The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's decision to deny petitioner's capital expenditure proposal to lease the Cambridge Convalescent Center in Tampa be AFFIRMED. Respectfully submitted and entered this 9th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Art Forehand Administrator Office of Community Medical Facilities Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Frank M. Gafford, Esquire Post Office Box 1789 Lake City, Florida 32055 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Department of Environmental Regulation should grant the application which Anne B. Kavanaugh filed for a dredge and fill permit to construct a 40-slip marina, and dry storage space for 140 additional boats, on the western bank of Egans Creek in the City of Fernandina Beach, Florida?
Findings Of Fact Approximately 1,200 feet from the boundary of the Ft. Clinch Aquatic Preserve, Anne B. Kavanaugh and her husband, William Kavanaugh, propose to construct 40 slips with floating piers accessible by elevated concrete walkways, a T-shaped pier, a fixed concrete travel lift pier for boats less than 30 feet long, a permanent sewage pumpout facility, a fueling facility, and a dry rack storage facility to accommodate an additional 140 boats. The marina is planned for the west bank of Egans Creek, inside the City of Fernandina Beach. Egans Creek comprises Class III water not designated as outstanding Florida waters. Under general DER guidelines, water at a marina must ordinarily "flush" within three or four days. If new water does not completely exchange with old within that time, permitting is problematic. Under these guidelines, water must circulate enough to dilute a contaminant at the marina to 90% of its original concentration, within this three- or four-day period. Tidally influenced, Egans Creek easily meets the guidelines at the site proposed for the marina. Fernandina Beach and environs are Florida's (muted) answer to the Bay of Fundi; the average tidal range is on the order of six feet. Contaminants entering Egans Creek at the proposed site are rapidly dispersed, moving 1200 feet down the creek on outgoing tides into the Amelia River, then through St. Mary's entrance into the Atlantic Ocean. Hydrographic studies, including a dye tracer study, demonstrated that 90% dilution can occur within 50 feet in 50 seconds, and that 100% dispersion of a contaminant can occur within minutes in Egans' Creek. According to the weight of the evidence, water quality standards would not be violated in the aquatic preserve as a result of construction or operation of the marina. The International Marine Institute Guidelines are the industry standard for the design of marinas. These were looked to in designing the marina the applicant proposes. According to Mr. Vorpe's uncontroverted testimony, all applicable rules and regulations were considered when designing the marina. Driving the necessary piles requires the dredge and fill permit in contention here. Since the applicant proposes no dredging or filling in waters of the state, other than removing the existing docks and driving new piles, construction itself is expected to have minimal effect on water quality. No petitioner raised any concern or offered any evidence regarding construction, as opposed to operation, of the marina. The applicant has agreed to certain permit conditions, including taking appropriate precautions to control turbidity during removal of the old docks and installation of the new piling. Fueling Facilities The applicants plan to locate fueling facilities above the mean high water line, and to separate the fuel dispenser from adjacent wetlands by constructing a berm. The dispenser would be at least 85 feet from the dock, and a 10,000-gallon gasoline storage tank would stand still further inland. Attached to the dispenser would be a hose 25 feet long for refueling boats after they are taken out of the water, en route to the dry storage building. A berm would partially surround the dispenser, to direct spillage across the pavement into a retention pond capable of holding 10 to 15 times the volume of the storage tank. The dispenser would have two shut-off valves, part of a system designed to shut off electronically, if fuel begins to flow while the dispenser is unmanned. These shut-off valves could also be activated manually. Some distance away, but still within the 100-year flood hazard zone, the storage tank would be located above ground near the northeast corner of the dry stack storage building, at an elevation of 6.1 NGVD. DER routinely permits fuel storage tanks, including underground storage tanks, in 100-year flood zones. Above ground storage tanks have the advantage that leaks and certain other problems are easier to identify and correct, than they would be if the tanks were buried. Soil borings demonstrated the ability of the soil to bear the weight of the tank when full. A concrete retaining wall designed to encompass more than 11,000 gallons would encircle the tank, which would itself be designed in accordance with the standards laid down by the American Petroleum Institute and The National Fire Protection Association. Vented (with a spark arrester to prevent a stray spark from entering the tank and igniting the contents), the tank is to be fabricated from welded steel, and to be bolted to a concrete slab. The retaining wall is designed to withstand not only the hydrostatic force necessary to contain a spill, but also to resist the force of flood waters outside the wall. FEMA publishes maps which depict expected elevations of flood waters. Good engineering practice requires the containment wall to be one foot higher than the 100-year return base flood elevation. The planned height of twelve feet exceeds this requirement. An "ambiguity" in the FEMA regulations requires holes to be placed in walls constructed within a 100 year flood zone in order to allow the flood waters to enter structures without collapsing the walls. This requirement is, of course, incompatible with the purpose of a containment vessel, which is designed to withstand the hydrostatic forces the holes are intended to avoid. Moving the fuel dispensers closer to the relatively nearby site now proposed for the underground storage tank would not be well advised. Mr. Vorpe's testimony that the dispensers are currently planned for the safest place to minimize risk from vehicular traffic, including operation of the forklift, was uncontroverted. Relocating the storage tank further upland would necessitate longer piping, unless the fuel dispensers were also moved. Mr. Odum, the City's expert, conceded a greater potential for problems from increasing the length of the proposed underground piping system than the hazard a 100-year flood would pose to a tank at the proposed location. Mr. Odum agreed that placement of the pipes above ground would render them susceptible to overheating (from direct sunlight in a warm climate) as well as to damage from vehicles, including the forklift. Mr. Odum had no opinion as to whether there is a suitable alternative location for the fuel storage tank. Septic System The applicant has obtained a permit from the Department of Health and Rehabilitative Services authorizing construction of a septic system consisting of a septic tank and an absorption mound. A septic tank is to be placed under the dry stack storage building the required minimum distance from DER's jurisdictional line. Placement of the tank under the building would afford the tank additional protection. The absorption mound would be located on the highest portion of the property, by 14th Street, outside the 100-year flood zone, and more than 200 feet from the nearest marsh. HRS did not require that the mound be constructed to the elevation planned. The applicant wants extra height for added safety and additional filtering action. No discharge into Egans Creek is expected from operation of the septic system. The St. Johns River Water Management District has issued a permit for the extensive storm water management system the project would include authorizing construction of several large retention ponds. Petitioners offered no evidence regarding the design and construction of the septic system or the stormwater management system or any effect on water quality either system might produce. Impacts From Operation Peak boating times include the warmer months (May to December), fishing seasons, weekends and holidays. Perhaps only a tenth of the boats in dry storage would be used even during most of these peak periods. Over the July 4th holiday, considered the "worst day" for boat traffic, up to fifth of the boats in dry storage might go out. If the history of similar facilities is any guide, the dry storage facility might never be filled to more than 80% of the planned 140-boat capacity. Not all the boats used on a given day would enter the creek at the same time. Gasoline, which evaporates more quickly than diesel fuel, would be the only fuel dispensed at the marina. The only other marina operating within the City of Fernandina dispenses both gasoline and diesel fuel over docks from underground storage tanks. (The other marina operating on the island, the Amelia River Yacht Basin, also dispenses fuel from an underground tank sited within the 100-year flood zone.) The applicant has agreed not to fuel boats moored at the dock or to do any fueling over the docks. Although other sources of pollution inevitably attend the operation of marinas, no evidence regarding bottom paint, for example, was adduced. Ms. Altman's proposed recommended order does not constitute evidence. The applicant has agreed to accept several permit conditions intended to keep down pollution from operations. Among these are that a 3:1 ratio of sailboats to power boats be maintained in the wet slips; that no live-aboards be allowed; that no boat maintenance or repair activities be allowed at the marina; that no discharge of fish wastes from fish cleaning stations occur; that there be no fueling over the docks; that gasoline service be provided only to boats in transit to or from the dry rack facility; and that certain conditions for the protection of manatees be implemented, including posting manatee awareness signs and distributing literature to educate boaters about manatees. In addition, the applicant has agreed to enter into a long term contract incorporating the foregoing conditions for operation of the marina. The applicant's intention is that these conditions survive the five-year permit, and bind any successor in interest. To that end, the long-term contract is to be recorded as a public record. Manatees Despite the proposed marina's proximity to the Atlantic Ocean, even boaters headed outside would have to travel through "the known manatee corridor." T.240. Boaters headed the other way travel extensively through the region of the Amelia River where manatees congregate. On the other hand, proposed permit conditions meet or exceed the manatee protection plan requirements of the DNR and the requirements of the manatee protection plan approved by regulatory agencies for the Port of Fernandina. The applicant's expert on manatees was not aware of any manatee deaths or injuries from operation of the Port facility. West Indian manatees who frequent inland waters between Crooked River, Georgia, and Fernandina have been the subject of "a number of tagging studies and aerial surveys." T.232. Even though they are more likely to be present in the summer than in the winter, there were 30 or 40 recorded sightings within this study area during February and March of 1988. T.235-236. Two of these recorded sightings were of manatees in Egans Creek. The military has done studies in an effort to assess the effect of naval operations on manatees in the general vicinity. The largest number of manatee sightings reported in published study data, second only to the number at King's Bay Naval Station in Georgia, occurred in the Amelia River "in the project area." T.232. Moreover, "manatee usage of the Fernandina Beach area has been increasing in recent years." T.245-6. Southwest of the site proposed for the marina, manatees congregate in the Amelia River, near a paper mill and at the City's wastewater treatment plant, both of which have warm freshwater outfalls. These "congregating areas . . . are within the areas of boat traffic." T.239. Situated between the outfalls, the City's marina also frequently has manatees in it. No more than ten "documented sightings of manatees have been reported" (T.235) on any given day, however. Manatees graze on sea grasses and on smooth cordgrass or spartina alterniflora, which is abundant in marshes near the freshwater outfalls into the Amelia River. Manatees feed in the waterways meandering through these marshes, such as Bells River, Lanceford Creek and Jolly River. They "have been documented feeding in those areas on numerous occasions." T.235. Accessible to the manatees' known congregating areas, these feeding grounds, unlike the congregating areas, are somewhat protected from boat traffic. Along the western shore of Egans Creek where the project is proposed, spartina alterniflora is not accessible to manatees at low tide, because it is then completely exposed. Published data show, however, "that the manatee in Egans Creek feed on the same shore as the proposed project." Kavanaugh's Proposed Recommended Order, p.31. Boats in slips waterward of the vegetation would create a barrier protecting the area at high tide. Spartina alterniflora also flourishes in the marsh across the creek from the proposed site. No outfall of warm water enters Egans Creek upstream of the site proposed for the marina, and no deaths or injuries to manatees in Egan Creek were proven. The owner of the boat yard next to petitioner's property testified that he had not seen a manatee in Egans Creek near the project area in several years. But the applicant's expert conceded that manatees "are utilizing" (T.248) Egans Creek. The City requested the County to create a no-wake zone in Egans Creek in 1987, but there are currently no restrictions on the number of boats or their speed in Egans Creek. The applicant proposes to require marina tenants to agree in writing not to exceed idle speed in Egans Creek or face eviction. Boats moored in "wet slips" might result in lower boat speeds in Egans Creek: Boaters tend to slow down so as not to throw wakes which might damage boats that are docked. Historically, DER has deemed itself to have obtained "reasonable assurances" that a marina will not affect manatees adversely by including permit conditions recommended by the Florida Department of Natural Resources and the U.S. Fish and Wildlife Service. Regulatory guidelines depend on educating the public regarding manatees and safe boating practices as the primary means of protecting manatees. In the present case, the U.S. Fish and Wildlife Service wrote a "no jeopardy" letter stating that the proposed marina would not be expected to cause manatees' extinction, if certain recommendations were followed. These recommendations have been included in the proposed permit as "standard marina conditions." The Marine Mammals Section, Office of Protected Species of the DNR, concurred in the U.S. Fish and Wildlife recommendations and evaluation, and recommended approval of the project. Past Problems Petitioner Altman questioned the applicant's ability to provide reasonable assurances, citing prior enforcement actions concerning the property where the marina is proposed to be built. In 1986, eroding upland material sloughed into jurisdictional vegetation after heavy rains. DER requested that the owners of the property at the time, which included the Kavanaughs, remove the material from two 3' by 3' areas and one 5' by 5' area, pay a $450 fine, and execute a consent order, which they did. The property was restored to DER's satisfaction. In 1989, lime rock intended as a road surface was deposited in vegetation within DER's jurisdiction, although not on submerged lands, without a permit. Neither of the Kavanaughs had directed the contractor to place any fill material in the marsh and, because a jurisdictional line had not then been established, neither knew that the vegetation lay within DER's jurisdiction. At the time, Mr. Kavanaugh and his wife owned only 25% of the property; and they were not involved in or responsible for the day-to-day operation of the site. The Kavanaughs were out of town when the majority owner of the property met with DER to resolve the matter. Since a jurisdictional line had not been established, there was some confusion over exactly how far upland the material would have to be removed. On their return, once the Kavanaughs learned of the continuing problem, they personally worked with the DER to resolve the matter to DER's satisfaction. Mr. Kavanaugh cooperated with the DER, completed restoration to DER's satisfaction, paid a $1,080 fine, and executed a consent order. Among other things, the consent order required removal of an old pogy boat and other debris from the rip rap along shore, materials which were already on the property at the time the Kavanaughs first purchased an ownership interest. In December of 1989, Mr. and Mrs. Kavanaugh became sole owners. In 1990, Mr. Kavanaugh received a warning letter from the DER regarding a boat house on the property. A complaint had been called in nearly a year after restoration work on the boat house had been completed, even though Mr. Kavanaugh had obtained permission from the Department of Natural Resources to do the restoration work. When DER learned that the Department of Natural Resources had given prior permission for the restoration work, no further enforcement action was taken. DER sent another warning letter in 1992 regarding shrimp doors and other debris, which shrimpers docking at the marina had placed on the property along the shoreline. Kavanaugh removed all debris from the bank and, after a reinspection by DER, was advised that the site was in compliance. One of the shrimpers no longer docks at the marina. The other shrimper has been admonished. Mr. Kavanaugh has placed "no trespassing" signs and asked the owner of the adjacent boat yard to watch the property, in attempts to stop further unauthorized dumping at the site. The Kavanaughs and the Department of Natural Resources were parties to litigation regarding the boundary of the proposed site as a result of which jurisdictional lines delineating the regulatory authority of the environmental agencies were established. Flags on PVC staffs marking these lines were still in place at the time of the hearing. The Kavanaughs have not knowingly placed illegal fill, nor was any still on site, at the time of the hearing. Unauthorized dumping at the site should decrease after construction of the marina. The plan is to retain full-time employees to maintain the property and police it regularly. Owners of the sailboats using the wetslips may assist in policing the area. Construction plans for the marina also include erection of a fence with a gate which will be locked daily to protect the dry stack storage area and other improvements at the site. Miscellaneous The City offered portions of its Comprehensive Plan in evidence to establish the City's policy regarding marinas. But the City did not adduce testimony to show that the proposed marina is contrary to City policy or otherwise violates what the City considers to be the public interest. No determination has been made regarding the compliance of the applicant's project with the comprehensive plan. Construction of the marina is expected to benefit the local community by making additional fire protection available: Extending the city water supply system to the property would entail laying water lines to properties not previously supplied water by the City.
Recommendation It is, accordingly, RECOMMENDED: That DER grant the application for dredge and fill permit on all applicable proposed conditions, and on the additional condition that the marina be restricted to sailboats. DONE AND ENTERED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1993. APPENDIX The City's proposed findings of fact Nos. 1, 3, 4, 5, 7 and 11 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 2, the testimony also described it as the west bank. The City's proposed finding of fact No. 6 amounts to speculation. The City's proposed finding of fact No. 8 pertains to immaterial matters. With respect to the City's proposed findings of fact Nos. 9 and 10, increased length of pipe is a countervailing consideration. Joan Altman's proposed findings of fact were not numbered. DER submitted proposed conclusions of law but did not submit proposed findings of fact. Anne B. Kavanaugh's proposed findings of fact Nos. 1-5, 14, 25, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 61, 62, 66, 75, 76, 77, 78, 80, 81, 82, 87, 90, 92, 97, 98 and 101 pertain to subordinate matters except to the extent of facts found in the recommended order. Ms. Kavanaugh's proposed findings of fact Nos. 6, 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22, 23, 24, 26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, 50, 56, 57, 58, 59, 60, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 79, 85, 89, 96, 99 and 100 have been accepted, insofar as relevant. With respect to Ms. Kavanaugh's proposed finding of fact No. 20, temporary turbidity would be contained. With respect to Ms. Kavanaugh's proposed finding of fact No. 41, there is a one percent chance each year. With respect to Ms. Kavanaugh's proposed finding of fact No. 83, her expert described the known congregating area as "in the project area." T.232. With respect to Kavanaugh's proposed finding of fact No. 84, the study was done in February and March, which are not summer months. Kavanaugh's proposed finding of fact No. 86 is better characterized as a proposed conclusion of law, which does not reflect recent case law. With respect to Kavanaugh's proposed finding of fact No. 88, a "no jeopardy letter" does not predict a lack of adverse affect. With respect to Kavanaugh's proposed finding of fact No. 91, the sail to power ratio is misstated. Kavanaugh's proposed finding of fact No. 93 has not been established by the evidence. See T.255. With respect to Kavanaugh's proposed finding of fact No. 94, Mr. Howard was not aware of any, but it was not established that none had been reported. With respect to Kavanaugh's proposed finding of fact No. 95, proposed data do not show that manatees do not feed on the eastern bank. Kavanaugh's proposed finding of fact No. 102 pertains to an immaterial matter. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Joan Altman 212 Estrada Street Fernandina Beach, Florida 32034 Clyde W. Davis, Esquire 13 North Fourth Street Fernandina Beach, Florida 32034 Deborah D. Barton, Esquire BAUMER, BRADFORD & WALTERS, P.A. Box 4788 Jacksonville, Florida 32201 William H. Congdon, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On or about October 25, 1982, Respondents filed with Respondent County an Application for Preliminary Development Plan Review including Zoning, an Application for Final Development Plan Review including Zoning, and a General Application for a Major Development Project known as Spoonbill Sound on Cudjoe Key, Monroe County, Florida. On or about January 28, 1983, Respondents submitted an Environmental Designation Survey, Community Impact Statement and Preliminary Development Plan for Spoonbill Sound pursuant to the requirements of Sections 6-221 through 6- 245, Monroe County Code, the Major Development Project Ordinance. The Spoonbill Sound property consists of approximately 55.38 acres. U.S. Highway No. 1 approximately bisects the property. The 26.29-acres half of the property lying north of U.S. Highway No. 1 consists of a vegetated preserve and an unnamed water area. As such, the northern half of the Spoonbill Sound property is unlikely to be buildable. The 28.94 acres half of the property located south of U.S. Highway No. 1 has a 16.01 acres strip of upland which extends the length of the property contiguous to Cudjoe Bay. The entire area between U.S. Highway No. 1 and the upland area contiguous to Cudjoe Bay consists of a land-locked lake and a red mangrove preserve. Stated differently, approximately 40 acres of the site is wetlands, and only that portion adjoining the Bay holds the possibility of being developed. That upland area of 16.01 acres is comprised of a late-successional tropical hardwood hammock dominated by tropical low-hammock trees including significant numbers of buckthorn, gumbo limbo seagrape, pigeon plum, Jamaica dogwood, and Spanish stopper. Virtually the entire site is vegetated, and the canopy is closed. Respondents propose to subdivide the 16.01-acres upland portion of the site into 26 lots of approximately one-quarter to one-half acre each, with each lot being approximately 100 feet wide. Respondents have already cleared an east-west oriented road the length of and in the middle of the upland area pursuant to a permit issued by Respondent County. The lots are spaced on either side of that cleared roadway, with 13 lots running along the north edge of the roadway, and 13 lots running along the south edge of the roadway. Respondents proposed to sell 25 of those lots for duplex development. The 26th lot, which covers the southwest corner of the property, will be developed as a common area with parking lot in conjunction with a proposed dock extending into Cudjoe Bay and in conjunction with a nature walk and bird observation platform proposed for the land-locked lake. Other than the "amenities" and private road, Respondents do not propose to develop the residential improvements. On or about January 25, 1984, Respondent County adopted Resolution MD 1-84 approving Respondents' Major Development, Final Development Plan, Final Community Impact Study, and Final Change of Zoning from GU to RU-2 for Spoonbill Sound. The only condition contained in that Resolution is that Respondents obtain all required certifications prior to construction of the proposed dock. The dock proposed at the southwestern tip of the development will extend into Cudjoe Bay 155 feet waterward of the mean high water line and will be a total of 190 feet in length and 8 feet wide. The dock will have an 8 by 80 foot L-shaped extension on the seaward end and will incorporate 9 mooring pilings and 8 boat slips for a total 2,160 square feet of dock area. The depth at the seaward end of the proposed dock site, in the area of the boat slips, at mean low water is 2 1/2 to 3'. On or about May 4, 1983, the Board of Adjustment of Respondent County denied the request of Respondents for a dimensional variance for the dock. At that hearing, prior to denial of the variance, Respondents sought to withdraw their variance application on the ground that no variance was required by Monroe County ordinance. That request was denied by the Board of Adjustment. On or about November 7, 1983, the County Attorney for Respondent County rendered an opinion that the 100-foot length limitation set forth in Section 19-101(b) of the Monroe County Code did not apply to a dock to be built in an RU-2 subdivision. At the time of the final hearing in this cause, Respondents' application for a permit to construct the dock had been denied by the Florida Department of Environmental Regulation. Additionally, the Florida Department of Natural Resources had withdrawn its earlier authorization for Respondents to construct the dock over the Bay bottom. Cudjoe Bay is extremely shallow and does not presently have significant boat traffic. The depth of the bottom is generally -1 to -2' mean low water (MLW) to a distance of approximately 1500' from shore. Moving further southward, -3' MLW depth is reached some 1500 to 2000' from shore. The 4' depth, MLW, is approximately 2500' or nearly a half-mile from shore. The Cudjoe Bay bottom in the vicinity of the proposed dock consists of varying thicknesses of marine grasses, marine algae, many sponges and hard corals. Marine grasses are not quite as thick at the end of the proposed dock, as compared with areas closer to the shore and to the east of the dock, but in these areas of fewer grasses there is an abundance of sponges. The Bay bottom in the vicinity of the dock is very much a "live bottom," with a large number of marine organisms present, as contrasted to, for example, a sand bottom. Marine animals observed in the vicinity of the end of the proposed dock are sponges, hard shallow water corals, lobsters, extensive schools of bait fish, juvenile fish, jellyfish, starfish, sea anemones, sea urchins, and various algae. Corresponding to the Respondents' estimate of boat ownership by the future Spoonbill Sound owners (that one-half of the 50 future families will own boats), Respondents originally sought dock mooring facilities for 25 boats. In order to obtain approval, Respondents later amended their proposal to the current proposal of 8 slips only. As currently proposed, Respondents intend that the dock will be utilized as a transitory platform for residents only and that boats would either be stored at the dwellings or in the several nearby marina facilities and would not be permanently moored at the dock. They speculate that the dock would thus be used as a convenience only, so the residents can make short trips back to their dwelling units to drop off fish or to pick up and drop off supplies or fishing tackle. In additional recognition of the concerns of agencies regarding protection of the marine plants and animals, Respondents propose restrictions on the use of boats in the vicinity of the dock. Respondents propose to limit the number of boats using the dock at any one time to 8 boats by installing only 8 slips and by placing a rail on the inside portion of the dock to prevent people from tying boats along the length of the dock other than where the 8 slips are located. Respondents further propose some system of marking the most favorable ingress and egress channel to the dock so as to limit the damage to marine plants and animals and further propose attempting to limit speeds of boats approaching or leaving the dock. None of Respondents' proposals of restricting permanent mooring at the dock, limiting the number of boats using the dock at any one time to 8, restricting the mooring of boats along the dock to the location of the 8 slips only, locating and marking a channel, or of restricting damage by imposing speed limits exists as conditions to any permit or approval from any regulatory agency. Respondents propose instead to place authority for the creation and enforcement of those proposed restrictions in the hands of a homeowners association composed of the future residents of Spoonbill Sound. There are presently no written regulations encompassing any of Respondents' proposals. The evidence is clear that Cudjoe Hay is an inappropriate place for a dock such as that proposed at Spoonbill Sound due to the shallow water depth and that the location of the proposed dock is a difficult and hazardous place to operate a motor boat. The expert witnesses agree that there would be some damage to and removal to marine plants and animals by the operation of boats in the vicinity of the dock even if the proposed safeguards came into existence in an enforceable and written form. While there was testimony that damage to the marine plants and animals on the Bay bottom would be minimized by strict adherence to the proposed safeguards, there is little likelihood of success for the following reasons. First, the potential violators of the safeguards are the proposed enforcers. Second, Respondents themselves expect a 50 per cent boat ownership by Spoonbill Sound dwellers. Even if no resident chose to tie a boat at any point along the dock other than in one of the eight slips, if those eight slips are full at any given time, it is reasonable to assume that additional boats will be driving around the shallow area waiting for their turn to use one of the slips. Third, there is no evidence regarding enforceability of the proposed restrictions on boat usage, and all of the proposed safeguards must be enforced at all times in order to prevent more than minimal removal and injury to the marine plants and animals in the vicinity of the proposed dock. As a practical matter, notwithstanding any rules and regulations which may or may not be adopted by the homeowners association, there would most likely be little enforcement of the proposed safeguards relating to use of the dock other than an economic incentive, for instance, to avoid propeller damage. Therefore, usage of the dock would most probably result in more than minimal damage to and removal of marine grassbeds and marine animals in Cudjoe Bay. Further, the evidence suggesting minimal impact to the marine plants and animals by strict adherence to the proposed safeguards is based upon the erroneous premise that eight boats will use the dock. Rather, there will be an unknown number of boats making an unknown number of trips to and from the eight slips located at the dock or driving around waiting their turn. There is no evidence of any assessment of impact due to the actual anticipated usage of the dock by the expected regular movement of boats to and from the dock area. Although proposed deed restrictions suggest that no other applications shall be made and no additional docks shall be constructed at Spoonbill Sound, those deed restrictions, if they ever become effective, are enforceable only by the proposed homeowners' association, which is also given authority in that same document to modify or repeal any deed restrictions. Further, the proposed restrictions carry no penalty for violation. A thickly vegetated West Indian tropical low hardwood hammock covers 12.50 acres of the Spoonbill Sound 16.01 upland area. The hammock contains a large number of rare and endangered plant species scattered throughout with very dense distribution of individual trees. The site also contains a number of solution holes in the limestone rock substrata inundated with brackish water which provide wetland habitat on the hammock site. These sinks contain a threatened species of leather fern. The only man-made alterations to the hammock are the road cut through the middle by the Respondents, some trails, and some trash deposited in some areas. Lower Keys tropical hardwood hammocks do not attain the canopy height of those hammocks in the Upper Keys. This is due to lower elevations in the Lower Keys precluding larger plant litter build-up with its accompanying greater moisture retention for utilization by the plants, and there is less rainfall in the Lower Keys. Although this particular tropical hardwood hammock consists of second growth following a fire or some other past disturbance, vegetation in this hammock has stabilized, and the only change which will take place over time is that the trees will get thicker. Over time, however, species composition will not change much nor will the canopy increase in height. The hammock is thus at climax or at least late-successional. Lower Keys tropical hammocks are nonetheless extremely valuable habitat for such endangered or threatened animals as white crown pigeons, 12 of which were observed feeding on site, great white heron, brown pelican, osprey, and Keys raccoon. Numerous other birds have been observed on site or are expected to utilize the site. The Spoonbill Sound hammock with its unique combination of fresh water areas, semi-fresh water areas, and salt water areas provides a great deal of potential habitat for a large number of rare and endangered animal species. The semi-fresh water wetlands in the hammock alone provide for the Lower Keys a very diverse animal habitat. As set forth above, Respondents will not be responsible for the construction or placement of the 25 duplexes in their proposed subdivision. Rather, what is built and where is left to the proposed homeowners' association under the proposed deed restrictions which can also be modified or repealed by that same homeowners' association. The proposed deed restrictions do not provide for their enforceability by anyone other than the potential violators. Each lot carries one vote except for those lots still owned by the Respondents who have retained three votes for each lot owned by them. Therefore, a review of the impact of the entire project on the natural resources systems of the Spoonbill Sound site is impossible since the actual development of each lot is speculative at this time. Similarly, the amount of hammock to be cleared in the Spoonbill Sound subdivision is unknown. While the proposed deed restrictions limit the amount of clearing to be done on each lot to no more than 30 per cent, Respondent Kephart testified as to his interpretation of the term "clearing" which will take place in the Spoonbill Sound hammock. Under his definition, only total eradication constitutes clearing; removal of all underbrush and the cutting back of branches only constitutes pruning and is therefore not prohibited. Accordingly, Spoonbill Sound, as proposed, fails to provide for the preservation of the hardwood hammock. While the Spoonbill Sound upland area to be developed consists of 16.01 acres, the upland hammock zone was surveyed at 12.50 acres. Subtracting the recreational, parking, and the road areas, the net hammock area available for development is 8.95 acres. If 30 per cent of the lots can be cleared using the normal definition of that word, the remaining hammock area following development will be 6.265 acres plus a 1.38 acre median strip in the road leaving 7.645 acres out of the original 12.50 acre hammock or approximately 60 per cent of the original hammock following development. If Respondent Kephart' definition of the word "cleared" is utilized, it is unknown how much of the hammock area will remain following development, but substantially less than 60 per cent is probable. Developments such as is proposed for the Spoonbill Sound will allow easy intrusion by exotic plant species such as Australian pine and Florida holly. The wildlife habitat value of this site after development will be severely degraded not only due to direct human activities in the area but also because the development proposal does not call for preservation of large blocks of contiguous hammock. The result will be that potential for nesting, rooting, and foraging in the area following this development will be severely curtailed and most of the species--including the rare and endangered ones--will migrate away from the site. This will occur despite the fact that tree species preserved following construction may do quite well. Placement of residential improvements clustered in a manner that would increase the amount of contiguous, undisturbed hammock on the property above what Respondents propose would maximize the potential that indigenous wildlife would utilize the hammock. There is nothing in Respondents' proposal for the development of Spoonbill Sound, with the extra regulation imposed by its location within an Area of Critical State Concern, that makes it any different from the traditional development of utilizing maximally a piece of property by slicing it into 100' wide lots located up and down the side of a roadway constructed through the middle of the development although the Area of Critical State Concern designation had been in place in the Florida Keys for many years before Respondents purchased the property in late 1981 or early 1982. The Spoonbill Sound property is located within a 100-year flood prone area, and the 25 duplexes expected to be erected on that site will, accordingly, need to be elevated eight feet. Respondents propose that' septic tanks will be utilized for the duplexes until the project reaches 50 per cent buildout. At that time, a sewage treatment plant will somehow become erected on the 26th lot, the same lot which houses the landward end of the dock, the 12-car parking lot, and the beginning of the nature walkway which continues in a northerly direction past the last duplex lot and into the land-locked lake where it terminates in a 15' by 15' observation platform. Since Respondents are not required to seek septic tank permits at this time, no evidence was presented regarding the impact of the 12 or 13 septic tank systems to be located on the duplex lots contiguous to the Bay or on those lot contiguous to the red mangrove preserve or land- locked lake. Likewise, no evidence was presented as to the impact of any proposed sewage treatment plant located on the Bay-front lot which also serves as the community recreation area. Lastly, no evidence was introduced as to the impact of the nature walkway, elevated boardwalk, or observation platform to be located inside the land-locked lake on the wildlife currently abundant there. The actual development of Spoonbill Sound is speculative, and its impact on the land-locked lake, the red mangrove preserve, the tropical hardwood hammock, and Cudjoe Bay when it is built is unknown.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered reversing the Monroe County Zoning Board's Development Order Resolution No. MD 1-84 and denying development approval for the Spoonbill Sound Major Development. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983), it is further recommended that the Final Order require the following changes in any development proposal for Spoonbill Sound: No docking facility be approved; All units and associated facilities be clustered in such a way as to absolutely maximize the amount of contiguous, undisturbed hammock on the Spoonbill Sound site; All units and associated facilities be located as close as possible to existing access roads, and the remainder of the hammock be left as undisturbed as possible; Any future review by Monroe County of any revised development plan be made in accordance and full compliance with Chapters 27F-8 and 27F-9, Florida Administrative Code, with the Monroe County Code, and with the Monroe County Comprehensive Plan; and Any future review of any revised development plan consider the cumulative impact of the entire project, including the impact of septic tanks and the sewage treatment plant on the hardwood hammock, the adjoining red mangrove preserve, the land-locked lake, and on Cudjoe Bay itself. DONE and RECOMMENDED this 28th day of June, 1985, at Tallahassee Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood Attorney at Law County Attorney's Office 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire 317 Whitehead Street Key West, Florida 33040 E. Lee Worsham, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahssee, Florida 32301 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found: Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures. Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing." Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.
Recommendation Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters. Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: Joseph W. Landers, Jr. Ausley, McMullen, McGehee, Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302 Charles G. Batsel Wotitzky, Wotitzky, Johnson, Mandell and Batsel 201 W. Marion Drive Punta Gorda, Florida 33950 Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976 Tallahassee, Florida 32302 Lester E. Durst Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635 Punta Gorda, Florida 33950 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 H. Ray Allen Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
The Issue Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?
Conclusions The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA). Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987) It is, accordingly, ORDERED: The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987). DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, FL 33704 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399 Janet E. Bowman, Esquire P.O. Box 1876 Tallahassee, FL 32302 James S. Alves, Esquire Thomas T. M. DeRose, Esquire P.O. Box 6526 420 First Florida Bank Building Tallahassee, FL 32314 Lawrence E. Sellers, Jr., Esquire P.O. Drawer 810 Tallahassee, FL 32302 Cindy L. Bartin, Esquire P. O. Box 271 Tallahassee, FL 32302
The Issue Whether petitioner has standing to request consent of use of marine bottoms? Whether the site in question lies within the John Pennekamp Coral Reef State Park? Whether petitioner's application for consent to dredge in two places east of Angelfish Creek should be granted, under Chapters 253 and 258, Florida Statutes (1989) and Chapters 16D and 18-21, Florida Administrative Code?
Findings Of Fact Angelfish Creek in Monroe County runs virtually due east from Card Sound (which opens into Biscayne Bay just north of Angelfish Creek) to Hawk Channel, which hugs the upper Florida Keys at the edge of the Atlantic Ocean. The "creek" or strait separates Key Largo and Angelfish Key on the south from Palo Alto Key to the north. Three flashing red lights and other navigational aids mark a channel traversing the saltwater pass between sound and ocean. Petitioner South Florida Waterways Improvement Foundation, Inc. (SFWIF) is a non-profit corporation owing its existence chiefly to John A. Bott, a public spirited boater known in some circles as the "king of luggage racks." T.134. Mr. Bott, whose home at the Ocean Reef Club fronts on Card Sound, (T.145), owns "a 63 Ocean Sports fisherman, a 22 Mako and a 16-foot dinghy." Id. He once ran aground in his big boat in the Angelfish Creek channel. Respondents are state agencies charged with managing state lands in general, including submerged lands like those underlying Angelfish Creek and further east where petitioner proposes to dredge; and state parks in particular, including the John Pennekamp Coral Reef State Park, a pioneering and world- renowned "underwater park," about whose northern boundary the parties are in dispute. Petitioner Named for Predecessor Boats navigated Angelfish Creek as early as March 13, 1945, the date of an aerial photograph received as petitioner's Exhibit No. 8. But Angelfish Creek was first dredged (T.154) only after the Army Corps of Engineers issued a permit in the wake of approval by Trustees of the Internal Improvement Trust Fund (Trustees) on March 12, 1968, approval which is reflected on page 469 of Volume 36 of the official minutes. Petitioner's Exhibit No. 10. After expiration of the original permit, a non-profit corporation, South Florida Waterways Improvement Foundation, Inc. (proto-SFWIF) applied for and received permission to dredge "190 cubic yards of material from an area [in the mouth or slightly easterly of Angelfish Creek] 350 feet long by 60 feet wide." T.159. On December 30, 1975, DER issued a dredging permit to proto- SFWIF. Petitioner's Exhibit No. 11. On January 22, 1976, the Army Corps of Engineers issued a permit to proto-SFWIF for the same project. Petitioner's Exhibit No. 13. After dredging took place as authorized, proto-SFWIF "was allowed to dissolve for failure to pay or failure to file the corporate annual reports." T.164. Proto-SFWIF paid for spoil it removed to uplands (which, when deposited, ceased to belong to it) but "did not [ever otherwise] own any property." T.164. After Mr. Bott engaged Tallahassee counsel, another non-profit corporation, petitioner SFWIF, was formed, in 1990. SFWIF owns no property in Monroe County, either. Mr. Bott and twelve other members of Key Largo's Ocean Reef Club, some of whose boats draw several feet, are members of SFWIF. Two were also members of proto-SFWIF, and at least one, Mr. Bott, owns waterfront property within a few miles of the proposed site. William J. Roberts, the lawyer who formed SFWIF, together with others in his office, serve as SFWIF's corporate officers. Park Boundaries The overwhelming weight of evidence adduced at hearing establishes that the site SFWIF proposes to dredge lies within the John Pennekamp Coral Reef State Park. When the then newly formed DER issued a dredging permit to proto- SFWIF, Petitioner's Exhibit No. 11, it did so on the mistaken assumption "that the project was not in an aquatic preserve, and . . . not within the boundaries of John Pennekamp Coral Reef State Park." T.162. (At the time, SFWIF, the petitioner in the present case, was not in existence. Nor did respondents make any representations directly to proto-SFWIF.) DER may have relied on advice from Jack W. Pierce, then an attorney for DNR, in his letter of August 18, 1975, which stated: "In my opinion, these rules would not affect the maintenance dredging on Angel Fish Creek as that is not on Key Largo." Petitioner's Exhibit No. 17. But, when expressly addressing the question of park boundaries, Mr. Pierce's letter stated simply that "the boundaries . . . are those set out in the Presidential Proclamation of 1960 plus those described as set forth in the Dedication of the Trustees dated September 21, 1967, . . . ." Petitioner's Exhibit No. 17. Successive Dedications On December 3, 1959, the Trustees dedicated "for park, recreational and preservation purposes, . . . [a] portion of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo." Petitioner's Exhibit No. 23. The Presidential Proclamation of 1960 stated similar federal intentions with respect to the same "portion of the outer Continental Shelf." Known as the Key Largo Coral Reef, this offshore tract has a perimeter of some 21 miles. The northern end of its landward edge lies slightly north (and three miles east) of the northernmost point of Key Largo. In describing the offshore dedication by metes and bounds, the Trustees put the northwesternmost point at "Can Buoy '21' (approximate Latitude 25o20'06" N., Longitude 80o12'36" W.) southeast of Old Rhodes Key." Id. Can Buoy "21" has since been lost. A new day marker, No. 23, has replaced it, although possibly at a slightly different point, viz.: Latitude 25o 20' 08.58967" N., Longitude 80o 12' 34.5983" W. T.419; Petitioner's Exhibit No. 22. The current marker is 2.58967 seconds (approximately 260 feet) north and 1.4017 seconds (less than 140 feet) east of what was described as the approximate location of Can Buoy "21" in 1959. If, as a witness testified is likely, the 1959 coordinates were rounded to the nearest tenth of a minute, the apparent discrepancy may be attributable to rounding. In any event, under no analysis advanced, would a difference of 295 feet (to take the hypotenuse) prove significant, for present purposes. T.336. In the dedication of 1959, the Trustees described the southern, as well as the northern, end of the western or landward edge of the original, offshore tract with some specificity. The southern end of the landward edge of the original offshore tract, also some three miles east of the island, lies south of the northern tip of Key Largo, but well north of the island's southern tip. The southern boundary of the original, offshore tract runs approximately east-west, while its northern boundary runs more or less southeast-northwest, as it reaches the northwestern corner. By the time the Trustees dedicated additional sovereignty lands on September 21, 1967, Key Largo Coral Reef had come to be known as John Pennekamp Coral Reef State Park. On that day, the Trustees added: Those submerged tidal bottom lands in the Atlantic Ocean lying between [what was then] the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo. Petitioner's Exhibit No. 24. While preserving to their owners "any riparian rights and interest," the Trustees extended the park landward from the original offshore tract to the shore of Key Largo, without, however, listing coordinates of latitude and longitude for the northernmost and southernmost points on shore. Lying Between The southern boundary of the original, offshore tract is on a line approximately perpendicular to Key Largo's Atlantic shoreline. Surveyors who have considered the problem apparently agree that extending the southern boundary of the original tract to the shore of Key Largo appropriately defines the southern edge of submerged lands lying "between" the island and the original, offshore tract. But the northern boundary of the offshore tract, if extended landward, would proceed northwesterly and come ashore somewhere on Rhodes Key, well north of the northernmost point of the offshore tract, and still further north of the northern tip of Key Largo. T.532. Before the present controversy arose, DNR engaged James Weidener, a professional land surveyor "to survey basically the Pennekamp Park and to provide boundary maps . . . and then as part of that to locate and monument both the north and south boundaries." T. 528. As part of this project, Mr. Weidener and others working with him conducted mean high water surveys at points along the eastern shore of Key Largo and extrapolated a boundary between state-owned bottom lands and uplands in private ownership. In locating the northernmost point on Key Largo, however, Mr. Weidener did not rely on a mean high water study. Instead he chose the northern edge of tidally washed mangroves or "the apparent edge of vegetation" (T.537) that extended probably 40 to 60 feet north of the mean high water line. Nothing in the record raised the possibility that the point he chose was more than 100 feet north of the mean high water line. By joining this point with marker No. 23, he defined the northern boundary of the submerged lands "between" Key Largo and the original tract. Even before the Weidener survey, a sign had been erected "only 30 or 40 feet off the line," (T.533) which the surveyors ultimately decided on. The piling holding the sign stands 34.45 feet off the line. Respondent's Exhibit No. 1. The north side of the sign "says entering Pennekamp State Park. On the south side it says entering Biscayne National Park." T.530-531. The line between the northernmost point on Key Largo and marker No. 23 is depicted as (A) in Appendix B to the recommended order. The site at which petitioner proposes to dredge lies south of the northerly boundary described in the Weidener survey and depicted as (A) in Appendix B. If a point 100 feet further south than the one Mr. Weidener identified as the northernmost point on Key Largo is connected to the marker, the resulting line lies well north of the proposed site. T.565. If a point 260 feet south of marker No. 23 is connected to a point 100 feet further south than the one identified by Mr. Weidener as the northern tip of Key Largo, the resulting line still lies north of the proposed site. The scaled drawing attached as Appendix B requires these inferences, although these variants of line (A) are not depicted there. Forensic Surveying In preparing for litigation in the present case, petitioner engaged a surveyor, George Cole, who assembled Petitioner's Exhibit No. 22. Citing "Hayes v. Bowman, Fla., 91 So.2d 795 and Bliss v. Kinsey, Fla. 233 So.2d 191," Petitioner's Exhibit No. 22, p. 2, Mr. Cole testified that "these cases suggest the best courses [sic] of action is one that's perpendicular to the channel out here if this indeed was a riparian rights case." T.344. But, since the Trustees took care, in expanding the park, to preserve to their owners "any riparian rights and interest," the location of the northerly boundary of the tract dedicated in 1967 has nothing to do with riparian rights; and lines (C) and (D) depicted in Appendix B have no support in the record, aside from Mr. Cole's unfounded speculation. Line (B) depicted in Appendix B, also proposed by Mr. Cole, reflects the same methodology Mr. Weidener employed (in the sense of joining a point on Key Largo to marker No.23), but proceeds on the assumption that the northernmost point on Key Largo of relevance is at the mouth of an inlet known as Pumpkin Creek. Mr. Cole conceded that "Key Largo does indeed go further to the north, but . . . [testified that] this portion up here is obscured and shielded from the Atlantic Ocean by Angelfish Key and this is Pumpkin Creek and various other creeks. These are distinct, discrete islands. They have their own land mass. They are not Key Largo." T.342-3. But Angelfish Key (and Little Angelfish Key) resemble El Radabob Key in this regard. El Radabob Key is the largest of the small islands lying alongside Key Largo in the Atlantic Ocean. All witnesses testifying on the point agreed that submerged land lying between Key Largo and El Radabob Key fell within the Trustees' 1967 dedication of "submerged land in . . . [the Atlantic Ocean including] the various inlets along the easterly coast of Key Largo." Similarly, as Key Largo tapers to a northern point, Angelfish Key and Little Angelfish Key lie on its Atlantic side, separated from it (and each other) by narrow, elongated inlets of the ocean. T. 535, 537. The submerged bottoms of these elongated inlets, no less than the submerged bottom lands in Key Largo Sound, comprise part of John Pennekamp Coral Reef State Park. Poorly Marked Although charts overstate the controlling depth, the channel in Angelfish Creek is already the best channel connecting the Atlantic Ocean to inland waters north of Snake Creek and south of Government Cut. Tavernier Creek to the south and Broad and Caesar Creeks to the north are also navigable by small craft. Of course, weather and low tides make navigation more difficult everywhere they have an effect. Depicting depths at mean low water, Respondents' Exhibit No. 2B maps the ocean bottom in the vicinity of markers Nos. 2A and 3A, including the eastern end of the channel petitioner seeks to widen. The two formations petitioner proposes to dredge aside, depths within the channel vary from 4.9 to 13 or 14 feet, at mean low water. The topographical survey features one-foot contours (between five and fifteen feet below mean low water) and reports hundreds of soundings. Respondents' Exhibit No. 2B. A shoal lies inside the channel about 15 feet from the southerly edge, some 30 feet easterly of green day marker No. 3A. In the worst spot, fossilized coral lies under only 3.5 feet of water at mean low tide. Boats run aground there as well as on another ledge of fossil coral on the other side of the channel, near marker No. 2A. At the latter site, Mr. H. R. Pender once measured the depth at five feet (T.125); and mean low water is shown at 5.4 feet. Whether dredging would actually increase boat traffic was not established, although dredging would permit the channel to handle more traffic. The narrower and more serpentine a channel becomes, the smaller the vessels it can accommodate. But traffic could be routed around these shoals by repositioning markers Nos. 2A and 3A, or by adding markers. Outside the channel opposite marker No. 2A is a deep hole; there is ample water into which to shift the channel. Opposite marker No. 3A outside the channel, depths at mean low water are as low as 5.6 feet. Although that is deeper than places in the mouth of the channel, it might be preferable simply to narrow the channel by moving marker No. 3A the few feet necessary to locate it channelward of the out-cropping of "fossil coral [or] calcium carbonate rock," (T.382) petitioner proposes to dredge. Environmental Effects The DER permit conditions specify turbidity screens, limit dredging to slack and incoming tides, and require deposition of spoil upland. Biota in the vicinity can withstand "spurts of turbidity," in any event. Tidal currents have scoured the channel, removing most fine particles, but intermittent northwesters flush slugs of particulate matter from Card Sound through Angelfish Creek. The project site is on the order of a mile from the nearest active coral reef in the park, but a few small colonies of coral, both hard and soft (gorgonian) grow where petitioner proposes to dredge, as do algae, marine grasses, and perhaps other alcyonarians. Dredging would displace these individuals but create a new and deeper hard substrate for colonization by like organisms. A representative of DER is to help pick which fossil coral to remove. Marine life, if established at a greater depth, would less likely suffer interference from boats' 60- to 100-feet long running aground. Petitioner's Exhibit No. 14. Groundings entail the risk of fuel spills. Traces of presumably toxic bottom paint have been found on fossil coral near the surface. But these hazards would also be greatly reduced if markers Nos. 2A and 3A were repositioned, or additional markers placed, to mark the outcroppings, so boaters could avoid them.
Recommendation It is, accordingly recommended: That respondents deny petitioner's application for consent to dredge. That respondents specifically initiate relocation of markers Nos. 2A and 3A or take other steps to mark the channel appropriately. RECOMMENDED this 13th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of November, 1991. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 90-4285 Petitioner's proposed findings of fact Nos. 1, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, 26, 29, 31, 34, 35, 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 56, 57, 78, 80, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 97 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 58, 59, 60 and 71 are immaterial. With respect to petitioner's proposed finding of fact No. 12, no causal connection between the letter and the permit was proven. With respect to petitioner's proposed finding of fact No. 18, the owner's testimony was largely hearsay. With respect to petitioner's proposed finding of fact No. 21, the shallows are a hazard on account of the markers' location. With respect to petitioner's proposed finding of fact No. 27, the adequacy of the width would depend on the vessel. With respect to petitioner's proposed finding of fact No. 28, no fatality occurred from grounding. With respect to petitioner's proposed finding of fact Nos. 30 and 32, see finding of fact No. 24. With respect to petitioner's proposed finding of fact No. 33, such an event blocked the channel for "another large vessel." T.38. With respect to petitioner's proposed finding of fact No. 36, Mr. Bott had only one grounding. Petitioner's proposed finding of fact No. 37 has been adopted, in substance, but proto-SWFIF is now defunct. With respect to petitioner's proposed finding of fact No. 38, a new corporation was organized. With respect to petitioner's proposed finding of fact No. 39, at least one nonprofit corporation obtained such permits. Petitioner's proposed findings of fact Nos. 40, 50, 70, 74 and 76 have been rejected. With respect to petitioner's proposed finding of fact No. 41, while apparently accurate, the proposed finding is not supported by the citation to the record. With respect to petitioner's proposed findings of fact Nos. 53 and 73, the evidence showed that the new marker was likely at the same spot as the old. Petitioner's proposed findings of fact Nos. 54, 55, 72, 75 and 77 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 79, the effect of possibly increased traffic in larger vessels was not considered. With respect to petitioner's proposed finding of fact No. 81, the testimony was "on the order of" a mile. Petitioner's proposed finding of fact No. 96 so-called is actually a proposed conclusion of law. With respect to petitioner's proposed findings of fact Nos. 98 and 99, the proposed dredging is contrary to administrative rules which, at least in the absence of a rule challenge, express public policy definitively. Respondents' proposed findings of fact were not separately numbered, but have been addressed, in substance, in the findings of fact. APPENDIX B TO RECOMMENDED ORDER, CASE NO. 90-4285 (From Petitioner's Exhibit No. 22) COPIES FURNISHED: Robert A. Routa, Esquire P.O. Drawer 6506 Tallahassee, FL 32314-6506 Brian F. McGrail, Esquire John W. Corrigan, Esquire 3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000 Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300 Tom Gardner, Exec. Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-0300
The Issue The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on June 15, 2001, are an invalid exercise of legislative authority.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found. Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes. STANDING OF THE PARTIES McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere. Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located. Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area. Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule. The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing. Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County. ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida. On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida. On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida. On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000. On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly. On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly. There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question. Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as follows: 1991 1,268 manatees 1991 1,465 manatees 1992 1,856 manatees 1995 1,443 manatees 1995 1,822 manatees 1996 2,274 manatees 1996 2,639 manatees 1997 2,229 manatees 1997 1,709 manatees 1998 2,022 manatees 1999 2,034 manatees 1999 2,354 manatees 2000 1,629 manatees 2000 2,222 manatees 2001 3,276 manatees During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations. The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999. General Description of Brevard County. Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River. Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River. The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America. The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches). The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water. In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall, storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually. The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level. Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year. THE MANATEE The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act. The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction. In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas. Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year. Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs. Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County. For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation. Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs. Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours. The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals. Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees. Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating. Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline. The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules. MANATEE PROTECTION PLANS The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996. A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001. The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state: Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions. Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community. The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes. HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR"). In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993. After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code. In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan. In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant. THE PROPOSED MANATEE PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY 1906 Section II - Proposed Rules THE FULL TEXT OF THE PROPOSED RULES IS: (Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones. The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas. The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made. The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003. NO ENTRY (November 15 – March 31) Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the jetty on the north side of the power plant intake canal. Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal. MOTORBOATS PROHIBITED (All Year, except as noted) Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River 95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31. C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal 54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. IDLE SPEED (All Year, except as noted) Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November 15 through March 31. Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401). Section II - Proposed Rules 1907 Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road 520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline. Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point. Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove. Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. SLOW SPEED (All Year) Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon. Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36" North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2. Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road 402 Bridge and Causeway. Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3. Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway): All waters north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal, and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528. Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road 404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway). Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within 500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker “14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar. Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.” Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel. Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River. Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River. Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520. Section II - Proposed Rules 1909 Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point. Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River. Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39' 30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex. Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road 520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base. Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude 28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road 404 and within 2,000 feet of the State Road 404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5. Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5. 25 MPH (All Year) Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal). Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW. Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW. South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line. South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge. Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code. Permits shall be limited as follows: Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18. Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S. Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330). Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees. The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions. FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions. MANATEE MORTALITY DATA FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death). AERIAL SURVEY DATA In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations. Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others. Aerial Surveys Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys. SYNOPTIC AERIAL SURVEYS Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above. The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge. The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina. MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas. Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations. FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path. Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor. Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990- November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990. SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data. The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available. Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year. The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees. The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time. Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast. MIGRATORY RANGE OF TAGGED MANATEES The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not. Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location. In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997). MANATEE SIGHTING DATA FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure. STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION. FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs. The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon. SCAR CATALOG DATA FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider. EXPERT OPINIONS FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team. OTHER AVAILABLE SITE-SPECIFIC INFORMATION FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations. DATA ANALYSIS Threat Analysis Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees, with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered. Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database. From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County. FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent. Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns. Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees. Geographic Scope of Threat Analysis Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.) Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the "characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation." The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers. The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones. The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose. Proximity and Degree of Known Boating Activities FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps. Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes. The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass. In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994. At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats. At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.) A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats. INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY In general, the level of boating activity in Brevard County continues to increase with the increasing population, launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties. In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents. Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats. SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED TO OCCUR IN, OR SEASONALLY USE THE AREA FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal. The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000, 29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees. Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly. MANATEE MORTALITY TRENDS WITHIN THE AREA Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions. The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of these nine critical east coast counties, Brevard County had the highest mortality trend. During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year. EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR WARM WATER SOURCES Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order. Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less. As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway. The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources. FAVORABLE WATER DEPTHS Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline. FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels. Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting. The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map. The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet. The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line." Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules. FRESH WATER SOURCES FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals. WARM WATER SOURCES FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals. CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel. In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet. Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make deliveries to the Space Center, according to the Lockmaster, Mr. Querry. Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities. Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park. BOAT-MANATEE INTERACTIONS FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision. Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH. Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels. The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation. TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas. Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels." Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that 95 percent of the time the manatees had scars from boat propellers or skegs. Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues. Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom. Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away. Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee. STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision. A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH. The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off." PROTECTION OF MANATEE-SEA GRASS HABITAT FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes. The Florida Guide To Recreational Boating notes that: Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water. The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds." Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds. The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE Differing Opinions About Manatee Protection Areas FWCC's Opinion The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats. The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County. The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH. The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20- 25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH. Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS. Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels. Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted. PETITIONERS' OPINIONS The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum 25 MPH channels." Petitioners' challenge to many of the protection zones alleges that FWCC's basic regulatory mechanisms are flawed. FEDERAL LAWSUIT-SETTLEMENT AGREEMENT On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County. Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence. Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule. Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part: (d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule. * * * 3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2). THOMAS MCGILL PETITIONERS Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of "maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers. The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge. STANDING WATCH, INC. Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH. The Guides recommended that motorboat speed and operation be limited as follow: Mosquito Lagoon-make no changes to existing rule Turnbull Basin, North Indian River Create two "slow speed" zones in Turnbull - one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin; Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet; Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge; Take no further action [to change regulations]. Indian River, NASA railroad bridge to S.R. 402 Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet; Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1; Set a maximum 25 MPH in the ICW; Take no further action [to change regulations] Indian River, State Road 406 to State Road 402 (1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water; Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet; Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline; Take no further action [to change regulations]. Indian River, State Road 405 to State Road 528 Bridge Close the warm water refuge sites at the power plants to manatees, not to boats; Deliver fuel to the power plants by land; Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore; Take no further action [to change regulations]. Canaveral Barge (and Banana River to Locks) Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina; Take no further action (to change regulations). Banana River (1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit; Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore; Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area]; Take no further actions [to change regulations]. Newfound Harbor (1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit; Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands; Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point; The east and west "slow speed" zones be 500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520; Take no further action. Sykes Creek North State Road 520 Set speed limit in marked channel at 20 MPH; All residential canals should be "slow speed"; Take no further action. Indian River State Road 528 to State Road 520 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 520 to State Road 404 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges; Take no further action. Indian River State Road 404 to State Road 518 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 518 to State Road 192 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night; Take no further action. Indian River (1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; (2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed"; Take no further action. Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules. SPECIFIC PROPOSED ZONES CHALLENGED The Petitioners' Challenge All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes. MCGILL PETITIONERS The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes. McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation. At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. The McGill Petitioners' position as set forth in their Prehearing Stipulation states: The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added] The McGill Petitioners' Amended Petition alleged in paragraph 6: The Commission has not employed the best available science or even reasonable science. . . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage . . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee activity. . . . In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr. Deutsch's analysis presented for Respondent, FWCC. The Amended McGill Petition, paragraphs 10 and 12, stated: The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions." McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions. The McGill Petitioners further stated in paragraph 11 that: The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment. McGill Petitioners presented the testimony of Dr. Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level. The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule. The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue. McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings. There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC) In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes. Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop. The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule 68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed. In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives. The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State. In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats. The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development. The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements. In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats. Sea Ray Boat, Inc. Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone. Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority. Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays." Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria, standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes. Standing Watch, Inc. Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed. Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County. Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule. The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes. Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious. Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious. City of Cocoa Beach Watersports Area Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area." In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area). Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees. Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat. The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000). All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached Settlement Agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED this / %y of 7abuary , 2014, in Tallahassee, Leon County, Florida. LL. Yet foc! ELIZABETH DUDEK, SECKETARY Agency for Health Care Administration Page 1 of 3 Filed February 14, 2014 11:45 AM Division of Administrative Hearings Cc. I. No. 12-1696-000 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Robert Rappel, D.O., J.D. Rappel Health Law Group, P.L., Bridgewater 1515 Indian River Blvd., Suite A210 Vero Beach, Florida 32960-4230 (U.S. Mail) Agency for Health Care Administration Douglas J. Lomonico, Assistant General Counsel, MS #3 (Electronic Mail) Agency for Health Care Administration Division of Health Quality Assurance Agency for Health Care Administration Home Care Unit, MS #34 Agency for Health Care Administration Bureau of Finance and Accounting, MS #14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Rick Zenuch, Bureau Chief Florida Department of Health Finance and Accounting Page 2 of 3 C.1I. No. 12-1696-000 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced ——— addressees this /3 day of 7 tiene , 2014. RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Facsimile No. (850)-921-0158 Page 3 of 3
