle Disorientation Reports provided by the County. If the Sand Mound protects hatchlings from disorientation, then hatchlings from nests on or near the dune should exhibit less disorientation. In comparing disorientation from two dozen nests, there is no correlation between nest proximity to the Sand Mound and hatchling disorientation. Analysis of hatchling disorientation data from the four 2011 green turtle nests in the immediate vicinity of the Sand Mound also yields a finding of no correlation between nest proximity to the Sand Mound and hatchling disorientation. There is insufficient evidence as to why so many hatchlings in the proximity of the Sand Mound have not benefited from its presence. It may be because of night glow, weather, or other relevant factors. Whatever the cause, Respondents have presented empirical data and analysis that reveals no orientation benefit to hatchlings from the Sand Mound, a sand feature that is not a dune on a stretch of beach that is without dunes. The Applicants' data and analysis is more persuasive than Petitioners' prediction based on general knowledge of marine turtle behavior in coastal systems that include dunes. No Take Letter When the Department believes a proposed project justifies an inquiry into whether the project would constitute a Marine Turtle Take, it asks FWC to investigate the issue and, if appropriate, to issue a "take letter." See Hearing Tr. vol. 1, 24, Mar. 9, 2012. In the initial stages of the review of the application for the Permit, the Department did not request FWC to determine if a take letter should be issued. The proposed activity seemed to Department personnel not to constitute a "take." Furthermore, the activity was restricted to a time outside of the marine turtle nesting season. Later in the process when the "take" issue had been raised by others, DEP requested that FWC determine whether or not to issue a take letter. The Department contacted FWC repeatedly about the matter. FWC did not issue a take letter. The Department: No Position on the "Take" Issue At hearing, the Department described its position on the Marine Turtle Take issue as neutral. It continued to have no position on whether the evidence demonstrated a "take" or not in its proposed recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that issues the Modification as reflected in Permit No. BO-612 M1 filed by the Department with its Clerk on September 14, 2011. DONE AND ENTERED this 22nd day of August, 2012, 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 22nd day of August, 2012.
The Issue The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
Findings Of Fact The Parties Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line. Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/ Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes. The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession. On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management. Mr. Machata telephoned the Division of Emergency Management at 10:30 a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County. Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse. Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead. On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit. Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house. On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements. At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/ On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm. The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds. The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure. Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete. The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection. Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication. Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990. A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Agency Requirements Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/ It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative. The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/ The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/ The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding. Necessity: Vulnerability To High Frequency Storms Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/ Emerging Vulnerability Requirement In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed. Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive"). The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium. The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication. Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication. In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability. When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988. On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states: . . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures. 2. Threat determination * * * b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent collapse from such storms. (emphasis supplied) Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years. The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE. When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/ Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/ In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/ The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing. Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R- Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period. Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession. The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or 2.6 feet annually, at R-28. Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes. The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all. As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement. Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring: . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . . The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years. 17/ Vulnerability Clearly Justified By Computer Models Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval. Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm. Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/ The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding. Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable. The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead. Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site. In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data. The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased. The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and 0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment. The Revised Dean Model Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm. Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/ If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes. The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/ The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave. The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE. The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975. To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/ Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert. Notice Of Vulnerability The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16). The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit. Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/ The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits. Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended. It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop. The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a 15 year RISE, but the Governor and Cabinet denied the application. Direct And Cumulative Impacts On The Beach-Dune System The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7). Construction Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles. Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home. The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed. After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade. The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction. Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit. The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits. Natural Fluctuation Of The Beach-Dune System The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes. During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline. Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt. In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes. Active Erosion From Armoring Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead. The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead. The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces. The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur. Scour Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead. Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system. Downdrift Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties. Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side. Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location. Renourishment There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system. Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead. Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events. Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead. The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead. Proposed Similar Structures Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future. Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive. Revised Cumulative Impact Analysis Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/ Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/ The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet. Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5. Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future. Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of non-adherence to the 1990 policy rather than an impact of the proposed project. Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy. The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures. Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated. Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/ During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis. In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located. The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure. Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth"). If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system. If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact. It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project. Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years. Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project. The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property. At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet. Direct And Cumulative Impacts On Marine Turtles Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species. Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline. Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/ It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County. The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles. Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990. The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006. Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach. The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/ Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991. Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season. Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida. Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species. Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune. False Crawls Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting. If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl. A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only 303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge. Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead. A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent. Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach. Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead. Natal Beach Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched. Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched. There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead. Nest Relocation Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests. Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities. In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach. While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium. Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following: implementation of a sea turtle protection plan; implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed; removal of the bulkhead once the bluff line recedes to the landward limit of either return wall; locating the bulkhead as far landward as practicable; placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the bulkhead to enhance the stability of the dune; and yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded. Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1. Other Considerations: Imminent Collapse; Public Access; And Local Requirements Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended. Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County. The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access. The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project. Only Feasible Alternative Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation. Do Nothing And Sand Placement Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible. The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk. Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of 1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive. Relocation: Technical Feasibility It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end. The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing. The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry. In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed. There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting. If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed. Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property. Relocation: Economic Feasibility Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move. Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning. The cost of restoring Petitioners' homes after relocation is: MACHATA LANZENDORF a. Exterior demolition 45,878 11,923 b. Interior demolition 12,375 0 c. Earthwork 88,727 46,033 d. Concrete for retaining walls, planters, equipment enclosure walls, footings, terrace and steps 84,909 5,600 e. Pilings 37,500 15,700 f. Rebuild interior fireplace 52,000 0 g. Exterior refinishing 74,770 10,800 h. House reconditioning 32,700 13,500 i. Pool area 23,500 26,500 j. Deck drain, flashing, water proofing 3,000 1,000 k. Electrical 12,665 8,400 l. Plumbing 12,500 8,500 m. Air conditioning systems 11,000 1,250 n. Site grading, irrigation, landscaping 33,192 14,000 o. Driveway 23,256 8,165 p. Temporary shoring and structural support 7,500 0 q. Consulting fees 12,500 3,500 SUBTOTAL 567,972 174,871 r. Contingencies, wastes, and unknowns 42,597 13,155 s. Overhead and profit 128,217 39,477 TOTAL 738,786 227,503 The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project. The cost of restoring the Lanzendorf home after relocation is $227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503. The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786. The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material. The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt. The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL. Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation. The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system. The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location. The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875. Competing Cost Estimates The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used. Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons. Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs. The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing. The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000. The 2:1 Requirement For Economic Feasibility Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible. Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/ Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible. The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is $302,464. Agency Requirements Satisfied Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years. Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as 10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment. The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order. DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
The Issue The issue is whether proposed amendments to Rule 46-39.005 adopted by the Marine Fisheries Commission, setting maximum lengths for nets used for the commercial harvesting of mullet, establishing one week alternating closure periods for mullet harvests during the late fall/ early winter roe season, setting a 500 pound per vessel per day harvest limit during the pre-roe season and a one thousand pound limit if two licensed commercial fishermen fish together during the roe season, constitute invalid exercises of delegated legislative authority. The Petitioners assert that the economic impact statement which accompanied the notice of rulemaking is inadequate.
Findings Of Fact The Parties Sigma International, Inc., owns and operates a mullet processing, wholesaling and exporting business in Florida. The restrictions embodied in the proposed rules will substantially affect its interests. Seafood Consumers and Producers Association is a non-profit association of businesses and consumers interested in fishery resources and fish harvesting in Florida and elsewhere. The rules would substantially affect interests of the association and the interests of individual members of the association. Bob Combs Fish Co. are fishermen, a first receiver of fish caught by others, and a fish wholesaler doing business in Florida. The proposed rules would substantially affect its interests. Everglades Fish Corporation are fishermen, are first receivers of fish caught by others, and fish wholesalers doing business in Florida. The proposed rules would substantially affect their interests. Houston Brown is a fisherman who does business in the State of Florida. The proposed rules would substantially affect his interests. Triad Seafood is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interests. Horse Weeks Fish Co. is a first receiver of fish caught by others, and a fish wholesaler which does business in Florida. The proposed rules would substantially affect its interest. A.P. Bell Fish Co. are fishermen, a first receiver of fish caught by others, a wholesaler, retailer, and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interests. SaltWater Enterprises, Inc., are fishermen, a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Fisherman's Market, Inc., is a first receiver of fish caught by others, a wholesaler, retailer and distributor of fish and fish products which does business in Florida. The proposed rules would substantially affect its interest. The Marine Fisheries Commission (Commission) is legislatively created and assigned to the Department of Natural Resources. It has authority to adopt rules. Sections 370.025, 370.026 and 370.027(1), Florida Statutes (1991). It adopts fishery conservation and management measures which promote the continued health and abundance of marine fisheries resources in Florida. Section 370.025(2)(a) and (c), Florida Statutes (1991). The Fish Black or striped mullet is a popular food sought for the flesh of the fish and especially for its roe, which is available annually during the autumn spawning season beginning in October. Mullet roe is highly valued by the Japanese, and much of the roe is exported to Japan. Mullet is the most intensively harvested finfish in Florida; in 1989 mullet accounted for 19.3 percent of the state's total finfish catch. Florida is the source for 85 percent of the nation's black mullet catch. Since 1976 the demand for the export of black mullet roe has increased, which has increased fishing pressure on the species' egg bearing females. Roe-bearing fish caught during roe season are about four times as valuable as the fish would be if caught in the pre-roe season. Mullet has a shelf life as a fresh fish of no more than four days due to the oil in its flesh. Although it can be frozen, in the Florida retail market frozen mullet is not considered a desirable food. There is a California market for frozen mullet, however, where it is popular with Asians. Since the closures during the roe season proposed in the Commission's rules will be for periods of one week, there could be days when no fresh mullet would be available to Florida consumers. Earlier Regulation of the Black Mullet Fishery - 1989-1992 Black or striped mullet (mulgi cephalus) are regulated by the Commission as a restricted species. Section 370.01 (20), Florida Statutes (1991), and Rule 46-39.001(4), Florida Administrative Code. Size and bag limits are imposed on recreational takings of mullet. Commercial fishermen taking mullet must hold a saltwater products license with a restricted species endorsement. When they sell their catch they must provide a trip ticket to the purchaser of the fish which includes the fisherman's name and license number, the gear used in the catch, the place of the catch, the species caught and the number of pounds of fish caught. This information is then sent by the purchaser to the Department of Natural Resources, and is an important part of the Department's data base used in regulating the fishery. The Marine Fisheries Commission began a study of black mullet in 1987, and adopted rules restricting commercial black mullet fishing in 1989. Those rules established gear restrictions, amended certain qualifications for licensure to catch mullet in commercial quantities, and set roe season closure periods for mullet fishing. During 15 weekends of the year, the fishery was closed for 36-hour periods. The minimum net size for mesh was set at three inches. Amendments to the rules in 1990 closed new areas to fishing, set minimum net mesh size which could be used during the roe season at four inches, and prohibited commercial fishermen from using spotter aircraft to locate schools of fish. The weekend closures were extended from 36 to 54 hours, and two more weekends were closed for fishing. In drafting all its management measures, the Commission attempted to make it possible for fishermen to fish year round for mullet, and thus make fresh mullet available to consumers throughout most of the year; See the Purpose and Effect Statement of the rule published at 18 Florida Administrative Weekly at 4931, which reflects this Commission policy. In 1991 the Commission debated whether additional regulation was necessary for the mullet stock and proposed new rules and amendments to existing rules which were published in Volume 17, No. 32, of the Florida Administrative Weekly on August 9, 1991, at pages 3593 et seq. but, as noted above, the validity of these rules was challenged. In a final order that was issued on December 9, 1991, provisions of those rules were found to be invalid exercises of delegated legislative authority (DOAH Case Nos. 91-5408R and 91-5422R). The District Court of Appeal affirmed that determination in the opinion entered in Florida Marine Fisheries Commission v. Organized Fishermen of Florida, 610 So.2d 92 (Fla. 1st DCA 1992). Those invalidated rules had their genesis in a decision made by the Commission in February 1991 which set a statewide spawning potential ratio (SPR) for black mullet. The SPR is a measurement tool used by the Commission and by other regulatory groups, such as the Federal Fishery Management Councils, in the regulation of fish stocks. It is a measure of the biomass (essentially the total weight) of those fish capable of reproducing, divided by an estimate of what would have been the total biomass of fish of reproductive age if there were no fishing at all in the fishery. The goal the Commission set of maintaining a 35 percent SPR for black mullet was chosen using the best information available. The goal is a reasonable tool for the Commission to use in assessing the effectiveness of any of its efforts to manage the black mullet population to produce maximum stock abundance. The 35 percent target is the minimum level which could be set to provide adequate management of the stock and avoid the risk of a dramatic reduction in the number of fish available. The Commission was disappointed that its August 1991 efforts to increase regulation (and in its view, protection) of the mullet population had been turned back through litigation. It credited data on mullet landings showing a continuing decline in the mullet population. This led the Commission to believe that the spawning potential ratio for mullet in the 1991-1992 fishing year had declined to 18-25 percent, well below the target of 35 percent. Review of nine management options and debate at its August 1992 meeting led the Commission to advertise proposed new rules and amendments to existing rules published in Volume 18, No. 35 of the Florida Administrative Weekly at pages 4931 et seq. on August 28, 1992. According to the Purpose and Effect Statement and Summary for these rules the changes proposed to the regulatory regime for black mullet would do six things: proposed rule 46-39.0036 would prohibit the recreational harvesting of mullet from October 1 through October 15, from November 1 through November 15, and from December 15 through January 15 each year; an exception to the closures would be recognized for possessing cut mullet to be used on boats as bait; an amendment was proposed to existing rule 46-39.005 to prohibit the use of gill or trammel nets or beach or haul seine nets longer than 600 yards; subsection (4) of existing rule 46-39.005 was deleted, it had closed the fishery to commercial operation during weekends in the roe season; a new subsection (5) was proposed to rule 46-39.005, which would close the fishery to commercial harvests for the same periods specified for recreational closures; a new subsection (6) was also proposed for rule 46-39.005, which set a limit on commercial harvesting of mullet to 500 pounds of mullet per vessel per day from July 1 through September 30, which is the pre-roe season. At its meeting of September 25-26, 1992, the Commission conducted a legislative-type hearing under Section 120.54(3), Florida Statutes (1991), for the rules it had noticed for adoption. More than 60 people commented on the proposed new rules and amendments to existing rules. On September 26, 1992, the staff of the Commission made a presentation of options it believed were available to the Commission to achieve increased SPR for black mullet and the Commission deliberated using all the information placed before it. Based upon the rule making record compiled, the Commission voted to make changes to the text of the rules as they had been published for comment on August 28, 1992. The Commission decided that instead of two week alternating closures of the mullet fishery for 61 days during the roe season (from October 1-15, November 1-15 and December 15-January 15), it would close the fishery for 56 days using alternating one week periods (from the first through the seventh and fifteen through the twenty-first days of the months of October, November, December and January). The proposed 600-yard maximum net length and 500-pound per fisherman trip limit during the pre-roe season remained, but an increased limit of 1,000 pounds per vessel during the roe season was added if two licensed commercial fishermen used a single vessel. These changes were published in Volume 18, No. 42, of the Florida Administrative Weekly, pages 6221 et seq., on October 16, 1992, as a notice of changes to the Commission's proposed rules. DSPOPS Model for Estimating Spawning Potential Ratio Authorities which manage stocks of pelagic fishes commonly assess the condition of the stock with biological models. Models attempt to account for dynamics of a fishery represented by variables, in an effort to mimic the behavior of the population in its natural state. The models' results provide managers with as accurate an estimate of future fish populations as current science can provide. The choice of a particular model is significantly affected by the data available to be loaded into the model equation. How well any model mimics the natural population necessarily is affected by the accuracy of each of the values used in running the model. The federal National Marine Fisheries Service uses models to assess the condition of stocks of king mackerel, Spanish mackerel and dolphin. The Florida Marine Fisheries Commission has used similar a model known as GXPOPS 1/ to manage the red drum population, with good results, and another for management of Spanish mackerel, which has been brought back from the point of collapse (i.e., a dramatic change in population from an insufficient number of juveniles reaching adulthood). Commission staff chose the biological model known by the acronym DSPOPS 2/ to analyze the current spawning potential ratio of the black mullet fishery. The DSPOPS model is rather sophisticated and contains a significant number of input parameters or variables, such as growth rates, age at sexual maturity, observed harvest levels, recruitment and mortality. The value for some of these parameters are relatively well known through biological sampling, such as age, size, sex and maturity. Values for others, such as mortality of black mullet due to fishing, are subject to some debate. There is sufficient data available to use the DSPOPS model. The model can be run using the high and low estimates for input variables, which yields a range for the SPR, based on those runs. Data the Commission staff used to run the model came from the southwest Florida area. About 75 percent of all mullet landings are made there (especially in the Tampa area), and there is no reason to believe that the dynamics of the black mullet population operate differently there than in the panhandle area or in eastern Florida waters. Catch and effort data for all areas of the state are sufficiently similar to show the fishery is a single unit. Analysis of mullet show Gulf and Atlantic mullet are part of a single gene pool. Moreover, the statute encourages the Commission to manage species populations as a single biological unit. Section 370.025(2)(d), Florida Statutes (1991). The Commission used data only for female mullet, which is appropriate when calculating the spawning potential for a fish where eggs are a limiting factor for the number of fish in a population. Recruitment is a term that refers to those fish that survive the egg and larval stages and eventually mature into adults which can be harvested with fishing effort. There is a relationship between the number of fish able to spawn and the number of fish that are added or "recruited" into a fishery as the result of the spawning, which is known as the spawner recruit relationship. Unfortunately, the spawner recruit relationship cannot be estimated for mullet with enough precision to incorporate it into the model. To account for this, Commission staff ran the model assuming constant recruitment, that is, the assumption was made that there is no relationship between spawning stock and recruitment. This produces an estimate of spawning potential ratio that may be accurate or may be higher than it would be had a spawning recruitment relationship been determined (or assumed). Thus, use of a constant recruitment assumption tends to produce an optimistic assessment of the spawning potential ratio. The most basic variables used in a biological model designed to predict future fish stock are those for mortality rates. In fisheries science, total mortality is universally represented as the variable "Z." It is equal to the rate of fishing mortality, represented as "F," plus the rate of natural mortality "M." 3/ Thus, the equation is that Z = F + M. This is as basic to fishery science as the equation "debits = credits" is to accounting. It is also significant that under this equation, if any two of the three variables are known, the third can be calculated. Non-Parametric Statistics and Independent Review Many of the parameters used in the DSPOPS model have threshold values, they are not parameters which would be expected to have a normal or bell-curved type distribution (such as the average age of fish in a population). Threshold values are non-parametric statistics, and there are no confidence intervals or other measures of variation, such as coefficients of variation, associated with them. This does not mean that the expected SPR levels produced by the model lack utility, are unscientific, or are inherently untrustworthy. Other efforts are made to test the correctness of the parameters values used in the model, or in using the model's output. Using the model to estimate a range of SPR for various regulatory regimes is the best way to manage a fishery. It is for this reason that the Department convened an independent review panel to evaluate the values which its staff had loaded into runs of the DSPOPS model, to represent what would happen in the fishery if various management measures were imposed. This group of outside scientists met with the Commission staff on July 9-10, 1992, to review the data and reach a consensus on the appropriate values to be used for all parameters introduced into the model equation. They cross checked data, and evaluated its consistency with published studies. Although Petitioners complain that scientists who testified for them at the Section 120.54(4) final hearing on the 1991 rules were not invited to this meeting, the Commission's explanation for this is persuasive. The scientists invited were independent, had no association with the Commission, DNR or the Petitioners, and had no other prior associations or biases militating against reaching a consensus. The panel concluded that data available showed female SPR was in the range of from 15 percent to 26 percent, with the most likely value being 21 percent or less. F Value Determined by Tag/Recapture Data and Z Using Time Series of this Data Dr. Behzad Mahmoudi, of the Florida Marine Research Institute, performed a tag/recapture experiment on mullet in southwest Florida in an attempt to determine the F value (fishing mortality) to be used in the DSPOPS biological model. The determination of F can be a problem; for some fish species it is not available. In a few fisheries researchers are assigned to observe and record activity on commercial fishing vessels; there F (fishing mortality) may be calculated by analyzing catch per unit of fishing effort, i.e., the number of pounds of fish landed per hour or per day of fishing. Florida's data gathering through trip tickets does not permit this, since it provides no means to account for the common situation of a fishing trip which yielded no mullet catch. Dr. Mahmoudi's experiment for determining fishing mortality was a good one, which carefully accounted for the biases normally associated with studies designed to estimate F. In a tagging experiment mullet are handled, a smooth plastic filament streamer or tag inserted in a small slit, and then the fish is reintroduced into the waters of the Gulf. These streamers are thin enough to be pulled through the mesh of the crown of fishing caps, where they are sometimes worn by fishermen disinclined to return them to the Commission's researchers, although they are paid $5.00 per tag returned. These tags are then returned to the Florida Marine Research Institute by fishermen or fish processors when tagged fish are caught. When used in conjunction with data on landings of mullet, the proportion of tags returned from among those landed gives an indication of the fishing mortality for the species. The fish were tagged at the beginning of the '89-'90 and '90-'91 seasons, and captured over the following two seasons. Fish tagged in the first year may not be caught until the second year or later. Dr. Mahmoudi also performed ancillary experiments. He put a sample of tagged fish in pools, and evaluated mortality over time caused by the tagging process itself. He also evaluated tag rejection by monitoring tagged fish placed in pools to determine the proportion of spontaneous tag loss. Lastly, he and associates evaluated the non-return rate for tagged fish commercially caught by going to fish processors, and examining commercial catches made by licensed fishermen. After the fishermen and processors had finished with the fish, and returned all tags that were going to be returned, researchers examined those fish to see how many tags yet remained and had not been removed or returned to the Commission. This permitted calculation of the rate at which tags on fish caught are returned. Through these three ancillary experiments, Dr. Mahmoudi accounted for the major variability likely to be introduced into estimations of F (fishing mortality) based on tag recovery. He did not add a specific adjustment to his F value for any increased predation on tagged fish, for there was no reason to believe that it would be anything other than de minimis. Due to the nature of the tag and the placement of the tags on the fish, it is unlikely that tagged fish were ensnared in nets at any higher rate than untagged fish. It is also significant to remember that the recovery rate for tags is not affected by fishing effort. It is based on the percentage of tags which are returned from among fish caught, and is a proportion of fish caught. The more fishermen fish, the larger the absolute number of tags returned, but if the price of fish falls, and fishermen make fewer fishing trips, the proportion of tags returned does not change, although fewer tags may be returned. The range of values which Dr. Mahmoudi estimated for F based on his tag return data of .88 through 1.13 are quite accurate. Moreover, the numbers are consistent with published studies and confirmed by separate calculations discussed below which are consistent with these F values. By treating tagged fish as if they were the whole fish population, Dr. Mahmoudi was also able to determine how many tags were returned at different time intervals, and by using this time series data, was able to calculate a value for Z (total mortality) of 1.5. Since he then had values for both F and Z, he was able to calculate the value of M (natural mortality) as .3. Independent Calculation of Z Through Catch Curve Analysis A commercial catch of fish contains individual fish of different ages. When gear such as gill nets are used, small fish escape, but after the fish reach a certain size, all but the biggest fish are caught (big fish may bounce off or swim around gill nets). The range of ages of the fish caught in gill nets mirrors the age distribution in the fish population, after an adjustment for the smallest and largest fish which escape gill net capture. It is possible then to calculate the slope of a line by plotting the age of fish versus the percent of fish of that age in the catch, and by this method to derive a value for Z (total mortality). Dr. Mahmoudi did this. He then went through an additional verification step. He made a catch of fish using a purse seine net which, unlike a gill net, catches all fish regardless of size. He was able to superimpose the catch curve analysis from this purse seine catch over that generated by the catch curve for fish caught with gill nets, and they matched. This gave him two additional independent and consistent estimates of Z, which also were consistent with his Z estimate of 1.5 from the tag/recapture data. Corroboration of Z value by Otolith Size Mullet have bones in their ear which lay down layers of clear and opaque material creating rings. Counting the number of rings yields a determination of the fish's age. Dr. Mahmoudi counted otolith rings using a large sample of mullet, and he determined the average age of mullet in the fishery was 3.5 to 4 years. This is consistent with the estimates of Z as being 1.5, because use of 1.5 in the equation Z = F + M means that the average age of mullet in the fishery is 3.5 to 4 years old. Independent Calculations of M Natural mortality, or M, is a significant parameter in the DSPOPS biological model, and it is important to have a good estimate for it. Dr. Mahmoudi used three independent methods to calculate a value for M. The first he used, Pauly's method 4/, is one which can be done with little data, but provides a somewhat weak estimate. It was developed for use in estimating sardine populations, and is based on water temperature readings, and the rate of the growth of fish. It yields an estimate of mortality which is accurate within a range of from one half to two times the actual mortality rate for the fish. The independent review panel determined that it was likely that the estimate for mullet of .58 using Pauly's method would be on the high side, i.e., closer to the twice than to one-half of the actual mortality rate. Dr. Mahmoudi then calculated an M value with a different method, Alagaraja's method 5/, which provides a stronger estimate, but requires knowing the maximum age of the fish attained in an unfished environment. This is somewhat difficult because black mullet have been fished in Florida waters for more than 50 years. Other experiments in the scholarly literature showed mullet have been found that were at least ten old, so an age of at least ten years was appropriate and when used in Alagaraja's method yielded a value for M of .4. The consensus of scientists on the independent review panel was that the maximum age of mullet in an unfished population was probably closer to 15 years of age, and using that value, the Alagaraja's method yielded a M value of .3, which was consistent with the M value generated in the tag/recapture study, and reasonably close to the .4 value computed for M under Alagaraja's method using a maximum age of ten years for mullet. The third method was to calculate M based on the values of F and Z determined from the tag/recapture study. Summary of Biological Data For Z there were two independent estimates derived from catch curve analyses (one using gill nets and the other purse seine net catches) and the determination from otolith rings. There were two separate calculations of M using Pauly's and Alagaraja's methods. F was calculated from the tag/recapture study. Independent estimates for Z and M were derived from Dr. Mahmoudi's tag/recapture data, and all were consistent. There are number of reasons, therefore, to have great confidence in the values for the significant variables Z, F and M used by Dr. Mahmoudi in running the DSPOPS model. As with the values for other parameters loaded into the DSPOPS model, which have no statistical confidence intervals associated with them, it is not possible to say that the value of 1.5 for Z is correct within plus or minus X thousandths of a point, at the .05 level of confidence, as is commonly done with parametric statistics, such as reports of opinion polling data. For this reason, separate computer runs were done using high and low estimates of significant variables such as Z (total mortality), F (fishing mortality), and M (natural mortality), paying special attention to the estimates likely to produce the highest SPR value. Effects of Cold Fronts on Catchability and the Effect of Effort-shifting by Fishermen. The more cold fronts which occur during the closure season, the more likely it is that a higher proportion of fish will escape, and conversely if many cold fronts occurred during the open weeks, a larger proportion of fish ready to spawn would be caught. Dr. Mahmoudi ran simulations using data from 17 years on the occurrence of cold fronts, and using what is similar to a random number generator, performed a Monte Carlo simulation for likely occurrences of cold fronts based on the 17 years of data. This data was incorporated into the projections of likely SPRs for different regimes. Net Limitations The Petitioners attack the 600-yard net limitation found in the rule as arbitrary. At the time the rule was being considered, the average net length used in the fishery was about 1,000 yards. The reduction in the maximum net length would have an effect on the catch, but while catch may vary inversely with maximum net length, it does not vary directly with a reduction in net length. Consequently, Dr. Mahmoudi estimated that the 40 percent reduction in the maximum net length would result in an approximately 15 percent reduction in catchability. While this assessment of the effect of the reduction in gear is judgmental rather than statistical, it is reasonable, and not arbitrary, i.e., a judgment unsupported by fact or logic. Regulatory Options For the option proposed of two-week closures during the roe season of October through January of each year, coupled with the 600-yard net limitation and a 500-pound catch limit per vessel, the estimation of SPR mullet would achieve would be from 30 percent to 39 percent. This was the management option discussed at the Commission's August 1992 meeting which led it to the publication of the first iteration of the rule in the August 28, 1992 edition of the Florida Administrative Weekly. After that publication and before the legislative-type public hearing on the rule which had been noticed for adoption, Dr. Mahmoudi ran the DSPOPS biological model to consider four more management options, three of which were suggested by commercial fishermen or their representatives. The option which suggested the highest SPR range was not necessarily the best option, however, because the Commission also had to consider what the escapement rate would be for roe-bearing mullet during the roe season for that option, and how enforceable that option was likely to be. The commercial fishermen made it clear at the pubic hearing that they would prefer a one week open/one week closed regime, as opposed to the published text of the rule which would have closed the fishery for alternating two week periods. In addition, the rule was amended to allow two licensed fishermen on a single vessel to catch 1,000 pounds of mullet per boat trip during roe season. Fishermen believed that by fishing together when fish were more valuable they could lower their expenses and thus achieve a higher profit margin during the open weeks. The Petitioners argue that had the Commission chosen option 1, a 72- hour-per-week closure during roe season, with one 10 day closure, the predicted SPR would be approximately 32.3 percent (with a range of 27.9 to 36.7 percent), while option 4, the proposal for week one/week off closures, would produce an average SPR of 34.2 percent (having a range of 29.8 to 34.2 percent). They see the options as essentially identical in the SPR but would find option 1 much easier to live with, since it would be easier for fish processors to maintain their labor forces with shorter closures. Option 1 would also make it less likely that there would be many periods when no mullet would be available to retail consumers of fresh mullet since with a four-day shelf life, week long closures could produce periods when fresh mullet could not be found and 72-hour closures do not. The longer the closure period, the more likely closures will coincide with cold fronts; it is closures during these frontal periods which permit the escapement of the most fish. The significant differences between option 1 and option 4 are that under option 1, approximately 20 percent more spawning females would survive the roe season, but under option 4 (which is essentially the option the Commission adopted), the increase in the number of spawning females surviving through the roe season would be 48 percent. Option 4 intuitively is a better management option if the goal is to reach spawning potential ratio of 35 percent, the minimum ratio to sustain stock abundance over time. The Commission did adjust the closure period to help the commercial fishermen by switching the closures periods from a two-week on/two-week off regime to a one-week on/one- week off regime. The Economic and Small Business Impact Statement As is often the case with legislation, the goals stated in Section 370.025(2), Florida Statutes (1991), can be harmonized, but only with some difficulty. Section 370.025(2)(b) requires the Commission to base its conservation and management measures upon "the best information available, including biological, sociological, economic and other information deemed relevant by the Commission." Section 370.025(2)(c), Florida Statutes, requires that those measures "shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis." The Petitioners interpret this to require the Commission to achieve its biological goals with the least possible negative impacts on the economics or social conditions in the fishery. This is simply not what the statute says. No doubt those regulated would hope that the Legislature would require the least possible impact on them. But what was enacted was the mandate that the Commission's primary goal is to insure the continuing health and abundance of the species, and after doing so, then to permit reasonable quantities of annual harvest which can be sustained over time. The economic impact statement (EIS) was prepared by an economist, using data from a variety of sources. The statement itself is 16 pages long, it contains three pages of references, five figures to illustrate points, and six pages of tables of data to support its conclusions. Much of the important information was derived from a 1989 study published by the Institute of Food and Agriculture Science at the University of Florida by Robert Degner and others entitled "An Analysis of Potential Regulatory Changes on the Economic Structure of the Eastern Gulf of Mexico Finfish Industry Centered in Florida" (Reference 11). Section 3 of the EIS estimates the economic benefits and costs to persons directly affected by the proposed amendments. It analyzes who are the persons directly affected (Section 3.20); the costs and benefits of having no regulation, of maintaining current regulations, or of imposing the new regulations published in the August 28, 1992 edition of the Florida Administrative Weekly (Section 3.30); the result of changes in net lengths (Section 3.40); the result of the seasonal closures (Section 3.50), and of trip limits (Section 3.60). It contains as well an analysis of the impact of the proposed rules on competition in the open market for employment in Section 4.00, a small business impact statement in Section 5.00, and an analysis of alternatives in Section 6.00. Section 7.00 evaluates costs to the agency and to local governments. Section 8.00 describes the data and methods used by the Commission in making its estimates. The Petitioners presented testimony at final hearing of an economist that many of the views expressed in the economic impact statement are misinterpretations of economic data or are in error. It is essential to remember that the purpose of rulemaking is not to produce assessments of potential economic impact which can withstand the intense scrutiny of a Ph.D. dissertation. Rather, the EIS is required to insure that the agency considers each of the topics required in the statutory economic impact analysis before settling on a policy which will be embodied in its rule, and to give affected persons the opportunity to bring to the attention of the Commission information which could lead to other regulatory choices, if the Commission is persuaded by that economic evidence or argument. Basically, Mr. Murray's testimony at final hearing argued that the Commission's economic impact analysis focused on macro-economic results of the proposed regulations, but not enough on micro-economic results, that is, impacts on individual households and business (Tr. 458). The EIS concentrated on such things as estimates of total dollar losses caused by the regulation proposed. In Section 3.20 the EIS defines the persons directly affected by the rules as "those engaged in the directed harvest of mullet for commercial purposes;" and commercial harvesters (fishermen) were estimated to be between 455 and 3,150 persons, based on estimates in two sources (EIS at 5). The fishermen generally work alone, as two-man crews, and in a few instances in six to eight fishermen groups. These estimates of those directly affected appear to have an adequate basis. While a broader number of people will feel the pinch of the rule (for instance consumers wishing to buy fresh mullet at retail) they are indirectly rather than directly affected, since there is no prohibition against possession of mullet purchased at retail for home consumption during closure periods. The statute requires the analysis of the effect on those persons who will be prevented from harvesting mullet during closure periods and the EIS is not deficient for limiting its analysis to those whose actions would be directly regulated by the Commission. The section of the EIS dealing with the impact on competition and the open market for employment acknowledged that the rule would have seasonal affects on employment and the incomes of persons in roe mullet fishing and processing businesses (EIS Section 4.00 at 9). Most all of the fishermen are small businesses, so there is no effective way to tier the rules to impose lesser restrictions on small businessmen and ultimately achieve the impact the Commission intends to achieve. If small businesses were exempted, no regulation could be effective. EIS has an analysis of the effect on the standing stock of fish and the dollar value of that stock under four scenarios, (1) under equilibrium conditions with no regulation, (2) the then current weekend closure and net size regulations, (3) under the proposed rule as published and (4) under the assumption that the rule would result in an increased recruitment to the fishing stock of an additional 10 percent. The dollar value for the fish used in the these evaluations is probably inappropriate (the value is $6.70 for each fish, which is the ecological value the Department of Environmental Regulation was considering establishing for fish killed through violations of ecologic regulations). What is significant is the comparison of the increase in standing stock in each scenario, as well as the dollar value ascribed to that stock. Commissioners, legislators, or anyone else could interpret the dollar value by making different dollar assumptions for the stocks levels projected. Mr. Murray's written comments pointed out to the Commission that a better value might be 60 per pound. The EIS does provide a means of comparing the benefits of not adopting the rule to the benefits of adopting the rule, at least as far as an increase in the size of the fish stock is concerned. Proper notice of the proposed rule was sent to the Director of Economic Development, the Bureau Chief of Minority Business, and the Small and Minority Business Advocate, as well as to the Joint Administrative Procedure Committee. The Marine Fisheries Commission received neither a response nor an objection from any of these agencies. The Commission amended the proposed rules in significant ways in an attempt to relieve the burdens which the fishermen argued they would suffer if the rules were adopted with no changes. The one week on/one week off closure periods were substituted for the two week closure periods originally proposed, and the trip limit was amended to permit two licensed fishermen to fish in a single boat and bring in 1,000 pounds of fish during the roe season. The agency thus seriously considered alternatives to achieve their management goals while ameliorating the economic impact on those regulated. This shows that the economic information contained in the economic impact statement was seriously considered by the Commissioners. The only economic objection actually voiced to the Commission on September 25, 1992, during public testimony by Mr. Murray was that the EIS did not ascribe sufficient value to mullet flesh taken during roe season, but concentrated on the value of the roe. He informed the Commission that for some sellers, fresh mullet flesh was 80 percent of their sales, and that two week closures could put them out of business. (Ex. 12, at 57-58). This error in the EIS was remedied by Mr. Murray's testimony.
The Issue Whether proposed rules promulgated by the Florida Marine Fisheries Commission are an invalid exercise of delegated legislative authority.
Findings Of Fact The Florida Marine Fisheries Commission (MFC) has proposed rules requiring use of bycatch reduction devices (BRD.) The proposed rules are applicable where trawling for shrimp is permitted in specified Florida waters within the Gulf of Mexico. The notice of proposed rulemaking was published in Volume 23, Number 30, Florida Administrative Weekly, July 25, 1997. The Petitioners have challenged the proposed rules, specifically the provisions prohibiting possession of an otter trawl (a type of trawling net) that is rigged for fishing aboard any vessel without having a required BRD installed. All parties have standing to participate in this proceeding. The federal government requires BRDs in the Florida waters not impacted by the proposed rules at issue in this proceeding. The federal rules are intended to protect red snapper in the Gulf and weakfish and Spanish mackerel in the Atlantic Ocean. The MFC rules are intended to offer broader protection than federal rules, and are intended to protect the Gulf ecosystem rather than specific species of organisms. Shrimp trawls operating in the Gulf of Mexico harvest approximately 2.4 pounds of non-shrimp species for every pound of shrimp harvested. The MFC goal is to reduce the level of bycatch harvested by 50 percent. The proposed rules do not cover the “Big Bend grass beds” where trawling for shrimp is already prohibited. The proposed rules do not cover Florida’s northeast coast where other BRD rules are in effect. The Petitioners challenge the same provision in three separate rules. Proposed Rule 46-31.010(4), Florida Administrative Code, provides: In the Northwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.012(4), Florida Administrative Code, provides: In the Southwest Region, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) Proposed Rule 46-31.013(2), Florida Administrative Code, provides: In all waters of the Southeast Region outside nearshore and inshore Florida waters, no person harvesting shrimp as a food shrimp producer shall operate or fish any otter trawl, or possess any otter trawl that is rigged for fishing aboard any vessel, which otter trawl does not have a bycatch reduction device (BRD) installed therein meeting the requirements of Rule 46-31.045. (emphasis supplied) On a shrimping boat, “otter trawl” nets are suspended from the ends of “outriggers” attached to the sides of the boat. When in use, the nets are dropped from the outriggers into the water. Once in the water, the nets are dragged along behind the boat, collecting shrimp and other marine species. The non-shrimp marine species collected are referred to as the “bycatch.” The phrase “rigged for fishing” means that the nets are shackled to the outriggers and are in a condition ready to fish, but are not yet in the water or being dragged along the bottom of the water. Nets attached to the outriggers of a shrimping boat and ready to be dropped into the water are rigged for fishing. Nets lying on the deck of the boat which are not attached to the outriggers are not rigged for fishing. It takes no more than a few minutes to attach the nets to the outriggers. The phrase being challenged in the proposed rules essentially prohibits a shrimp boat operator from suspending the nets above the water prior to dropping the nets into the water without having the BRD installed in the nets. Although there is no credible evidence indicating the reason shrimp boats leave the docks with nets in a position rigged for fishing, many apparently do so. There is no credible evidence suggesting any reason nets would be suspended from the outriggers other than in anticipation of initiation of shrimp harvest activity. There is no credible evidence that any impact would result from requiring that non-BRD equipped nets remain unrigged for fishing until outside of waters affected by the proposed rule. Use of the BRDs results in a substantial reduction of bycatch. There is no evidence that use of the BRDs results in any reduction in shrimp harvest. The evidence establishes that the reduction in bycatch will contribute towards the preservation of renewable marine fishery resources and will benefit the continuing health of the resources. There is no evidence that the proposed rules are unfair or inequitable to any persons including shrimp boat operators. The Petitioners assert that because the penalty for violations of the rules may eventually result in incarceration, the cited phrase creates a criminal presumption that a shrimp boat operator with non-BRD equipped nets is presumed to be fishing without a BRD. The evidence fails to support the assertion. There is no presumption being created by the proposed rule. The challenged rules are gear specifications for shrimp trawls, and are clearly within the realm of the MFC's rulemaking authority. The cited phrase does not prohibit the mere possession of a net without a BRD installed. The cited phrase prohibits suspension of a net from an outrigger without having a BRD installed in the net. There is no reason, other than in anticipation of immediately dropping the net into the water, that a trawl net must be suspended from an outrigger. The Petitioners assert that the rule would impact shrimp boat operators who are passing through Florida waters traveling to waters outside the areas impacted by the proposed rules. There is no evidence that the proposed rules would interfere with fishing operations. In the example of boat operators fishing outside Florida waters and using non-BRD equipped nets, compliance with the rule requires only that the nets remain unrigged for fishing while passing through Florida waters. The Petitioners assert that there are instances due to emergency, weather or otherwise, that may result in a shrimp boat operator working waters outside those covered by the proposed rules, raising non-BRD equipped nets and moving through into Florida jurisdictional waters. In such an event, the Petitioners assert that an operator could be subject to application of the rule even though the non-BRD equipped nets, still rigged for fishing, were not used in Florida waters. The Florida Marine Patrol will be responsible for enforcement of the proposed rules. Obviously, a Marine Patrol officer’s judgment will be required to determine the existence of an emergency and whether any official action is appropriate. A shrimp boat officer cited for violation of the proposed rules is entitled to challenge the application of the rule.
The Issue The purpose of this hearing is to determine whether Permit No. LSNR-15-00004, for the removal of inactive burrowing owl nests, should be issued as proposed by the Florida Fish and Wildlife Conservation Commission (Commission).
Findings Of Fact Petitioner, Lise Bauman was, at all times pertinent to this proceeding, a resident of Marco Island. She is employed in the tourism industry as a bartender on a dinner cruise boat. Respondent Marco River Marina/Rose Marina, owns and operates a marina on Marco Island, Florida, which includes a dry-storage boat facility. The marina is located at 951 Bald Eagle Drive, Marco Island, Florida. A vacant lot at 865 Magnolia Court, Marco Island, Florida, is contiguous to the marina. Both parcels are under common ownership. The Florida Fish and Wildlife Conservation Commission is an agency of the state, created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” The burrowing owl (Athene cunicularia) has been designated by the Commission as a species of special concern. The burrowing owl is not a federally-designated endangered or threatened species. Burrowing owls are, as their name implies, ground- nesting owls that excavate burrows in open, vacant areas. Burrows can extend up to eight feet in length. Most burrows have a single entrance/exit. Burrowing owls range throughout all 67 Florida counties. Their numbers have dwindled in the Panhandle and North Central Florida regions, and their population remains heaviest in South Florida. On Marco Island, rights-of-way, parks, and vacant lots provide habitat for nesting owls. As vacant lots are constructed upon, habitat options on Marco Island are reduced. Nonetheless, despite significant construction and development on Marco Island over the past 15 years, active owl burrows on Marco Island have increased in number during that period from roughly 30 to between 100 and 150. The increase is largely the result of compliance with Commission conservation rules, education of property owners and developers, and identification and marking of burrow sites to protect from inadvertent destruction. Burrowing owls are quick to relocate if their burrows are disturbed or become unsuitable. If there are suitable nesting sites nearby -- generally any open, treeless area with well-drained soils -- burrowing owls will not hesitate to move and construct new burrows. The normal breeding season for burrowing owls in the area runs from February 15 through July 10, although weather and other conditions may result in breeding before or after the normal season. However, Ms. Richie, who had surveyed burrowing owl sites on Marco Island for the previous 15 years, never observed owl chicks or fledglings in the months of December or January. In order to give burrowing owls that are displaced as the result of a “take” permit time to relocate, permitting is typically done before breeding season starts. Nonetheless, the Commission typically requires applicants to provide a report from an environmental consultant to confirm the status of burrows on a parcel slated for development. If the report reveals that burrows contain active nests, the proposed activities will not be permitted. The parcel at 865 Magnolia Court was, at the time the Permit application was filed, an undeveloped grass lot. It was mowed regularly, and had no mid-story vegetation. The soil on the property is regarded as disturbed or urban soil. Burrowing owls were present at 865 Magnolia Court for the last nine years. The lot had two burrowing owl burrow areas which had been individually marked by placing PVC pipes at the corners, with nylon cords to “enclose” each protected area. Each of the marked areas contained two burrows in close proximity. Thus, although there were two defined areas, there were four individual burrows. Rose Marina is engaged in a marina renovation project, part of which involves the reconstruction of its dry-storage building at 951 Bald Eagle Drive. During the period of renovation, boats stored in the dry-storage building will have to be temporarily stored at a different location. In order for Rose Marina to maintain its customers and earn income to remain in business, the boats must be stored on its property, rather than sent to other facilities or locations. It was determined that the most appropriate place for the temporary boat storage was the contiguous lot at 865 Magnolia Court. Prior to making application for the Permit, Mr. High contacted Ms. Richie to discuss the owl burrows on the 865 Magnolia Court lot. Ms. Richie was familiar with the burrows on the property, having originally marked them nine years previously. She is well aware of the physical features and animal behaviors that are indicative of an active nesting burrow. As part of their initial discussion, Mr. High and Ms. Richie discussed the possibility of altering the proposed boat storage area to avoid the burrows. However, due to the massive nature of the project and the location of the burrows in the center of the property, avoidance was determined to be impractical. Ms. Richie inspected the property on November 5, 2014, to assess whether the burrows were active or inactive. She knew from her regular monitoring of the property that the burrows had not been used for nesting during the 2013 and 2014 breeding seasons. At the time of Ms. Richie’s inspection, the burrow areas were inhabited by a single adult owl. The owl exhibited no breeding behavior. Male owls will “decorate” the mound of a burrow with feathers, vegetation, bits of trash, and other materials designed to attract the attention of females interested in courtship, and offer some degree of camouflage for an active nesting burrow. The single owl on the property had not decorated the burrows to suggest that they were active. When nests are active, male owls will spread their wings and offer vocal protestations if approached. The owl at 865 Magnolia Court exhibited no such behavior. Paired owls usually sit together. Even if a female owl is on a nest in an active burrow, she will frequently peek out to see what is occurring. Ms. Richie saw no evidence of another owl at the burrow areas. As a result of her inspection, Ms. Richie provided Rose Marine with a short report, which included her conclusion that “this burrow, under State definitions is considered ‘inactive.’” The on-line application for the Permit was submitted on November 6, 2014. The application identified the applicant as Marco River Marina. The project address was given as 951 Bald Eagle Drive, Marco Island, Florida, which is that of the marina itself. However, the application provided the project’s township/section/range, latitude and longitude coordinates, and Collier County parcel ID number. Those identifying numbers describe the parcel at 865 Magnolia Court. Given the fact that 951 Bald Eagle Drive and 865 Magnolia Court are contiguous lots, many, including Ms. Richie, regard them as a single parcel and refer to them collectively as Rose Marina. The application for the Permit included a ground-level photograph of the property, and an aerial photograph of the property with depictions of the burrow areas to be affected and the proposed gravel path designed to serve the boat storage area. Furthermore, Ms. Richie’s report was clear as to location of the burrow areas proposed for removal. Thus, the Commission understood which parcel was the subject of the authorization. Although the application incorrectly gave the project street address as 951 Bald Eagle Drive, instead of 865 Magnolia Court, there was no evidence that anyone was confused as to the location of the burrows to be affected. Thus, the street address error in the Permit is of no substantive effect and does not form a basis for denial. The property contained two marked and staked owl burrow areas, each of which contained two burrows. Nonetheless, the Permit authorized the destruction of the “[t]wo (2) inactive burrowing owl nest burrow(s).” The on-line application form has no field for identifying the number of burrows, but required only information as to the number of adult birds, eggs, and flightless chicks. Rose Marina’s information as to those application fields was accurate. The application included a map which depicted the burrow areas in the correct location. Having a single reference point is not uncommon for burrow areas with more than one burrow. In that regard, when mapping burrows for the City of Marco Island, Ms. Richie would “just put one dot for one burrow area.” The application included a high-quality color photograph of the two marked and staked burrow areas, and a marked aerial photograph of the parcel that accurately depicted the areas. Ms. Richie’s report noted the existence of four individual burrows, only two of which she described as well maintained. The error in the Permit as to the number of burrows appears to be one of a misunderstanding of the distinction between the burrows and the burrow areas. There was clearly no intent to mislead the Commission or anyone else as to the number of burrows on the property. Given that all of the burrows were inactive, whether the number of affected burrows was two or four would not have made a difference in the Commission’s decision to issue the Permit. Thus, the error in the Permit as to the number of burrows is of no substantive effect and does not form a basis for denial. The Permit described the inactive burrow destruction as being done in association with “seawall renovations,” rather than for a gravel path and boat storage. The error was a scrivener’s error on the part of the Commission. The application and supporting documentation, including the aerial photograph and emails from Mr. High to the Commission’s protected species permitting office, clearly described the project as a temporary boat storage lot. Upon becoming aware of the scrivener’s error, and weeks before the filing of the petition, Ms. Williams struck the term “seawall renovations,” and re-issued the Permit with the following errata: “FWC oversight; approved activity was construction of gravel walkway for temporary storage of boats. Angela Williams 2/17/2015.” The error had no effect on the issuance of the Permit. Thus, the error in the uncorrected Permit as to the nature of the project is of no substantive effect, and does not form a basis for denial. Ms. Richie monitored the 865 Magnolia Court burrows on a weekly basis from her November 2014, inspection through January 2015. She observed no physical or behavioral evidence of active nesting, saw nothing to suggest that the burrows contained eggs or flightless young, and was confident that only a single adult owl inhabited the two burrow areas. As a result, she concluded that the burrows remained inactive up through the date of their destruction. Her testimony was persuasive, and is credited. The Permit was issued and became effective on January 9, 2015. The destruction of the burrows was done on January 15 and 16, 2015. The act was accomplished by means of a hand shovel. Mr. High indicated that the excavation was done slowly and carefully so as to minimize the risk if an owl was in any of the burrows. No owls, nests, or eggs were encountered in the burrows. Rose Marina personnel fashioned a wooden rod with a cloth duct-taped to the end to probe the burrow before digging down with a shovel, and to flush owls away from the site while the excavation was ongoing. That method was determined to limit the potential for injury to any owls. No owls were encountered in the burrows. At no time during the process of excavation did an owl retreat into a burrow. Thus, there was no need to insert a burrow scope or flexible tubing into the burrow to flush an owl from the burrow. After the completion of the burrow removal, a fence was constructed around the perimeter of the area used to store boats, and the gravel driveway through the middle of the area was put in. The gravel driveway covers the area previously occupied by the burrows. At the conclusion of the marina renovation activities, the lot at 865 Magnolia Court will be restored to its previous condition. The preponderance of the competent, substantial evidence presented at the hearing provides reasonable assurance that the activities authorized by the Permit will have no impact on the owl that was present at the burrow areas in November 2014, and will not be detrimental to the survival potential of the species. Petitioner observed the permitted activity at some unspecified time after its commencement. On February 9, 2015, after having made a request for public records, Petitioner received a copy of the Permit. The Permit included a notice of rights which provided, among other information, that “[a] person seeking a hearing on FWC’s action shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Petitioner’s petition was dated March 1, 2015. The date of its receipt by the Commission is unknown, since it bears no form of date-stamp or acknowledgement, nor is there competent, substantial, non- hearsay evidence in the record to establish the date of receipt. Being employed in the tourism industry, Petitioner understands that tourists enjoy seeing and photographing burrowing owls, which enhances Marco Island’s reputation as a desirable destination. Petitioner’s interest in the burrowing owls is related to her desire to ensure that tourists continue to come to Marco Island, thus sustaining her livelihood. Petitioner expressed no more than a general “interest in wildlife,” and engaged in no activities designed to protect or perpetuate the burrowing owl species. Petitioner raised issues regarding approval by the City of Marco Island of a temporary-use permit for Rose Marina to use the vacant lot at 865 Magnolia Court for boat storage. There was no dispute that the City approved the temporary-use permit, with the dispute being whether the burrow removal under the Commission Permit was done prior to the City’s approval of 865 Magnolia Court as a boat storage area. Approval by the City is not a condition for issuance of the Permit and is not before the undersigned for disposition. Thus, the City of Marco Island temporary-use permit is not relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving the issuance of Permit No. LSNR-15-00004 to Respondent, Marco River Marina/Rose Marina. DONE AND ENTERED this 16th day of October, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of October, 2015. COPIES FURNISHED: Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Lise Jay Bauman Unit V-8 167 North Collier Boulevard Marco Island, Florida 34145 (eServed) Daniel High 951 Bald Eagle Drive Marco Island, Florida 34145 Eugene Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
