The Issue Whether the Department of Environmental Protection should issue a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to Deep Lagoon Boat Club, Ltd., for the upgrade of its existing commercial marina in Deep Lagoon, an arm of the Caloosahatchee River?
Findings Of Fact The Caloosahatchee River Located in Lee County and considered a part of Charlotte Harbor, the Caloosahatchee River (the "River") is among the Class III surface waters of the state, so classified on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62-302.400(1). The River runs from Lake Okeechobee in a southwesterly direction past the City of Ft. Myers into San Carlos Bay. The bay, adjoining the Gulf of Mexico, is directly south of Matlacha Pass. It sits in the midst of, and is formed by, Sanibel Island, Pine Island, and the land masses on the north side of the Caloosahatchee (the site of City of Cape Coral) and the south side that culminates in Shell Point, at the mouth of the River. Beginning 120 years ago or so, the River underwent a series of major man-made alterations. Together with a statement of the current status of the River, they are summarized briefly in a publication of a recent special study of manatees and the River by the Florida Fish and Wildlife Conservation Commission's Florida Marine Research Institute (the "Special Study"). (Highly pertinent to this case, the Special Study is referred to elsewhere in this order.) This is its summary of the alterations to the River: Prior to the late 19th century, the Caloosahatchee River was a meandering waterway that ran from west Lake Flirt to San Carlos Bay . . . In 1881, Hamilton Disston began dredging a canal to connect the river's headwaters with Lake Okeechobee (citation omitted). This procedure caused severe flooding downstream, especially during the hurricane season. To mitigate the flooding effects, various spillways, locks and dams were constructed, including the locks at Moore Haven and Ortona. In 1947, the Central and Southern Florida (CS&F) project was authorized to manage the flood-control system and water supply issues of the Caloosahatchee River basin. The CS&F project involved widening and straightening the river and constructing the Olga Lock and Dam (now known as the . . . Franklin Lock and Dam). The river today is 65 miles long with a 25- foot-deep channel. Petitioners' Exhibit 20, A Special Study of Manatees in Mullock Creek and the Caloosahatchee River Eastward to the Edison Bridge, Florida Fish and Wildlife Conservation Commission, Florida Marine Research Institute, November 2002. Despite these alterations, the River is listed among the waters of the state designated as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9)(b)2. As such, it is entitled to special protection by virtue of DEP's pronouncement that "[I]t shall be the Department policy to afford the highest protection to Outstanding Florida Waters". Fla. Admin. Code R. 62- 302.700(1). The Franklin Lock is located on the Caloosahatchee about 25 miles upstream from San Carlos Bay. The lock permits fresh water to flow downstream toward the bay, of course, but it keeps the salt in brackish waters in the River south of the lock from penetrating upstream. In other words, the lock is a salinity barrier. The estuarine extension of the River, therefore, is defined by the lock. Little more than four miles downstream from the lock, the Orange River feeds into the Caloosahatchee. Upstream on the Orange, not far from its mouth, is the site of a Florida Power and Light Company ("FP&L") power plant. Until very recently, the power plant discharged into the Orange River effluent roughly seven degrees Celsius warmer than its ambient waters. (Waters discharged now are not as warm but still significantly warmer than the River's ambient water.) The warmed waters flow into the Caloosahatchee. These river system waters warmed by power plant effluent are sought by manatees as refuge from colder water in the River, the bay and the gulf. "Controlled releases or pulses of fresh water from Lake Okeechobee, upstream runoff, and prolonged periods of drought can severely, though temporarily, alter the salinity gradient [downstream of Franklin lock]." Id. at p. 20. It is believed that the variations in salinity affect seagrass biomass more than actual salinity levels. The salinity ranges cause turbidity and decrease in water clarity in the Caloosahatchee. They darken the water color and result in the submerged aquatic vegetation being variable and patchy instead of plentiful as it would be were the River not affected by rapid and extreme salinity changes. The River is crossed by a number of bridges: the Interstate 75 Bridges, Edison Bridge (part of U.S. Highway 41), the Midpoint Bridge, and the Cape Coral Bridge. The average depth of the water at river's edge is three feet. The center, including the channel, ranges from 6 to 25 feet in depth. Relatively shallow, the length and breadth of the River is traveled by manatees who use it as a critical link in habitat in southwest Florida. Manatee Habitat Linkage The presence of manatees in the River and their use of it for habitat is also summarized in the Special Study: The Caloosahatchee River between the Edison Bridge and Shell Point links habitats used by manatees including warm-water refugia, feeding areas, and resting areas. Because of drastic changes in salinity . . . coupled with high turbidity from development and vessel traffic, the distribution of submerged aquatic vegetation (marine and freshwater) in the study areas is variable and patchy. Manatees travel between stable feeding areas found upstream (freshwater) and downstream (estuarine), although they presumably feed opportunistically while passing through the area. Selected areas in the Cape Coral and Ft. Myers canals likely afford manatees with fresh water through stormwater runoff and drainage, resting habitats, and possible nursery areas. In winter, manatees may also use a few of these canals as temporary warm- water sites. Id. Among the places along the River where manatees congregate is Deep Lagoon. Deep Lagoon Deep Lagoon is a natural, relatively short, largely mangrove-lined arm of the Caloosahatchee on its southern shore just east of Palmetto Point. The lagoon is to the west and south of the downtown area of the City of Ft. Myers, less than a mile south of the southern terminus of the Cape Coral Bridge, and approximately 12 miles downstream from the FP&L power plant. Roughly four miles upstream from Shell Point where the River opens to the bay, the mouth of the lagoon opens west. Just inside the lagoon's mouth, it widens into an area known as the Cove. The lagoon turns 90 degrees to the south and extends in a southerly direction toward McGregor Boulevard. The upper reaches of the lagoon, or its headwaters, very close to McGregor Boulevard, are known as Cow Slough. Like the Caloosahatchee, Deep Lagoon is one of the Class III waters of the state. Unlike the River, the lagoon is not listed among the Outstanding Florida Waters. Wildlife in the area around Deep Lagoon include great blue herons, night herons, osprey and other hawks, and, of course, the manatee. In fact, Deep Lagoon is considered by the Bureau of Species Management in the Florida Fish and Wildlife Conservation Commission (the "FWC") to be a "minor aggregation area" (Tr. 792) for manatees. The lagoon provides some warm waters attractive to the manatee, and manatees consume fresh water discharged into the lagoon from the Iona Drainage District ditch. (See paragraph 17, below.) The waters in and near the lagoon are frequently used by citizens for fishing. Fly fishing for snook, redfish, snapper, sea trout, and sheepshead is particularly popular in and about the lagoon. The lagoon is also the site of the Boat Club's Deep Lagoon Marina. The Deep Lagoon Marina The Deep Lagoon Marina (the "Marina") consists of 24 acres less than one-half mile from the River, north of Cow Slough, and south of the Iona Drainage District ditch. The Iona Drainage District ditch, the result of the first dredging in the Deep Lagoon area, is separated from the Marina by a relatively thin strip of mangrove fringe. It is a source of fresh water runoff from predominately fresh water wetland and upland areas. It appears in a 1944 aerial photograph that pre-dates dredging for the marina or of the lagoon otherwise. An aerial photograph taken in 1958, 14 years later, shows development of the Deep Lagoon marina property, as well as completion of a north canal separated from the Iona Drainage Canal by the mangrove fringe. Sometime between 1958 and 1966, two additional canals were dredged as part of the Marina. The marina consists of 15.4 acres of uplands, largely the result of the dredge and fill activity that created the marina's three man-made canals: the "north canal"; the "main canal" that includes a basin (the "main basin") at its eastern end; and the "south canal." At their eastern ends, the three canals terminate a short distance from MacGregor Boulevard. On their opposite ends to the west, the canals open to the lagoon. Except for the Iona Drainage District ditch that discharges into the north canal, the canal water system has little circulation. Within the dead-end system the canals comprise, the water sloshes back and forth. The dead-end nature of the canals has led to violations of water quality standards as found in paragraphs 4 and 5 of Sheridan, et al. v. Deep Lagoon Marina, et al., Case No. 88-4759 (DOAH June 10, 1989): As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east-west peninsula and the receipt of agricultural and highway drainage into the northern canal may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basins are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. Id. at pp. 4 and 5. The north peninsula (referred to in other DOAH orders as the "east-west peninsula") is the longer of the two peninsulas on the marina property. It lies between the north canal and main canal. The south peninsula lies northeast of the south canal, southwest of the main basin, and south of the main canal. Two steel buildings used for dry boat storage, a building used for boat repair and related marina uses are located on the south peninsula. The marina property located east of the marina's two peninsulas that fronts MacGregor Boulevard is occupied by a boat dealership and the Boat Club's sales trailer. To the north of the marina is the Town and River subdivision. The subdivision has an extensive canal system. Like the marina's canals, the Town and River Canal System is also the result of historic dredge and fill activity. As the Town and River subdivision expanded in the 1970's, the use of the marina increased. A boat storage building appears on the north peninsula in a 1970 aerial photograph. Extensive outdoor dry boat storage on the north peninsula began in the late 1970's. Dry boat storage expanded in the 1980's. An examination of aerial photography taken in 1990, 1993, 1999, 2000, and 2001, reveals 1990 to be "the period of time that the facility appeared to be at full operating capacity." (Tr. 787). As early as March 23, 1980, a travel lift facility appears in aerial photographs at the west end of the north peninsula. The boat lift appears in the same spot on the western end of the northern peninsula, west of the longitude at which the Iona Drainage District canal opens onto the North Canal, in a series of aerial photographs taken over the next two decades. The area surrounding the marina is fully developed, including the residential areas and boat basins to the north and south. Opposite the marina and along much of the western border of the lagoon, there is a vacant tract of wetlands. Purchased by Lee County as conservation lands, it will not be developed. It is the Department's position that Deep Lagoon Marina can operate as a marina without a permit. But a permit is required if its owners seek to upgrade the marina by activity that trips permit requirements such as construction or dredging of channels. The Boat Club became involved in permitting processes soon after it purchased the marina. Purchase by the Boat Club The Boat Club purchased the marina in 1997, with a closing on the purchase in September of that year. At the time of the purchase, it was the Boat Club's intent to redevelop the entire marina property and upgrade its facilities under the authority of development orders and permits obtained by the former owners. These included a Development of Regional Impact Development Order (the "DRI DO") issued in 1987; a surface water management permit (the "MSSW permit") from the South Florida Water Management District issued in 1988; and a dredge and fill permit from the former Department of Environmental Regulation issued in 1989, and extended through a major modification in 1995. A Litigious History These permits have a litigious history, particularly the dredge and fill permit and its conditions. Modifications to the permit resulted in additional permit processes, including administrative hearings. The history of the dredge and fill permit litigation, including litigation related to the Boat Club's application for an environmental resource permit to construct a surface water management system (the "SWMS permit") at the marina site is summarized in a final order of the Department of Environmental Protection rendered March 6, 2000 ("Sheridan III"): Applicant [Deep Lagoon Boat Club, Ltd., or, as referred to in this order, the Boat Club] is the owner and operator of Deep Lagoon Marina (the "Marina"), presently consisting of 61 wet slips, 200 dry slips and other marina-related buildings. * * * In 1989, the Department of Environmental Regulation ("DER") entered a final order issuing a dredge and fill permit to a predecessor in title of Applicant authorizing a major renovation and expansion of the Marina, including additional boat slips and other related activities. See Sheridan v. Deep Lagoon, 11 F.A.L.R. 4710 (Fla. DER 1989). The final order in the original Sheridan case was appealed and the portion thereof issuing the dredge and fill permit was subsequently affirmed by the appellate courts Sheridan v. Deep Lagoon, 576 So. 2d 771 (Fla. 1st DCA 1991). A permit was ultimately issued by the Department in October of 1995 (the "Original Permit") after the conclusion of the appellate proceeding. The Original Permit was modified by the Department in November of 1995 and again in April of 1997. This 1989 DER final order in the original Sheridan case adopted the hearing officer's findings that the waters of the Marina canals violated water quality standards for dissolved oxygen, oils and grease, total and fecal coliform, copper, lead, and mercury. Sheridan, supra, at 11 FALR 4727. These persistent water quality violations in the marina canals in the 1980's were the impetus for specific conditions set forth in the Original Permit issued by the Department in 1995 to ensure a net improvement" to water quality. Specific Condition 5K of the Original Permit, as revised in 1997, requires that a "stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be permitted and phased in prior to use of the parking lot and the new boat slips." . . . In order to meet these requirements of Specific Condition 5K of the Original Permit, Applicant filed an application with the Department in December of 1997 for an environmental resource permit to construct a surface water management system at the Marina site. The Department executed a Notice of Intent to Issue Applicant's requested permit for the surface water management system (the "SWMS" permit) in November of 1998. In March of 1998, Applicant also gave the Department written notice that it intended to "maintenance dredge" the internal canals at the Marina site. The Department's South District Office then issued a letter determining that Applicant's proposal to maintenance dredge the Marina's internal canals was exempt from environmental resource permitting requirements. Upon receipt of this letter from the Department, Applicant's contractor proceeded with the "maintenance dredging" of the three canals. Petitioner and Intervenor then filed petitions challenging the Department's notice of intent to issue the SWMS permit and the Department's maintenance dredging exemption determination. These petitions were forwarded to DOAH and were consolidated for final hearing in Sheridan v. Deep Lagoon Boat Club, DOAH Case Nos. 98-3901 and 98-5409 ("Sheridan II"). A recommended order was entered in Sheridan [II] in November of 1999 by a DOAH administrative law judge ("ALJ"). The Department subsequently entered a final order in January of 2000 in the Sheridan [II] consolidated cases. See Sheridan v. Deep Lagoon Boat Club, OGC Case Nos. 98-1184 and 98[-]3047 (Fla. DEP, January 28, 2000) In its final order in Sheridan [II], the Department adopted the ALJ's conclusion that Applicant failed to establish at the final hearing that the already completed dredging of the three Marina canals complied with two of the statutory requirements for entitlement to "maintenance dredging" exemption. The Sheridan II final order also adopted the ALJ's conclusion that Applicant failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian manatee. The Sheridan [II] final order of the Department thus disapproved the prior determination of Department staff that Applicant was entitled to a permit exemption for maintenance dredging of the Marina Canals [although the matter was moot since the Boat Club had, in fact, conducted the dredging while the proceeding was pending] and denied Applicant's SWMS environmental resource permit application. While Sheridan [II] was pending, DEP issued a notice of intent in March of 1999 to further modify the specific conditions of the 1995 Original Permit. These modifications would allow Applicant to construct and operate a boat travel lift at a new location within the Marina and to install flushing culverts in lieu of the previous requirement of a flushing channel between the north and middle Marina canals. [The modification for the boat lift would allow the construction and operation of a boat lift at the eastern end of the north canal.] These 1999 modifications to the Original Permit were timely challenged by Petitioner and the matter was referred to DOAH, resulting in the formal administrative proceeding now on review in this Department Final Order. Sheridan vs. Deep Lagoon Boat Club, Ltd., et al., OGC Case No. 99-0619, DOAH Case No. 99-2234, (DEP March 6, 2000). As stated in the quote above, following its purchase of the marina, the Boat Club conducted contamination and maintenance dredging of the marina's canals. This dredging had been preliminarily authorized by DEP, but DEP's preliminary action was challenged. The result of the litigation was that the permit for the dredging was disapproved, a result too late for the opponents of the process because the dredging had been undertaken and completed while the litigation wended its way through state agencies and the court. In the meantime, the boats stored on the north peninsula were removed to make way for the dredged materials. When the dredging was completed, dry boat storage resumed on the north peninsula. During the Sheridan II proceedings, the Final Order in Sheridan III was rendered. It accepted the recommendation of the administrative law judge that, with four changes, the modifications that would allow the boat travel lift at the eastern end of the north canal and the flushing culverts be granted. The recommendation was predicated on findings related to and conclusions that any adverse impacts on water quality would be negligible and that impacts to the manatee would be minimal or that projections of significant impacts were speculative. These findings and conclusions were adopted and accepted by DEP in the Sheridan III Final Order. While the administrative process in Sheridan III proceeded toward its culmination with the issuance of a final order in March of 2000, Sheridan II was under appeal in the Second District Court of Appeal. Almost a year after the Sheridan III Final Order, the Court rendered an opinion in Sheridan II. Rehearing in the Sheridan II appellate proceeding was denied on April 6, 2001. The Court affirmed DEP's adoption of the conclusion that the Boat Club failed to provide reasonable assurance that the secondary impacts of the operation of the proposed SWMS would not violate water quality standards and would not adversely impact the West Indian Manatee. While the appellate litigation in Sheridan II was pending, the 1989 dredge and fill permit expired. In order to upgrade the Marina, therefore, the Boat Club was required to re-apply to DEP for an Environmental Resource Permit, a type of permit that succeeded the type of permit (the dredge and fill permit) issued by DEP in 1989. This most recent Environmental Resource Permit application is the subject of this proceeding. The ERP Subject to this Proceeding The Boat Club application for the new Environmental Resource Permit ("ERP") was received on August 24, 2001. The following January 22, 2003, approximately one year and five months after the filing of the ERP application, DEP issued a "Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization" (the "Permit/Authorization"). The Permit/Authorization governs the Boat Club's proposed dredge and fill activity, its proposed stormwater and surface water management plan and authorization of sovereign submerged land use. The permitted activity is described in DEP Permit/Authorization No. 36-0128502-008 as follows: The project is to upgrade an existing 445 slip commercial marina. Upon completion, the marina will accommodate 485 slips (129 wet slips and 356 dry slips) 40 of which shall be occupied by sailboats or left unoccupied. This shall include the construction of 1,693 lf (2,257 sq. ft.) vertical retaining wall in the north canal landward of mean high water (MHW) and existing mangroves. The construction of a travel lift affecting approximately 600 sq. ft. and approximately 37,369 sq. ft. of docking structure (3,529 sq. ft. of fixed docking structure and 33,840 sq. ft. of floating docking structure). The construction of two 48" grated culverts to enhance flushing, as well as, the removal of two travel lifts and approximately 10,443 sq. ft. docking structure. Further, the activity is to construct a surface water management system to serve 15.4 acres (total upland area) of the entire 24.0-acre commercial marina site. Construction of the surface water management system will include three separate and independent stormwater collection systems with associated pretreatment areas and underground vault (Infiltrator) systems for stormwater storage/treatment prior to discharge through concrete weir outfall control structures into adjacent Class III waters. Petitioners' Exhibit 15, page 3 of 20. The Parties Petitioners The three petitioners all reside in proximity to Deep Lagoon. Brenda Sheridan resides to the northeast of the marina. Her lot, owned since 1976, is on the shores of the Caloosahatchee River at Deep Lagoon. She and her husband are avid practitioners of fly fishing. In addition to fishing, Ms. Sheridan boats in Deep Lagoon, including in the north canal, where she enjoys observing wildlife, particularly manatees. A member of the Save the Manatee Club for more than 20 years, she has observed manatees in Deep Lagoon "[f]or many years" (Tr. 963) and continues to see them "all the time." Id. With the exception of calving, she has seen them "doing just about everything" (Tr. 964), including drinking fresh water off the surface of Deep Lagoon. She has participated in posting manatees signs "starting at the channel coming in from the river into Deep Lagoon . . . through the cove." (Tr. 973). She has assisted state personnel in the recovery of a manatee carcass, and has reported what she has believed to be speeding boats the many times she has seen them. She believes that the proposed permit will adversely affect her activities of fishing and observing wildlife and fervently hopes to be able to continue to "enjoy wildlife and unpolluted waters for the rest of my life and also for my grandchildren." (Tr. 979). Kevin Derheimer and Kathryn Kleist reside on Deep Lagoon Lane in Ft. Myers adjacent to the Iona Drainage Ditch immediately north of the north canal. Members of the Audubon Society, they selected the property where they built their home because it had been owned by Ms. Kleist's family, and because they "had observed wildlife, manatees, and birds from this piece of property and [so] decided to build a home there because of the proximity to wildlife" (Tr. 856), as well as its proximity to wetlands that could not be developed. They boat, kayak and fish on Deep Lagoon, and observe the abundant wildlife there especially manatees. Ms. Kleist has seen up to seven manatees at one time together in Deep Lagoon. Her observations have taken place over the last five years. She describes herself and her husband as avid observers of manatees who keep their binoculars at the ready any time they think they might have spotted a manatee in the lagoon. Ms. Kleist has a number of concerns about the proposed permit, particularly its effect on the north canal and the areas of the lagoon used by manatees observed by her over her years of residence in the area. Of major concern to her is the increase in boat traffic. Consistent with Mr. Ruff's testimony quoted in paragraph 178 below, Ms. Kleist testified that the proposal will make the marina "much larger" (Tr. 941) than it has been in her five years living in the area. (Tr. 940). When asked whether she observed the speed zones that apply to Deep Lagoon, Ms. Kleist candidly replied: Probably not all the time. Just like I don't with my car. But we attempt to pay attention to speed zones. It's not intentionally, but if you're asking me to 100 percent of the time, have I never speeded in my boat, I would say no. (Tr. 959). Respondents Respondent DEP is the state agency authorized to issue environmental resource permits for projects affecting the waters of the state under Chapter 373, Florida Statutes. It is delegated authority to issue proprietary authorizations to use sovereign submerged lands by Florida Administrative Code Rule 18- 21.0051. Deep Lagoon Boat Club, Ltd., is the owner and operator of Deep Lagoon Marina, a 24-acre marina, claimed in its proposed recommended order (adopted by DEP) to consist presently "of 50 wet slips and approximately 350 dry slips (171 boats stored inside two storage buildings and the remainder stored outside of the buildings on racks or block)." Deep Lagoon Boat Ltd.'s Proposed Recommended Order, p. 6-7. A principal of the Boat Club is Edward J. Ruff, a developer of marinas in southwest Florida. The business is a family concern as was evidenced by the presence of many members of the Ruff family at the final hearing. Mr. Ruff has had success in developing several marinas in southwest Florida. An advocate of the Clean Marina Program, Mr. Ruff attributes the success to his pursuit of development of marinas that meet Clean Marina criteria. The Boat Club has applied for Clean Marina status for the Deep Lagoon Marina, but was turned down for lack of compliance with one criterion. It does not yet have a surface water management system that has been finally approved by DEP. The Boat Club hopes that approval of the surface water management system under review will clear the way for it to be able to "fly the flag" (Tr. 312) that demonstrates its achievement of Clean Marina status. Petitioners' Challenge Petitioners raised 10 bases in their petition for denial of the Consolidated Permit/Authorization. One, found in paragraph 32.H., of the petition, concerning the application of Florida Administrative Code Rule 18-21.0045, has been waived. See p. 55 of Petitioners' Proposed Recommended Order. The remaining nine alleged in paragraph 32 of the petition are as follows: Whether Deep Lagoon Club has provided reasonable assurances of compliance with the applicable water quality standards as required by Section 373.414(1), Fla. Stat., including Florida's anti-degradation policy in Rules 62-4.242(1)9a) and Rule 62- 302.300(7), Florida's minimum standards in Rule 62-302.500, and Florida's Class III standards Rule 62.302.560. * * * Whether Deep Lagoon Club has provided reasonable assurances of compliance with the public interest criteria of Section 373.414(1)(a), Fla. Stat., . . . Whether Deep Lagoon club has provided reasonable assurances of compliance with the elimination and avoidance criteria of Section 373.414(1)(b), Fla. Stat. and SFWMD Basis of Review Section 4. Whether Deep Lagoon Club is collaterally estopped from being granted an ERP for its proposed stormwater management system due to the DEP's denial of the same proposed stormwater management system and its secondary impact on Manatees. . . . Whether Deep Lagoon Club failed to provide reasonable assurance concerning the direct impacts and secondary impacts of its proposed activities on the endangered Manatee. (Section 373.414(1)(a), Fla. Stat.; Rule 40E-4.301(1)(d)-(f); Basis of Review Section 4.2.7(a); [citation omitted]; Section 370.12(2)(m), Fla. Stat.; Fla. Admin. Code Chapter 68C-22 . . .; . . . Whether Deep Lagoon Club failed to provide reasonable assurance concerning the past, present and foreseeable cumulative impacts, especially including cumulative impacts on the endangered Manatee. . . . Whether Deep Lagoon Club has provided reasonable assurances its sovereign submerged lands application complies with the public interest criteria of Rule 18-21.004, including secondary impacts on the endangered Manatee . . . * * * Whether Deep Lagoon Club has provided reasonable assurances that its proposed activities are consistent with Florida's Coastal Zone Management Program . . . Whether Deep Lagoon Club has provided reasonable assurances of compliance with applicable standards, rules and ordinances in light of its past violations such as failing to register for sovereign land lease, dredging the marina basin without authorization, and dredging the marina basin to depths and widths greater than Florida's exempt statute authorized . . . Petition for Hearing, pp. 11-15. These bases can be grouped under three headings: the proposed stormwater management system and water quality; the impact of the Consolidated Permit/Authorization on the Endangered Manatee, and (3) other issues related to these two such as collateral estoppel and past violations. Fundamental to resolution of these issues are issues that relate to the number of boat slips at the Boat Club marina and the number of power boats the marina can accommodate. These numbers vary depending on whether marina usage is considered in terms of physical capacity, actual usage or legal limits. Physical capacity, as found above, exceeds 600 slips. Actual usage has varied over the years. The lawful number of slips depends on local development orders and permit requirements. If a permit is to be obtained from the state, then the lawful number of boat slips and power boats may be restricted, just as is proposed in the permit at issue in this case. Lawful Number of Boat Slips and Power Boats Of the 485 boat slips (129 wet slips and 356 dry slips) allowed at the marina under the Consolidated Permit/Authorization, 40 may not be used for power boats. The 40 may be used for sail boats; otherwise, they must remain unoccupied. This leaves a maximum of 445 slips at the marina that may be used for power boats. Over the years, the number of boat slips at the marina and the number to have been authorized by the various sought- after permits have varied. For example, on June 26, 1998, a Manatee Impact Review Report issued by the Bureau of Protected Species Management, then in the DEP's Division of Marine Resources, showed the marina to have 228 existing slips: 61 wet and 167 dry. The report shows that the marina had an additional 446 slips (113 wet and 333 dry) that were "[p]reviously permitted but not constructed". DEP Ex. 41, page 2 of 7. According to the report, together the existing and authorized, not-yet-constructed slips totaled 674 (174 wet and 500 dry). In the Sheridan II administrative proceeding, the administrative law judge found as follows: 26. In 1988, DEP issued a DAF ["dredge and fill" permit] to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips . . . so as to raise its marina capacity to 150 -174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. Deep Lagoon Ex. 9D, 22 FALR 3286. The Applicant and the Department took exception to Finding of Fact No. 26 while the recommended order was under consideration by DEP. The finding was modified in DEP's Final Order so as to reduce the number of new wet slips authorized to 89 so that the total number of wet slips numbered 150. The new dry slips to be added through the permit process under review were left at 227 by the DEP Final Order so that the marina's total capacity for dry slips, if the permit were granted, remained as the ALJ had found, at 427. See Id., at 22 FALR 3264. In the Sheridan II administrative hearing, Mr. Uhle, counsel for the Boat Club, made the following statement: "D.R.I. actually authorized more wet slips and more dry slips. But that's if the amendment is approved, that's what will be authorized." Deep Lagoon Ex. 43, p. 30. In fact, a DRI Amendment (presumably the one to which Mr. Uhle referred) was approved subsequent to the administrative hearing in Sheridan II. The Deep Lagoon Development of Regional Impact Development ("DRI") Order had been adopted on March 23, 1987. At the behest of the Boat Club by the filing of a Notice of Proposed Change on August 10, 1998, the DRI Development Order was amended for a second time. The amendment was adopted on June 7, 1999, a month or so after the administrative hearing in Sheridan II. The "Second Development Order Amendment for Deep Lagoon Marina, A Development of Regional Impact" (the "Current DRI Order") employs a "strike-through and underline format" (Boat Club Exhibit 8, Attachment 18, p. 2 of 17), that reveals both the amendment requested by the Boat Club and the DRI Development Order as it existed prior to the second amendment. The Current DRI Order authorizes "150 permanent wet slips; of which 30 will be reserved only for temporary moorings; 115,000 square feet of dry storage (427 slips)" (Id.) The Current DRI Order thus sets the number of boat slips at the marina as 150 wet slips and 427 dry slips. The Current DRI Order is consistent with the conclusion of DEP in its Final Order in Sheridan II: the legal capacity of the marina, were the permit applied for there to be granted, would be 150 wet slips and 427 dry slips for a total of 577 slips, wet and dry. This capacity was not achieved through permitting, however, because DEP accepted the recommendation of the administrative law judge that the permits applied for in Sheridan II be denied. The denials were based, at least in part, because DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating capacity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Deep Lagoon Ex. 9D, 22 FALR at 3277. Water Quality and Surface Water Management The Boat Club proposes to construct a stormwater management system for the entire 15.4 acres of uplands at the marina site. Such a system is badly needed if the marina is to operate with environmental integrity. For the most part, any surface water that is generated presently on the south peninsula hits the pavement or the buildings and then runs off into the canals. On the north, runoff sheet flows across the non- vegetated areas and discharges directly into the canal systems. "A person proposing to construct or alter a stormwater management system . . . shall apply to the governing board or the department for a permit authorizing such construction or alteration." Section 373.413(2). Existing ambient water quality in Deep Lagoon does not meet water quality standards. Data collected in May of 2002, "showed exceedances . . . of total coliform . . . of dissolved oxygen and . . . of copper, cadmium and zinc." (Tr. 560). "If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the . . . department shall consider mitigation measures proposed by . . . the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards." Section 373.414(1)(b)(3). Construction of the surface water management system will include three separate and independent stormwater collection systems, associated dry pretreatment areas, and an underground vault/infiltrator system for storage and treatment of stormwater prior to discharge through concrete weir outfall control structures into the adjacent Class III waters. The system proposed in this proceeding retains the components of the design that failed to win approval in Sheridan II, and it enhances them with additional measures designed to provide net improvement in water quality in the receiving body of water. Under the proposed system, any water flowing from a rain event is routed into above-ground pretreatment areas, an enhancement to the original system. Once the water in these detention systems reaches a certain level, it flows into drainage structures. The structures transport the water below ground into a series of pipes connected to underground infiltrator storage treatment areas. The underground infiltrator drainage structures, constructed over crushed stone, were not designed specifically as a retention system. Nonetheless, they have the ability to remove water through ex-filtration into the ground. Chambers will be placed throughout the marina property, including under buildings and parking surfaces, and under some pathways. Their primary function is to detain waters and, through a settling process, treat it. The number of infiltrators provided in the proposed system is increased over the prior system, another enhancement. After detention in the underground system, the water is discharged through three outfalls, one for each of three independent drainage areas. The proposed dry pretreatment areas increase total stormwater storage capacity over the prior system by roughly 18,000 cubic feet, a 30-40 percent increase of storage over the prior design. With the prior system, there could have been discharge from parking areas into the canals during storms. The proposed system is designed so that all the runoff from the uplands is captured by the system. The proposed Marina Management Plan (the "Plan"), another enhancement, will add extra safeguards to eliminate some pollutants. The Plan provides a maintenance program to be carried out by a designated Environment Compliance Officer. Maintenance includes regular inspection of the chambers, themselves, inspections of the outfall structures, and an annual reporting to DEP as to the status of the storage/treatment system. The surface water management system also incorporates three "closed loop" recycling systems, one for each of the two designated boat wash-down areas and a third, located in the maintenance and service area, added as an enhancement to the prior system. The three recycling systems each consist of a concrete containment area with a drain. The water flows into the drain and is pumped up into a closed loop treatment system. There the water is pumped through a purifying device, separating contaminants and byproducts. The clean water is then reused for future wash downs. In the prior system, overflow, during an extreme storm event, for example, would flow into the surface water management system. Under the proposed plan, overflow from the recycling systems discharges directly into the municipal sewage system that will serve the site, another enhancement over the previous system. The proposed permit requires the closed loop recycling systems to be inspected by a Florida-registered professional engineer on an annual basis. The water discharged from the discharge structure will meet Class III standards. The system also complies with design requirements for discharge into Outstanding Florida Waters. The surface water management design incorporates best management practices to eliminate erosion or water quality problems during construction of the project. If done in compliance with permit requirements, construction and operation of the proposed stormwater management system will be in compliance with the Southwest Florida Water Management District's Basis for Review. These requirements together with the Marina Management Plan will improve the quality of the water leaving the site. There will be a net improvement in water quality for all parameters in the marina's receiving waters that currently do not meet standards. The treated water leaving the site will not cause parameters currently within standards to violate those standards. The contamination and maintenance dredging project performed by the Boat Club in 1999, appears to have improved water quality based on a comparison between 1997 pre-dredging water quality data, and the 2002 post-dredging water quality. Jack Wu, a professional engineer and DEP's expert in "coastal engineering, hydrographic impacts of submerged lands and environmental resource permit projects" (Tr. 750), performed a technical review of the marina canals and the proposed projected in accordance with the Basis of Review. He considered the structural design, size, and configuration of the proposed docking system, the flushing and mixing study, tidal data, and water quality data. Mr. Wu's testimony establishes that the proposed flushing culverts will increase circulation and eventually reduce the flushing time of the canals. Jack Myers, DEP's stormwater system design expert testified that the proposed surface water management system would not cause adverse secondary impacts to water resources of the District according to his assessment. Mr. Myers' assessment of the secondary impacts, however, did not include impacts to manatees. The Endangered Manatee Manatees are listed as an endangered species under the federal Endangered Species Act of 1973 (ESA)(16 U.S.C. 1531, et seq.), and under Florida law (Florida Administrative Code Rule 68A-27.003(1)(a)(31). In view of their status as endangered and as a Florida wildlife resource, manatees have undergone extensive study by many including the Florida Marine Research Institute in the Florida Fish and Wildlife Conservation Commission. Among these studies is the Special Study, conducted as the result of a settlement of litigation and released in November of 2002. Paragraphs 91-129 are derived from the Special Study, a copy of which appears in the record as Petitioners' Exhibit 20. The Florida Manatee The Florida manatee (Trichechus manatus latirostirs) is one of two subspecies of the West Indian manatee (T. manatus). Florida manatees inhabit the southeastern United States, primarily occupying the marine, estuarine, coastal, and freshwater inland waters of Florida. Manatees are herbivorous marine mammals. Manatees are not typically gregarious although mothers and calves travel in pairs and, on occasion, manatees travel in mating herds. Otherwise, for the most part, they are solitary although they may aggregate in areas with resources essential to the well-being of the population. These resources include warm water, fresh water, quiet resting areas, and areas with aquatic vegetation (marine and freshwater). Like most large mammals, manatees have a potentially long life-span, mature slowly, are slow to reproduce, and have a high parental investment in their offspring. Threats to the manatee population have their origin both in nature and in the activities of human beings. Potentially catastrophic, naturally occurring threats to manatees include hurricanes, red tide events and disease, and exposure to cold temperatures. To combat cold temperature exposure, manatees rely on a network of warm-water sites in eastern and southwestern Florida, as refuge during the cold season. Tampa Bay is a prime site of warm water refuge because of the number of power plants in the area. The only power plant that produces a manatee aggregation site between Tampa Bay and eastern Florida is the FP&L power plant up river from Deep Lagoon. Continued high counts of manatees at sites near power plants in southwestern Florida highlight the manatees' dependence on this network. Manatees feed on a variety of marine, freshwater, and terrestrial plants. Common forage species include shoal grass, manatee grass, turtle grass, tape grass, and widgeon grass. Manatees are reported to feed on seagrass plants both above and below the sediment. It has been theorized that manatees use fresh water for regulation of body temperature. They obtain fresh water from the plants they consume and are able to maintain their body water balance in salt water systems without drinking fresh water. Nonetheless, manatees are attracted to fresh water sources, especially in areas of high or fluctuating salinity like the Caloosahatchee. In estuarine waters such as Deep Lagoon, where fresh water floats on the top of saltier water, manatees have been observed with their mouths open at the surface drinking fresh water. Warm-water refuges play an important role in defining manatee movements between Shell Point and the Edison Bridge. The warm water refuge at the FPL power plant is classified in the Special Study as a Primary warm-water site. A secondary warm- water site along the River is at the Franklin Lock and Dam. Another secondary warm-water site in the area is in the canals of the Matlacha Isles at the northern end of Matlacha Pass. An old quarry pit in Ten-Mile Canal, Mullock Creek, is another site near Deep Lagoon where manatees aggregate because of warm water. In 2001, FP&L re-powered its plant from oil to natural gas. This reduced its warm water effluent. To compensate for the reduction and to provide manatee habitat, FP&L installed "donkey boilers" in January of 2002. The discharge in January of 2002, was more than one degree Celsius cooler than it had been in January of 2000, but the average January temperature of the FP&L discharge remained more than two degrees Celsius warmer than the water at the Franklin Lock. The single greatest cause of manatees' human-related mortality (referred to in the Special Study as "anthropogenic") is collisions with watercrafts. With regard to "anthropogenic" threats to manatees, the study, in part, reported the following: From 1976-2001, watercraft collisions accounted for approximately 25% of all manatee deaths and are the single greatest cause of human-related mortality (FWC unpublished data). In 2001 there were over 943,000 registered vessels in Florida (citation omitted). Given that about 97% of registrations are for recreational watercraft (citation omitted), it can be expected that there will be a continued increase in recreational vessels plying the waterways of Florida due to an increase in the human population. In addition to the expected increase in boat numbers over the next 25 years, other factors may act synergistically to increase the risk of fatal collision between manatees and watercraft. Relatively new modifications to the design of vessel hulls and engines allow boats to travel at higher speeds in shallower waters (citation omitted), thus threatening manatees and scarring seagrass beds. Boater compliance with existing slow speed zones is inconsistent (citation omitted). Sub-lethal effects of increased vessel traffic on manatees and a growing human population in the nearshore waters create more risk to manatees. Most adult manatee carcasses bear scars from previous boat strikes, and the healed, skeletal fractures of some indicate that they had survived previous traumatic impacts (citation omitted). Of over 1000 living individuals in the manatee photo-identification database (citation omitted), 97% had scar patterns from multiple boat strikes (citation omitted). It should be noted that the photo- identification database contains only animals with scars or other identifiable features. Non-lethal injuries may reduce the breeding success of wounded females and may permanently remove some animals from the breeding population (citation omitted). Vessel traffic and recreational activities that disturb manatees may cause them to leave preferred habitats and may alter biologically important behaviors such as feeding, suckling, or resting (citation omitted). Other threats from human activities include entanglement in fishing gear or debris; entrapment or crushing in water-control structures, locks and pipes; exposure to contaminants; and incidental ingestion of debris (citation omitted). Indirect effects from increased vessel traffic include increased water turbidity from wake action and decline of seagrass beds due to scarring by propellers (citation omitted). Petitioners' Exhibit 20, pp. 3-4. Essential Habitat for the Manatee Essential habitat for manatees, referred to in the Special Study as "places" (see id., p. 17), are areas frequented by manatees for extended time periods. These manatee places contain key habitat for manatee feeding, resting, and thermoregulation. In addition to the warm water aggregation places, the FWC's field staff has verified other places in the Caloosahatchee River area important to manatees. These secondary sites are important because they either contain fresh water or seagrass beds, aid in manatee thermoregulation, or are areas of minimal disturbance. Manatees are frequently seen in these important secondary sites during rapid cooling spells that do not greatly drop the ambient water temperature. Id. These important secondary sites are: Eight Lakes (deep canal lakes with warm water and sediments in SW Cape Coral); Chiquita Canal (freshwater source with access to Eight Lakes area); Bimini Basin (may be used for resting); Shell Point Village Lagoon (may have fresh water); Punta Rassa (seagrass beds-feeding aggregation); Beautiful Island (possible feeding site); Downtown Fort Myers Basins (presumably for fresh water discharged from hoses); Deep Lagoon (fresh water, resting, or warm water); Iona Cove (feeding); and Billy Creek (sediments retain heat). Deep Lagoon has been denominated a "minor aggregation site." Manatee Corridors Manatee "corridors" are areas visited regularly by manatees for brief times as they travel from place to place. The FWC has used telemetry data of manatees to model manatee corridors and manatee places. The Caloosahatchee River is a major manatee travel corridor because of the warm water discharged by the FP&L plant. The FP&L refuge attracts one of the largest wintering aggregations of manatees in Florida, with as many as 469 manatees having been counted in Lee County during the winter. In January 2001, as many as 434 manatees were counted in one day at the FP&L refuge. Manatees in the Caloosahatchee River generally travel not far from the shoreline, but they have also been observed to travel in the River's channels. Manatees also cross the Caloosahatchee River between Deep Lagoon and the Redfish Point area where the river narrows to 1,000 meters, and at Shell Point where the river narrows to 710 meters. Redfish Point lies across the river from Deep Lagoon. Manatees frequently travel between Redfish Point and Deep Lagoon, thereby crossing the main boat channel of the river. The FWC has identified this narrow part of the river between Redfish Point and Deep Lagoon as both a manatee travel "corridor" and as a heavy boat vessel travel corridor. Manatee crossings of the river also occur at Shell Point where the River narrows to 710 feet. Shell Point is the mouth of the river area where the river flows into San Carlos Bay. The FWC has identified the Shell Point area as a manatee travel corridor, and as the most heavily used boat vessel travel corridor. The 1998 Gorzelany report recorded an average of five boats per minute passing the Shell Point area. Just to the west of Shell Point, the boat channel in eastern San Carlos Bay is known as the "Miserable Mile." The Shell Point and Miserable Mile area likely represent the highest risk areas for watercraft collisions with manatees. Manatee Population The exact number of Florida manatees is unknown. Manatees are difficult to count because they are often in areas of poor water quality, and their behavior, such as resting on the bottom of a deep canal, can make them difficult to see. Aerial surveys and ground counts (statewide synoptic survey) have been conducted by the state in most years since 1991. There are four regional sub-populations of the Florida Manatee, these being in the Northwest Region, the Upper St. Johns River Region, the Atlantic Region, and the Southwest Region. The great bulk of the Florida population lives in the Atlantic and Southwest Regions. The sub-populations of the Manatees in those two regions account for substantially more than 80 percent of the total Florida manatee population with roughly half of the two in each region. The Southwest Region of the West Indian Manatee consists of the coastal counties from Pasco County south along the Gulf of Mexico to Whitewater Bay in Monroe County (including Lee County), and the inland counties of DeSoto, Glades, and Hendry Counties. The Southwest Region population of the Florida manatee constitutes approximately 42 percent of the total Florida manatee population. The adult survival rates in the Southwest Region are substantially lower than the survival rates in all of the other manatee regions in the state. The average age at death of manatees in the Southwest Region is significantly lower than in other regions of the state and statewide. Of the four Florida sub-populations, there is less data available for the Southwest population. "[A] priority [has been] placed on catching up to gather the necessary amount of data to better evaluate [the] status of the southwestern population." (Tr. 516-517). Nonetheless, both FWC and the U.S. Fish and Wildlife Service (FWS) have developed manatee population models, that are both sound and comprehensive. The two agree about the status of the Southwest Region population of the Florida manatee and its immediate future as explained at hearing by Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys: "The two models were written to answer somewhat different questions, but an area that they agree on is that the southwest population is likely to be declining now, whether a little or a lot, is not so clear, but likely to be declining at this time and in the near future." (Tr. 923). The FWC's Florida Manatee Recovery Plan contains three benchmark criteria for each of the four manatee regions: average annual adult survival rate of 94 percent, average annual reproduction (at least 40 percent of adult females with calves during the winter), and the average annual rate of population growth is equal to or greater than zero. The Southwest Region manatee population is currently failing to meet the Florida Manatee Recovery Plan goal criteria. Even in the absence of any water-craft related mortalities (incidental takes), the growth rate of the Southwest Region manatee population over the next 20 years is expected to be negative. In the Southwest Region, there is no excess manatee population growth and no net productivity which can be allocated to incidental takes. In the absence of any water-crafted related manatee moralities in the Southwest Region, the probability of recovery of the Southwest Region manatee population in the next 100 years is 63 percent. If current Southwest Region watercraft-related manatee mortality trend continues, there is a zero percent chance of the recovery of the Southwest Region manatee population. Natural Threats to Manatees Manatee populations are threatened by natural causes as well as causes whose origin is human activity. The fatal and non-fatal natural threats to manatees include cold temperatures, hurricanes, red tide (Karenia brevis) events, and disease. Manatee carcasses with evidence of cold- stress show reduced gastrointestinal tract activity, a condition that can reduce an animal's buoyance. Juveniles and sub-adults are the most vulnerable to cold-stress death. Manatees on Florida's west coast are frequently exposed to brevetoxin, a potent neurotoxin, during red tide events. Manatees are exposed to brevetoxin through inhalation and ingestion. There were 75 manatee fatalities in the Southwest Region due to red tide recently. Watercraft-Related Mortality Types of Fatal Injuries The Florida Marine Research Institute conducted an analysis of watercraft-related mortality of manatees in Florida covering the period 1979 to 1991. Its abstract sums up the analysis as follows: From 1974 to 1991, the annual number of manatee (Trichechus manatus latirostris) deaths increased. The most frequent cause of death from human activity is collision with watercraft. Scars and wounds from propellers are common. A total of 1,376 sets of fatal or healed wounds was measured on 628 dead manatees recovered from 1979 through 1991. Collisions with watercraft caused 406 of these deaths. Of the 406 deaths, propeller cuts caused 158 (39%); impact injuries (no propeller cuts) caused 224 (55%); propeller cuts and impact injuries, either of which would have been fatal, caused 16 (4%); and unidentified specifics of the collisions caused 8 (2%). Fatal cuts were usually larger (longer) than healed wounds. Many animals survived several boat collisions; one manatee had 22 separate patterns of propeller cuts. The mean length [formula omitted] of the longest fatal cut from a propeller indicated that death was most often caused by a direct-drive watercraft. In contrast, fatal-impact injuries may have resulted from fast-moving watercraft of many sizes and types. Impact injuries killed more manatees than propeller cuts and increased in proportion with time. Impact often resulted in massive internal injuries with only minor surface abrasions. Only 2% of the propeller strikes were to the head, but 98% were to the dorsum. In addition, nearly 90% of the scar patterns were along the head-to-tail axis, indicating manatees were moving in response to an oncoming boat when struck. Changes in watercraft design may increase the frequency of operation of boats in shallow water. This increases the probability of collisions with manatees. Petitioners' Exhibit 26, pp. 259-260. The location of scars and wounds from propellers ranged from the head to the tail of manatees: Head (2%), Thorax (26%), Mid dorsal (body)(17%), Abdomen (36%), Tail (19%). Watercraft collision with manatees are common. Even U.S. Coast Guard and the FWC marine patrol boats have struck manatees. Mortality Data While the FWC's manatee mortality data are deemed to be reliable, the FWC does not document all watercraft-related manatee fatalities. It is, of course, not possible to know how many manatee carcasses escape observation and are not recovered. Even estimation of such numbers has difficulties. But scientifically, it is generally accepted that there is an undercount of manatee carcasses. It is known, for example, that in cases of manatee perinatal (dependent calf) deaths, carcasses are frequently not recovered. No recoveries in such cases are due to a number of factors: the small size of the carcass, rapid decomposition, and presence of scavengers. The manatee deaths listed by the FWC as having an undetermined cause of death could be watercraft-related deaths. A perinatal death, moreover, could be the direct result of a watercraft-related death of the mother. Watercraft-related manatee injuries are not limited to power boats. They may also be caused by sailboats. A significant number of sailboats have shaft driven inboard motors with a rudder that functions as a skeg (a projection that is the after part of the keel or an extension upon which the rudderpost is mounted). Collisions between skegs and manatees cause sub- lethal and lethal injuries to manatees. Statewide Mortality Rate The most frequent cause of manatee death that is avoidable is watercraft collision. Statewide, the watercraft- related mortality of manatees is 24.5 percent for the time period January 1974, to December 2002, the highest single cause of manatee deaths. Lee County Mortality Rate Among counties, Lee County has the second highest level of watercraft-related deaths in Florida, with 163 reported between January 1974, and December 2002. From 1975 through 1993, the annual watercraft-related manatee deaths in Lee County were less than 10 per year. During the nine years from 1994 to 2002, there were 109 watercraft-related manatee deaths in Lee County, an average of 12.1 per year. In 1999, the watercraft-related deaths were 10 in Lee County. There were 13 in 2000, 23 in 2001, and 13 in 2002. The first six months of 2003, through June 10, have seen six watercraft-related deaths of manatees in Lee County. The 23 manatees to have died from watercraft-related injuries in Lee County in 2001, accounted for 45 percent of the total number of manatee deaths in Lee county for the year. Caloosahatchee River Mortality Rate For the ten years from 1976 to 1986, the number of watercraft-related manatee deaths in the Caloosahatchee River was 15, with an average annual number of such deaths being 1.5 per year. For the five years from 1988 to 1993 (no data available for 1989), the number of watercraft-related manatee deaths in the Caloosahatchee River was 13, with the average annual number of such deaths being 1.8 per year. For the seven years from 1994 to 2000, the number of watercraft-related manatee deaths in the Caloosahatchee River was 30, with the average annual number of such deaths being 4.3 per year, a substantial increase over the earlier annual numbers. From 1989 through 2001, the annual number of watercraft-related manatee deaths for the Caloosahatchee River increased by 15.1 percent per year. This rate of increase is higher than the rate of increase of such deaths in the Southwest Region manatee population (9.2%), and almost triple the rate of increase of such manatee deaths statewide (5.5%). The rate of increase of watercraft-related manatee deaths over the past 13 years in the Caloosahatchee River, moreover, is higher than: (a) the manatee death rates of all categories for the Caloosahatchee River, (b) of all watercraft- related manatee deaths in southwest Florida, and (c) of all watercraft-related manatee deaths statewide. There are a number of caveats to be considered when considering manatee death data. For example, "[I]t cannot be conclusively known where manatees are actually struck by boats." Petitioners' Exhibit 21, p. 9. A "Summary and Analysis of Manatee-related Data in Lee County, 2002" prepared by Mary Duncan of the FWC (Petitioners' Exhibit 21), elaborates: The mortality database reports carcass recovery locations, which is not necessarily where animals were struck by watercraft, or where they died. For watercraft-related manatee deaths, the precise location of where animals are struck usually cannot be verified unless reported by a witness of the incident. Carcasses may move with currents and tides, but also some injuries may not cause immediate death. Injured animals have been know to swim many miles before dying. Since there is a warm water refuge in the Orange River, at tributary off the Caloosahatchee River, it is possible that some injured animals may attempt to reach this area since it represents a safe place. Cases where death occurred several days to weeks after the trauma are considered "chronic". Some of the recent watercraft-related deaths recovered in the Orange River have been identified as chronic. Efforts are underway to make this determination on historical necropsy reports. It is possible that some animals included in the Caloosahatchee River dataset may have actually been struck outside the river system. While this analysis may provide additional information and insights, it should be recognized that most cases do not have evidence of chronic injuries-but the carcass location of those cases cannot [be] assumed to represent the impact site. Petitioners' Exhibit 21, pp. 9-10. Because of these caveats, Ms. Duncan's analysis posits, "[i]t is difficult to draw conclusions on relative risks to manatees from vessels with death data alone." Her report reaches these conclusions, There appears to be an intersection of high boat use and high manatee use at the . . . mouth of the Caloosahatchee River and San Carlos Bay, commonly called the Miserable Mile area (reference omitted). This area represents the highest risk area for boat/manatee collisions. Boating studies indicate that vessel traffic is higher during the spring and summer, with the Miserable Mile area of San Carlos Bay being the highest use area. Miserable Mile is also identified as the highest vessel traffic area in Lee County in a 1998 boating study by Mote Marine Laboratory. Manatee aerial survey data confirm higher manatee use in Miserable Mile area and other parts of Lee County outside of the Caloosahatchee River system during the spring and summer. This is also confirmed by a higher number of watercraft deaths in these areas during the same time of year. Id., at 11. Ms. Duncan's report summarizes its conclusions drawn from the analysis of manatee-related data in Lee County: Existing population models now being developed typically assume that the level of threat will remain the same, since it is difficult to factor in projected threat increases. However, it is likely that threats are increasing and will continue to increase, such as increasing boat traffic and reduced foraging resources from increased coastal development. Such factors are likely to influence reproductive success and mortality rates. On a statewide basis, the continued high level of manatee deaths raise concern about the ability of the population to grow or at least remain stable. (Citation omitted.) Lee County currently ranks second in watercraft-related deaths and second in all categories of deaths statewide, suggesting that this county's waters provide a crucial habitat for manatees. Previous offsetting measures recommended during the permit review process do not appear to have offset the impacts of increasing boat traffic. Speed zones alone do not offset all adverse impacts to manatees from increased boat traffic. Long term comprehensive planning documents, such as a boat facility siting plans and manatee protection plans, are also needed to place marinas where they are least likely to increase risks to manatees. These types of conservation measures are needed to reduce the number of human-related manatee deaths, which will reduce overall manatee mortality. Id., at 13. Speed Zones and Boating Restrictions In 1989, manatee speed zones were implemented in Lee County. The steady increase in the annual number of watercraft- related manatee deaths in the Caloosahatchee River since then, and the dramatic increase in the annual rate of watercraft- related deaths in the River during the recent seven-year time period from 1994 to 2000 demonstrate, as is generally accepted and as concluded by Ms. Duncan, that speed zones alone do not offset adverse impacts to manatees from increases in boat traffic. This increase has occurred despite many features of boating restrictions in the area. Primary features of the Lee County speed zone, for example, are a one-quarter mile slowspeed shoreline buffer on either side of the intercoastal waterway channel from the mouth of the River to the U.S. 41 Bridge, and slow speed outside most of the intercoastal waterway channel from the Edison Bridge to the railroad trestle. The State-mandated manatee protection speed zones administered by FWC's Bureau of Protected Species Management under Florida Administrative Code Rule 68C-22.005, impose a year- round one-quarter mile slow speed zone for the entire shoreline of the Caloosahatchee River to the Edison bridges. East of the Edison bridges there is a slow speed zone outside of the marked channel all year, and a 25 mph maximum speed in the channel. East of the railroad trestle near Beautiful Island to east of the I-75 bridge crossing, in the area that includes the FP&L power plant, there is an idle speed zone imposed outside the channel all year, and an idle speed zone in the channel from November 15 through March 31. There is also an idle speed zone in the Orange River all year. Lee County's regulations, pursuant to its Ordinance No. 02-14, adopted on March 26, 2002, restrict boat speed within 500 feet offshore from all beaches, and within 500 feet from any water-oriented structures, such as docks, to idle speed. The FWC rules at Florida Administrative Code Rule 68C- 22.002(7), define "slow speed" as "the speed at which a vessel proceeds when it is fully off plane and completely settled into the water." The definition also states, "This required level of protection for the safety of vessels and vessel operators is also intended to provide adequate protection for manatees and is therefore adopted because of its familiarity to vessel operators." The State defines a slow speed zone as "an area where vessels may not be operated at greater than Slow Speed." Fla. Admin. Code R. 68C-22.002(8). The County's Ordinance 02-14 describes "idle speed" as: the lowest speed at which a vessel can operate and maintain steering control. The actual speed will depend upon the design of the vessel and on the vessels load, wind direction and speed, and the sea conditions. Generally, it will be between 1 and 3 miles per hour for outboard and inboard/outboard vessels, between 2 and 5 miles per hour for fixed shaft/rudder vessels. Boat Club Ex. 20 at Section Three. This definition is substantially the same as the State's definition. Marine signs in Deep Lagoon include two idle speed County ordinance signs. One is at the entrance to the central and south canals; another is at the entrance channel into Deep Lagoon and the River, inside the one-quarter mile State manatee speed zone. The second sign lets boaters know they are entering the County idle speed zone from the slow speed zone. There is also a slow speed sign for the boaters leaving the Deep Lagoon channel. It lets them know they are leaving the idle speed zone and entering the State's slow speed zone. The State, Lee County Sheriff, and Lee County municipalities participate in enforcing the State speed zones in the Caloosahatchee River. The Lee County Sheriff and the municipalities, through a memorandum of understanding, enforce the Lee County Ordinance if there is not a more restrictive ordinance in the municipality. On July 11, 2002, the Lee County Sheriff enacted a "zero tolerance" policy. It directs its marine unit to no longer issue warnings. Every stop for violation of a speed restriction is ticketed. The cost of the tickets ranges from $50 to $75. It is too soon, however, to tell what effect the policy is having on protection of manatees. Funding for Lee County marine patrol officers has increased recently. In February 2003, local law enforcement entities created a Manatee Task Force in order to better coordinate manatee protection efforts within Lee County. Once or twice per month, the U.S. Fish and Wildlife Service selects an area in Lee County for a heavy patrol known as a "wolf pack." (Tr. 426). The wolf pack consists of "three to four boats and eight or more officers". (Tr. 427). It concentrates in one area. Lee County also maintains displays of the county's Boater Guide at all local boat ramps showing the State and County speed zones, with a more detailed inset of the area where the boat ramp is located. Another education effort consisted of the mailing of a Boater's Guide that detailed manatee protection zones to about 40,000 registered boaters. Nonetheless, there are channels exempt from speed zones. All manatee travel corridors and places, moreover, are not subject to speed limitations. For example, the corridor that crosses the River from Redfish Point to the mouth of Deep Lagoon is not entirely subject to speed limitations. Commercial vehicles, moreover, can apply for exemption from manatee speed zones and can be exempted if compliance would be "burdensome." (Tr. 443). Compliance with manatee speed zones by boaters, as Ms. Kleist, an advocate of manatee protection, confessed in her case, is far from exemplary. A review of vessel activity in the Special Study led to this summary: Boaters in the Caloosahatchee River behave similarly to others throughout the state (citation omitted). Vessel traffic is highest on spring weekend afternoons. Yachts, ski boats, and open fishermen are the three most common vessel types found between the Edison Bridge and Miserable Mile while Mullock Creek is dominated by open fisherman. In these areas, the most common vessel sizes range from 16-39 feet. Highest traffic densities occur at Shell Point, where the Caloosahatchee River and San Carlos Bay converge. Mullock Creek had comparatively low levels of boat traffic. Many of the boats along the lower Caloosahatchee River originate in the Cape Coral canal system and travel toward the Gulf of Mexico. The highly variable, site- specific nature of boaters' behavior and vessel compliance requires scientists and managers to treat each site individually. Compliance with speed zones ranged from 12- 77% in the Caloosahatchee with an overall compliance of 57.3%. Although the number of vessels using Mullock Creek was relatively low, compliance was 26% accompanied by a high level of blatant non-compliance. Compliance rates may not be as important as the total number of blatant violators. While Shell Point has higher compliance, it also has heavy boat traffic that yields a greater total number of blatant violators that could pose a threat to manatees than areas with lower compliance. Petitioner's Exhibit 20, at 15. The number and size of registered boats is substantially increasing. For management of the manatee, it is important to determine where and how watercraft collisions occur. Studies to date have not yet reached these determinations. Watercraft-Related Sub-Lethal Injuries Between 60 percent and 90 percent of all Florida manatees have propeller scars. Propeller scars on manatees are so common that the FWC uses propeller scars to identify manatees. Of the over 1,000 living manatees in FWC's photo-identification data base of manatees with scars or other identifiable features, 97 percent had scar patterns from more than one watercraft collision. Most adult manatee carcasses bear scars from previous boat strikes, and the healed skeletal fractures of some of these carcasses indicate they had survived previously traumatic impacts. An example of such scar patterns is manatee MSW9321. Its carcass "floating in the Caloosahatchee River just inside the mouth of Deep Lagoon" (Petitioners' Exhibit 26), was recovered by the Department of Natural Resources in May of 1993, with the assistance of Mrs. Sheridan. The manatee had ten fresh propeller wounds along its back and across its fluke, five of which penetrated its body cavity, and multiple healed and healing scars in the dorsum. There were 31 prior scars from propeller cuts. The FWC's study of 628 manatees carcasses recovered from 1979 to 1991, found that manatee carcasses with no propeller scars were rare. Many manatees have multiple sets of propeller scars from different collisions. Non-fatal propeller cuts can become contaminated wounds which can cause prolonged illness and death. Non-fatal watercraft-related injuries can damage a manatee's ability to swim. They may reduce the breeding success of wounded females, and remove some animals from the breeding population. In sum, as was found nearly four years ago by Administrative Law Judge Meale in paragraph 14 of the recommended order in Sheridan II: The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential from mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. (Petitioners' Exhibit 8, p. 9 [this exhibit contains only the odd-numbered pages of the recommended order; official recognition is taken of the order in its entirety]). As further found in the Sheridan II recommended order: "Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years." Id. Manatees in Deep Lagoon Groups of manatees frequently use Deep Lagoon. The state, under the auspices of FWC and its predecessors, has made numerous aerial flight observations of manatees of Deep Lagoon. Between January 17, 1984, and December 19, 1985, there were 48 such flights. Between July 24, 1988, and November 15, 1995, 23 aerial observations were flown. Groups of manatees were observed in Deep Lagoon near the mouth of the north canal, in all portions of the north canal, and in the Cow Slough headwaters of Deep Lagoon. Manatees radio-tagged by the state have also been documented in Deep Lagoon. On May 28, 1998, photographs were taken of groups of manatees in Deep Lagoon near the mouth of the marina's north canal and in the north canal. In late May 2003, photographs were taken of manatees in the Iona Drainage District canal near the mouth of the north canal. The Boat Club has also taken video tapes on numerous times of numerous manatees (from one manatee to groups of as many as five manatees) in the north canal. Each of the three Petitioners testified that on numerous occasions they have observed numerous manatees, including manatee mating herds in Deep Lagoon, the north canal, and the Iona canal. A manatee pair was also seen one day in the Iona Canal which appeared to be a new born manatee. Manatees have been observed several times in Deep Lagoon with small calves. From April 1974, to August 2002, within Deep Lagoon itself, 13 manatee carcasses have been recovered by the state. Four of the manatee deaths were determined to be watercraft- related deaths. Five of these manatee deaths were due to natural causes other than cold stress. For three, the cause of death was notdeterminable due to decomposition. One of the deaths was perinatal. In the Caloosahatchee River just outside the mouth of Deep Lagoon, during this period of time, the FWC recovered six manatee carcasses. Three of the deaths were watercraft-related. One was perinatal. The cause of one of the deaths was undeterminable due to decomposition. Another of the deaths was verified but the carcass was not recovered, thus the cause of death of was not determined. The Opinions of Experts None of the Petitioners' manatee experts expressed the opinion that the proposed permit would have an adverse effect on the manatee. Dr. Ackerman, for example, had never seen the application and had no opinion about whether it should be granted or not. See Tr. 933. But two of Petitioners' experts expressed opinions either that the addition of watercraft into any river system that constitutes manatee habitat poses a risk of collisions between boats and manatees or that adding boats to the Caloosahatchee River system poses a threat to the manatee unless there is some other accommodation for manatee protection. Sara Lynn McDonald, a marine biologist with FWC's Florida Marine Institute and an expert in marine mammal biology, wrote the majority of the report for the Special Study. When asked her opinion concerning whether an increase in boat traffic on the Caloosahatchee would increase the possibility of water crafts colliding with manatees, she answered, "Yes, I believe that in any system an increase in vessel traffic would increase risk of harmful collisions with motor boats." (Tr. 898). Ms. McDonald was asked on cross-examination whether she believed that speed zones are an effective measure to prevent collisions between manatees and water craft, she answered, "I think they can be." (Tr. 913). Dr. Bruce Ackerman, an expert in marine mammal biology, manatee population modeling, and manatee aerial surveys, was also called by Petitioners. Dr. Ackerman testified that the between 1974 and 1991, boat registrations in Florida trended upward and so did manatee fatalities from water craft collisions. Both trends have continued since 1991. His opinion was that "all other things being equal, adding more boats into [the Caloosahatchee River] system would increase the risk to manatees." (Tr. 923). On cross-examination, Dr. Ackerman went so far as to agree that speed zones show promise for the protection of manatees. Education, required by the state now of new boaters, in his opinion "helps somewhat." (Tr. 930). Mr. Pitchford, like Ms. McDonald and Dr. Ackerman, is an employee of FWC's Florida Marine Institute. He manages the State's Marine Mammal Pathobiology Lab where manatee necropsies for cause of death is determined. He offered testimony about the causes of deaths of manatees and related issues, but did not express an opinion at hearing, just as Petitioners' other two manatee experts, on whether the Boat Club's application should be granted or not. In contrast to the three experts who testified at the behest of Petitioners, two experts called by the Boat Club opined that there would be no adverse impact to manatees if the Boat Club's application were granted in the form preliminarily approved by the Department. Tom Logan, an expert in wildlife biology, whose specialty is in "endangered species management" (Tr. 484), opined that the project will not have an adverse affect on the manatee or its habitat. Mr. Logan offered this opinion on the basis of information he had examined and because, "the level of use that will be there with the proposed marina in place relative to what has been there in the past . . . will not result in anything increased or additive in the way of activity in the water that manatees are using . . . ." (Tr. 491). In other words, there will be no increase in power boats or other watercraft (sailboats with skegs, for example) in the Caloosahatchee River as the result of the proposed permit and therefore, granting the permit would have no adverse impact on manatees. Furthermore, Mr. Logan testified that manatee management protection programs combining speed zones, enforcement of speed limitations and education, can assist in the protection of manatees particularly in marina areas where manatees tend to congregate or visit. The speed zones in Lee County (in place of a considerable number of years), coupled with a "zero tolerance" enforcement policy in place since July of 2002, appeared to him to be working. (Tr. 491). Ms. Mary Duncan, a state Environmental Specialist III and FWC's Bureau of Protected Species Management's coordinator of its mortality database, was accepted as an expert in "potential impacts to manatees from development." (Tr. 777). At the time of hearing, she had conducted permit reviews for the bureau for 11 1/2 years, the time in which the bureau has been a part of the Department of Natural Resources, the Department of Environmental Regulation, the Department of Environmental Protection and the Florida Fish and Wildlife Conservation Commission. She has a "Bachelor's in biology with a minor in chemistry" (Tr. 775), and prior to the hearing in this case had testified four times in judicial or administrative proceedings on potential impact of manatees from development. Ms. Duncan has been involved with Deep Lagoon Marina permitting since "about 1994." (Tr. 777). In 1998, for example, she prepared a Manatee Impact Review Report for the Deep Lagoon Marina permit modification that involved the stormwater permit application and "the allowance of liveaboards, the relocation of the travel lift ramp to the north canal, and a redesign of the proposed cross connection between the north canal and the main basin." DEP Ex. 41. Her review described the project as in "an area of relatively high manatee use in Lee County, based on aerial survey and mortality data . . . [where the power plant] effluent attracts one of the largest wintering aggregations of manatees in Florida." Id. Her report further noted: Despite some existing manatee protection measures such as speed zones, watercraft- related manatee mortality trend is continuing to increase within the Caloosahatchee River. It is unknown whether the continuing deaths are a result of inadequate speed zones, inadequate posting of speed zones, inadequate enforcement of speed zones, and/or the cumulative impact from years of adding boats to the system. It is probable that many or all of these factors are involved. Id. In the historical information section of the report, Ms. Duncan showed the project to have 228 existing slips (61 wet, 167 dry) with previously permitted but not constructed slip at 446 (113 wet and 333 dry) for a total of 674 slips (174 wet, 500 dry). In a section entitled "Cumulative Impacts," the report found: This project is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft- related injuries, disturbance contributing to stress, and alteration of natural behaviors. Id. Numbers of recommendations were made in the report as conditions for approval including that "boat launching from the uplands be prohibited along the shoreline of the North Canal" (id., page 5 of 7), and that "[a]fter construction of the dry storage barns, storage of boats on trailer or open dry storage racks shall be prohibited." Id., page 6 of 7. On March 1, 1999, Ms. Duncan authored a memorandum through which the Bureau of Species Protection Management suggested that the following language be used as condition of the Boat Club's proposed permit, Launching and retrieval in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log. DEP Ex. 43. A letter authored by Ms. Duncan dated November 18, 2003, was sent to Mr. Calvin Alvarez in the Southwest District Office of DEP. Signed by Brian Barnett, Interim Director of the FWC's Office of Environmental Services, it represents the Commission's comments and recommendations regarding the Boat Club's application under review in this proceeding. The letter contains a number of recommendations for conditions of the proposed permit, all of which were, in fact, made conditions of the permit as approved. In addition to standard construction conditions, development of a marina manatee education program, and installation of grates over certain pipes to prevent manatee drowning, the recommendations included the following: Of the 485 slips proposed for this marina, the number of powerboats allowed at this facility shall be limited to 445. The remaining slips (40) must be either occupied by sailboats or left unoccupied. Future requests for additional powerboats will be considered if the secondary and cumulative impacts associated with this increase are not expected to adversely affect the West Indian manatee. Storage of boats on trailers or open land racks shall be prohibited. Use of the travel lift in the north canal for boats less than 40 feet in length is prohibited except in emergencies (approaching hurricane etc.). Limitation on the use of this lift shall not exceed a 28-day rolling average of ten vessels a week for those vessels, except in emergencies (approaching hurricane etc.). Launching and retrieval of boats in the north canal shall be restricted to vessels requiring boat repair. The applicant shall maintain a daily log of vessels launched and retrieved from the north canal travel lift. The applicant shall also maintain a log of incoming and outgoing boat repairs, which shall correlate with the travel lift log. DEP Ex. 33, page 3. So long as the recommendations in the letter are conditions of the proposed permit, Ms. Duncan offered the opinion that the proposed permit "imposes minimal adverse impacts to manatees, and if any impacts do occur, they have been offset by" the permit conditions. (Tr. 784). Ms. Duncan's opinion was based on review of the project, "the historical background of the facility, manatee data, the requirements of the ERP rule, and [her] general knowledge of Lee County and manatee use in Lee County." Id. The 1990 Aerial: Proof of Maximum Historical Use Of particular import to Ms. Duncan's review was the historical background of the facility. Ms. Duncan reviewed a document provided to her by Hans Wilson and Associates, the Boat Club's environmental consultant and marine engineer. The document, enlarged as DEP Ex. 37, "has two coverages. It is an aerial photograph in 1990 of the facility. Overlaid on that is a CAD drawing done by Hans Wilson to outline what they determined to be existing boats that were uncovered in open storage on the facility in 1990." (Tr. 786-787). Ms. Duncan used the document to determine "actually how many boats were located coming out of this facility." (Tr. 787). She determined that there were 217 "Uncovered Dry Slips" (DEP Ex. 33) at the marina in 1990. Together with 61 authorized wet slips and 167 authorized "Covered Dry Slips" (id.), she reached a total of 445 slips at the marina as the historical maximum, 40 slips less than the 485 that were proposed in the Boat Club's current ERP application. Hence, FWC recommended that the number of power boat slips be restricted to 445 slips. Ms. Duncan chose the 1990 aerial for the basis of her recommendation because unlike the other aerials she looked at from 1993, 1999, 2000 and 2001, "[t]he 1990 aerial was the period of time that the facility appeared to be at full operating capacity in the sense that this was the aerial that showed the most boats and open storage on the uplands." (Tr. 787). Furthermore, she chose the 1990 aerial because "it represents the existing use of the facility before they started clearing it to prepare for building boat barns later in the 1990's." (Id.) Use of the 1990 aerial as the proof of maximum usage of the marina enabled Ms. Duncan to conclude, like Mr. Logan, that restricting the number of power boats slips at the marina to 445 would not introduce any new boats into the system. Usage at Other Times However fair to the Boat Club the choice of the 1990 aerial as to historical background of usage at the marina might be, it is not free of problems. First, the 1990 aerial is more than a decade old. In the interim, the marina was not shown by a number of aerials to have achieved the usage that appears to have peaked in 1990. The actual usage at the marina, in fact, has varied over time greatly and has been less (at times, much less), than what it was in 1990. Recent usage at the marina, in fact, has been far less than it was in 1990. At the 1999 administrative hearing before Administrative Law Judge Meale, Mr. Ruff, in answer to a question from the Administrative Law Judge, offered that the covered dry space and uncovered dry space totaled only about 200 slips rather than the 356 dry slips proposed in the Boat Club's current application: The ALJ: Okay. Can we deal with first what's in the ground or on the water, regardless of what's been authorized? If you need to confer with other witnesses, that would be fine. Mr. Uhle: Mr. Ruff is the person who knows how many dry spaces there are. The figure 61 wet slips I believe is correct. The ALJ: For present conditions? Mr. Uhle: For present conditions. Ms. Holmes: And that's permitted and in use. Mr. Uhle: Those are existing. The ALJ: Existing, right. * * * The ALJ: How about dry spaces. Mr. Ruff: Okay. The existing dry space, there is approximately in the two buildings and on the ground and outside racks, about 200. When we bought the property [in 1997], there were about 400 because we used the entire north peninsula for dead storage. We've eliminated that, effectively, so we've probably eliminated 150 boats from the property since we bought it. And they were there for a long time. Petitioner's Exhibit 9 (emphasis supplied). Mr. Ruff's testimony supported the administrative law judge's finding that "Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings." Sheridan, et al., v. Deep Lagoon Boat Club, Ltd., et al., DOAH Case No. 98-3901, Recommended Order (November 24, 1999), paragraph 6, and supported the finding that adding 227 dry slips so as to raise its dry slip capacity to 427 dry slips would "adversely impact the value of functions provided to manatees by the affected surface waters." Furthermore, the Sheridan II Recommended Order found: Manatee mortality has increased as boat traffic has increased. Substantial number of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. Id., paragraph 137. In light of these facts, the recommended order reached the conclusion, "[a]pplicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species." Id., paragraph 138. In its final order in Sheridan II, DEP disapproved the maintenance and dredging exemption issue to the Boat Club, denied the Boat Club's request for a determination of entitlement to a maintenance and dredging exemption for dredging in the marina canals, and denied the Boat Club's application for an ERP to construct a SWMS on uplands at the Marina site. In the course of the final order, DEP "declined to reject the ALJ's mixed statements of law and fact concluding that increased boating activity and other Marina expansion activities authorized in the Original Permit constituted adverse secondary impacts of the proposed SWMS to water quality and to manatees and their habitat." Petitioners' Exhibit 8, DEP Final Order, OGC Case Nos. 98-1184 and 98-3047 and DOAH Case Nos. 98-3901 and 98-5409, p. 42 (January 28, 2000). Actual usage at the marina of 61 wet slips and 200 dry slips was confirmed again in Sheridan III both in the recommended order issued in January of 2000, and the final order by DEP. Ms. Duncan's testimony was forthright; her demeanor earnest. There is nothing to suggest that her opinion was anything other than honest and sincerely held. If one were to suspect that Ms. Duncan had a bias, it would be, in light of her position with the state and the recommendations she has made in the past, toward manatee protection. Her opinion, therefore, that the proposed permit does not adversely affect manatees should be given substantial weight. Ms. Duncan's opinion, however, is rejected. It is rejected because, just as Mr. Logan's, it is based on a faulty assumption: that approval of the permit will not introduce into the Caloosahatchee River system more boats that threaten the endangered manatee. The approval of the permit will allow more slips (485) and power boats (440) than have been actually at the marina since 1999 when Mr. Ruff testified before Administrative Law Judge Meale (261, 200 dry slips and 61 wet slips). The approval will allow more boat slips and power boats than the Boat Club claims in its proposed recommended order exist there now (400, 50 wet and 350 dry). Furthermore, it may be inferred that the upgrade, particularly if Clean Marina status is achieved and is publicized, will make it likely that the marina will be more attractive to boaters and will operate at full capacity. Full capacity is 184 more power boats above the capacity that served as the baseline in Sheridan II, and 224 more boat slips than the Sheridan II baseline. Furthermore, and most persuasively, the Department decided in Sheridan II that allowing a similar number of boats to operate in the Caloosahatchee River system constitutes adverse secondary impacts to the manatee and its habitat. There is nothing in this record that is shown to have occurred in the past three years that would justify overriding the Department's conclusion. Sovereignty Submerged Lands Lease The applicant has provided all information necessary to qualify for a proprietary authorization for a lease of sovereign submerged lands. But the Boat Club has failed to demonstrate that the lease will not be contrary to the public interest. See paragraph 204, below. Claim of Boat Club Violations Petitioners claim that the Boat Club has violated permit conditions or environmental law in the past in a number of different ways. There was no proof, however, of these violations. There was not even proof that the Department has ever issued a notice of violation to the Boat Club. Applicable Law In General At hearing, DEP produced a notebook with a cover page inside the book entitled "ALJ's Copy of Statutes and Rules." Official recognition was taken of the contents with no objection from any of the parties. Included in the notebook is an "Operation Agreement Concerning Regulation Under Part IV, Chapter 373, F.S., . . . Between South Florida Water Management District and Department of Environmental Regulation." Pursuant to the agreement, DEP reviews and takes final action on all applications for permits under Section IV of Chapter 373, Florida Statutes, for docking facilities and adjacent docking and boating-related development which includes "parking areas for the docking facility, dry storage facilities, boat sale and supply facilities, maintenance and repair facilities, associated seafood loading and processing facilities, restaurants, harbor master and marina administration facilities." Section II, A. 1(i), pp. 3 and 4 of the Operating Agreement. Section 373.413 provides that "the governing board [of the water management district] or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction . . . of any stormwater management system . . . will comply with the provisions of (Part IV of Chapter 373] and applicable rules . . . and will not be harmful to the water resources of the district." Section 373.414, entitled "Additional criteria for activities in surface waters and wetlands," provides: As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to water as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands . . . . is not contrary to the public interest. * * * In determining whether an activity, which is in, on, or over surface waters . . . and . . . is not contrary to the public interest . . . the department shall consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. See also Fla. Admin. Code R. 62-4.242; Fla. Admin. Code R. 40E- 4.302; and SFWMD Basis of Review, Section 4.2.3. Florida Administrative Code Rule 62-302.300 states the Department's anti-degradation permitting policy for surface water quality. Section (15) of the rule provides that pollution that causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Section (17) of the rule provides that the Department shall permit new discharge if it will not reduce the quality of the receiving waters below their classification and if the degradation is necessary under federal standards and circumstances clearly in the public interest and meets other requirements. Of particular pertinence to this case, the subsection goes on to state, "[p]rojects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S." Those requirements, of course, include the statement with regard to "net improvement in water quality" in Section 373.414(1)(b)3. In Florida Administrative Code Rule 62-330.100, DEP has adopted by reference certain ERP rules of SFWMD for its use in conjunction with its existing rules when regulating surface water management systems, including activities on, in, or over wetlands or other surface waters under Part IV of Chapter 373. The Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District August 1995 ("BOR") is also contained in the notebook of "ALJ's Copy of Statutes and Rules" produced at hearing as applicable law. Among the BOR's Environmental Criteria to be "implemented in a manner which achieves . . . a project permitting goal, of no net loss in . . . surface water functions" (Section 4.0, BOR) is Section 4.2.1. It requires the exploration of design modification to reduce or eliminate adverse impacts to surface water functions. The evidence establishes that the proposed surface water management system will enhance surface water functions by providing a net improvement of the water quality of marina's receiving waters. Section 4.2.2 of the BOR requires that the applicant "provide reasonable assurances that the regulated activity will not impact the values of wetland and other surface water functions so as to cause adverse impacts to: (a) the abundance and diversity of fish, wildlife and listed species; and (b) the habitat of fish, wildlife and listed species." The Boat Club has failed to provide assurances that the upgrade to the marina will not cause adverse impacts to manatees and their habitat. The opinions of the experts presented by the Boat Club that there will be no adverse impacts are based on the faulty assumption that the upgrade will not add more boats into the Caloosahatchee River system. The boating restrictions imposed by the federal, state and local governments, moreover, have not been shown in this proceeding to mitigate adverse impacts to the manatee and its habitat that will be produced by the introduction of additional boats, power and otherwise, into the River system. The Public Interest Test Deep Lagoon has been found in previous recommended orders and DEP final orders not to be among Florida's Outstanding Waters, even though it is an arm of the Caloosahatchee River and the River is so listed. The parties do not contend otherwise. They have structured their arguments along the line that the proposed permit must be shown to be "not contrary to the public interest." Section 373.414(1). Of the seven criteria of Section 373.414(1), which must be considered and balanced in determining whether the project is contrary to the public interest, it has been shown that there is no adverse impact with regard to criteria 1., 3., 4., and 6. In fact, for example, as the Boat Club points out with regard to criterion 1., "[e]xcept for mosquito control, the testimony and evidence demonstrated that this proposed project will have a positive impact on each and every one of [the] concerns" (Respondent, Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 53) listed in Section 4.2.3.1 of the BOR for assessment of hazard to public health, safety with respect environmental issues. This leaves criteria 2., 5., and 7. Implementation of the proposed surface water management system will have a positive affect on the conservation of fish and wildlife but the upgrade otherwise will not. The project is of a permanent nature, a matter the Boat Club concedes. (Respondent Deep Lagoon Boat Club Ltd.'s Proposed Recommended Order, p. 55). The surface water management system will improve water quality in the area. The remainder of the upgrade will diminish the value to manatees and of the manatee habitat of the areas affected. Reasonable Assurances Section 4.2.4 of the BOR requires that an applicant provide "reasonable assurance that the regulated activity will not violate water quality standards in areas where water quality standards apply." Water quality standards will not be violated as a result of the proposed project. Reasonable assurances have been provided both in the short term with best management practices during construction, and in the long term with the Marina Management Plan governing the operation of the marina for the life of the facility. The Boat Club offered reasonable assurance that future water quality will be in compliance by detailed maintenance and reporting procedures for the surface water management system and the closed loop systems, and monitoring of water quality and sediments. Sections 4.2.4.2 and 4.2.4.3 of the BOR require long term water quality considerations. Reasonable assurances were offered that the project will not cause water quality violations. Flushing has been improved by making the canals more shallow, and will be further improved by the culverts that will connect the north and main canals. The fueling facilities are conditioned upon a detailed operations and procedures commitment in the area of spill response, minimizing the effects of any spills, as required by Section 4.2.4.3(f). The marina will have publicly available pump-out facilities for boat heads at a nominal cost to minimize improper disposal, as required by Section 4.2.4.3(g), and will not have live-aboards. The disposal of solid waste, such as garbage and fish cleaning debris, has been addressed to prevent disposal into wetlands or other surface waters, as required by Section 4.2.4.3(h). The pollutant leaching characteristics of pilings has been addressed as required by Section 4.2.4.3(i), by the replacement of the existing, treated wood docks with PVC and concrete structures. Anti-fouling paints on hulls have been addressed by requiring all wash-downs to take place in the closed loop contained areas that overflow in storms to the sewer system. Additionally, any boat scrapings are contained and disposed of by a contaminant disposal contractor, and the marina uses only low-copper bottom paints. The permit conditions, as well as the plans, address the short-term water quality impacts of the proposed system, as required by Section 4.2.4.1 of the BOR. The project plans attached to the permit include provisions for erosion and siltation barriers, and similar devices during construction. The permit conditions also require temporary erosion control barriers to remain in place and be inspected daily during all phases of construction until soils stabilize and vegetation has been established. All practices are required to be in accordance with the guidance and specifications described in Chapter Six of the Florida Land Development Manual: A Guide to Sound Land and Water Management (Department of Environmental Regulation 1988), unless a project-specific erosion and sediment control plan is approved as part of the permit. Additionally, all access for construction activities, including placement of floating docks into the water, must occur via the existing boat ramps, travel lift and fork lift areas of the marina. At no time are mangroves affected unless specifically authorized by the permit to be altered or trimmed to accommodate construction or access operations. From a hydrographic standpoint, the project is approvable. Section 4.2.4.5 of the BOR, entitled "Where Ambient Water Quality does not Meet State Water Quality Standards," provides in part: If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. The proposed project will result in a net improvement of the water quality standards, and will not contribute to any exceedances where exceedances exist. Section 4.2.7 of the BOR requires that an applicant provide reasonable assurances that a regulated activity will not cause adverse secondary impacts to the water resource as described in paragraphs (a) through (d) of the section. The section stresses the import of protection of endangered species such as the manatee: Aquatic or wetland dependent fish and wildlife are an integral part of the water resources which the District is authorized to protect under Part IV, Chapter 373, F.S. Those aquatic or wetland dependent species which are listed as threatened, endangered or of special concern are particularly in need of protection. As discussed elsewhere, the applicant has failed to provide reasonable assurances that the proposed project will not cause adverse impacts to the manatee. Florida Administrative Code Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest except for sales which must be in the public interest." "Public interest means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for . . . lease . . . in sovereignty lands . . ., the board shall consider the ultimate project and purpose to be served by said . . . lease . . . ." Fla. Admin. Code R. 18-2.003(40). While conditioned upon the construction of the surface water management system that will provide a net improvement in water quality to a water body that does not meet water quality standards, implementation of the Marina Management Plan, and execution of a DEP-approved lease agreement, the proposed activity has not been shown to be not contrary to the public interest because of adverse secondary impacts to manatees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Environmental Regulation that the application by the Deep Lagoon Club Ltd. for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization be denied. DONE AND ENTERED this 17th day of October, 2003, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2003. COPIES FURNISHED: Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Ebelini, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street Post Office Box 2449 Fort Myers, Florida 33902-2449 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Banana Island is separated by marshland into areas known as Islands No. 9 and No. 10. The respondent Association presently owns and operates on Island No. 10 a dock and a dive shop which sells snacks and compressed air to divers who use the nearby springs. The purpose of the proposed boardwalk is to connect the existing dock facilities on Island No. 10 to the upland area on Island No. 9, a portion of which will be used as a picnic area for boaters, swimmers and divers. The boardwalk is to be 220 feet long and six feet wide. The immediate area upon which the boardwalk is to be constructed is not utilized by the manatee because of its shallow depth. While the boardwalk would result in the shading of approximately 1,000 feet of marshland, this amount is too insignificant to affect the manatee. There are approximately 1,000 manatee in the United States, and the manatee has been designated as an endangered species under Federal and Florida law. The manatee exists throughout the southeastern portion of the United States. They inhabit areas off Texas, Louisiana, Florida, on up to North Carolina, though it is unusual to see them north of Brunswick, Georgia. The Kings Bay area of Crystal River, primarily around the Springs, and the area of Homosassa Springs provides a winter home for approximately 110 manatee, or about ten percent of the entire manatee population. The manatee come to the Kings Bay area in the winter months from mid-November through March 31st due to the warmer temperatures of the water around the springs. There is only occasional use of the springs area by the manatee between March 31st and November 15th. The numbers of manatee coming into the Kings Bay area has increased since 1971. This increase could be due to better observation techniques or to the reduction of other suitable habitats for the manatee. At least seventy percent of the population return each year. This year, seven new calves were born in the area. During the cooler months, approximately forty- five percent of the manatee can be found within five-eights of a mile of the main spring in Kings Bay. The proposed boardwalk is to be located approximately 150 feet from the main springs. No manatees have been sighted within twenty-five yards of the boardwalk site. The existing dock is located about seventy feet from the main springs. Manatees have been sighted near the end of this dock, which was built in 1971. The general area surrounding the site of the proposed boardwalk, primarily the springs area, is used heavily by boaters, swimmers and divers. Observations during a nonconsecutive seven-day period in late November and early December noted some 603 boats using the general area of Kings Bay, some 250 divers around the springs area and over 430 top-water observers of the manatee. These numbers would lessen during the Spring and pick up again during the Summer and latter part of the Fall months. On January 1, 1979, some fifty-two boats were served within the main springs area. In Citrus County alone, there are over 5,700 registered pleasure and commercial boats. When cruising, the manatee generally travels at a rate of speed of two to three miles per hour. When moving out of the way of a boat, the manatee can move at about eight to nine miles per hour. When confronted by an oncoming boat, the manatee either immediately submerges or turns to the right. Many manatee in the Kings Bay area have propeller scars on their bodies. A few of the manatee, generally the juvenile manatee, appear to enjoy and seek contact and association with the divers. The majority move away and seek to avoid the divers. During periods of heavier boat traffic around the springs, the manatee generally move out into the colder water adjacent to the springs. Continued disruptive activity such as motor sounds, fast moving boats, heavy diver or boat traffic, and harassment from divers and swimmers can prove to be dangerous to the manatee. Such activity can result in a failure to mate and reproduce, body wounds, and a forcing of the manatee out into colder waters, thus disrupting normal feeding patterns and behavior. In 1978, the Florida legislature passed the "Florida Manatee Sanctuary Act," declaring the State of Florida to be a refuge and sanctuary for the manatee. Section 370.12(2), 1978 Supplement to Florida Statutes. This Act directed the Department of Natural Resources to adopt rules regulating the operation and speed of motorboat traffic between the dates of November 15th and March 31st in the Kings Bay area of Crystal River, as well as in other portions of the waters of the State. At the time of the administrative hearing in this cause, the Department of Natural Resources was in the process of adopting Chapter 16N-22 in implementation of the Florida Manatee Sanctuary Act. These proposed rules establish slow speed zones, idle speed zones and prohibited zones for motorboats in Citrus County. The area in dispute herein is designated as an idle speed zone, defined as the minimum speed that will maintain the safe steerageway of a motorboat. The federal government is expected to adopt all state regulations pertaining to the protection of the manatee. It was the opinion of both of the witnesses having knowledge and expertise regarding the activities and behavior patterns of the manatee that any development which attracts and promotes human activity in the springs area could possibly have a deleterious effect upon the manatee. As noted above, the dock and dive shop have been in existence and operation since 1971. Boating and diving activity has increased since that time. The respondent Association has no objection to and is in favor of the proposed new boat speed regulations. While a few boats can now tie up to the existing dock, boats would not be able to tie up to the boardwalk. Trash receptacles are planned for Island No. 9. If Banana Island No. 9 were accessible via the proposed boardwalk for recreational and/or picnic activities, it is entirely possible that there would be less boating activity around the immediate area of the main springs. The majority of the boats around the springs are small boats which the divers and manatee observers rent for those purposes. It is possible that larger boats could be utilized to provide transportation for swimmers and divers to and from the area, thus reducing the number of boats in the immediate area of the springs. During the hearing, the applicant offered and stated its willingness to close down the boardwalk during the winter months should future studies or surveys illustrate that the manatee is being harmed therefrom. The successful and profitable operation of the respondent's boating and diving enterprises depends upon the continued habitation of the area by the manatee.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's application for a permit to construct and maintain a boardwalk be granted, subject to the stipulations proposed in the permit appraisal relating to the opening and the maintenance of vegetation. Respectfully submitted and entered this 15th day of March, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Baya M. Harrison Mark J. Proctor Ausley, McMullen, McGehee, Assistant Department Attorney Carothers and Proctor 202 Blount Street Post Office Box 391 Crown Building Tallahassee, Florida 32302 Tallahassee, Florida 32304
The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN 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 19th day of July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
The Issue Whether Respondent violated sections 1012.795(1)(c), (g) and (j), Florida Statutes (2010),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), as alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Mr. Ferrier holds Florida Educator’s Certificate 864022, covering the areas of educational leadership, elementary education, and middle grades integrated curriculum, which is valid through June 30, 2012. At all times pertinent to this case, Mr. Ferrier was employed as a teacher at either Pinellas Park Middle School (Pinellas Park) or Seminole Middle School (Seminole) in the Pinellas County School District (School District). Petitioner, Dr. Eric Smith, at all times pertinent to this case, is acting as the Florida Commissioner of Education, pursuant to his authority in section 1012.796(6). Mr. Ferrier began teaching at Pinellas Park in the 2006- 2007 school year. The record shows by clear and convincing evidence that Mr. Ferrier’s performance during the three school years, 2006-2007, 2007-2008, and 2008-2009, was characterized by a lack of organization, failure to effectively communicate with parents and students, failure to provide students with grades and collect school work, and discord. Ms. Gorman, an assistant principal for Pinellas Park, was Mr. Ferrier’s immediate supervisor. She evaluated Mr. Ferrier’s performance for the three years that he taught at Pinellas Park. Ms. Gorman’s first evaluation of Mr. Ferrier for the 2006-2007 school year shows that he earned a score of "1" which indicates Mr. Ferrier was satisfactory. A rating less than level "1" is deemed unsatisfactory. Further, the 2006-2007 evaluation shows that Ms. Gorman expected Mr. Ferrier to make progress in 11 out of 23 areas she assessed in the evaluation. The evaluation form contained 25 areas for assessment. Mr. Ferrier’s evaluation shows that Ms. Gorman left two assessment areas blank. For the 2007-2008 school year, Ms. Gorman rated Mr. Ferrier at a level "2" with progress expected in 10 of the 25 areas assessed. Mr. Ferrier’s 2007-2008 evaluation showed that he was satisfactory. For the 2008-2009 school year, Ms. Gorman rated Mr. Ferrier as not meeting the minimum expectations for teaching. Out of the 25 measured categories, Ms. Gorman rated Mr. Ferrier as not meeting expectation in 17 categories. Mr. Ferrier failed to meet expectations for subject knowledge; instructional method; respect for students, parents, and colleagues; engaging students; and use of technology in the classroom. Mr. Ferrier’s tenure at Pinellas Park was also characterized by repeated failures to answer calls made by parents, disorganization, poor attendance at meetings, arriving to school and classes late, and not acting as a professional in dealing with colleagues. Ms. Witcher, the Pinellas Park principal, provided credible testimony showing Mr. Ferrier’s disorganization and propensity for arriving late to school. For example, in the 2008-2009 school year, on the first day of school for returning teachers, Mr. Ferrier arrived at noon as opposed to 8:30 a.m. When asked by Ms. Witcher why he was late, Mr. Ferrier explained that he did not know that school began on that date. Mr. Ferrier’s tardiness was indicative of his behavior. Ms. Witcher clearly testified that on a "few occasions during the first and second year . . . he was so tardy, I had to go down and open the classroom door, let the kids in and wait for him." The record clearly also shows that Mr. Ferrier failed to be responsive to parent concerns about their children. Ms. Northcutt, the guidance counselor for Pinellas Park, provided credible testimony showing that Mr. Ferrier failed to return parent phone calls, failed to attend parent-teacher meetings, and, if Mr. Ferrier did attend the meeting, he was disorganized and unprepared. The frequency of parents calling Ms. Northcutt to ask Mr. Ferrier to contact them became so great that she "felt almost like a personal secretary to Mr. Ferrier," asking him to return phone calls. In addition to being unresponsive to phone calls, the record clearly shows, through Ms. Northcutt’s testimony and e-mails admitted into evidence, that Mr. Ferrier either failed to show up for parent-teacher conferences, or was late and unprepared if he did attend the conference. Parents would contact Ms. Northcutt in her capacity as the guidance counselor because the parents had concerns about Mr. Ferrier’s teaching and grading. Mr. Ferrier would routinely fail to timely enter grades of assignments into the computer system so that parents could check their child’s progress. The record clearly shows that Mr. Ferrier lacked insight into his professional shortcomings. The record clearly showed that Mr. Ferrier was offered assistance to help him become an organized and effective teacher, but failed to avail himself of the assistance. Further, Mr. Ferrier objected to Ms. Witcher’s direction that he not coach the volleyball team and concentrate on teaching. In response to this directive, Mr. Ferrier encouraged parents of the volleyball players to contact Ms. Witcher to change her decision. The record also shows that, during Mr. Ferrier’s tenure at Pinellas Park, he did not act as a professional in dealing with colleagues. This finding is based on the events concerning Mr. Ferrier’s placement on administrative leave while the School District investigated him for bullying a co-worker, and his subsequent action after returning from administrative leave. Ms. Northcutt credibly testified that, based on Mr. Ferrier’s repeated failures to either attend parent-teacher conferences or be on time for them, she began to document these actions and inform Ms. Witcher. At one parent-teacher conference, Ms. Northcutt noted that Mr. Ferrier arrived late, although the parents had not yet arrived. Mr. Ferrier told Ms. Northcutt to note that he had arrived on time, which she replied that he was still late. Two other teachers, who were to attend the conference, also arrived late. One of the teachers had permission due to a conflict, and the other teacher arrived after attending another conference. Mr. Ferrier demanded that Ms. Northcutt report the two teachers as late. Ms. Northcutt credibly testified that she felt threatened and intimidated by Mr. Ferrier’s confrontational behavior. She reported the incident to Ms. Witcher, who referred the incident to the School District, and an investigation was begun. The School District placed Mr. Ferrier on administrative leave, and Ms. Witcher informed Mr. Ferrier that he was to leave the campus quietly. As Mr. Ferrier was leaving the campus, he told everyone that he encountered that he was accused of bullying and that he would return. Ms. Witcher felt that Mr. Ferrier’s actions were divisive and sought to undermine her new administration at the school. When Mr. Ferrier returned to the school from the administrative leave, Mr. Lott, the School District’s administrator for the Office of Professional Standards, informed Mr. Ferrier to be very careful in his interactions with Ms. Northcutt. Within two days of his return, Mr. Ferrier sent all of the Pinellas Park personnel an e-mail stating that he had been wrongly accused of bullying and that he had been exonerated. Mr. Lott found this action to be inappropriate and a continuation of Mr. Ferrier’s efforts to bully Ms. Northcutt. Consequently, based on this action, Mr. Ferrier received a written reprimand and was involuntarily transferred from Pinellas Park to Seminole. The purpose of transferring Mr. Ferrier to Seminole was to provide him with a fresh start. Unfortunately, the record clearly shows that Mr. Ferrier’s short tenure at Seminole was again characterized by ineffective teaching, lack of knowledge of materials he was expected to teach, lack of communication with parents, tardiness, and failure to follow directions to become an effective teacher. Mr. Lechner, the principal at Seminole, assigned Mr. Ferrier to teach regular science classes and three advanced honor science classes. The parents at Seminole are actively involved in their children’s education. Thus, many of Mr. Ferrier’s short-comings were quickly brought to the attention of Mr. Lechner. The record shows that Mr. Lechner was pro-active in assessing Mr. Ferrier’s teaching, offering Mr. Ferrier assistance to become an effective teacher, and ultimately removing Mr. Ferrier from the classroom. The record clearly shows that Mr. Ferrier failed to carry out his duties as a teacher. Specifically, the evidence clearly showed the following instances: Mr. Ferrier was disorganized in the classroom. Mr. Ferrier’s disorganization in the classroom was apparent from the very beginning of his tenure at Seminole. During an open house for parents, Mr. Ferrier, in addressing parents of honor students, did not have a syllabus for the class, pointed out text books that he stated the class probably would not use, and discussed at length discipline issues with the parents. The record shows, however, that honor students typically did not cause discipline problems. Mr. Ferrier’s disorganization quickly led students to becoming frustrated in the classroom and parents complaining to Mr. Lechner. Further, this disorganization was reflected in Mr. Ferrier’s losing assignments, failing to properly log grades into the school computer system so that parents could access the grades, and losing test results. Mr. Ferrier’s disorganization in the classroom was further documented by Mr. Lechner, who placed Mr. Ferrier on a Professional Service Contract Probation for 90 days during the school year, beginning on September 28, 2009. Mr. Lechner conducted personal observations of Mr. Ferrier’s instruction and found it disorganized, confusing, and resulting in students becoming frustrated. Mr. Lechner gave Mr. Ferrier specific instructions on how to improve his teaching, but Mr. Ferrier failed to follow the instructions. Mr. Ferrier continued to be tardy to class and miss important faculty meetings. The record shows through Mr. Lechner’s testimony that Mr. Ferrier missed the teachers’ mandatory first professional learning community meeting. Although Mr. Lechner could not remember the reason that Mr. Ferrier gave for missing the meeting, Mr. Lechner testified that Mr. Ferrier "always had an excuse." Based on Mr. Lechner’s answer, it was clear that Mr. Ferrier made excuses for his failures, as opposed to acknowledging his mistakes. The record further showed that Mr. Ferrier’s tardiness often would extend into the day. The testimony showed that Mr. Ferrier would leave campus and return from lunch 15 minutes late, thus, delaying instruction. As a result of Mr. Ferrier’s habitual tardiness, Mr. Lechner required Mr. Ferrier to use a sign-in and sign-out log. Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach. The parents and students, who testified, were unanimous in their consensus that Mr. Ferrier failed to teach anything. Mr. Ferrier’s failure to teach resulted in one student having to "steal" one of the text books that Mr. Ferrier was not using and teach herself physical science. Further, the testimony was clear that, after Mr. Ferrier was relieved of his teaching duties, the students had to "cram" a year’s worth of science into half a school year. In essence, Mr. Ferrier cheated the students out of an education. The conclusion that Mr. Ferrier used ineffective instructional methods and did not have a grasp of the material that he was to teach is supported by the testimony of Ms. Lamy and Mr. Lechner. The record clearly showed that Mr. Ferrier used "bell work" for a significant period of the teaching time. "Bell work" was defined as work given to students for the first few minutes of class to engage them immediately. Ms. Lamy, who was the School District’s supervisor for secondary science, conducted an in-classroom observation of Mr. Ferrier’s teaching at Seminole. Ms. Lamy noted that Mr. Ferrier used "bell work" for almost the entire class time. As a result, Mr. Ferrier did not teach. Further, Ms. Lamy observed that Mr. Ferrier did not have control of his class and did not have an adequate lesson plan. Based on her observations, Ms. Lamy made recommendations for Mr. Ferrier on handling the classroom and preparing lesson plans. Unfortunately, the record shows that Mr. Ferrier did not take full advantage of the help being offered to him. Mr. Lechner’s testimony also provided examples from classroom observations that demonstrated Mr. Ferrier’s poor instructional methods and lack of understanding of the material he was supposed to teach. For example, Mr. Lechner described a laboratory experiment conducted by Mr. Ferrier. Mr. Ferrier attempted to conduct an experiment demonstrating how an object could change physical states by melting a candy bar. During the experiment, Mr. Ferrier did not use safety gloves when attempting to melt the chocolate bar. Because the chocolate bar did not melt quickly, Mr. Ferrier left the experiment and never came back to it or the concept behind the experiment. According to Mr. Lechner, Mr. Ferrier modeled poor safety for the students by not using safety gloves and leaving the flame on the candy bar while he moved to another subject, and Mr. Ferrier did not teach the concept behind the experiment. The record showed that Mr. Ferrier would use ineffective methods to teach, such as relying on videos. In one instance, Mr. Ferrier used videos of Michael Jackson and throwing a wadded-up piece of paper in order to demonstrate motion. Finally, in December 2009, during an observation, Mr. Lechner observed Mr. Ferrier teach the students a wrong formula concerning distance over time, which was not corrected until the error was pointed out by a student. Mr. Ferrier did not manage work assignments and tests and failed to properly record grades. The record shows that students would turn in work, but the work would not be graded or posted into the school’s computer system so that parents and students could access the information. Further, parents and students complained to Mr. Lechner about erroneous grades, missing grades or assignments, or no grades for tests that had been completed, as well as grades which were either excessively high or excessively low. Mr. Ferrier failed to respond to parental inquiries and was unprepared and untimely when attending parent-teacher meetings. One parent testified about attending a parent-teacher conference, with Mr. Lechner, where Mr. Ferrier failed to show up. Mr. Ferrier’s disorganization resulted in him failing to turn students’ answer sheets for mandatory progress monitoring tests into the district office. As Ms. Lamy explained, the state required school districts to turn in students’ answer sheets from the test to the Department by December 15, 2010. When the School District started receiving feedback from the tests, Ms. Lamy learned that Mr. Ferrier had not turned in the answer sheets. Subsequently, Mr. Ferrier turned in the answer sheets on or near January 6, 2011. Based on Mr. Ferrier’s actions, the School District was not in compliance with the state-ordered mandate. On January 19, 2011, after the 90-day probation period, Mr. Lechner evaluated Mr. Ferrier as not meeting the minimum expectations for teaching. Mr. Ferrier did not meet expectations in 23 of 25 categories, including the areas of subject knowledge, instructional methods, respect for students and parents, engaging students, use of technology, classroom discipline, and organization. Further, Mr. Lechner noted, based on his observations, that Mr. Ferrier continued to be disorganized, his directions were not clear, he was causing confusion, and he was returning papers to students without feedback. The record shows that well into the 90-day probation Mr. Ferrier finally sought assistance, at the insistence of Mr. Lechner, from the Professional Development and Improvement Network to help him become a better teacher. Unfortunately, the record shows that Mr. Ferrier’s teaching ability did not improve and that he continued with many of the same problems that he had at Pinellas Park. The record shows that Mr. Ferrier has no prior disciplinary history with the Florida Education Practices Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Ferrier violated sections 1012.795(1)(c), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and that Mr. Ferrier’s educator’s certificate be revoked for two years followed by a period of three years’ probation under terms and conditions deemed appropriate. DONE AND ENTERED this 9th day of March, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2012.
Findings Of Fact SFWMD is a public corporation and local sponsor for the federally authorized Central and Southern Florida Flood Control Project. As part of its duties as local sponsor, SFWMD operates eight pumping stations and six other structures all of which discharge into Lake Okeechobee. On August 26, 1977, SFWMD filed an application with DER for an operating permit for its inflow points into Lake Okeechobee. By mutual agreement, SFWMD and DER determined that there was insufficient data available to determine whether SFWMD qualified for an operating permit, therefore, DER proposed issuing a TOP. On November 22, 1978, DER issued its notice of intent to issue a TOP to SFWMD for its inflow points into Lake Okeechobee. Among the conditions contained in the TOP is that the permit will be effective for thirty (30) months. Petitioners complain that Lake Okeechobee is being environmentally damaged by the drainage into Lake Okeechobee of waters from surrounding agriculture and dairy farming areas. This, say the Petitioners, is causing the eutrophication or damaging enrichment of the Lake by the addition of chemical elements above their natural levels in that environment. DER and SFWMD contend that at least thirty (30) months is required to complete the testing and observation of the Lake and to make long-range plans for reduction of drainage into Lake Okeechobee and to develop necessary management alternatives to accomplish that goal. The proposed TOP provides a temporal framework. Within thirty (30) days of the issuance of the permit, SFWMD is required to present to DER a program for interim actions which will reduce nutrient loading during the time of the permit. Within 120 days of the issuance of the permit, SFWMD is required to submit for approval by DER a plan of study for determining the probable impacts of management alternatives for reducing the nutrient loading into Lake Okeechobee. Within twenty-four (24) months of the issuance of the permit, SFWMD is required to submit to DER an analysis of the impacts of each reasonable management alternative which will reduce the nutrient loading into Lake Okeechobee. During two successive rainy seasons SFWMD is required to do extensive chemical testing on site. After SFWMD submits its analysis of the impacts of management alternatives, DER has six months to review the data submitted and approve a schedule for implementing a plan to reduce nutrient loadings into Lake Okeechobee. Petitioners have submitted seven (7) Proposed Findings of Fact, five of which are hereby adopted in this Recommended Order: Lake Okeechobee is in a eutrophic state and getting worse as a result of man's activities. Both state agencies charged with respon- sibility for protecting Lake Okeechobee have long recognized that the Lake is in a eutrophic state and is in need of relief. Both the DER and the SFWMD have recognized that backpumping contributes significantly to eutrophication. Since 1975, DER and SFWMD have known that backpumping is one cultural activity that should be and could be stopped or substan- tially reduced. (This proposed Finding of Fact was numbered 6 in Petitioners' pleading.) The durational provision of the TOP is linked to the addi- tional time the DER and SFWMD claim it will take to study ways to stop backpumping. Petitioners' Proposed Findings of Fact numbers 5 and 7 are hereby rejected for the following reasons. First Petitioners request a finding that "the state agencies have done nothing to reduce the amount of bad water backpumped into Lake Okeechobee." In fact DER and SFWMD have proposed the TOP with its temporal frame work and requirements of interim actions for reduction of backpumping. Petitioners also propose as a finding of fact that "the TOP's durational provision as drafted is unreasonable and arbitrary in not assuring immediate reductions in backpumping and therefore, should be redrafted to require such action." Petitioners have not supported this contention with substantial, competent evidence. In fact, the TOP provides that a plan for the reduction of nutrient loading be presented within thirty (30) days of the issuance of the TOP. Furthermore, the proposed finding of fact is outside the scope of the issues framed by the pleadings. The issue is whether the thirty (30) month durational provision of the TOP should be reduced to twelve (12) months and not whether the TOP provides for immediate reductions in backpumping. The reason for the issuance of the TOP in lieu of an operating permit is to allow SFWMD time to gather data, to assess impacts and to develop management alternatives for the control of nutrient and pollutant loadings. Although some biological and chemical data already exist, much of the information requested of SFWMD under the TOP is currently unavailable. Specifically, the TOP requires that numerical nutrient limits be established for each discharge point and that specific management alternatives be developed. Currently available data on backpumping reduction does not specifically detail how much reduction is feasible nor what alternatives are soundest environmentally. Existing reports dealing with backpumping into Lake Okeechobee are not specific enough to support presently implementable management alternatives. Petitioners introduced no evidence to establish that the budgetary or manpower constraints with which SFWMD must deal would allow a reduction of the durational provision of the TOP from thirty (30) months to twelve (12) months. SFWMD's witnesses, however, established that if SFWMD were required to complete the study within one year, it would be economically impossible unless money and personnel earmarked for other important projects were tapped. Not only would the instant studies suffer a decline in quality but other equally pressing environmental studies would be jeopardized.
Findings Of Fact It is stipulated that Marine Industries Association of South Florida, Inc. (Petitioner), has standing to bring this rule challenge. It is also stipulated that Save The Manatee Club, Inc. (Intervenor), has standing to intervene in this rule challenge. The Department of Environmental Protection (Respondent) has the responsibility of implementing the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes, which involves interpreting the terms thereof. Respondent's responsibility includes promulgating rules to regulate motorboat speeds and their operation incident to the protection of manatees, pursuant to the Act. 4. Respondent's Rules 16N-22.001(2), 16N-22.002(20) and (21), Florida Administrative Code, set forth criteria for determining the state waters in which motorboat speed would be regulated for the protection of manatees. Also, Respondent's Rules 16N-22.010(1)(e) and (g), Florida Administrative Code, establish a seasonal slow speed zone on weekends for a certain area in the Intracoastal Waterway within Broward County and a year-round slow speed and buffer zone in a certain area in the Atlantic Intracoastal Waterway within Broward County for the protection of manatees. The manatee is an endangered marine mammal residing in the southern United States, principally in Florida, and has been declared by the State of Florida as its state marine mammal. Only 900 manatees are considered to be on the east coast of Florida. Respondent uses all available information on the presence of manatees, which includes actual visual sightings as well as any other method to identify their presence. Respondent refers to this information as "sightings." Respondent's information gathering procedure is consistent with established and accepted procedures for the gathering of information on manatees. Aerial surveys are part of the information relied upon by Respondent for its determinations regarding manatees. It is possible, and not uncommon, that aerial surveys may include sightings of the same mammal on different days. Whether a manatee is sighted frequently involves more than just numbers. It also includes a reasonable expectation that manatees will be seen. Aerial survey data is a minimum count to ascertain where the manatees are, not to determine how many exist or their population. Sixty-one aerial surveys were conducted in the waters of Broward County, excluding the Hillsboro Inlet, by Respondent and Broward County for Respondent. During the aerial surveys from 1988 to 1993, sixty-seven to sixty- nine sightings were made in the northern Intracoastal Waterway (NICW) in Broward County. Also, the aerial survey data showed sightings in seven out of twelve, five out of fifteen, and eleven out of eighteen flights. Manatees occasionally travel in the ocean. The aerial surveys included passes over the Atlantic Ocean. The NICW has lowlight transmission and high turbidity. Manatees travel two to five feet below the surface of the water. Because of water clarity, surface conditions and the fact that manatees must be at or very near the surface to be spotted, manatees are difficult to see in the NICW. The aerial surveys revealed an average of one sighting per flight. Lack of sightings in the aerial surveys reflect survey conditions as much as the absence of manatees. Manatees regularly move in and out of the Hillsboro Inlet zone. Manatees use the NICW in Broward County often and are frequently sighted there. When determining whether manatees inhabit an area, all data bases available should be used. The Intracoastal Waterway (ICW) is used by manatees for travel through Broward County. Aerial surveys of the NICW are performed at a lesser density than those performed of the power plants which are warm water refuges. Regular travel corridors constitute essential habitat. The NICW is a major travel corridor for manatees. They migrate through the NICW. Migration means purposeful movement from one point to another, as well as seasonal movement of species in mass. Manatees use the waters of the NICW and the power plants when moving back and forth between Port Everglades and Riviera Beach, and this exchange is documented. More than 200 manatees use both the Port Everglades and the Riviera Beach Power Plants (both warm water discharge areas) as warm water refuges, making repeated trips back and forth in single seasons. Thirty-Eight to forty-seven percent of manatees on the east coast use the Port Everglades area. Manatees inhabit areas where they are found. As to the waters of the ICW, they inhabit it on a regular basis. Moreover, manatees inhabit the NICW virtually continuously in winter and regularly or periodically in the off-winter months. Manatees inhabit Broward County year round, continuously in the winter months and regularly in the off-winter months. Although to a lesser degree, Respondent considers radio telemetry data in its determinations regarding manatees. Radio telemetry is a data gathering technique which is not experimental, but is less revealing when used with manatees. Telemetry data is hard to acquire in the NICW because manatees' behavior of resting and traveling deploys the tag being used in a way which is not available to the satellite. As a result, every tagged manatee is not seen on every satellite pass. Data from telemetry studies show that manatees predominantly travel the ICW, and extremely infrequently in the ocean, and have a regular exchange between the Port Everglades and Riviera Beach plants. Tagged manatees, when located visually, are found in association with others. The behavior of radio-tagged manatees is representative of the population of manatees as a whole. Manatees travel in groups in the NICW. A congregation of mammals means more than one mammal together, without assigning a reason for the congregation. Manatees congregate in areas where they are sighted in groups of two to three or more. All of the available information taken together indicates that manatees congregate in the NICW, using it on a regular and frequent basis. Respondent considers the entire NICW, including the Hillsboro Inlet zone, as a single unit when interpreting manatee sightings because of the types of manatee behavior observed and the character of the NICW. Respondent also considers anecdotal data in its determinations regarding manatees. Anecdotal data is useful for confirmation of, but not for providing new insights about manatees and their behavior. Anecdotal sighting data are consistent with and confirm what is known by Respondent from other sources about manatees. Motorboats kill, maim and disturb manatees. Manatees have scars on their bodies, which are caused by collisions with watercraft. Virtually all manatees have propeller scars and approximately 900 are documented in what is known as the Scar Catalogue. Scar patterns on manatees indicate numerous collisions, some nine to ten times. The Scar Catalogue also indicates that manatees move back and forth between the Port Everglades and Riviera Beach plants. Since 1974, when Respondent started compiling manatee mortality data, of the manatees recovered for which the cause of death could be determined, 522 were attributed to watercraft collision. Of the 522 watercraft collision deaths, twenty-seven manatees were recovered in Broward County, which represents over one-half of the total manatee deaths in Broward County for which the cause of death could be determined. However, the recovery data fails, and is unable, to show where within the ICW or NICW the manatees were struck. After a collision, manatees will seek out a quiet area. It is not unusual and is expected that injured manatees in Broward County will seek refuge at the Port Everglades. Boat traffic poses a threat to manatees. Increased or higher boat traffic poses an elevated or even greater risk to manatees. Broward County waters are utilized by large numbers of boaters. In addition to Broward boaters whose boat registrations have increased eighteen percent between 1986 and 1991, boaters from Dade and Palm Beach Counties and in winter from out-of-state use Broward waters. Boating traffic in Broward County and the NICW is heavier on weekends than on weekdays. There is no change in the traffic for Broward County in the winter months from November through March. More boating occurs during the day than at night on the NICW. A survey of boaters in Broward County relied upon by Respondent indicated that over fifty percent of boaters leave between 8:00 a.m. and noon and return between 2:00 p.m. and 6:00 p.m.; that eighty-four percent of those surveyed were in favor of speed limits to protect manatees; and that fifty-nine percent of those surveyed were in favor of slow speed for the whole county on weekends and holidays from November to March. Comparatively, Respondent's slow speed rule is substantially less stringent than that which was found acceptable by those surveyed and not as stringent as recommended by the federal Fish and Wildlife Service. Several local governments in the NICW adopted resolutions calling for more stringent regulations than Respondent's rule. In an effort to lessen the interference with boaters while also providing an area of protection for manatees in the NICW, the 25 mph speed limit with the fifty-foot buffer zone was adopted. A slow speed zone in the NICW will enhance boating safety. At slow speed, only boats with propeller-on-shaft and a rudder will exhibit an unsafe condition referred to as wobbling. However, virtually no typical recreation boat which is under thirty feet is configured that way.
The Issue The issue is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County). Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since 1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments. Plan Provisions The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.” Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations. Overlay Section A.1 provides: Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through): For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.” Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.” Conservation Objective 1.1 states: By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . . The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As a Plan provision, this overlay does not directly protect any natural resources. The Plan contains definitions to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.” A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . .. Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process. DCA Review of the Proposed Plan Amendments The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b). By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.” The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD). The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.” The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments. Data and Analysis In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps). The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions: Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost the nutrition of deer, which would also assist the panther. Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs. Id. at page 16. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the panther . . ..” Id. at page 34. The first of several recommendations contained in the Habitat Preservation Plan is to: Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther. Id. at page 37. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study. Id. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . ..” Id. at page 173. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis. Internal Consistency Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.” Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1. Consistency with the State Comprehensive Plan As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.” Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Attorney Thomas W. Reese 2951 61st Avenue South St. Petersburg, Florida 33712 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Ramiro Manalich Chief Assistant County Attorney Marjorie M. Student Assistant County Attorney Collier County Attorney Office 8th Floor, Administration Building 3301 Tamiami Trail East Naples, Florida 34112-4902 C. Laurence Keesey Young, van Assenderp & Varnadoe, P.A. SunTrust Building 801 Laurel Oak Drive, Suite 300 Naples, Florida 34018 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
