Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population. The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay. There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population. Venetian Causeway The Venetian Causeway, which was completed in 1926, is the oldest of these causeways. It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway. Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads. Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair. The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided. As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested). While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian. Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth. As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach. The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland. In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands. At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway: WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA, that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing as a historic place in the National Register while preserving its character and appearance. On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows: WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and, WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and, WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach. NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway. On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989. The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989. Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource. Belle Isle Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west. To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units. There is also a large vacant lot on the south end of the island. There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel. The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa). Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units. There has not been any recent development on the north end of Belle Isle. The units that are furthest south on Belle Isle are only 300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island. Stortford Parcel Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units. Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project. Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction. The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces. On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building. The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions: This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval. If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee). [The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted. The permit had an expiration date of July 30, 1990. No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought. On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline. The building permit issued for the Stortford project on January 31, 1990, is now void. No actual construction work has yet been done in connection with the project. Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's. Prior Zoning/Land Use Designations of Belle Isle Property From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE). In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle. In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet. Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications. Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective. Petitioners Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach. Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live. Petitioner Benson resides in a single-family house that she owns on Di Lido Island. Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island. The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/ The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Beaches Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan. The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings. While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however. Contents of the Plan and Supporting Data and Analysis The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City. The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses. Neighborhood studies were also used to develop the FLUM. Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City. Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area: West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle). Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction. Both the south and north ends of Belle Isle are designated RM-2 on the FLUM. RM-2 is a medium intensity, multifamily residential land use designation. The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR). Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot. Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan. The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification. Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in selecting a land use designation was in accordance with sound land use planning techniques. While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation. The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial. In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans. The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/ Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal: Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities. As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation." The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation: OBJECTIVE 4 The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale force winds shall be maintained or lowered by 1995. 9/ Policy 4.1 All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay. Policy 4.2 The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites. Policy 4.3 The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency. Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement. Policy 4.4 All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species. Policy 4.5 The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation. Policy 4.6 The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization. Policy 4.7 The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced. Policy 4.8 Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations. Policy 4.9 Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan. Policy 4.10 Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center. Policy 4.11 By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure. OBJECTIVE 5 Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies: Policy 5.1 Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and resource restoration. (See Coastal Zone Management.) Policy 5.2 The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan. Policy 5.3 New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements. Policy 5.4 Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line. No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest. Policy 5.5. During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure. Policy 5.6 During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan. Policy 5.7 Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise. Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element. Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through 5.7 of this element. Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/ Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan. As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
The Issue Whether City of Marathon (“Marathon”) Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018 (the “Marathon Plan Amendment”); City of Key West (“Key West”) Comprehensive Plan Amendment 19-06, adopted on April 4, 2019 (the “Key West Plan Amendment”); and Islamorada, Village of Islands (“Islamorada”) Comprehensive Plan Amendment 19-03, adopted on March 5, 2019 (the “Islamorada Plan Amendment”) (collectively, the “Plan Amendments”), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Ms. Mattino resides in Marathon with her daughter and her fiancé. She submitted written objections to Marathon regarding the Marathon Plan Amendment prior to the October 23, 2018 public hearing at which Marathon adopted the Plan Amendment. 3 John H. Paul, Viral Tracer Studies Indicate Contamination of Marine Waters by Sewage Disposal Practices in Key Largo, Florida, Applied and Envtl. Microbiology, 2230-34 (June 1995). Ms. Mattino’s daughter is severely disabled, requires specialized equipment (including a specialized wheelchair), and requires full-time care, for which Ms. Mattino relies upon a variety of caretakers. Her daughter has to be transported in a specially-equipped vehicle to accommodate the wheelchair and other equipment. In the event Ms. Mattino is required to evacuate for a hurricane, she will need to bring an additional vehicle to transport her daughter’s medical equipment, which requires additional personnel. Prolonged car rides are dangerous for Ms. Mattino’s daughter because she has a seizure disorder that worsens when she is aggravated or stressed. Prolonged car rides are also stressful for Ms. Mattino, who has high blood pressure and has had several heart attacks. Ms. Mattino evacuated for Hurricane Irma and testified that she encountered heavy traffic, which was made more stressful by the need to stop approximately every two hours to attend to her daughter’s medical needs. Ms. Mattino claims that if the Plan Amendments increase the amount of time it takes her to evacuate the Florida Keys before a hurricane, it would cause additional stress and would put her and her daughter’s health at risk. Ms. Mattino maintains these concerns are unique to her and her family and that emergency evacuation is more difficult and dangerous for her and her family than it is for the general public. Ms. Bosworth resides in Islamorada with her daughter, son-in-law, and their two children. She submitted written objections to the Islamorada Plan Amendment prior to the April 4, 2019 public hearing at which Islamorada adopted the Plan Amendment. Ms. Bosworth previously evacuated for Hurricanes Andrew and Irma, which required preparation time to gather her pets, pack pet supplies, and secure her boat, as well as secure her outdoor belongings and put up her hurricane shutters. Securing her boat and putting up her shutters requires the assistance of her son-in-law. Ms. Bosworth believes her circumstances are unique because her son-in-law is a fire fighter and paramedic in Parkland, Florida, and is not always available to help her prepare her property for a hurricane. Ms. Bosworth claims that if traffic congestion increases or worsens as a result of the Plan Amendments, it would affect her and her family because she would be concerned that she would get stuck on the highway while trying to evacuate for a hurricane. Further, Ms. Bosworth testified that she and her family enjoy going out on the boat and snorkeling and that if Islamorada’s nearshore water quality became degraded or impaired it would affect her quality of life. Ms. Girard is a resident of Key West. She submitted oral or written objections to the Key West Plan Amendment prior to the March 5, 2019 public hearing at which Key West adopted the Plan Amendment. Ms. Girard testified that, due to her and husband’s marine-based business and residential tenants, she and her husband would wait until the very last minute to evacuate regardless of when an evacuation advisory was issued by the Monroe County Emergency Management Office. Ms. Girard did not evacuate for Hurricane Irma or any other hurricane since moving to a site-built home in Key West in 2007.4 Marathon, Islamorada, and Key West, are all municipalities with the duty and authority to adopt a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2019). Background In 1972, the Florida Legislature enacted the Environmental Land and Water Management Act, which provided the basis for state designation of Areas of Critical State Concern (“ACSC”).5 The statute provides criteria for 4 Ms. Girard previously lived on vessels in the Key West area. 5 The Environmental Land and Water Management Act was enacted prior to the 1985 Growth Management Act, chapter 163, part II, when most local governments did not have programs and personnel to guide development in a manner that would ensure protection of natural resources. designating an ACSC, which is generally “[a]n area containing … environmental or natural resources of regional or statewide importance,” such as wildlife refuges, aquatic preserves, and state environmentally endangered lands. § 380.05(2), Fla. Stat. (2019).6 In 1974, the Florida Keys (Monroe County and its municipalities) were designated an ACSC due to the area’s environmental sensitivity and mounting development pressures. The designation was effectuated by the adoption in 1979 of section 380.0552, Florida Statutes, the “Florida Keys Area Protection Act.” The Act establishes the legislative intent to establish a land use management system that, among other things, “protects the natural environment,” “conserves and promotes the community character,” “promotes orderly and balanced growth in accordance with the capacity of available and planned public facilities and services,” and “promotes and supports a diverse and sound economic base” in the Keys. § 380.0552(2), Fla. Stat. (2019). The ACSC designation transferred all local Keys planning and development review and approval rights to the state land-planning agency, the Florida Department of Community Affairs (“DCA”).7 While the Keys local governments can adopt and amend their plan and land development regulations, those provisions do not take effect until approved by administrative rule. See § 380.0552(9), Fla. Stat. 6 The statute contains additional specific criteria for designation, including the economic and ecological value of the area; presence of critical habitat of any state or federally designated threatened or endangered plant or animal species; inherent susceptibility to substantial development due to its geographical location or natural aesthetics; and the anticipated effect of development on the environmental or natural resources of regional or statewide importance. § 380.05(2), Fla. Stat. (2019). 7 The 2011 Legislature transferred the DCA Division of Community Planning, via Type II transfer, to the Department of Economic Opportunity. See ch. 2011-142, § 3, Laws of Fla. In 1986, Monroe County updated its comprehensive plan to be consistent with the 1985 Growth Management Act.8 Several administrative challenges followed, initiated by both DCA and private entities and individuals. Monroe County revised its comprehensive plan in 1993 to resolve many of the issues raised in the litigation, but those amendments were again challenged in administrative proceedings. The second challenge culminated in a final order of the Administration Commission in 1995 finding the 1993 Monroe County Plan not “in compliance,” with the Act and the Principles for Guiding Development in the Keys ACSC (“the Principles”), which are adopted by rule of the Administration Commission. The Final Order found that “the environment of the … Keys is the very essence of Monroe County’s economic base. The uniqueness of the environment … and the current condition of the environment must be addressed in any growth management decision[].” DCA v. Monroe Cty., 1995 Fla. ENV LEXIS 129 (Fla. ACC 1995). The litigation highlighted aspects of the Florida Keys ecosystem as having limited capacity to sustain additional impacts from development. Of particular concern was the declining water quality of the nearshore environment due to lack of central sewer facilities, the loss of habitat for state and federally-listed species, public safety in the event of hurricanes, and a deficit of affordable housing. Relevant to Petitioner’s challenge, the Final Order found that the ability of the nearshore waters of the Keys to withstand additional degradation from sewage and stormwater discharges “has already been reached or even exceeded,” and that development of the Keys “is degrading the nearshore waters at or over carrying capacity.” 8 The Growth Management Act was significantly amended and renamed the “Community Planning Act,” by chapter 2011-142, Laws of Florida. The 1995 Final Order required Monroe County to undertake certain “remedial actions” in order to bring the Plan into compliance with both the Act and the Principles, which are adopted in section 380.0552. Among the remedial actions was the requirement that Monroe County establish a Permit Allocation System (“PAS”) for new residential development. The Administration Commission explained, as follows: The [PAS] shall limit the number of permits issued for new residential development … provided that the hurricane evacuation clearance time does not exceed 24 hours …. The County shall adjust the allocation based upon environmental and hurricane evacuation constraints and … to account for permits and vested units in … the Keys. Monroe County amended its plan in 1996 to implement the PAS and other remedial actions, and adopted a “carrying capacity approach” to planning in the ACSC. The amended comprehensive plan was approved by rule of the Administration Commission—Florida Administrative Code Rule 28-20, which also established a comprehensive work program designed to improve the Keys’ water quality and protect the habitat of threatened and endangered species. The rule was subject to another administrative challenge, and the Division issued a final order upholding the rule in 1997. See Abbott v. Admin. Comm’n, Case No. 96-2027RP (Fla. DOAH May 21, 1997). The Carrying Capacity Study The work program adopted by the rule included the requirement to conduct a “carrying capacity analysis” for the Florida Keys. Florida Administrative Code Rule 28-20.100 provided, “The carrying capacity analysis shall be designed to determine the ability of the Florida Keys ecosystem, and the various segments thereof, to withstand impacts of additional land development activities.” The rule established that the analysis should be based on the findings adopted by the Administration Commission on December 12, 1995, “or more recent data that may become available in the course of the study,” and upon the benchmarks of, and all adverse impacts to, the Keys natural land and water systems, in addition to the impacts of nutrients on marine resources. The study was undertaken beginning in 1996 and was sponsored jointly by DCA and the Army Corps of Engineers (“the Corps”) and involved 38 separate state and federal agencies. The study modeled a series of future development scenarios, as well as redevelopment and restoration scenarios. The Final Report9 of the Florida Keys Carrying Capacity Study (“FKCCS”) was issued in September 2002. The major findings include the following: Development suitability in the Florida Keys is extremely restricted, due to the following characteristics: Existing development has displaced nearly 50 percent of all upland habitats, and remaining uplands are distributed in patches of 10 or fewer acres; almost every native area is potential habitat for one or more endangered species; over 50 percent of all private lands are wetland parcels, and development suitability of remaining lands is low or marginal due to open space requirements, lack of infrastructure, and other factors. Future growth is limited in the next 20 years— less than 10 percent growth in the number of dwelling units and population—due to infrastructure limitations. Permitted capacity of potable water withdrawals was exceeded in 1999 and 2000; improvement of hurricane evacuation clearance times is dependent on structural improvements to U.S. Highway 1, which will increase government costs, nutrient loading, and indirect impacts to wildlife and 9 The document introduced in evidence is titled “Draft Final Report.” According to the testimony of Rebecca Jetton, no other final report was issued by the study sponsors. habitats; and residential capacity is limited to 6,000 units in order to maintain the state- mandated level of service for roadways. All six future scenarios would result in disproportionate increase in government expenditures with respect to increased population, which will require increased taxation on both local residents and tourists. The existing data “are insufficient to establish quantitative, predictive relationships between land use or development and the marine environment.” The study documented human impacts to the marine ecosystem and species. The study underscores the benefits of wastewater treatment, “but other impacts are more related to resource management than to land development.” The study provides the following four major guidelines for future development in the Florida Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. Rule 28-20.001 required the findings of the FKCCS to be implemented by “adoption of all necessary [comprehensive plan] amendments to establish a rate of growth and a set of development standards [to] ensure that any and all new development does not exceed the capacity of the county’s environment and marine system to accommodate additional impacts.” The study would provide the state and the Keys local governments with an analytical tool to support future comprehensive plan amendments and revisions of land development regulations. Hour Hurricane Evacuation In 2006, following the publication of the FKCCS, the Legislature amended section 380.0552 to require the local governments to adopt provisions in their comprehensive plans to “protect the public safety and welfare in the event of a natural disaster by maintaining a hurricane evacuation clearance time for permanent residents of no more than 24 hours.” § 380.0552(4)(e)2., Fla. Stat. (2007). The requirement remains in effect and is enforced by the state through review of local government plan amendments. See § 380.0552(9)(a)2., Fla. Stat. ROGO and BPAS Principle among the Monroe County amendments to implement the remedial actions ordered by the Administration Commission was the PAS, implemented in the County by a Rate of Growth Ordinance (“ROGO”). The current version of the administrative rule approving the County’s comprehensive plan is rule 28-20.140, which also governs and approves ROGO. The rule provides the maximum number of permits for residential development that may be issued annually, with a split between affordable and market rate units. The current cap is 197 units per year, with a minimum of 71 units allocated for affordable housing and a maximum of 126 market rate units. Any unused affordable housing units “roll over” for affordable housing units the following year. Other unused allocations may be rolled over and used for affordable housing units or “administrative relief.”10 Islamorada and Marathon were not yet incorporated when the comprehensive plan litigation began and subsequent remedial measures were issued. Since their incorporation, each of the cities has been brought under the umbrella of the ACSC designation. The cities’ respective comprehensive plans and land development regulations are subject to the same review and approval authority of the Administration Commission, and are subject to similar work plans to implement the remedial measures required by the commission. The applicable administrative rules are chapter 28-19 for Islamorada and chapter 28-18 for Marathon. Marathon and Islamorada have permit allocation requirements similar to Monroe County, known as the Building Permit Allocation System (“BPAS”). Their respective administrative rules provide the annual maximum number of permits and the split between affordable and market rate units, as well as the rules governing rollover of unused allocations.11 BPAS is a competitive system. Permit applications are awarded points based on their alignment with specific development criteria, such as presence or absence of wetlands or protected habitat, and availability of public services. Those applications with the highest points are awarded available permits for the BPAS year. 10 Unused allocations may be provided to applicants who have been denied a permit, despite having met all the requirements of the land development regulations, if they have been in the allocation system for a significant number of years. 11 Marathon’s annual cap is 30 units and Islamorada’s is 28 (22 market rate and 6 affordable housing). Work Program Each of the municipalities’ governing rules includes a work program, broken down into the following categories: (1) carrying capacity implementation; (2) wastewater implementation; and (3) wastewater project implementation. Marathon’s work program includes a fourth category— stormwater treatment facilities. The specific activities of each work program differ somewhat. For example, with respect to environmentally-sensitive lands, Islamorada was required to apply for land acquisition funds, while Marathon was required to apply and adopt land development regulations limiting permit allocations in high quality habitats. Monroe County was required to adopt conservation planning mapping into its comprehensive plan. The wastewater implementation and wastewater project implementation sections of the work programs are of high importance. The litigation highlighted the declining water quality of the nearshore environment due to a lack of central sewer facilities. The Keys’ wastewater treatment “system” consisted of a hodgepodge of some 23,000 septic tanks, 2,800 cesspits, and at least 249 small package treatment plants. The work program represents a monumental, long-term, and expensive12 infrastructure project to build a central sewer system in the Keys, followed by a program to require existing developments to connect to the system, and land development regulations to direct new growth to areas served by central wastewater treatment facilities. Each local government work program includes specific target dates to obtain funding for, and construction of, each component of the sewer system, as well as specific target 12 In both 2012 and 2016, the Florida Legislature authorized expenditure of Everglades restoration bond funds for Florida Keys wastewater and stormwater management projects; and, in 2016, appropriated $5 million in Florida Forever funds for said projects for the 2016/2017 year. More than $13 million was included in the general appropriations act for said projects in the 2017/2018 year. dates for initiating and completing connections of existing development to the newly-constructed system. Monroe County’s work program also includes directives for funding stormwater improvement projects and deadlines for completing said projects. ACSC Annual Reports The local governments and the Department of Economic Opportunity (“DEO”) are required to report to the Administration Commission annually documenting “the degree to which work program objectives for the work program year[13] have been achieved.” Achievement of work program objectives is directly tied to the BPAS and ROGO—if the Administration Commission finds that work program objectives have not been achieved, it can reduce the unit cap for residential development by 20 percent for the following year.14 Additionally, through the BPAS and ROGO, the local governments are required to direct new growth to areas served by central sewer. Each application for building permit is awarded an additional four points15 if the parcel is served by central sewer meeting statewide treatment standards. In the 2017 ACSC annual report, the most recent report for which the parties requested official recognition, Islamorada reported it had connected 85 percent of potential customers (with another five percent in the application process), Marathon had connected 97 percent, and Monroe County had an overall connection rate of 86 percent (with higher percentages for specific individual treatment facilities). 13 The work program year runs from July of one year to June of the following year. 14 The Islamorada rule does not contain this provision; however, it does provide that, if the Administration Commission determines progress has been made for the work program year, then the Commission “shall restore the unit cap” of 28 allocations for the following year. It is unclear whether Islamorada was already under penalty when the new rule was adopted or whether this is an oversight in the rule. 15 In Islamorada, the award is two additional points. City of Key West Key West challenged its inclusion in the original ACSC designation, and, in 1984, was designated as a separate area of critical state concern (“the Key West ACSC”), effectuated by the adoption of Florida Administrative Code Chapter 28-36. The Key West ACSC is subject to the same land planning and development regulation oversight as the Florida Keys ACSC, and the Key West comprehensive plan and land development regulations are approved by the state through Florida Administrative Code Chapters 28-37 and 9B-30. Key West is subject to separate principles for guiding development than the Florida Keys ACSC, which are found in rule 28-36.003. Key West is served by central sewer and does not have work program tasks. Hurricane Evacuation Clearance Time The work program requires the local governments within the Florida Keys ACSC to enter into a Memorandum of Understanding (“MOU”) with the DEO, the Division of Emergency Management, and each of the other Keys local governments, to stipulate to the input variables and assumptions for utilizing the Florida Keys Hurricane Model, or other models acceptable to DEO, to accurately depict hurricane evacuation clearance times for the population in the Keys. The work program required, by July 1, 2012, the local governments to run the model with the agreed upon variables from the MOU “to complete an analysis of the maximum build-out capacity for the ACSC, consistent with the requirement to maintain a 24-hour evacuation clearance time and the [FKCCS] constraints.” DEO appointed a Hurricane Evacuation Clearance Time Work Group (the “Work Group”) including members of each of the six local governments and representatives from the tourism industry, chambers of commerce, and community organizations, as well as from state and federal agencies. The Work Group held a series of public workshops to consider hurricane model inputs—census data, behavioral studies, hurricane forecasting, military evacuation procedures, traffic flow rates, and number and location of vacant platted lots. The Work Group selected the Division of Emergency Management’s Transportation Interface for Modeling Evacuations (“TIME”) as the model to accurately depict evacuation clearance times for the population of the Keys ACSC and the Key West ACSC (“the Florida Keys ACSCs”). The Work Group agreed on 10 modeling assumptions, including the number of tourist units, and of those, the number occupied; the number of mobile home units and evacuation participation rates; and the number of site-built units, the occupancy rate, and participation rate of residents in those units, among other important variables. The inputs and assumptions were tested by modeling over 100 evacuation scenarios. The Work Group presented its findings on June 8, 2012, and selected evacuation scenario M5, which provided for continuation of then-existing annual building permit allocations that were adopted by rule or comprehensive plan amendment (with the exception of Key Colony Beach and Key West). Scenario M5 produced an evacuation clearance time of 24 hours with a future allocation of 3,550 new residential building permits. Notably, scenario M5 assumed that military, mobile home residents, and tourists would evacuate during Phase I of what DEO described as a two- phase evacuation plan. Further, M5 assumed that 15 percent of existing mobile homes would convert to site-built homes. In the two-phase evacuation plan, tourists are ordered to evacuate 48 hours in advance of predicted tropical storm force winds, and residents of mobile homes are ordered to evacuate 36 hours in advance. The model predicted an evacuation clearance time of 16 hours and 30 minutes for Phase I using tourist occupancy rates for July, and 17 hours and 30 minutes using tourist occupancy rates for the Labor Day weekend. Under Scenario M5, residents of site-built units are ordered to evacuate 30 hours in advance, giving those residents six hours of lead time to secure property and make other preparations. Under scenario M5, all site- built residences were evacuated within 24 hours of predicted tropical storm force winds, including an additional 3,550 units. As such, the work group determined 3,550 units to be the maximum buildout of the Keys through 2023 to maintain the 24-hour hurricane evacuation mandate in section 380.0552. The Work Program directed DEO to “apply the derived clearance time to assess and determine the remaining allocations for the [ACSC]” and recommend revisions to the allocation rates and distribution of allocations to the six local governments, as well as any recommended changes to the local government comprehensive plans. DEO completed that task, and determined that a maximum of 3,550 additional units could be distributed over the next ten years, beginning in July 2013. On November 5, 2012, Monroe County, Marathon, Islamorada, Key Colony Beach, Key West, the City of Layton, the Division of Emergency Management, and DEO, entered into an MOU agreeing on the use of the TIME model, as well as the data, input variables, and assumptions to be utilized in model runs. The following “whereas” clause succinctly provides the results of the M5 scenario: WHEREAS, from among the scenarios provided by DEO at the June 8, 2012, Work Group meeting, Scenario M5 included the 2010 Census site-built units (43,760 units); the maximum number of residential building permits for new construction for all Local Governments per year for 10 years (annually, County 197, Marathon 30, Islamorada 28, Key West 90, Key Colony Beach 6, and Layton 3); 1,248 mobile home units projected to convert to site-built units; the exclusion of 870 dwelling units on the Naval Air Station; as well as two (2) functional evacuation lanes from MM 108-126. Further the work group recommended Scenario M5 with the provision that the City of Key West would transfer annually (by July 13th) any remaining or unused (90 allocations) allocations to the other Local Governments based upon the Local Governments’ ratio of vacant land. Technical corrections made after the June 8, 2012 meeting, the census- based number of site-built units was revised to 43,718 and the Key West allocation was revised to 91. The MOU also memorializes the following staged evacuation procedure: Approximately 48 hours in advance of tropical storm winds, mandatory evacuation of non-residents, visitors, RVs, travel trailers, live-aboard vessels (transient and non-transient), and military personnel. Approximately 36 hours in advance, mandatory evacuation of mobile- home residents, special needs residents, and hospital and nursing home patients. Approximately 30 hours in advance, mandatory phased evacuation of permanent residents by evacuation zone.[16] The phased evacuation procedure is also adopted in each of the local government comprehensive plans, except Key West, which adopted the procedure by resolution. Affordable Housing The need for additional affordable housing in the Keys is well documented, and the parties stipulated, generally, to the need. Numerous factors contribute to the need for affordable housing, including, but not limited to, the high cost of living, higher construction costs, the high cost of land, as well as the limited supply and high demand for real estate and housing throughout the Florida Keys. The need for affordable housing was exacerbated by Hurricane Irma, which made landfall in the Florida Keys in September of 2017 and destroyed approximately 400 mobile 16 There are five hurricane evacuation zones in the Keys designated by mile marker numbers along US 1. homes, “permanent RV’s,” and ground-level single-family homes that served as affordable housing, many for members of the Keys workforce. Most of the site-built homes destroyed were not built to current building code standards, but were “grandfathered” from code compliance. Those structures must be rebuilt to code, which will likely take them out of financial reach of members of the Keys workforce. Provision of affordable housing is an important aspect of the regulatory framework for planning in the Keys. The litigation over the Monroe County comprehensive plan highlighted a deficit of affordable housing in the Keys. Among the Principles is the requirement to “[make] available adequate affordable housing for all sectors of the population” of the Keys. § 380.0552(7)(l), Fla. Stat. When designating the ACSC, the Legislature expressed the intent to “[p]rovide affordable housing in close proximity to places of employment” in the Keys. § 380.0552(2)(d), Fla. Stat. The Keys Workforce Housing Initiative Shortly after Hurricane Irma, Marathon began discussions with DEO about the possibility of obtaining additional building permit allocations for workforce-affordable housing. In November 2017, Marathon passed Resolution 2017-99 requesting the allocation of 300 affordable housing allocations from DEO with approval of the Administration Commission. DEO determined there were not enough building permits available under the current regulatory structure to address the need for affordable housing in the Florida Keys. As a result, DEO developed the Keys Workforce Affordable Housing Initiative (the “Housing Initiative”) to allow up to 1,300 new building permit allocations for workforce housing throughout the Florida Keys, with an initial allocation not to exceed 300 per local government. Under the Housing Initiative, the additional units are to be deed- restricted for workforce affordable housing and required to evacuate in Phase I, along with tourists, visitors, mobile home residents, and military personnel. The Administration Commission approved the Housing Initiative at the June 13, 2018 meeting. In support of the Housing Initiative, DEO staff made a presentation asserting that the Phase I evacuation (under the existing staged evacuation plan) can be accomplished in 17.5 hours, leaving additional capacity of 6.5 hours in Phase I. DEO concluded that the Housing Initiative “will not interfere with the 24-hour evacuation model and satisfies the statutory mandate to provide affordable housing.” Following approval by the Administration Commission, DEO worked with Marathon and other local governments to amend their comprehensive plans to implement the Housing Initiative. The Plan Amendments The Marathon Plan Amendment creates a new Future Land Use (“FLU”) goal stating the intent to participate in the Housing Initiative approved by the Administration Commission. It further creates a new FLU Objective establishing a “new limited category” of building permit allocations known as “Affordable – Early Evacuation Pool” providing 300 workforce affordable building permit allocations in addition to the allocations identified in chapter 28-18. The Marathon Plan Amendment creates five new FLU policies. The first allows for distribution of the allocations “at any time” provided applicable Marathon public notice and hearing procedures are followed and the distribution is based on the BPAS ranking procedures in effect. The second policy provides the following “Specific Standards and Requirements for Workforce Affordable Housing”: Affordable-Early Evacuation residential units under this program shall: be multifamily structures; be rental units; require, at a minimum, adherence to the latest edition of the Florida Building Code[]; not be placed in the V-Zone or within the Coastal Barrier Resource Systems; require on-site property management; comply with applicable habitat and other locational criteria and densities for multifamily affordable housing units; shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock, or fresh water wetlands (disturbed categories excepted); incorporate sustainable and resilient design principles into the overall site design; ensure accessibility to employment centers and amenities; and require deed-restrictions ensuring: the property remains workforce-affordable housing in perpetuity; tenants evacuate during the period in which transient units are required to evacuate; rental agreements contain a separate disclosure requiring renters to acknowledge that failure to adhere to the evacuation requirement could result in severe penalties, including eviction, to the resident; and on-site property managers are formally trained in evacuation procedures. The third policy exempts from the early evacuation requirement all first responders, correctional officers, health care professionals, or other first- response workers required to remain during an emergency. The fourth policy requires the workforce-affordable developments to comply with federal accessibility standards. The last policy requires Marathon to provide DEO with an annual report on the implementation of the Housing Initiative, including documenting the number of workforce-affordable housing units built, occupancy rates, and compliance with the early evacuation requirement. The report is to be included in the DEO annual work program report to the Administration Commission. Islamorada’s plan amendment provides 300 workforce-affordable building permit allocations in addition to the allocations identified in chapter 28-19. In all other respects the amendment is identical to the Marathon Plan Amendment. The Key West Plan Amendment approves the receipt of 300 workforce- affordable building permit allocations “as well as any additional allocations which may be authorized by the Florida Administration Commission or transferred to Key West that are not accepted by other Florida Keys municipalities or Monroe County.” Rather than authorizing distribution of the allocation “at any time,” Key West authorizes distribution “on a first- come first-served basis and at any time” following public notice and hearing procedures. Allocation of the Key West permits is not required to follow BPAS ranking unless the number of applications received exceeds the authorized allocation. There are also two minor differences in the “Standards and Requirement for Workforce-Affordable Housing” in the Key West Plan Amendment: it does not contain the paragraph prohibiting placement of units in buttonwood and hardwood hammock; and it does not require that property managers be trained in evacuation procedures. Otherwise, the Key West Plan Amendment is virtually identical to that adopted by Marathon and Islamorada. Petitioners’ Challenges Petitioners challenge the Plan Amendments, generally, as inconsistent with the FKCCS and the carrying capacity approach to planning in the Keys. The two main contentions are hurricane evacuation and environmental concerns. Hurricane Evacuation Petitioners posit that the Plan Amendments violate the Principles and the MOU17, and render the local government comprehensive plans internally inconsistent, by exceeding the requirement to evacuate the Keys permanent population in no more than 24 hours. Petitioners also argue the plan amendments are not supported by adequate data, and a professionally- acceptable analysis thereof, on hurricane evacuation clearance times. At first blush, Petitioners’ argument has merit: the Plan Amendments allow up to 1,300 units to be built in the Keys beyond the previously- established maximum buildout of 3,550 units through the year 2023. That buildout number was derived directly from the Work Group after agreement on all assumptions and inputs for, and multiple runs of, the agreed-upon TIME model, and identification of the M5 scenario as the best model for evacuation of permanent population within 24 hours. It is undisputed that the new residential units to be allocated under the Housing Initiative will house permanent residents. That fact alone is not in direct conflict with the 24-hour evacuation requirement because, as implemented, the evacuation plan requires some permanent residents— residents of mobile homes, “permanent RVs,” live-aboard vessels, and military personnel—to evacuate in advance of the start of the 24-hour clock. 17 As explained in the Conclusions of Law, Petitioners’ contention that the Plan Amendments are inconsistent with the MOU is rejected. Inconsistency with the MOU is not a statutory compliance issue. That requirement is incorporated into the local government comprehensive plans which have previously been found to be “in compliance”—meaning both internally consistent and consistent with the Principles. Petitioners introduced the testimony of Richard Ogburn, a planning expert who has extensive experience with hurricane evacuation modeling in South Florida, including the Keys. Mr. Ogburn was directly involved in the Work Group hurricane evacuation modeling that culminated in the 2012 report and adoption of the MOUs. As Mr. Ogburn explained, Monroe County was the first local government in the state to update its hurricane evacuation modeling based on the 2010 census data. It was to be a pilot for updating the statewide regional evacuation plan utilizing the new census data. Specifically, Mr. Ogburn, who was at the time employed by the South Florida Regional Planning Council, extracted demographic data from the 2010 census and created the demographic data base for use with the TIME model. Mr. Ogburn subsequently completed “validation runs” of the TIME model results generated by DEO staff during the Work Group process.18 In 2013, while Mr. Ogburn was working on the update to the statewide regional evacuation model, Mr. Ogburn discovered some blank cells within the census block group data sets in the original spreadsheet he had created for DEO. The missing information was the number of vehicles identified within those specific census block groups. With respect to Monroe County, eight of the 76 block groups were missing vehicle data. Mr. Ogburn found an alternative data source from which to derive the number of vehicles in the associated census block groups and reran the model for purposes of updating the statewide regional model. In 2014, Mr. Ogburn reported the census data errors to DEO, which requested he rerun scenario M5 after including the missing vehicles. The result was an increase of two- 18 The validation process involved input of the data parameters into the model and repeating the same model run scenarios to ensure that the results from the initial runs were replicated. and-a-half hours for evacuation of Phase II—a total clearance time of 26.5 hours. Mr. Ogburn testified that, based on the best-available data on hurricane evacuation clearance times, the evacuation of site-built dwellings in the Keys already exceeds the 24-hour evacuation standard mandate by statute (and incorporated into Respondents’ comprehensive plans). In his opinion, adding units authorized by the Housing Initiative would further exacerbate the problem. Petitioners introduced other evidence aimed at tearing down the conclusion of the Work Group that the Keys could be safely evacuated in under 24 hours, based on the 2012 TIME model runs. For example, Mr. Ogburn questioned the vacancy rates utilized by the Work Group, which he described as “most likely” too high. Mr. Ogburn cast doubt on the 100% participation rate assumption, and the assumed 12-hour response curve, which he testified was unrealistic given that people will not leave at the same rate if the evacuation is ordered at midnight as they would if the order was given at 7:00 a.m. Petitioners likewise introduced evidence casting doubt on the ability of meteorologists to predict storms with accuracy 48 hours in advance of landfall. The Keys local government comprehensive plans, as adopted with use of the TIME model, and all underlying assumptions and inputs, have previously been determined to be “in compliance.” The question of whether those assumptions and model inputs are supported by data and analysis is not properly before the undersigned in this proceeding. The evidence was, for the most part, irrelevant.19 The Housing Initiative is grounded on the availability of evacuation time in Phase I of the agreed evacuation procedure, which is adopted in each of the local government comprehensive plans. Mr. Ogburn agreed on cross- 19 Moreover, the evidence served to undercut Petitioners’ argument that the best available data and analysis supports the 24-hour evacuation clearance time cap. examination, that the TIME model was run separately for Phase I and Phase II, that the results from Phase I were not taken into consideration in the data for Phase II, and that if the units are presumed to evacuate in Phase I, it would have no effect on the analysis for Phase II. Notably, when Mr. Ogburn was asked directly whether the additional 1,300 units added to permanent population would cause the Keys evacuation time to exceed 24 hours, Mr. Ogburn testified: If the evacuation takes place ahead of time, it’s a different question and I don’t have a clear answer for that because I have not had the opportunity to run the model to determine whether or not that would cause the clearance times in the original phase to increase significantly.[20] The 2012 run of the TIME model demonstrated a clearance time in Phase I of 16 hours and 30 minutes, or 17 hours and 30 minutes, depending on the transient occupancy rate utilized. Respondents introduced the testimony of Joaquin Vargas, a traffic engineering consultant who was accepted as an expert in transportation planning, including roadway capacity issues related to hurricane evacuation. Mr. Vargas participated in hurricane evacuation modeling in the Keys in the 1990s to determine potential roadway improvements that could reduce Keys evacuation clearance time. Mr. Vargas was the principal author of the “Miller Model,” which was utilized in these studies. Mr. Vargas’ modeling was not based on a two-phased evacuation. Instead, the Miller Model assumed evacuation of all permanent population simultaneously in order to identify where roadway improvements would reduce the evacuation clearance time. Mr. Vargas introduced the results of a model run of simultaneous evacuation of the Keys without units authorized under the Housing Initiative, and a second adding 300 units each for Marathon, Islamorada, and 20 T2:79;1-6. Key West. The model run without the 900 combined units yielded an evacuation clearance time of 21 hours and 34 minutes. With the additional 900 units, the model yielded a clearance time of 21 hours and 42 minutes. This evidence had little relevance because the models are not comparable, and because Mr. Vargas utilized inputs and assumptions that differed greatly from the TIME model runs underlying the carrying capacity analysis utilized by the Work Group. The Miller Model assumes the evacuation of all permanent residents (including mobile home residents) simultaneously, so it is useless as a comparator to the Phase II run of the TIME model. Additionally, Mr. Vargas utilized 2000 census data, rather than the more recent 2010 data, which Mr. Vargas admitted “w[ould] provide more accurate information,” and included inaccurate data, such as non-existent lane segments which inflated capacity on some roadway segments. While Mr. Vargas expressed the opinion that the Miller Model is superior because it was designed expressly for the Keys, the fact remains that the existing “in compliance” comprehensive plans are based on use of the TIME model to determine maximum buildout in the Keys. Mr. Ogburn completed a run of the TIME model in 2014 which included the previously-missing vehicles from the census block groups in Phase I. That rerun produced a clearance time of 19 hours. The best available data and analysis (the 2014 rerun) supports a finding that the clearance time for Phase I, without the additional units from the Housing Initiative, is 19 hours. Thus, the evidence does not support a finding that the evacuation of Phase I with the additional 1,300 units cannot be completed within the first 24 hours of a 48-hour evacuation scenario. The preponderance of the evidence does not support a finding that the inclusion of the 1,300 units in Phase I will violate the requirement to evacuate Keys permanent residents in 24 hours or less. On the theory that the addition of up to 1,300 residential units in the Keys will cause the hurricane evacuation clearance time to exceed 24 hours, Petitioners alleged the Plan Amendments are inconsistent with the following provisions of Respondents’ comprehensive plans: Marathon: FLU Objective 1-2.1, which requires Marathon to “ensure the availability of adequate public facilities and services[.]” FLU Objective 1-2.2, requiring Marathon to “meet the required 24- hour hurricane evacuation time or other applicable state standard for hurricane evacuation.” FLU Objective 1-3.5, requiring Marathon to “manage the rate of new development to ... support safe and timely evacuation prior to a hurricane.” Conservation and Coastal Element Policy 4-1.21.2, requiring Marathon to coordinate with Monroe County in updating policy formulations regarding land use and emergency preparedness and to plan for future land use densities that will not adversely impact the efficiency of hurricane evacuations or increase evacuation times. Intergovernmental Coordination Element (“ICE”) Objective 5-1.1, requiring Marathon to maintain coordination mechanisms with the comprehensive plans of Monroe County and adjacent municipalities. ICE Policy 5-1.1.2, requiring Marathon to coordinate with adjacent jurisdictions “for the development of joint strategies to address development, zoning, and land-use decisions that transcend jurisdictional boundaries.” ICE Policy 5-1.1.10, requiring Marathon to establish a program to provide and review proposed plan amendments of adjacent local governments to ensure consistency. Policy 5-1.2.1(j), requiring Marathon to enter into interlocal agreements or develop joint resolutions in areas of mutual concern, including the coordination of hurricane evacuation plans. Islamorada: FLU Goal 1-1, which provides that the comprehensive plan shall “[e]ncourage[] sustainability by limiting growth in order to establish and maintain acceptable levels of service for hurricane evacuation[.]” Transportation Element (“TE”) Policy 2-1.2.8, which requires Islamorada to “address long-term strategies to reduce clearance time and coordinate permit allocations” by implementing specifically-listed programs with FDOT, FDCA, and other local governments in the Keys. TE Policy 2-1.2.9, which provides for the staged/phased evacuation procedure to maintain a 24-hour hurricane evacuation clearance time. TE Policy 2-1.2.10, which requires Islamorada to “support state funding for the update of the hurricane evacuation model that considers the impact of Miami-Dade County on evacuees[.]” TE Policy 2-1.6.3, by which Islamorada “adopts 24 hours as the maximum allowable hurricane evacuation clearance time standard,” and provides that “[t]he Village shall reduce and maintain hurricane evacuation clearance time at or below 24 hours by … limiting the annual allocation of permits … as determined by interlocal agreement with the affected local governments in the Keys and the [DEO].” Coastal Management Element (“CME”) Objective 5-1.9, requiring Islamorada to “avoid population concentrations in the coastal high hazard area.” CME Policy 5-1.10.2, requiring Islamorada to “coordinate with Monroe County in emergency preparedness.” CME Objective 5-1.15, requiring Islamorada to “ensure intergovernmental coordination within the coastal area.” ICE Objective 8-1.1, requiring Islamorada to “ensure intergovernmental coordination.” ICE Policy 8-1.2.1, titled “Coordinate Development and Growth Management Issues.” ICE Policy 8-1.2.8, titled “Implement Intergovernmental Coordination.” Key West: FLU Objective 1-1.16, requiring Key West to “regulate the rate of population growth commensurate with planned increases in evacuation capacity in order to maintain and improve hurricane evacuation clearance times[,]” and “in concert with Monroe County, its municipalities, and the State of Florida, [Key West] shall manage the rate of growth in order to maintain an evacuation clearance time of 24 hours for permanent residents.” CME Goal 5-1, “Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]” CME Objective 5-1.6, requiring Key West to “coordinate with the State, the South Florida Regional Planning Council, [Monroe] County, and other local governments in order to regulate population growth and stage evacuations in a manner that maintains hurricane evacuation clearance times in accordance with the executed [MOU][.]” ICE Policy 8-1.1.3, which reads, in pertinent part, as follows: Considering the growth and development limitations in Monroe County as a whole resulting from hurricane evacuation requirements … and considering the impact that growth and development in the City of Key West will have on the rest of Monroe County, [Key West] shall coordinate with Monroe County and the Cities … regarding the allocation of additional development. * * * The City shall pursue resolution of development and growth management issues with impacts transcending the [Key West’s] political jurisdiction. Issues of regional and state significance shall be coordinated with the [SFRPC], the [SFWMD], and/or State agencies having jurisdictional authority. Issues to be pursued include but are not limited to the following: [Key West] shall implement the hurricane and transportation conclusions and policies relative to residential units’ allocation which are adopted by Monroe County and all municipalities as described in the [MOU] dated July 14, 2012. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with Objectives 1-2.1, 1-2.2, 1-3.5, and 5-1.1; and Policies 4-1.21.2, 5-1.1.(2), 5-1.1.10, and 5-1.2.1.j. Petitioners did not prove the Islamorada Plan Amendment is inconsistent with Islamorada Comprehensive Plan Goal 1-1; Policies 2-1.2.8, 2-1.2.9, 2-1.2.10, and 2-1.6.3; Objective 5-1.9 and Policy 5-1.10.2; Objective 5- 1.15; and Objective 8-1.1 and Policies 8-1.2.1 and 8-1.2.8. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Objectives 1-1.16, 5-1.6, Goal 5-1, and Policy 8-1.1.3. Based on the foregoing Findings of Fact, Petitioners did not prove that the Marathon and Islamorada Plan Amendments are inconsistent with section 380.0552(9)(a)2., which requires the local governments in the ACSC to adopt goals, objectives, and policies to “maintain a hurricane evacuation clearance time for permanent residents of no more than 24 hours.” Environmental Concerns Petitioners next contend the Plan Amendments are not supported by data and analysis demonstrating that the environmental carrying capacity of the Keys can support development of an additional 1,300 residential units. Petitioners’ concerns fall into two categories which were the focus of the FKCCS: nearshore water quality and ecological impacts. Nearshore Water Quality of the Florida Keys Petitioners claim that the nearshore water quality of the Keys was determined over 25 years ago to have exceeded its capacity to assimilate additional nutrients, that it remains nutrient-impaired today, and that the additional development authorized under the Plan Amendments will further increase nutrient pollution from additional wastewater and stormwater associated with development. In 1990, Congress created the Florida Keys National Marine Sanctuary (“FKNMS”), and required development of a Water Quality Protection Program (“WQPP”), establishing comprehensive, long-term monitoring of water quality in the FKNMS. Under the Water Quality Monitoring Project (“WQMP”), water quality has been monitored quarterly at approximately 150 sampling stations since 1995. In 1997, the Governor and Cabinet approved the FKNMS Management Plan for implementation in state waters, and required annual reports from the FKNMS. The 2011 FKNMS annual report stated that, “in general, water quality is good Sanctuary-wide but documentation of elevated nitrate in the inshore waters of the Keys has been evident since” sampling began in 1995. The report notes, “Observance of this type … implies an inshore source which is diluted by low nutrient ocean waters,” and that “[a]nalysis of monitoring data from 1995 through 2008 indicates a statistically significant improvement in some parameters, such as dissolved inorganic nitrogen …” The report concludes that “this trend will be watched closely in the future, particularly with regard to any potential effect attributable to … water treatment infrastructure improvements.” The report further cited “[e]xcessive nutrients from inadequately treated wastewater” as the “primary contributor to water quality degradation in near shore waters.” In 2008, the Environmental Protection Agency (“EPA”) developed Strategic Targets for the WQMP, setting limits for DIN (dissolved inorganic nitrogen) at < 0.010 parts per million (“ppm”), and TP (total phosphorous) at < 0.0077 ppm, among other nutrients, which are considered the values “essential to promote coral growth and overall health.” Future sampling was compared to the “baseline” from the 1995-2005 timeframe (e.g., the baseline for DIN was 76.3 percent—the average percentage the samples complied with the target of < 0.010 ppm). In 2011, FKNMS added 10 sampling stations, located within 500 meters of the shore in the Keys, referred to in the reports as the SHORE stations. In 2015, FKNMS reported that an average of all stations (excluding SHORE stations) met or exceeded the target value for DIN in 2008 through 2011, but fell short of the target in 2012 through 2015. The stations reported meeting or exceeding the target for TP in 2011 through 2015, while falling short in 2008 and 2010. The 2017 annual report showed the stations meeting or exceeding the DIN target in 2017, but not 2016; and meeting or exceeding the TP target in both 2016 and 2017. The 2017 study reported that “the FKNMS exhibited very good water quality with median concentrations of” TP at .0058, well below the target of .008. In 2018, FKNMS reported the stations meeting or exceeding the target for both nutrients. Again, in 2018, FKNMS reported “very good water quality with median concentrations of” TP at .0051, lower than the 2017 level, and again well below the EPA target. In summary, the reports demonstrate the stations fell below the target for TP in 2008 and 2010, but met or exceeded the target every year since 2010. The samples fell below the target for DIN in 2012 through 2016, but met or exceeded the target value in subsequent years. Petitioners emphasize that the EPA’s Strategic Targets for nutrients in the FKNMS are not consistently being met. But the reports do show a trend of improvement, at least with respect to DIN and TP. The 2014 report documented elevated nutrient concentrations of DIN and TP in waters close to shore along the Keys, attributable to “human impact.” The 2015, 2017, and 2018 reports exclude the data from the SHORE stations for purposes of demonstrating compliance with target values because they “introduce a bias to the dataset which results in a reporting problem[.]”21 The 2017 report does include an analysis of the geographic differences between testing stations. The report indicates a significant difference between the median levels of nutrients sampled in SHORE stations when compared with the “alongshore,” “channel,” and “reef” stations. However, the median levels of many of the nutrients are still at or below the EPA targets, even measured at SHORE stations. For example, the median level of TP, which the report recognizes as one of the most important determinants of local ecosystem health, at the SHORE stations was just below .007, compared to the EPA target of .008. More importantly, Petitioners focus on the SHORE station data was inconsistent with their challenge that the nearshore water quality remains impaired. Petitioners’ planning expert, Ms. Jetton, defined nearshore as approximately 12,000 meters from shore, not merely within 500 meters of 21 Petitioners sought to introduce raw sample data from SHORE stations and an analysis of said data by Kathleen McKee. That evidence was admitted as hearsay only, and was not corroborated by any non-hearsay evidence. shore. The 2017 report breaks out the “alongshore” stations as well as the SHORE stations. That data shows the median value of TP at the alongshore stations is approximately .0055, well below the target of .008. Notably, 75 percent of the alongshore stations sampled TP below the target .008. With respect to DIN, the median of alongshore station samples is below the target of .01; and 75 percent fall below .015. In 2018, FKNMS reported a trend of increased DO (dissolved oxygen) in both surface and bottom waters throughout the Keys, and declining turbidity in the surface waters, for the 24-year period from 1995 through 2018. Increased DO is beneficial for animal life. Declining turbidity means the water is becoming clearer. The 2014 report showed no significant trends in TP, but the 2018 report noted small, but significant, declining trends in TP values in most surface waters.22 In 1995, the EPA and the Department of Environmental Protection (“DEP”) listed the Keys waters as “impaired,” pursuant to the Clean Water Act.23 DEP is required to establish Total Maximum Daily Loads (“TMDLs”) for impaired water bodies, which define the maximum pollutant loading that can be discharged to those water bodies while still achieving water quality targets. An alternative mechanism, a Reasonable Assurance Document (“RAD”) can be developed in lieu of TMDLs when, as in the Keys, local management activities are planned to achieve water quality targets. The Florida Keys RADs (“FKRADs”) were developed in 2008, and each of the affected local governments became a signatory to a Stakeholder’s Agreement to implement the FKRADs. The FKRADs established two sets of nutrient targets: (1) an insignificant increase in concentration above natural background within the HALO zone, which is 500 meters of shore, not including canals; and (2) the average of values measured at the nearshore 22 The 2018 report does not contain the same detailed comparison of SHORE station samples with the other stations, as did the 2017 report. 23 33 U.S.C. § 1251 et seq. (500 meters to 12,100 meters from the shoreline). The FKRADs identify 23 impaired estuarine water body identifications (“WBIDs”). The WBIDs are Class III water bodies, defined by the Clean Water Act as “used for recreation, propagation, and maintenance of a healthy, well-balanced population of fish and wildlife.” The FKRAD identifies specific restoration projects to be completed by 2020 to improve each WBID, designates the government stakeholder responsible for each project, and sets water quality targets to be achieved by each project. The FKRAD focuses on TN (total nitrogen) and TP, and establishes different water quality target values than the FKNMS. For the HALO Zone the target is an “as insignificant increase above natural background for each nutrient.” “Insignificant” is defined as less than ten micrograms per liter (<10 µg/l) of TN, and < 2µg/l for TP. Petitioner’s planning expert, Ms. Jetton, testified that the 2018 Update to the FKRAD “tells me that the surface water still isn’t able to assimilate all the nutrients that are going into it because … we’re not meeting the strategic targets[.]” Ms. Jetton concluded, based on the 2018 Update to the FKRAD, that “there should be no more development added to [the Keys] until the [WBIDs] can consistently meet their strategic targets.” She further testified that the RAD documents identify the Keys’ waters as not meeting the DEP necessary levels of nutrients for healthy waters and that the RADs reflect “current water quality as it’s been affected by the wastewater facilities that have been upgraded in the Keys to date.” That testimony is unreliable. The purpose of the 2018 Update is plainly set forth in the document itself: to document actions taken by stakeholders since 2011 and to address the DO impairment identified by DEP is some water segments; to include a revised approach to monitoring and reporting results; and to identify a schedule to meet water quality targets and restoration goals. The 2018 Update to the FKRAD contains neither data on samples of TN and TP in the HALO zone waters, nor any analysis of whether the target—insignificant increases above natural background—has been achieved. The 2018 Update provides that “water quality data will be compared to the FKRAD water quality targets … to evaluate achievement of targets,” and that “[m]onitoring for success will include, among other data sets, “decrease in nearshore nutrient concentrations in comparison to water quality targets and OFW background concentrations.” Injection Wells and Nearshore Water Quality Absent concrete evidence to support Petitioners’ claim that the nearshore waters have not recovered from their 1995 impaired designation such that they can assimilate pollutants from additional development, Petitioners argue that the existing “improved” wastewater and stormwater treatment infrastructure in the Keys does not adequately protect marine and coastal resources of the Keys, and that the addition of new development will exacerbate the problem. Specifically, Petitioners posit that shallow wastewater injection wells degrade nearshore water quality. Marathon injects treated wastewater effluent into shallow injection wells, which are drilled to a depth of at least 90 feet and cased to a minimum depth of 60 feet. Marathon’s five injection wells are permitted to, and currently operate at, a permitted capacity of .200 million gallons per day (“MGD”), .400 MGD, .200 MGD, .500 MGD, and .450 MGD, respectively. Marathon’s injection wells are designed and permitted to exceed full build out. Key West injects its treated wastewater effluent into deep injection wells, which are 3,000 feet deep and are cased to a minimum depth of 2,000 feet.24 24 Petitioners concede that deep injection wells have no quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys. Key West’s injection wells are permitted at a capacity of 10 MGD, and Key West currently uses approximately 50 percent or less of the total permitted capacity for its injection wells. Islamorada does not have its own municipal wastewater effluent injection wells or wastewater treatment plant. Islamorada’s wastewater is transmitted to the Key Largo Regional Wastewater Treatment Facility (“Key Largo Wastewater Treatment Facility”), which treats and injects effluent into a deep injection well that is cased to a minimum depth of 2,000 feet. The Key Largo Wastewater Treatment Facility is permitted by DEP and operates at a permitted capacity of 2 MGD. The injection wells at the Key Largo Wastewater Treatment facility are designed and permitted to exceed full build out. Ms. Jetton testified that, based on reports she has reviewed, when you inject effluent into shallow injection wells, that water will reach the surface water “within a few hours or a few days.” She referenced numerous scientific reports which were admitted in evidence as sources on which she based her opinions. She further referred to findings in the Administration Commission’s 1995 Final Order that deep water injection wells are a better form of treatment than shallow injections wells. Finally, Ms. Jetton pointed to the 2014 and 2017 FKNMS reports as evidence that shallow well injections may contribute to nutrients in nearshore waters. The excerpt of the 2014 report introduced in evidence contains no reference to a relationship between shallow injection wells and the water quality of nearshore waters. The 2017 report mentions there may be a connection. Respondents introduced the testimony of Michael C. Alfieri, who is a licensed professional geologist, certified by the National Groundwater Association as a ground water professional, and certified by the American Institute of Hydrology as a professional registered hydrogeologist. Mr. Alfieri’s main practice in Florida is in karst hydrogeology, and he is one of the authors of the definitive text in Florida on karstology. Mr. Alfieri testified that the subsurface conditions in Marathon, as shown in the core samples and boring logs he personally reviewed, indicate the presence of aquitards25 and semi-confining materials, including calcite calcrete with clay silt, which would significantly inhibit vertical migration of injectate into surface water adjacent to Marathon’s shallow injection wells.26 Based on his knowledge and experience, Mr. Alfieri testified that treated wastewater or stormwater injected down a shallow injection well does not rise to the surface in the nearshore waters surrounding the Keys. He further explained that once treated effluent is injected into either a deep or shallow well, it undergoes geochemical reactions as it interacts with, and is absorbed by, the surrounding rock, which reduces nutrient concentration. Mr. Alfieri testified that based on the advanced wastewater treatment facilities and injection wells used by Respondents, the depths of the injection wells and their current level of usage, as well as the surrounding geological features, including the confining layers, which are horizontally transmissive, the additional residential units authorized by the Plan Amendments would have no impact on nearshore waters of the Florida Keys. The undersigned finds Mr. Alfieri’s testimony more persuasive and reliable than Ms. Jetton’s recounting of studies undertaken by other professionals. On the theory that injected treated effluent contaminates the nearshore waters of the Keys, Petitioners allege the Plan Amendments 25 Aquitards are materials that have a low potential to transmit water. Clay is the best material to serve as an aquitard given that it has high porosity and low permeability which makes it difficult for water to move through. 26 The parties stipulated that deep injection wells “do not have a quantified impact on the water quality of the nearshore waters of Key West or the Florida Keys.” render Respondents’ comprehensive plans internally inconsistent with the following policies, respectively: Marathon Infrastructure Element (“IE”) Goal 3-1: “[E]nsure availability of needed public facilities associated with wastewater disposal … in a manner that is environmentally sound and protects marine environments, including sea grass beds and nearshore waters[.]” IE Goal 3-2: “[Marathon] shall provide for environmentally … sound treatment and disposal of sewage, which meets the needs of … residents, while ensuring the protection of public health and the maintenance and protection of ground, nearshore and offshore, water quality[.]” IE Objective 3-2.2: “[Marathon] shall regulate land use and development to … protect the functions of natural drainage features and groundwater from the impacts of wastewater systems.” Islamorada FLU Goal 1-1, which provides in pertinent part, as follows: The comprehensive Plan shall provide a growth management framework that … encourages sustainability by limiting growth in order to establish and maintain acceptable levels of service for … wastewater services … and … reclaim and preserve the quality of [Islamorada’s] natural resources … [r]elies on ecological constraints to establish limits for growth … to ensure that human induced activities do not diminish assets of our unique coastal environment; and provides a sound basis for developing land use controls that … protect coastal resources, including nearshore waters, wetlands, grassbed flats, mangroves… and establish a basis for managing … water quality[.] CE Goal 6-1: “Islamorada … shall conserve, manage, use and protect the natural and environmental resources … based on their carrying capacity limitations to ensure continued resource availability and environmental quality.” CE Objective 6-1.9: “Islamorada … shall provide requirements designed to protect fisheries, wildlife and wildlife habitat from the adverse impacts of development by regulating the location, density and intensity of those activities that cause the adverse impact.” Key West FLU Goal 1-1: “Minimize Threats To Health, Safety, And Welfare Which May Be Caused By Incompatible Land Uses, Environmental Degradation[.]”27 CME Goal 5-1: “Coastal Management. Restrict development activities that would damage or destroy coastal resources. Protect human life and limit public expenditures in areas subject to destruction by natural disasters[.]” CME Objective 5-1.1: “Protect Coastal Resources, Wetlands, Estuarine Salt Pond Environmental Quality, Living Marine Resources, And Wildlife Habitats. … (1) Preventing potentially adverse impacts of development and redevelopment on wetlands, estuaries, water resources, living marine resources, and other natural resources; (2) Maintaining or improving coastal environmental quality by improving stormwater management[.]” 27 Petitioners inaccurately cite the monitoring measure attributable to Objective 1-1.16 as if it relates to Goal 1-1. The Monitoring Measure attributable to Objective 1-1.16 is “Number of building permits allocated annually in accordance with the implementing policies.” CME Policy 5-1.1.4: “Protect Living Marine Resources, Coastal Marsh, and Seagrass Beds … [Key West] shall seek to enhance seagrass beds and coastal nontidal wetland habitats[.]” CME Policy 5-1.2.2: “[Key West] shall continue to limit the specific and cumulative impacts of development and redevelopment upon water quality and quantity, wildlife habitat, and living marine resources by enforcing performance standards cited herein. Wastewater system improvements shall also be carried out to reduce potential adverse impacts on the coral reef. In amending its land development regulations, the City shall consider the establishment of additional protective policies for coral.” CME Policy 5-1.4.1: “Public Investments in Coastal High-Hazard Area. Publicly funded facilities shall not be built in the Coastal High-Hazard Area, unless the facility is for the protection of the public health and safety.” CE Objective 6-1.2: “Detrimental water quality impacts, including adverse impacts to the coral reef system shall continue to be combated by public facility improvements identified in the Public Facilities Element …. Monitoring Measure: Achievement of water quality … standards.” Respondents’ wastewater treatment plants are in compliance with their DEP wastewater treatment plant and injection well permits. Furthermore, there have been no violations of the permits for Respondents’ wastewater treatment facilities that could potentially impair nearshore water quality. As a condition precedent to issuing permits for Respondents’ injection wells, DEP required Respondents to provide reasonable assurance that the operation of the wells will not cause or contribute to a violation of surface water quality standards and will not harm environmental resources. Petitioners did not prove that the Marathon Plan Amendment is internally inconsistent with the Marathon Comprehensive Plan Goal 3-1, Goal 3-2, and Objective 3.2.2. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Islamorada Comprehensive Plan Goal 1-1, Goal 6-1, and Objective 6-1.9. Petitioners did not prove the Key West Plan Amendment is internally inconsistent with Key West Comprehensive Plan Goals 1-1 and 5-1; Objective 5-1.1 and Policies 5-1.1.4, 5-1.2.2, and 5-1.4.1; and Objective 6-1.2. Ecological Impacts Petitioners maintain the Plan Amendments are not supported by the best available data on the ecological carrying capacity of the Keys with regard to habitat protection. The FKCCS recommended four guidelines for future development in the Keys: (1) prevent encroachment into native habitat; (2) continue and intensify existing programs (e.g., land acquisition, wastewater treatment); focus future growth on redevelopment and infill; and (4) increase efforts to manage the resources. Since the FKCCS was published in 2002, the local governments in the ACSC have completed numerous work programs designed to implement the recommendations, including updating habitat mapping, maximizing grant funding for land acquisition, and acquiring environmentally-sensitive lands to remove them from potential development. Furthermore, the BPAS system integrates environmental concerns when scoring applications for the units allocated. In Marathon, Policy 1-3.5.4 affords the greatest weight to applications for development of scarified and infill lots with existing paved roads, water, and electric service. The Plan affords the least weight to applications on lots containing sensitive areas as identified on the vegetation and species maps. Further, the Marathon plan provides that, “in no case shall more than one (1) BPAS allocation per year be issued for properties which in part or whole designated as Hardwood Hammock, Palm Hammock, Cactus Hammock, or Beach/Berm.” The Key West comprehensive plan mandates that new development preserve, at a minimum, “all wetlands and ninety (90) percent of hardwood hammocks.” The Key West plan does not allow development in any wetlands “except where State and/or federal agencies having jurisdiction provide for development rights.” The Islamorada comprehensive plan mandates that new development preserve “all undisturbed wetlands” and 90 percent of high quality tropical hardwood hammocks on the parcel being developed. The Islamorada comprehensive plan also discourages development of lots containing both disturbed and undisturbed habitats by applying the most stringent open space requirements to development sites containing the highest quality habitats. For example, the minimum open space requirement for high quality hammock is .90; while for undisturbed saltmarsh and buttonwood wetlands, as well as undisturbed mangrove and freshwater wetlands, the ratio is 1.0. The plan requires an open space ratio of .90 for disturbed saltmarsh and buttonwood wetlands, as well as disturbed mangrove and freshwater wetlands. Nevertheless, Petitioners argue that the Plan Amendments allow new units to be built in disturbed hammock, which constitutes additional encroachment into hammock, contrary to the FKCCS. Petitioners point to the provision of the Plan Amendments which provides that the workforce affordable units “shall not be placed in any habitat defined as mangroves, saltmarsh & buttonwood, hardwood hammock,[28] or fresh water wetlands (disturbed categories excepted)[.]” 28 The Islamorada Plan Amendment refers to “tropical” hardwood hammock. The provisions of the Plan Amendments must be read together with existing comprehensive plan provisions. When read together, the Marathon comprehensive plan may not allow any of the affordable-early evacuation units to be built on any hammock habitat because it only allows one BPAS permit per year be allocated to any parcel containing designated hardwood hammock. Since the Plan Amendment requires the units be built as multifamily, thereby utilizing multiple allocations for one application, it is impossible to permit the new affordable units on any lot designated hardwood hammock. Further, the Marathon BPAS weighting system will apply to the new allocations,29 which will continue to direct development to scarified lots, and those lots with maximum disturbed areas. The Islamorada plan open space requirements will apply to disincentivize development of parcels with high quality hammock, buttonwood wetlands, and freshwater wetlands, by requiring the most stringent open space ratios. Petitioners did not prove the Plan Amendments are not based on data and analysis of the ecological carrying capacity of the Keys. Petitioners allege that the Plan Amendments are internally inconsistent with the following provisions of the Marathon and Islamorada plans relating to ecological concerns: Islamorada: GOAL 1-1: IMPLEMENT FUTURE LAND USE VISION, which reads, in pertinent part, as follows: [Islamorada was] incorporated to create a Comprehensive Plan to reclaim the Keys by conserving, preserving, and retaining our remarkable assets—our waters and natural environment—and our quality of life; Encourages sustainability by limiting growth in order to … reclaim and preserve the quality of our natural 29 Only the Key West Plan Amendment exempts the allocation of the affordable-early evacuation units from the BPAS. resources; Relies on ecological constraints to establish limits for growth and create standards and criteria to ensure that human induced activities do not diminish assets of our unique coastal environment[.] Policy 2-1.9.3: Participate in the Florida Keys Carrying Capacity Study. … “[Islamorada] shall continue to support the technical undertakings of this study, and the establishment of carrying capacity limitations for the Florida Keys.” Goal 6-1: “Islamorada … shall conserve, manage, use and protect the natural and environmental resources … based on their carrying capacity limitations to ensure continued resource availability and environmental quality.” Policy 6-1.4.4: “Islamorada … shall use the best available technical criteria and information to formulate regulations and ordinances which shall ensure that future development is compatible with the functioning and carrying capacity of existing natural systems and resources conservation.” Marathon Objective 1-2.1: which calls for adequate public facilities and services for future growth “to … protect valuable natural resources….” Petitioners did not prove the Marathon Plan Amendment is internally inconsistent with Objective 1-2.1. Petitioners did not prove the Islamorada Plan Amendment is internally inconsistent with Goal 1-1, Policy 2-1.9.3, Goal 6-1, and Policy 6-1.4.4. Other Contentions Petitioners alleged the Plan Amendments violate section 163.3177(6)(a)2., which reads, in pertinent part, as follows: [P]lan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: The amount of land required to accommodate anticipated growth. The projected permanent population of the area. The character of undeveloped land. The availability of water supplies, public facilities, and services. The need for redevelopment, including renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. The compatibility of uses on lands adjacent to or closely proximate to military installations. The compatibility of uses on lands adjacent to an airport[.] The discouragement of urban sprawl. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy. The need to modify land uses and development patterns with antiquated subdivisions. (emphasis added). Many of the listed criteria are not applicable to the Plan Amendments because the Plan Amendments do not propose a specific type of development at a specific location, do not implicate antiquated subdivisions, and do not specifically implicate redevelopment of blighted areas. Respondents considered the availability of water supplies and other public services, such as the capacity of wastewater treatment facilities, during plan review and adoption. Respondents also considered the need of the service sector of the economy—including retail and restaurant services, as well as public school and first-responder services—during plan review and adoption. Petitioners did not prove the Plan Amendments are not based upon applicable surveys, studies, and data as required by section 163.3177(6)(a)2.
Conclusions For Petitioners: Richard J. Grosso, Esquire Richard Grosso, P.A. 6511 Nova Drive, Mail Box 300 Davie, Florida 33317 Sarah Hayter, Esquire Shai Ozery, Esquire Robert Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, FL 33060 For Respondents City of Marathon; and Islamorada, Village of Islands, Florida : Nicole Pappas, Esquire Barton Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 For Respondent, City of Key West: George Wallace, Esquire City of Key West, City Attorney’s Office 1300 White Street Post Office Box 1409 Key West, Florida 33040
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of Marathon Comprehensive Plan Amendment 2018-01, adopted on October 23, 2018; City of Key West Comprehensive Plan Amendment 19-06, adopted on April 4, 2019; and Islamorada, Village of Islands, Comprehensive Plan Amendment 19-03, adopted on March 5, 2019; are “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 24th day of April, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of April, 2020. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Shai Ozery, Esquire Robert N. Hartsell P.A. Suite C 61 Northeast 1st Street Pompano Beach, Florida 33060 (eServed) Barton William Smith, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Christopher B. Deem, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Nicola J. Pappas, Esquire Smith Hawks, PL 138 Simonton Street Key West, Florida 33040 (eServed) Richard J. Grosso, Esquire Richard Grosso P.A. Mail Box 300 6511 Nova Drive Davie, Florida 33317 (eServed) Shawn D. Smith, City Attorney City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) George B. Wallace, Esquire City of Key West, City Attorney's Office 1300 White Street Post Office Box 1409 Key West, Florida 33040 (eServed) Roget V. Bryan, Esquire Islamorada, Village of Islands 86800 Overseas Highway Islamorada, Florida 33036 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue in this case is whether the land development regulations (LDRs) adopted through Ordinance 07-11 by Islamorada, Village of Islands (Islamorada), are consistent with the Principles for Guiding Development in the Florida Keys, set forth in Section 380.0552(7), Florida Statutes (2007).2
Findings Of Fact The Lodging Association is a trade association with an office in Key West, Florida. The Lodging Association is a not- for-profit association, created to monitor, initiate, advance, support or oppose legislation, policies and other governmental regulations that affect the lodging industry in Monroe County, including Islamorada. Membership in The Lodging Association includes owners and operators of the hotels and motels in Islamorada. Islamorada is a municipality within Monroe County which has adopted a comprehensive plan and LDRs. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the Area of Critical State Concern program, and to approve or reject LDRs adopted by local governments within areas of critical state concern. The Florida Keys were designated an Area of Critical State Concern by the Administration Commission in 1975 and re- designated by the Legislature in 1986 pursuant to Section 380.0552, Florida Statutes. Ordinance 07-11, would make the following changes to the existing LDRs regulating hotels and motels: Room, hotel or motel, - means a unit in a public lodging establishment as defined by F.S. Section 509.013(4)(a) intended for transient lodging only for periods not exceeding 30 days. Transient occupancy shall conform to the definition contained in F.S. Section 509.013(8) as to transient occupancy. For the purposes of density restriction under this chapter: A hotel or motel room may be a single room or a suite and may include a kitchen but no more than 1 1/2 bathrooms. An existing hotel or motel room may be redeveloped to a unit no less than 150 square feet and not exceeding 2,000 square feet of habitable floor area and consisting of no more than two (2) full bathrooms and three (3) bedrooms, one (1) kitchen, one- half bathroom and one (1) additional living area (excluding bedrooms), provided that the average habitable floor area of all hotel or motel units on the property does not exceed 1,500 square feet and that the rates of redevelopment set forth in (3) below are met; and All entrances to a hotel or motel room shall share the same key or means of controlling access so that the hotel or motel room as defined herein is not divisible into separately rentable units; and Suites containing more than one bedroom and 1½ baths may be constructed; however, each bedroom/full bath combination shall be considered a hotel/motel unit. A property with existing hotel or motel units may be redeveloped pursuant to the following equivalency rates: Ordinance 07-11 also amended Section 30-852 of Islamorada LDRs which establishes the required parking spaces for various uses. Ordinance 07-11 changes the parking space requirement for hotel rooms from 1.0 spaces per unit (without regard to numbers of bedrooms) to 1.0 space for a one-bedroom unit, 1.2 spaces for a two-bedroom unit, and 1.5 spaces for a unit with three or more bedrooms. Evidence was presented by The Lodging Association to show that the principal objective of the ordinance is to respond to the trend in the hospitality industry for larger hotel and motel rooms to accommodate families for longer stays. The Department reviewed Ordinance 07-11 to determine whether it is consistent with the Principles for Guiding Development (Principles) set forth in Section 380.0552(7), Florida Statutes: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. In its Amended Final Order and in the parties’ Joint Pre-hearing Stipulation, the Department asserted that Ordinance 07-11 is inconsistent with four of the Principles, which are repeated below: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. * * * (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. * * * (j) To make available adequate affordable housing for all sectors of the population of the Florida Keys. * * * (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Principle (a) - Managing Land Use and Development The Department asserts that Ordinance 07-11 is inconsistent with Principle (a) because the ordinance is inconsistent with five policies of the Islamorada Comprehensive Plan and, therefore, fails to properly manage land use and development. Policy 1-2.1.10 The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.1.10 which states, “Islamorada, Village of Islands shall cap the number of new transient units at the number of current and vested hotel and motel rooms, campground and recreational vehicle spaces existing within the Village as of December 6, 2001.” Much of the confusion in this case surrounding the issue of the cap on hotel/motel rooms arises from the practice in Islamorada and elsewhere in Monroe County of defining a hotel or motel room in a manner that differs from its common meaning to the general public, which is the space that one rents from the clerk at the desk, with one entrance and one key. Instead, a room is defined according to the number of bedrooms and bathrooms, so that the space one rents with a single entrance and key can be defined in the LDRs as one, two, or even three hotel rooms. An analogy would be if a vehicle were defined for regulatory purposes according to its output of emissions, so that if your vehicle had relatively high levels of emissions, it might be counted as two or three vehicles. Although much testimony was devoted to this disputed issue, it is clear that Ordinance 07-11 would allow for the creation of more hotel and motel rooms in Islamorada (as “room” was previously defined). There are many examples that could be given of how Ordinance 07-11 would allow for more hotel and motel rooms, but one example is that a room with two bedrooms and two bathrooms counts as two units under the existing ordinance, but is only one unit under Ordinance 07-11. Ordinance 07-11 allows a hotel owner to enlarge a hotel room in a manner that under the former ordinance would have been treated as creating another hotel room – a violation of Policy 1-2.1.10. Without changing the policy, Ordinance 07- 11 defines away the violation. When Islamorada adopted Policy 1-2.1.10 to cap the number of hotel/motel rooms at the number of “current” rooms, the policy could only mean the number of rooms that existed under the definition of hotel/motel room that was then in effect. Otherwise, the policy would be ineffectual as a cap.3 Despite the findings made above, the determination of whether Ordinance 07-11 should be rejected is complicated by the fact that, in 2005, the Department approved a similar ordinance of the City of Marathon. Like Islamorada, Marathon had formerly counted one bedroom and one and one half bathrooms as one hotel/motel unit. Marathon Ordinance 2004-017 redefined hotel/motel rooms so that a room with three bedrooms and two and a half bathrooms now counts as one unit. Marathon’s comprehensive plan also has a cap on hotel/motel rooms. The Department’s approval of Ordinance 2004-17 appears to have been based in large part on the “density reduction” provisions in the Marathon ordinance. For example, one-bedroom units may be redeveloped as two-bedroom units “at the rate of 90 percent,” and one-bedroom units may be redeveloped as three- bedroom units “at the rate of 85 percent.” The density reduction provisions in Ordinance 2004-017 are easiest to understand with an example using ten existing units. Applying the 90 percent rate, ten existing one-bedroom units can be redeveloped into nine two-bedroom units. There is no practical way to apply the reduction rates when just one or a few units are redeveloped, because applying the rate results in fractional units. For example, using the 90 percent reduction rate, 1 one-bedroom unit cannot be redeveloped as .9 two-bedroom units, and 2 one-bedroom units cannot be redeveloped as 1.8 two-bedroom units. In these two examples, the hotel owner would be allowed to create 1 and 2 two-bedroom units, respectively. Therefore, the density reduction rate has no effect in these (and other) scenarios. Marathon’s density reduction provisions do not prevent more hotel and motel rooms from being created. In the example given above, the nine redeveloped two-bedroom units would have counted as 18 units under the definition in Marathon’s former ordinance. With admirable candor, the Department’s expert planner testified that it was her opinion that Marathon Ordinance 2004-17 is inconsistent with Marathon’s cap on hotel/motel rooms. However, it does not take an expert planner to see the inconsistency. Counsel for the Department argued that Marathon Ordinance 2004-017 materially differs from Village Ordinance 07- 11 because the density reduction provisions in the Marathon ordinance created an “equivalency” with regard to the additional vehicles associated with larger hotel/motel units. Islamorada Ordinance 07-11 also has similar density reduction provisions, but the Department does not think they create a similar equivalency. However, the Department’s argument about equivalency is not persuasive because it requires that the cap on hotel/motel rooms be read as a cap on the traffic generated by hotel/motel rooms, which is contrary to the plain wording of Policy 1-2.2.10. Furthermore, as explained above, the density reduction rates do not apply to many redevelopment scenarios that can result in larger hotel/motel rooms that generate more traffic. Unlike the Marathon ordinance, Village Ordinance 07-11 also allows for the creation of new hotel/motel rooms through “disaggregration.” This term was used by the Department to describe how the ordinance can be applied in reverse to create smaller, separate hotel/motel rooms which could later be enlarged. For example, an existing two-bedroom/one-bathroom unit (defined as one unit under the former ordinance) could be redeveloped under Ordinance 07-11 as two separate one- bedroom/one-bathroom units, and then redeveloped again as two separate two-bedroom/two-bathroom units (defined as four units under the former ordinance). The Department demonstrated that Ordinance 07-11 allows for new hotel/motel rooms to be created beyond the current number of hotel/motel rooms. Therefore, it is not fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.1.10. Because the ordinance is inconsistent with the comprehensive plan, it is also inconsistent with Principle (a). Policy 1-2.2.4 Policy 1-2.2.4 provides that nonconforming uses (due to their density) may only be redeveloped to the same density. There are hotel and motels in Islamorada that are nonconforming because their density is greater than is currently allowed. The Department contends that Ordinance 07-11 is inconsistent with Policy 1-2.2.4 because the ordinance would allow more rooms and thereby increase the density at nonconforming hotels and motels. The Lodging Association argues that Ordinance 07-11 does not increase density, but merely allows more bedrooms and bathrooms. The prohibition against increasing nonconforming uses is a general provision found in all local government codes. It does not prevent the periodic redefinition of what constitutes a nonconforming use. In other words, the policy has the same meaning as if it read, “However nonconforming uses are defined, do not make them worse.” The cap on hotel/motel rooms in Policy 1-2.1.10 is different in this respect. It is a unique policy that is expressly tied to a specific condition and time – “the number of current hotel and motel rooms . . . existing within the Village as of December 6, 2001.” A density limit and the cap on hotel/motel rooms serve different purposes. It was not explained by the Department and it is not apparent how the purpose served by the density limit for hotel/motels is thwarted if a bedroom or bathroom is added to a single hotel unit. On the other hand, the purpose served by the cap on the number of hotel/motel rooms that existed on December 6, 2001, is clearly thwarted by a re-definition of “room” that allows more hotel/motel rooms than existed on that December 6, 2001. The disaggregation of hotel/motel rooms can create more separate units (greater density), not just larger units. Nevertheless, the Department did not adequately explain why Policy 1-2.2.4 could not be applied by Islamorada as a limit on any disaggregation that would result in the creation of additional units at a nonconforming hotel or motel. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.4. Policy 1-2.2.6 Policy 1-2.2.6 prohibits the enlargement or extension of non-conforming structures. The Department asserted that Ordinance 07-11 “creates a possibility of redeveloping and expanding the size of hotel/motel units to a previously existing non-conforming structure,” but the evidence presented by the Department on this issue was insufficient to explain what kinds of non-conforming structures would be affected by the ordinance, or to demonstrate how the ordinance would require noncompliance with Policy 1-2.2.6. Ordinance 07-11 is not facially inconsistent with the policy. The Department did not adequately explain why Policy 1- 2.4.6 could not be applied by Islamorada as a limit on any application of Ordinance 07-11 that would result in a nonconforming structure. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 1-2.2.6. Policy 2-1.6.3 Policy 2-1.6.3 establishes a 24-hour hurricane evacuation time. Hurricane evacuation is a major issue for Islamorada and for all local governments in the Florida Keys because of their low elevation, exposure to storm surge, flooding, and high winds, and limited evacuation routes. The hurricane evacuation model used for the Florida Keys predicted in 2001 (the last time the model was run) that more than 24 hours would be needed to evacuate the Keys. Therefore, Islamorada and other local governments in the Keys developed “staged” evacuation plans whereby transient units are evacuated 48 hours prior to the arrival of hurricane force winds, then mobile home residents 36 hours prior to that time, and other residents are evacuated 24 hours prior. These staged evacuation plans have been accepted by the Department as consistent with the requirement for 24-hour hurricane evacuation. Despite the prediction of the hurricane evacuation model, the Department allows local governments in the Florida Keys to add new residences and associated vehicles every year; 28 each year in Islamorada. The Department contends that Ordinance 07-11 is inconsistent with Policy 2-1.6.3 because the ordinance allows for the creation of more hotel/motel units and larger units which will generate more traffic and make hurricane evacuation more difficult. It is undisputed that Ordinance 07-11 will increase the need for parking spaces at hotels and motels in Islamorada. The Department showed there would be an unquantified increase in the number of vehicles associated with larger hotel and motel rooms. More vehicles means more time would be needed to evacuate transient units in Islamorada. However, the Department did not show that Ordinance 07-11 would prevent Islamorada from evacuating transient units in conformance with the staged evacuation plan. The Department points out that, for fast-forming and fast-approaching hurricanes, Islamorada will not always have time to evacuate residents and visitors in the time frames called for in the staged evacuation plan. However, the Department could have used the occurrence of fast-forming and fast-approaching hurricanes as a rationale to oppose the adoption of staged evacuation plans by Islamorada and other local governments in the Florida Keys. Instead, the Department determined that staged evacuation plans are consistent with the statutory requirement and the comprehensive plan policies calling for 24-hour hurricane evacuation, despite the possibility of fast-forming and fast-approaching hurricanes. Therefore, to prove that Ordinance 07-11 is inconsistent with Policy 2-1.6.3, it is not enough for the Department to merely show that Ordinance 07-11 would lead to more vehicles associated with transient units. The Department must prove that Ordinance 07-11 would prevent Islamorada from evacuating transient units under the time frames of the staged evacuation plan. Insufficient competent evidence was presented about the hurricane evacuation model, about the model’s assumptions, and whether the model’s assumptions are still relevant to current circumstances, to assist the Administrative Law Judge to make findings regarding the potential effects of Ordinance 07-11 on the modeled evacuation times. William Wagner, formerly an emergency management coordinator for Monroe County and currently the chief for emergency services for Islamorada, testified that the staged evacuation plan has been implemented two or three times since its adoption and there have been no problems evacuating the transient population within the time frames of the plan. It was his opinion that doubling the current number of hotel/motel units in Islamorada would not prevent evacuation of the Florida Keys in compliance with the goals of the staged evacuation plan. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 2-1.6.3. Policy 3-1.1.8 Policy 3-1.1.8 requires Islamorada to adopt LDRs “that establish a fair and equitable method for requiring developers of new and expanded businesses and private developers of housing to provide or subsidize housing for employees.” The Department contended that Ordinance 07-11 is inconsistent with this policy because the ordinance creates a need for more employees without providing affordable housing for them. However, Islamorada recently adopted an LDR which requires developers to provide at least 30 percent affordable housing on site or pay a fee which Islamorada will use to provide affordable housing elsewhere. Based on Islamorada’s adoption of the affordable housing LDR, the Department changed its position and now states that Ordinance 07-11 is “neutral” with respect to affordable housing. It is fairly debatable whether Ordinance 07-11 is consistent with Policy 3-1.1.8. Principle (d) - Sound Economic Development In its Proposed Recommended Order, the Department asserts that Ordinance 07-11 is inconsistent with Principle (d), but does not explain why. The Department makes a general reference to protection of natural habitat and provision of affordable housing, but no evidence was presented to demonstrate that Ordinance 07-11 would result in adverse impacts to the natural environment, and the Department withdrew its contention that affordable housing was an issue. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (d). Principle (j) – Affordable Housing As discussed above, the Department changed its initial position and now states that Ordinance 07-11 is neutral with regard to affordable housing. The Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (j). Principle (l) – Health, Safety, and Welfare The principal basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the Department’s allegation that the ordinance will increase the traffic associated with hotels and motels and, therefore, adversely affect hurricane evacuation. For the reasons already discussed in the context of Policy 2-1.6.3 of the Islamorada Comprehensive Plan, the Department failed to prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l) with regard to hurricane evacuation. Another basis for the Department’s contention that Ordinance 07-11 is inconsistent with Principle (l) is the ordinance’s alleged effect on potable water supply in Islamorada. In the Department’s Amended Final Order, there was one passing reference to the lack of data and analysis regarding “potential impacts on potable water supply.” There was no mention of a potable water supply issue in the parties’ Joint Pre-Hearing Stipulation. In its Proposed Recommended Order, the Department simply asserts that “Ordinance 07-11 fails to address the impacts on potable water supply.” The burden was on the Department to prove that Ordinance 07-11 would create potable water supply problems. It failed to meets its burden. The Department did not prove by a preponderance of the evidence that Ordinance 07-11 is inconsistent with Principle (l).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Community Affairs enter a Final Order rejecting Ordinance 07-11 as inconsistent with the Principles for Guiding Development set forth in Section 380.0552(7), Florida Statutes. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 22nd day of October, 2008.
The Issue The issues in this proceeding are whether Santa Rosa County Comprehensive Plan Amendment 2007-R-047 adopted by Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008 (Plan Amendment), is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and, more specifically, whether the Plan Amendment is "internally consistent" with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Santa Rosa County Comprehensive Plan (Plan) and supported by adequate data and analyses.1
Findings Of Fact Parties Petitioner, Belle Mer Owners Association, Inc. (Belle Mer), is the condominium association for the Belle Mer Condominium, which occupies a waterfront parcel of land immediately east of the Property. The Belle Mer condominium consists of 16 floors and 61 dwelling units and has a southwest orientation toward the Gulf of Mexico. PE 7 at 1, 3-4; CE 1-2. The parties stipulated that Belle Mer is an "affected person" as defined in Section 163.3184(1)(a) Florida Statutes, which owns property in the County and timely submitted comments and objections to the Board of County Commissioners of Santa Rosa County (Board) with regard to the Plan Amendment. Santa Rosa County is a local government subject to the requirements of the Local Government Comprehensive Planning and Land Development Regulations Act, Section 163.3161 et seq., Florida Statutes. Intervenors are the owners of the Property that is the subject of the Plan Amendment. The Intervenors possess leases from the County for each of the seven platted lots in Summer Place Subdivision, the location of the Property. In 1967, the relevant leases provided for the development of "multi-unit dwellings or light commercial." In 1987, the leases were amended to provide for the development of "up to 50 condominium units." In 1993, the lease was further amended at the lessee's request to provide a framework for the development of a single-family subdivision. The present lease issued by the County for these lots restricts the use of the lots to single-family residential. The Property and Vicinity The Property consists of 1.89 acres of gulf front property located on Navarre Beach, Santa Rosa County, Florida. There are four single-family homes and several vacant lots on the Property, with a total of seven residential lots. PE 7 at 5; CE 1-2. Since 1989, the Property has been zoned High Density. Prior to approval of the Plan Amendment, the FLUM designated the Property as NBLDR. The FLUM was adopted after adoption of the zoning map and after the Property had been subdivided and leased for single-family lots. The NBLDR designation reflected the existing land use of the Property. The Belle Mer property, including the condominium, is adjacent to and east of the Property and is designated NBHRD on the FLUM. The property to the east of the Belle Mer condominium contains approximately 84 condominium units (Navarre Towers), with a southeast orientation. T 54-55; PE 7 at 2; CE 1-2. The property immediately to the west of the Property, also designated NBHDR on the FLUM, contains 45 condominium units known as Emerald Surf or Emerald Shore. Under current regulations and subject to change, a 17-floor condominium could be developed on this property. PE 7 at 5; CE 1-2. The Navarre Beach Commercial Core Area is defined in the County's Land Development Code (LDC), Section 6.07.00. Prior to approval of the Plan Amendment, the Property was not included in the Commercial Core Area. All the land on Navarre Beach subject to the Plan is owned by the County and either leased to individuals or entities, or held by the County. Navarre Beach acreage that is designated Conservation/Recreation on the FLUM is owned by the County and has not been leased. However, the County is not prohibited from leasing this land to individuals. The County is also not prohibited from modifying current leases to allow a different land use. The Plan Amendment and Change in Density The Plan Amendment changes the FLUM designation of the 1.89-acre parcel from NBLDR to NBHDR. The maximum theoretical density permitted in the area designated NBLDR is four dwelling units per acre. The current density of the Property (1.89 acres) is approximately seven units. The maximum theoretical density permitted in the area designated NBHDR is 30 dwelling units per acre. The Plan Amendment increases the maximum theoretical density allowed on the Property from seven units to 56 units, an increase of 49 units. While subject to change, under the current County Land Development Regulations (LDRs), the footprint for any building constructed on the Property cannot exceed 19 percent of the Property size, assuming all other LDR requirements are met, including setback requirements. T 227-231. The maximum theoretical density permitted in the area designated Navarre Beach Medium Density Residential (NBMDR) is ten dwelling units per acre. Consideration of the Plan Amendment by the County and the Department The Board of County Commissioners of Santa Rosa County (Board) voted to transmit the Plan Amendment at their meeting on September 27, 2007.2 On November 29, 2007, the Board voted to transmit other plan amendments that had also been approved by the Local Planning Board. On December 14, 2007, the Department received the County's proposed plan amendments, including the Plan Amendment. On February 12, 2008, the Department completed its review of several plan amendments adopted by the Board including the Plan Amendment, and issued its Objections, Recommendations, and Comments Report (ORC), raising concerns with the Plan Amendment. The Department objected to the Plan Amendment "based on internal inconsistencies with the [County's Plan] by proposing high density development outside of the Navarre Beach commercial core, directing population concentrations to Navarre Beach, and by increasing evacuation times on Navarre Beach." JE 4. County staff developed a response to the Department's ORC and an updated staff analysis that were presented to the Board during the adoption hearing. JE 5. In response to the Department's first objection and prior to the adoption of the Plan Amendment, the County amended its LDC to expand the boundaries of the Commercial Core Area on Navarre Beach to include the Property and additional acreage. See endnote 4; PE 4. The County had to expand the boundary of the Commercial Core Area because the NBHDR designation is permitted only within the Commercial Core Area. JE 1 at 3-10, Policy 3.1.A.8 16)(The NBHDR "category shall only be located within the commercial core area of Navarre Beach."). The Department also commented in the ORC that the Plan Amendment was inconsistent with Plan Coastal Management Element Objective 7.1.B, which states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area" (CHHA) and Policy 7.1.F.8, which states that "[a]mendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times."3 The Department suggested that "[s]hould the County decide to increase the density on the amendment site, the County should coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." On May 22, 2008, the Board approved both the change to the LDC text, which included the Property and other parcels within the Navarre Beach Commercial Core Area,4 and the Plan Amendment. On June 23, 2008, Belle Mer submitted a detailed letter to the Department, with attachments, stating objections to the Plan Amendment. On August 27, 2008, the Department had published a NOI to find the Plan Amendment "in compliance." Internal Inconsistencies and Data and Analysis Petitioner alleges that the Plan Amendment is inconsistent with Objectives 7.1.B and 7.1.F and Policy 7.1.F.8 of the Plan and is not supported by adequate data and analysis. Objective 7.1.B Objective 7.1.B states that "[t]he County shall direct population concentrations away from Navarre Beach and the entire Coastal High Hazard Area." When Objective 7.1.B of the Plan was adopted, all of Navarre Beach, including the Property, was within the CHHA. As a result of a 2006 change in state law, see Chapter 2006-68, Section 2, Laws of Florida, amending Section 163.3178(2)(h), Florida Statutes, and as applied to the Property, the Property is not located in the CHHA. It also appears that very little of Navarre Beach is currently in the CHHA. T 198-200. Also, when the Plan was adopted, no state rule required the County to direct population concentrations away from areas other than the CHHA. The intent appears to "reflect the requirement of the state to direct populations away from the" CHHA and was not intended to apply to areas of Navarre Beach outside of the CHHA. In order to interpret the intent of Objective 7.1.B in areas of Navarre Beach outside of the CHHA, it is appropriate to consider Policy 7.1.B.1 that states: "At least 45% of the developable land within the Navarre Beach Zoning Overlay District shall remain within the Low Density Residential and Conservation/Recreation Future Land Use Map Designations."5 The persuasive evidence indicates that the Plan Amendment is not inconsistent with this policy. In response to the Department's second ORC comment, County staff advised the Board that Objective 7.1.B6 "is implemented by Policies 7.1.B.1, 7.1.B.2 and 7.1.B.3." County staff determined that the Low Density Residential and Conservation/Recreation FLUM designated areas on Navarre Beach comprise 48.02 percent without the Plan Amendment. The addition of the 1.89 acres reduced the percentage to 47.77 percent, a change of .25 percent. JE 5 at 5. Policy 7.1.B.2 states: "The County shall limit the densities and intensities of land use as defined within this Plan. Such limitations will assure generalized low density use of land within the majority of the Coastal High Hazard Area of Santa Rosa County." County staff determined that the County "is a coastal county with three bay systems, a 20 mile long peninsula, and more than 125 miles of shoreline, most of which falls within the CHHA. The subject property has approximately 200 feet of shoreline, and is less than two acres in size. The [FLUM] clearly shows that the vast majority of shoreline in [the County] is designated for low density development between 1 and 4 units per acre, and much of the CHHA is designated as Conservation/Recreation on the FLUM. This amendment, which accounts for approximately 0.03% of the County's CHHA shoreline, will not result in a perceptible change in the generalized low density use within the majority of the CHHA as required by Policy 7.1.B.2." After also considering Policy 7.1.B.3, staff concluded that while the Plan Amendment increased "the total number of potential dwelling units on Navarre Beach by 49 units, it is not inconsistent with Objective 7.1.B or it's [sic] implementing policies." JE 5 at 5-6. Since at least 1996, the Department has consistently determined that any increase above current density levels increases the population concentration in the CHHA. T 241-242. If the property under review is located in the CHHA, the Department's "review is very much heightened with regard to the" CHHA, but not applicable to the Property because it is not located in the CHHA. T 261-262. The Department has no rule or policy to address directing population concentrations away from areas not in the CHHA. T 265. (Within the last three years, the County has approved FLUM amendments within the CHHA, but has not approved an increase in density within the CHHA. In each case, the County directed population increases away from the CHHA and the County's action is consistent with the Department's prior determinations.) The Department's position is credible, but not applicable to the Property, which is not in the CHHA, and in light of Policy 7.1.B.1. Ms. Poplin testified she knew of no way to interpret a comprehensive plan objective, e.g., Objective 7.1.B, without considering it in context with the implementing policies, e.g., Policy 7.1.B.1, and this position is consistent with the Department's definition of "policy." See endnote 7. In other words, the Plan objectives should not be read in isolation without consideration of implementing policies. T 243-244.7 Each relevant Plan objective and policy must be considered. However, they are not considered as stand alone requirements as suggested by Belle Mer. See Petitioner's PRO at 27, ¶ 97. At the time the County adopted the original comprehensive plan and FLUM (approximately 2003), densities allowed on Navarre Beach were reduced by more than 600 residential units. T 216, 225-226. Ms. Faulkenberry did not recall any additional reductions since that time. The County considers an area as a whole in evaluating the direction of population densities rather than on an acre-by- acre basis. The County also does not require any density off- set to occur concurrently with a density increase. T 217. See Lee County and Leeward Yacht Club, Inc., Case No. 06-0049GM (DOAH August 25, 2006, at ¶¶ 42-45; Admin. Comm. November 15, 2006, at ¶ 8). It was not proven that the increase in maximum theoretical density that may occur on Navarre Beach as a result of the Plan Amendment is inconsistent with Objective 7.1.B as implemented, in part, by Policy 7.1.B.1 and is not otherwise supported by adequate data and analysis. Objective 7.1.F Objective 7.1.F states that "[t]he County shall maintain or reduce hurricane evacuation times by implementing Policies 7.1.F.1 through 7.1.F.11, among others."8 Policy 7.1.F.3 states: "The County shall maintain a minimum medium response roadway clearance time for hurricane evacuation of 12 hours on roads under local jurisdiction." Roads under local jurisdiction mean roads within the unincorporated area of the County, including state and Interstate roads, but excluding roads outside the County. The County uses this policy when evaluating the hurricane evacuation times from Navarre Beach and to determine whether the specific numerical criteria have been met. Policy 7.1.F.8 states: "Amendments to the [Plan] on Navarre Beach shall not be approved which will result in an increase in hurricane evacuation times without mitigation of the adverse impact to evacuation times." The persuasive evidence indicates that the over-all reduction in densities on Navarre Beach since the Plan was adopted is adequate mitigation. There is no persuasive evidence that the Plan Amendment is likely to adversely impact (increase) hurricane evacuation times beyond 12 hours. In the ORC, the Department suggested that "[s]hould the County decide to increase the density on the amendment site," that it "coordinate with the West Florida Regional Planning Council to draft a professionally acceptable hurricane evacuation analysis, based on maximum development potential of the site, demonstrating that the County evacuation time will [be] maintained." The Department does not usually examine evacuation times for plan amendments for property not located in the CHHA. The Department raised an issue regarding the evacuation times because Policy 7.1.F.8 refers to Navarre Beach and the requirement of mitigation of the adverse impact to evacuation times. T 268-269.9 County staff contacted the West Florida Regional Planning Council and determined that the latest study was the Northwest Florida Hurricane Evacuation Study Technical Data Report, July 1999 (Study). (The Department was not aware of models (to study hurricane evacuate times) other than as prepared by the regional planning councils. T 270.) There is no statute or rule that requires the County to use "every detail" of the Study. Mr. Crumlish advised that he would expect the County to modify the Study over time. A spreadsheet to aid in calculating clearance evacuation time was distributed with the Study by the U.S. Army Corps of Engineers. The County utilized the spreadsheet produced by the 1999 Corps Study. The spreadsheet is used by the County each year to perform an annual update of hurricane evacuation times, but had not been used by the County in conjunction with a land use change request before it was used during the evaluation of the Plan Amendment. The spreadsheet incorporates various factors contained in the Study and is driven by assumptions and conclusions in the Study.10 There are assumptions made in the Study that when the number of units increases, other numbers may change in relationship to the change in dwelling units. T 149. The spreadsheet is set up so that the County staff may only change or input three columns of data: number of single family units; number of mobile home units; and number of tourist units. Otherwise, "[t]he program is locked." Actual units are counted, e.g., a house, not platted lots without a unit. The spreadsheet also does not allow the County to update road improvements. "Another unknown is the response rate of the population to evacuation orders: rapid, medium or long." According to the County, the spreadsheet is the only and best available data. If other data were used, other than dwelling units described above, the spreadsheet received from the Corps would be altered. Each year the County updates the spreadsheet and accounts for all dwelling units constructed within the County as of the update. Except for consideration of the Plan Amendment, the information was not updated from June 2007 through May 22, 2008. There could have been a change and a significant difference in the number of dwelling units in the County between June 2007 and May 22, 2008, T 99-100, although the number of additional, existing dwelling units during this time period was not quantified. When using the spreadsheet, the County planning staff added 49 units (accounting for the additional units that could be generated by the Plan Amendment) to the annual run of the spreadsheet that was last completed in June 2007. For the purpose of computing the hurricane evacuation time in light of the Plan Amendment, the County did not input any other data into the spreadsheet for the purpose of assessing the hurricane evacuation times.11 County staff provided data and analysis indicating that "the clearance times for critical segments in the County remain less than 12 hours for Cat 1 - 3 hurricanes with the [Plan Amendment]. For Cat 4 - 5 hurricanes, the clearance times already exceeded 12 hours at the following critical segments: US 90 east of Milton, Pensacola Bay Bridge, and I-10 eastbound, but the increased density with the amendment showed no increase in clearance times. The clearance time on SR 87 south of I-10 increased from 9.57 hours to 9.60 hours (again, the widening of that roadway is not factored in). Overall, the effect of the [Plan Amendment] was three hundredths of an hour or less on the critical segments. Therefore, we conclude that County evacuation times will be maintained with the amendment." JE 5 at 6. The County did not assess whether the hurricane evacuation times would increase based on the County's redefinition of the Commercial Core Area other than the Property. According to the County, the changes to the Commercial Core Area were not relevant to its consideration of the Plan Amendment because it did not involve any other plan amendments or changes in density that would impact the hurricane evacuation analysis. T 272. Overall, it was not proven that adverse impacts resulted from the Plan Amendment or that the Plan Amendment was inconsistent with the Plan's objectives and policies referred to herein and not based on appropriate data and analysis. Impact of the Plan Amendment on Potential Loss of View and Financial Impacts on Belle Mer Condominium Unit Owners Petitioner presented two witnesses who own Belle Mer Condominium units, units 1602 and 904 (PE 7 at 4), and who testified regarding their potential loss of view if the Plan Amendment is approved and also that their property values would be reduced. These issues were raised in the JPS at pages 2-3, but not expressly raised in the Petition. See, e.g., T 31-37, 73- 75; see also Petition at 3, ¶¶ 9-12. Assuming for the sake of argument that the two issues were timely raised and may be considered, resolution of the issues is speculative at best given the nature of this proceeding. Notwithstanding the lay testimony of what might be constructed on the Property in the event the Plan Amendment is approved, such as a "needle" or "high rise," T 41-42, the nature, scope, and extent of the loss of view and financial impact can not be readily determined without, among other information, a site plan showing the actual development of the Property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued determining that the Plan Amendment 2007-R-047, adopted by Santa Rosa County in Ordinance No. 2008-16, section 2, attachment A, on May 22, 2008, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 7th day of April, 2009, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 7th day of April, 2009.
The Issue The issue for determination in this proceeding is whether Respondent should issue a permit for coastal armoring to protect Petitioners' homes.
Findings Of Fact The Parties Petitioners are "property and/or riparian owner[s]" within the meaning of Section 161.053(5)(a). Petitioners own two single family residences situated on contiguous sites on highway A1A in Orchid Island, Indian River County, Florida. Each site fronts the Atlantic Ocean and extends landward from the mean high water line. Petitioners' homes are major habitable structures within the meaning of Florida Administrative Code Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). 2/ Each home is a two story residence that includes a garage, swimming pool, and patio. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). 3/ Petitioners' application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other agency requirements. Respondent determined that the application was complete on or before August 14, 1990. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws Of Florida, Chapter 93-21. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members. Background Petitioners began construction of their homes prior to March 4, 1987. At the time construction began, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioners' homes. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioners' homes. By that time, construction had progressed sufficiently, and both houses were grandfathered by applicable regulatory restrictions. The foundation of each home is a nonconforming foundation within the meaning of Rule 16B-33.007(4). The foundations are not designed to resist the predicted forces associated with a one-hundred-year storm event, do not elevate the support structures of the homes above the breaking wave crests or wave uprush projected for such a storm, and do not meet other applicable design criteria. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in Indian River County including that portion in front of Petitioners' homes. The dune fronting Petitioners' homes was severely undercut by wave action from the storm. The dune in front of Petitioners' property suffered 10 feet of bluff line recession. On Saturday, March 11, 1989, Petitioner, Machata, telephoned Respondent at its Tallahassee office for authority to protect his home from the forces of the storm. Mr. Machata was referred to the Division of Emergency Management. Mr. Machata telephoned the Division of Emergency Management at 10:30 a.m. on March 11, 1989, and spoke with Mr. Bill Whiney. Mr. Whiney advised Mr. Machata that the Division was aware of the storm and had delegated emergency management to Mr. Douglas Wright, Director of Emergency Management, Indian River County. Mr. Wright conducted a site inspection within an hour of Mr. Machata's telephone call. The dune was being undercut, and waves were striking near the top of the dune. Mr. Wright did not get near the bluff line for fear that the dune would collapse. Mr. Wright authorized the temporary placement of large quarry rocks on the seaward side of the dune. The rocks were placed at the toe of the dune on Saturday and Sunday, March 11 and 12, 1989. Mr. Wright instructed Petitioners to contact Respondent on Monday, March 13, 1989, for a permit to construct a permanent rock revetment or other bulkhead. On Wednesday March 15, 1989, an inspector for Respondent confirmed that construction of a rock revetment had begun without benefit of a permit from Respondent. Respondent advised Mr. Machata to stop construction of the rock revetment pending application for, and approval of, a coastal armoring permit. Mr. Machata immediately ceased further construction. At that point, a rock revetment 110 feet long had been placed along the toe of the dune in front of Mr. Machata's house. On July 19, 1989, Petitioners filed an application for a permit to complete construction of the rock revetment. Following several meetings and correspondence between Petitioners and Respondent, Respondent determined that the proposed revetment failed to comply with applicable requirements. At the behest of Respondent, Petitioners agreed to apply for a permit to construct and maintain the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead, in place of the rock revetment, if Petitioners demonstrated their homes are vulnerable to a 10 to 15 year return interval storm event (a "RISE"). The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater storm force. 6/ On April 17, 1990, Petitioners submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line and vegetation line and 23 feet seaward of Petitioners' existing patios. All work on the bulkhead is to take place landward of the steel wall. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval of 25 years. The design, engineering, and construction required to protect Petitioners' homes reflects the storm force associated with a high frequency storm. The steel wall will be constructed with 300 to 400 individual sheets of corrugated steel placed in the shore parallel direction. Each sheet is 25 feet long, 18-24 inches wide, 3/8 inches thick, and weighs approximately 1000 pounds. The sheet piles will be stockpiled on site and transported to the dune by a crane equipped with a vibratory hammer. The first sheet pile will be placed at one end of the proposed bulkhead and partially driven into the sand with the vibratory hammer. The next sheet pile will be threaded and interlocked with the first through the coupling joints and partially driven into the sand. After 50 feet of the proposed wall is put in place, the piles in that 50 foot section will be driven to their design depth. The remaining portion of the wall will be completed in 50 foot segments using the same procedure. Once the sheet piles are in place, 20 foot long steel tie rods will be placed through and connected to the piles near their top. The tie rods will be on the landward side of the piles arranged perpendicular to them. The tie rods will be spaced 15 feet apart, on center, along the entire length of the sheet pile wall. The tie rods will be encased in poured concrete. The other end of the tie rods will be secured to a concrete anchor buried in the soil (a continuous "deadman"). The deadman will run parallel to the sheet pile wall approximately 20 feet landward of the wall. The deadman is constructed with concrete formed and poured in place with reinforcing steel. The steel pile wall is connected to the deadman with tie rods to increase the stability of the sheet pile wall and to achieve the designed level of protection. Forty foot return walls at each end of the bulkhead will run landward of Petitioners' lot lines. The return walls ensure the stability of the bulkhead during storm attack by preventing erosion of sand landward of the bulkhead. A concrete cap will be poured in place on top of the sheet pile wall. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection. This form of armoring was proposed, in place of a rock revetment, at Respondent's request. It is uncontroverted that the design and construction of the proposed bulkhead meets all applicable engineering and structural design criteria. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioners' property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent's Division of Beaches and Shores recommended approval of Petitioners' application subject to stated conditions. On August 14, 1990, an agenda item recommending approval of Petitioners' application was considered by the Governor and Cabinet. The agenda item represented that Petitioners' homes are vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioners' application without explication. Immediately following the denial of Petitioners' application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioners', were expressly exempt from the new policy. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioners' homes are located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. 7/ Since Petitioners' application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No other applications were complete on or before August 14, 1990. A Final Order denying Petitioners' application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioners timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1). Agency Requirements Respondent consistently applies a multi-tiered test to assess applications for coastal armoring permits. The first tier consists of two parts. First, armoring must be proposed for a major habitable structure within the meaning of Rule 16B- 33.002(54)(a) and 16B-33.005(3)(b) and (c). Second, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rule 16B-33.005(1), and must show that the direct and cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed armoring. If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protecting a major habitable structure. 8/ It is uncontroverted that Petitioners' homes are major habitable structures. Therefore, the issues for determination in this proceeding are whether Petitioners' have "clearly justified" the "necessity" for protecting their homes, whether the direct and cumulative impacts clearly justify the armoring, and whether the protection sought is the only "feasible" alternative. The phrase "clearly justify" is the test of both the "necessity" for armoring and the direct and cumulative impacts of armoring. Section 161.053(5)(a)3 requires Respondent to consider whether the direct and cumulative impacts on the beach-dune system clearly justify the proposed armoring. Rule 16B-33.005(7) states that: the proposed armoring may not have an adverse impact on the beach-dune system at the specific site; and a number of similar structures on the coast may not have a significant adverse cumulative impact. 9/ The cumulative impact doctrine has been applied as a policy of equitable distribution in permitting cases involving environmental control statutes. 10/ The doctrine is intended to distribute permitted activities without contravening applicable standards or the public interest. The cumulative impact of the proposed bulkhead on the beach-dune system and on marine turtles is not imposed in addition to other applicable requirements but is a factor to be considered in determining whether the proposed bulkhead is clearly justified within the meaning of Section 161.053(5)(a)3 and applicable rules. 11/ The terms "necessity", "clearly justify", and "feasible" are not defined in applicable statutes and rules. 12/ Respondent has issued written memoranda and uttered unwritten policy statements to provide guidance in defining the quoted terms. Respondent attempted to explicate the quoted terms in this proceeding. Necessity: Vulnerability To High Frequency Storms Under the 1990 policy, the "necessity" for armoring must be clearly justified by demonstrating vulnerability to a five year RISE. However, the proposed bulkhead is exempt from the specific RISE imposed by the 1990 policy. Respondent asserts that a 10 or 15 year RISE was used to assess vulnerability prior to the 1990 policy and should be applied in this proceeding. In order to ascertain the specific numeric standard of vulnerability applicable in this proceeding, if any, it is necessary to consider the emergence of the vulnerability requirement prior to the adoption of the 1990 policy. 13/ Emerging Vulnerability Requirement In November, 1984, a severe storm caused major erosion over wide expanses of the east coast of Florida (the "Thanksgiving Day storm"). A number of applications for coastal armoring followed. Respondent's staff prepared a report proposing specific policy directives to provide guidance in reviewing applications for coastal armoring. The policy directives were approved by the Governor and Cabinet on March 19, 1985. However, the Governor and Cabinet expressly directed staff to review armoring applications on a case-by-case basis and did not adopt a specific policy (the "1985 directive"). The first application for a coastal armoring permit to go before the Governor and Cabinet following the 1985 directive was filed by Seaplace Association, Inc. The application was for a buried, sloping rock revetment and returns seaward of the two- story Seaplace condominium. The Seaplace application was recommended for approval by Respondent and considered by the Governor and Cabinet as an agenda item on February 23, 1988. The agenda item prepared by Respondent stated that Seaplace was vulnerable to a RISE of less than 10 years. This was the first agenda item where vulnerability to a specific RISE was included in Respondent's justification for a proposed coastal armoring permit. At the time that the agenda item was considered, Respondent's director stated that Respondent imposed a 20 year RISE to assess vulnerability in coastal armoring applications. The Governor and Cabinet denied the Seaplace application without explication. Following the denial of the Seaplace application, a storm impacted the shoreline in front of Seaplace causing erosion and further threatening the condominium. After a meeting with Cabinet aides, Respondent recycled the prior agenda item to reprint the document with no changes and brought the item back before the Governor and Cabinet with the same stated vulnerability. The Governor and Cabinet approved the Seaplace application on May 24, 1988, without explication. In approving the Seaplace application, the Governor and Cabinet neither explicitly nor implicitly adopted a specific RISE as a numeric standard for assessing vulnerability prior to the 1990 policy. The agenda items considered by the Governor and Cabinet on February 23 and May 24, 1988, did not recommend that the Governor and Cabinet adopt a 10 year RISE as a numeric standard for assessing vulnerability in all armoring applications but merely stated that Seaplace was vulnerable to a 10 year RISE. When the Governor and Cabinet considered the Seaplace application, they were informed by Respondent's director that Respondent used a 20 year RISE as a numeric standard for assessing vulnerability. When the Governor and Cabinet intend to adopt a policy, notice is given to the public prior to consideration of the proposed policy. No such notice was given prior to approving the Seaplace application on May 24, 1988. On February 7, 1990, Respondent issued internal memorandum PM-27-90 as a policy statement to guide staff in assessing the justification for rigid coastal armoring structures. Memorandum PM-27-90 states: . . . Existing policy on the use of rigid coastal protection structures is contained in Subsection 16B-33.005(3), Florida Administrative Code. The general policy restricts use of such structures . . . and permits them only if they are fully justified as the only feasible means of protecti[on]. . . . This policy [PM-27-90] provides guidance on the determination of justification for such structures. 2. Threat determination * * * b) The structure proposed to be protected is . . . exposed to direct impacts from hydrodynamic forces associated with high frequency storms and in danger of imminent collapse from such storms. (emphasis supplied) Memorandum PM-27-90 did not prescribe a specific RISE as a numeric standard for assessing vulnerability in all coastal armoring applications. It merely required a qualifying structure to be exposed to direct impacts from "a high frequency storm." A high frequency storm can have any return interval up to 25 years. The requirement in PM-27-90 that a qualifying structure be in imminent danger of collapse imposes neither a specific RISE nor an additional requirement for assessing vulnerability. After PM-27-90 was issued, for example, Respondent agreed to recommend approval of the proposed bulkhead if Petitioners demonstrated that their homes are vulnerable to either a 10 or 15 year RISE. When Memorandum PM-27-90 was superseded by the 1990 policy, it lost any general applicability it may have had within the meaning of Section 120.52(16). Since Petitioners' applications are the only applications exempt from the 1990 policy, the applicability of PM-27-90, if any, is not general but is limited to this proceeding. 14/ Respondent required, under the emerging policy in effect prior to the 1990 policy, that qualifying structures be "exposed to direct impacts from . . . high frequency storms." No numeric standard narrowed the scope of a "high frequency storm" to a specific RISE. Nor was a specific RISE identified in final agency action taken on specific applications prior to the adoption of the 1990 policy. While Respondent wishes to deviate from the general requirement for vulnerability that was in effect prior to the 1990 policy by imposing a specific RISE in this proceeding, Respondent failed to explicate a justification for such a deviation. 15/ In cases involving an eroding shoreline, the selection of a specific RISE to assess vulnerability is not intended to determine whether coastal armoring is going to be permitted. Rather, it is intended to determine when such armoring will be permitted and perhaps what form the armoring will take. 16/ The shoreline in the area of the proposed project is an eroding shoreline. Between 1972 and 1992, the shoreline in front of Petitioners' homes eroded at an annual rate of 1.7 feet. Respondent conducted shoreline surveys by registered surveyors at Respondent's monuments R-25 through R-30 in Indian River County. Petitioners' homes are located between monuments R-27 and R-28 and are closest to R-27. The field survey data is more reliable than historic shorelines from 1880-1968 depicted on maps submitted by Respondent and Intervenors during the formal hearing. Between 1972 and 1992, the bluff line at R-27 receded 42 feet. There was 50 feet of bluff line recession at R-25, 40 feet at R-26, and 43 feet at R- Between June, 1986, and March, 1992, five to six feet of dune recession occurred at R-27 with no evidence of dune recovery during that period. Since 1972, a significant decrease in the bluff line near Petitioners' homes has been caused by storms. The Thanksgiving Day storm caused 15 feet of bluff line recession. The storm in March, 1989, caused 10 feet of recession. The bluff line at the northern boundary of the Machata home receded 10 feet between 1987 and 1989. The bluff line at the southern boundary of his home receded seven feet during the same period. While the bluff line and mean high water line generally recede at the same rate, the mean high water line at R-27 receded 19.7 feet, or 3.4 feet a year, between 1986 and 1992, and 14.71 feet, or 2.6 feet annually, at R-28. Inlets constructed by government agencies cause 85 percent of the erosion along Florida's southeast coast. The Sebastian Inlet is the principal cause of erosion of the shoreline in front of Petitioners' homes. The erosion rate of the shoreline in front of Petitioners' homes can be expected to fall below one foot a year only if the Sebastian Inlet Management Plan to transfer sand is fully implemented. No evidence was presented to show when the plan will be implemented, if at all. As the shoreline erodes from the effects of the Sebastian Inlet and natural erosion, Petitioners' homes will eventually be vulnerable to a five year RISE. In the absence of any intervening changes, Petitioners will then satisfy the vulnerability requirement in the 1990 policy. However, Petitioners are expressly exempt from the specific vulnerability requirement in the 1990 policy and should not be required to wait until they comply with that requirement. Petitioners do not have to wait until their homes are vulnerable to a five year RISE if vulnerability is assessed using a 25 year RISE. A 25 year RISE is consistent with the design life of the proposed bulkhead. Rule 16B- 33.007(6)(b) requires that armoring: . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the [armoring]. . . . The design life of the proposed bulkhead is 25 years, but Respondent asserts that Petitioners must show that their homes are vulnerable to a 10 or 15 year RISE to clearly justify the necessity for the proposed bulkhead. Respondent failed to explicate a justification for deviating from Rule 16B- 33.007(6)(b) either by accepting a design life that is inconsistent with Respondent's vulnerability requirement or by assessing vulnerability with a RISE that is less than the 25 year design life of the proposed bulkhead. Absent the requisite justification for Respondent's deviation, Petitioners need only show that their homes are vulnerable to any high frequency storm including a RISE of 25 years. 17/ Vulnerability Clearly Justified By Computer Models Assuming that a specific RISE applies in this proceeding, Respondent asserts that either a 10 or 15 year RISE should apply. Respondent presented conflicting evidence concerning the specific RISE that should be applied to assess the vulnerability of Petitioners' homes. One of Respondent's experts, a professional engineer and administrator within the Division of Beaches and Shore, testified that Respondent's policy requires vulnerability to a 10 year RISE. However, the Division Director testified that Respondent's policy requires vulnerability to a 15 year RISE. The testimony of the Division Director was credible, persuasive, and consistent with Respondent's original recommendation of approval. Respondent, without deviation, determines whether a qualifying structure is vulnerable to a specific RISE through the application of computer models. Computer models analyze certain scientific parameters to mathematically simulate storm surge elevation and erosion for a high frequency storm. 18/ If the computer model shows that the eroded profile of the storm would reach the foundations of Petitioners' homes, then their homes are vulnerable to the specific RISE assumed for the storm. Applicable statutes and rules do not prescribe the computer model to be used in assessing the vulnerability of a qualifying structure. Since 1988, Respondent has relied exclusively on the Dean erosion model for such purposes. The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida. 19/ The original Dean model supporting Respondent's recommendation that the Governor and Cabinet approve the proposed bulkhead shows that the eroded profile of a 15 year RISE would reach the foundation of Petitioners' homes. Therefore, each home satisfies the 15 year RISE imposed by Respondent to assess vulnerability in this proceeding. Another computer model commonly used to assess vulnerability to a high frequency storm is the EDUNE erosion model. The EDUNE model utilized by Petitioners' coastal engineer shows that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. Therefore, each home satisfies the 10 year RISE imposed by Respondent to assess vulnerability prior to the 1990 policy. 20/ Since less severe storms occur more frequently, Petitioners' homes are necessarily vulnerable to more severe storms that occur less frequently including storms with return intervals of 15 to 25 years. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. The results of an erosion model that has not been properly calibrated may not be reliable. The Dean erosion model has not been calibrated for high frequency storm events. Dr. Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead. Both the EDUNE model utilized by Petitioners' expert and the original Dean model utilized by Respondent were calibrated using erosion data from the Thanksgiving Day storm. However, neither erosion model utilized local calibration factors for the proposed project site. No storm hydrograph for the Thanksgiving Day storm is available for Indian River County and no site specific data is available for the proposed site. In the absence of local calibration data, the accuracy of any erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data. The selection of proper input variables, in the absence of local calibration data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results. An erosion factor of 1.5 was properly used in the original Dean model which showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioners' homes. The Bureau of Coastal Engineering applies the Dean model exclusively for Respondent to predict erosion from high frequency storms and to assess the level of vulnerability for a qualifying structure. An erosion factor of 1.5 is the erosion factor approved by the Bureau of Coastal Engineering and consistently used in the Dean model. Use of an erosion factor of 1.5 is consistent with reasonable and appropriate professional judgment and Respondent's long standing practice. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioners' expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioners' homes. This is the appropriate and reasonable erosion factor to be used for the EDUNE model in the absence of local calibration data. The A factor is another input variable used in erosion modeling. The A factor defines the shape of the shoreline profile. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. If the shoreline steepens beyond the depth of the nearshore breaking wave and the A factor is determined by fitting the shoreline to a depth beyond the nearshore breaking wave, the A factor will be increased and the erosive force of the projected storm will be decreased. The A factors used in the original Dean model and the EDUNE model were properly determined by fitting the shoreline to the depth of the nearshore breaking wave. Respondent's manual states that an A factor between 0.14 and 0.16 is most reliable. Use of an A factor of 0.15 is consistent with Respondent's manual and reasonable and appropriate professional judgment. The Revised Dean Model Respondent prepared a revised Dean model for the formal hearing. The return frequency approach used in both the original Dean model and EDUNE model measures the predicted force of a storm by emphasizing its storm surge elevation. The volumetric approach used in the revised Dean model measures storm force by emphasizing the erosive force of a storm. Both storm surge elevation and erosive force are threats to Petitioners' homes. However, the storm surge of an actual storm may or may not be proportional to its erosive force. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975. 21/ If a computer model is calibrated for a greater erosive force, the model can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundations of Petitioners' homes. Conversely, if a computer model is calibrated for a lesser erosive force, the model can be used to demonstrate that the storm surge elevation of the same storm produces an eroded profile that does not reach the foundations of Petitioners' homes. The revised Dean model prepared by Respondent for the formal hearing used an erosion factor of 1.0 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundations of Petitioners' homes. In the absence of site specific data including storm surge elevation and a storm surge hydrograph for the Thanksgiving Day storm, use of an erosion factor of 1.0 was inconsistent with reasonable and appropriate professional judgment, Respondent's long standing practice, and the terms of Respondent's instruction manual. 22/ The A factor of 0.19 used by Respondent in the revised Dean model was neither appropriate nor reasonable. Respondent determined the A factor in its revised Dean model by fitting the shoreline profile to a depth substantially beyond the depth of the nearshore breaking wave. The shoreline steepens beyond the depth of the nearshore breaking wave. As the shoreline steepens, the A factor increases. By determining the A factor on the basis of the steeper profile, Respondent overestimated the value of the A factor and underestimated the erosive force of a 15 year RISE. The revised computer model prepared by Respondent assumed an erosive force that was disproportionate to the actual storm used to calibrate all of the computer models. Both the original Dean and EDUNE models were calibrated with erosion data from the Thanksgiving Day storm. The Thanksgiving Day storm had an erosive force that was disproportionate to its storm surge elevation and 2.8 times greater than a major storm such as hurricane Eloise in 1975. To the extent the volumetric approach in the revised Dean model assessed vulnerability by a standard other than storm surge, Respondent deviated from the storm surge criteria in existing statutes and rules. The CCCL is statutorily intended to define that portion of the beach-dune system subject to a specific storm surge. 23/ Respondent's rules describe design criteria for coastal armoring 24/ and conforming foundations 25/ by reference to storm surge. Respondent's rules also describe design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge. 26/ Evidence presented by Respondent to explicate its deviation from storm surge criteria in assessing vulnerability was neither credible nor persuasive and failed to overcome credible and persuasive evidence supporting the results of the original Dean model and EDUNE model. 27/ Respondent's inability to replicate the results of the EDUNE model is not a reasonable and appropriate basis for relying upon the revised Dean model and rejecting both the EDUNE model and the original Dean model. It is not possible to replicate modeling results without knowing each and every input variable used in the model to be replicated. Respondent did not know all of the input variables used by Petitioners' expert in the EDUNE model. In attempting to replicate the results of the EDUNE model, Respondent used input variables not used by Petitioners' expert. Notice Of Vulnerability The 1990 policy adopted by the Governor and Cabinet includes a notice of vulnerability caveat. The caveat provides that an applicant who constructs his or her home after notice of the public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit. Petitioners' applications are expressly exempt from the 1990 policy. Since Petitioners are not substantially affected by the 1990 policy, within the meaning of Sections 120.535(2) and 120.57(1)(b)15, it is not necessary to determine whether the notice of vulnerability provisions in the 1990 policy are generally applicable within the meaning of Section 120.52(16). The 1990 policy was adopted by the Governor and Cabinet three years after Petitioners began construction of their homes. At the time construction began, Respondent had no rule or policy giving notice to Petitioners that their construction activities may adversely affect their future ability to obtain a coastal armoring permit. Respondent advised Petitioners by separate letters issued on April 13 and 14, 1987, that their homes were exempt from the permitting requirements of the revised CCCL. At the time the CCCL was reestablished on March 4, 1987, Respondent determined on the basis of actual site inspections that Petitioners' homes were under construction within the meaning of former Rule 16B-33.002(56). 28/ The letters from Respondent in April, 1987, notified Petitioners that the foundations of their homes were nonconforming foundations and included a caveat that Respondent's staff would not recommend approval of any applications for coastal armoring to protect Petitioners' homes. The letters did not represent that the Governor and Cabinet would not approve their applications for coastal armoring permits. Petitioners began construction of their homes long before the notice of vulnerability policy was adopted in 1990. By the time Petitioner, Machata, received Respondent's letter in April, 1987, the entire substructure of his home was complete including the placement of 20,000 cubic yards of fill, the pouring of all footers, piles, grade beams, and retaining walls. Some plumbing and structural steel for the slab had been installed. When Petitioner, Lanzendorf, received a letter from Respondent, construction of his home was 80-90 percent complete and over $460,000 had been expended. It was not economically or legally feasible for Petitioners to stop construction of their homes when they received the letters issued by Respondent in April, 1987. Petitioners had already expended substantial sums on construction of their homes, and it is improbable that the lending institutions would have allowed construction to stop. The caveats contained in the letters issued by Respondent in April, 1987, were not timely under the circumstances and should have been issued prior to the beginning of construction rather than after substantial construction occurred. Notwithstanding its caveats, Respondent recommended approval of Petitioners' applications after Petitioners demonstrated that vulnerability to a 15 year RISE, but the Governor and Cabinet denied the application. Direct And Cumulative Impacts On The Beach-Dune System The proposed bulkhead, existing armoring, and proposed similar structures will have no significant adverse direct or cumulative impact on the beach-dune system within the meaning of Section 161.053(5)(a)3. The proposed bulkhead, existing armoring, and proposed similar structures will neither degrade the beach-dune system along that segment of the shoreline nor threaten the beach-dune system and its recovery potential within the meaning of Rule 16B- 33.005(7). Construction Construction of the bulkhead will not adversely affect the stability of the dune and will not damage vegetation seaward of the sheet piles. The sheet piles will be placed 10-15 feet landward of the dune bluff line and landward of the vegetation line. All construction will take place landward of the sheet piles. Excavation required to construct the proposed bulkhead is minimal. No excavation is required for placement of the tie rods in front of the Machata home. Only minor excavation is required for the deadman in front of the Machata home. The seaward and landward faces of the deadman will be covered with sand and not exposed except for a portion of the deadman in front of the Lanzendorf home. Due to dune elevation differences at the Lanzendorf home, a portion of the landward face of the deadman will be exposed. After removal of the forms used for the cap, tie rods, and deadman, the area between the sheet pile wall and the deadman will be filled with sand to bring the area up to a finish grade of 17.5 feet N.G.V.D. 29/ Any sand excavated to construct the bulkhead will be kept on site and used to build the grade to finish grade. The area between the sheet pile wall and deadman will be planted with native vegetation following placement of the sand. Impacts to dune vegetation landward of the steel wall will be temporary. Planted vegetation will provide protection to the dune from windblown erosion within one growing season. By the second growing season, planted vegetation will be of sufficient density to eliminate the initial impacts of construction. Before construction begins, Petitioners will place beach compatible sand at a 2:1 slope along the entire frontal dune escarpment within the limits of their property lines. The sand will provide additional stability for the dune during construction of the bulkhead and is consistent with the dune restoration plan required as a condition of the permit. The dune restoration plan requires Petitioners to place sand and vegetation in prescribed areas within 90 days of completion of construction. Dune restoration is a standard condition required by Respondent for the issuance of armoring permits. Natural Fluctuation Of The Beach-Dune System The beach-dune system is a balanced, interrelated system in a constant state of fluctuation. Natural erosion and accretion of sediment takes place as a result of coastal winds, waves, tides, and storms. Features of the beach-dune system are subject to cyclical and dynamic emergence, destruction, and reemergence. 30/ The beach-dune system cyclically accretes and erodes as a result of both storm impacts and seasonal changes. During storm events, elevated water conditions carry storm waves inland. Sediment from upland property is eroded. Storm waves carry the eroded material offshore and form an offshore sand bar. The sand bar protects the upland portion of the beach-dune system by tripping incoming waves, causing them to break offshore, and reducing the wave attack on the shoreline. Recovery of the upland portion of the beach-dune system occurs when a milder wave climate returns after a storm. Material from the sand bar is carried back to the upland property by normal wave activity. After the sand is deposited on shore, it is carried upland by wind, trapped by dune vegetation, and the dune previously eroded by the storm is rebuilt. In addition to storm events, seasonal changes cause fluctuations in the beach-dune system. The shoreline typically accretes during the summer when milder waves occur and erodes during the winter when wave action intensifies. When summer returns, the shoreline again accretes. Active Erosion From Armoring Erosion may be passive or active. Passive erosion occurs when the shoreline migrates landward during the natural fluctuation of erosion and accretion. Passive erosion is not an impact of the proposed bulkhead. The proposed bulkhead excludes sand landward of the bulkhead from the natural fluctuation of the beach-dune system. The proposed bulkhead will prevent the loss of sand landward of the bulkhead during storm events with a return interval of 25 years or less. Sand landward of the proposed bulkhead will be released into the beach-dune system in the event of a storm with a return interval of at least 25 years and sufficient force to destroy the proposed bulkhead. The proposed bulkhead will not cause erosion of the beach-dune system during storms with return intervals of less than 25 years unless the bulkhead is exposed and interacts with wave forces. The proposed bulkhead is located 10-15 feet landward of the dune bluff line and, therefore, will not initially be exposed to wave forces. The current annual rate of shoreline erosion near Petitioners' homes is 1.7 feet. At that rate of erosion, the proposed bulkhead would be exposed to wave action in approximately five to ten years in the absence of any mitigating action by Petitioners. If erosion of the shoreline exposes the proposed bulkhead to wave action, active erosion in the form of "scour" and "downdrift" may occur. Scour Scour would be caused by the interaction of the steel wall with storm tides and waves. 31/ Scour associated with a seawall is greater due to increased wave velocity caused by reflection of the wave energy off the seawall. Scour may occur during a storm event in front of the exposed bulkhead. Sand lost to scour will move immediately offshore in front of the bulkhead, as part of the sand bar, and eventually be returned to the shore during the recovery of the beach-dune system. A portion of the scoured sand will be diverted from the sand bar by longshore currents during the storm and redistributed within the littoral system. Downdrift Downdrift erosion occurs when longshore sediment is not transported from updrift to downdrift properties. When downdrift erosion occurs, downdrift properties are deprived of sand that otherwise would be transported from updrift properties. Downdrift erosion may occur if the shoreline retreats landward of the proposed bulkhead, the bulkhead protrudes onto the active beach, and interacts with waves. If all of those circumstances occur, the proposed bulkhead will trap sand on the updrift side of the bulkhead and deprive downdrift properties of sand to the extent of any sand trapped on the updrift side. Downdrift erosion, if any, caused by the proposed bulkhead will be limited to the dune area of the beach and will not result in a loss of sand to the beach-dune system. The amount of decrease in sand on the downdrift side of the proposed bulkhead will equal the amount of increase in sand to the updrift location. Renourishment There are several million cubic yards of sand in the littoral system in Indian River County. Any sand eroded at the location of the proposed bulkhead will be insignificant in comparison to the total amount of sand in the littoral system. Current natural erosion of the shoreline fronting Petitioners' homes causes a significantly greater volume of sand loss than may be caused in the localized area of the proposed bulkhead. Government devices in the region, including the Sebastian Inlet, cause significantly greater erosion to the shoreline in Indian River County than any erosion which may occur from the proposed bulkhead. Petitioners will place sand on the beach to offset or mitigate the sand retention features of the proposed bulkhead. Sand placement will be sufficient to offset any adverse impacts from scour erosion and downdrift erosion. Sand placement is common in Indian River County after storm events. Petitioners will conduct yearly shoreline profile surveys and maintain the shoreline profile in front of the proposed bulkhead through annual sand placement. Sand placement effectively mitigates any direct and cumulative adverse impacts from the proposed bulkhead. The beach profile adjacent to Petitioners' homes showed some recovery of the shoreline in the two year period around 1990. That recovery would not have been prevented by the proposed bulkhead. Proposed Similar Structures Proposed similar structures, within the meaning of Section 161.053(5)(a)3 and Rule 16B-33.005(7), include similar armoring under construction, pending applications for similar armoring, and similar structures that may reasonably be expected in the future. No additional armoring is under construction "along that segment of the shoreline." 32/ No pending applications are exempt from the 1990 policy, under review, approved, or vested along that segment of the shoreline. The 1990 policy prohibits all armoring within the Archie Carr National Wildlife Refuge and requires qualifying structures outside the Refuge to be vulnerable to a five year return interval storm event. Accordingly, no similar projects may reasonably be expected in the future. Respondent prepared a cumulative impact analysis for the proposed bulkhead in support of its recommendation for approval of the permit. That original cumulative impact analysis concludes that there is no potential for increased armoring within one mile north or south of the proposed project site. Respondent's original cumulative impact analysis is credible and persuasive. Revised Cumulative Impact Analysis Respondent prepared a revised cumulative impact analysis for the formal hearing. Respondent attempted to define proposed similar structures to include, not only similar armoring under construction and pending applications for similar armoring, but also future armoring that may occur if approval of Petitioners' application creates a precedent for armoring similarly situated properties. Respondent assessed the cumulative impact on the beach-dune system from such potential future armoring and attributed the potential impact entirely to the proposed bulkhead. In addition, Respondent expanded the definition of "that segment of the shoreline" in Rule 16B- 33.005(7) from a two mile segment of shoreline in its original analysis to an 18 mile segment in its revised analysis. 33/ Respondent evaluated a five region area beginning from a point south of Vero Beach in Indian River County and running north to a point south of Melbourne in Brevard County. Region 1 contains the proposed project site and is slightly south of midway in the area evaluated. 34/ Region 2 is immediately south of Region 1. Region 3 is immediately south of Region 2. Region 4 is immediately north of Region 1, and Region 5 is north of Region 4. The area evaluated excludes a portion of state-owned shoreline between Regions 4 and 5, including the Sebastian Inlet State Park. 35/ The shoreline within the boundaries of the five regions is 21.5 miles or 113,520 feet. Excluding the state-owned shoreline between Regions 4 and 5, the shoreline evaluated within the five region area totals 92,000 feet or 18 miles. The length of the proposed bulkhead is 303 feet. Respondent determined that there are 87 major habitable structures similarly situated to Petitioners' homes and that 9.8 percent of the shoreline in the area evaluated will be armored. Respondent determined that approval of Petitioners' application would increase armoring by: 280 feet in Region 1; 3,260 feet in Region 2; 4,145 feet in Region 3; 850 feet in Region 4; and 2,510 feet in Region 5. Respondent's cumulative impact analysis is not a valid application of the cumulative impact doctrine. The cumulative impact doctrine requires Respondent to consider the ". . . cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future." 36/ (emphasis supplied) Assuming arguendo that all 87 structures are "similarly situated" with Petitioners' property, armoring of all 87 structures can not reasonably be expected in the future. Respondent did not apply the 1990 policy in its cumulative impact assessment for the proposed project. Regions 1, 2, 4, and 5 are within the Archie Carr National Wildlife Refuge. The 1990 policy prohibits all coastal armoring within the Refuge. If the Governor and Cabinet require compliance with the 1990 policy, the proposed project will not create a precedent for armoring within Regions 1, 2, 4, and 5. Any armoring that occurs will be a result of non-adherence to the 1990 policy rather than an impact of the proposed project. Respondent did not apply the 1990 policy to qualifying structures outside the Archie Carr National Wildlife Refuge in Region 3. There are no armoring applications pending for any of the 87 structures identified by Respondent in its cumulative impact assessment, and no applications for any of those structures were complete on or before August 14, 1990. Unlike the proposed project, none of the 87 structures identified by Respondent are exempt from the 1990 policy. More than half of the 87 structures would not be vulnerable to a five year RISE under the 1990 policy. The terms of the permit for the proposed project provide that the permit does not create a precedent for armoring similarly situated structures. Permits issued by Respondent for new structures seaward of the CCCL include a caveat that a particular permit may not be considered as precedent for future applications by similarly threatened structures. Even if Respondent's determination is accepted on its face, a 9.8 percent increase in coastal armoring will not create a significant adverse impact on the beach-dune system. Moreover, several considerations suggest that Respondent's cumulative impact analysis is exaggerated. Respondent has promulgated no criteria in any rule to establish the length of shoreline or the number or size of the regions that must be included in any cumulative impact analysis. Rule 16B-33.005(7) requires that the cumulative impact of the proposed bulkhead must be assessed "along that segment of the shoreline." The prescribed segment of shoreline was expanded from 2 miles, in Respondent's original cumulative impact analysis, to 18 miles in Respondent's revised cumulative impact analysis. 37/ During the formal hearing, Respondent suggested several alternatives for determining the segment of shoreline that should be evaluated in assessing the adverse cumulative impact of the proposed project. Alternatives included: the same general area of the applicants' property; the local area; the entire east coast; the limits of the undeveloped portion of the shoreline on either side of the proposed structure; Vero Beach to the south; two miles on either side of the proposed bulkhead; the coastal cell; the area between two major areas of armoring; areas with similar processes; anywhere on the coast; a two mile segment of shoreline; the area in close proximity; and more areas other than the regions actually used by Respondent in its cumulative impact analysis. In the revised cumulative impact analysis, Respondent included the entire width of the shoreline within the property boundary for each of the structures. Respondent does not allow armoring to extend the entire shoreline of the property on which the armoring device is located. The 87 structures identified by Respondent are not similarly situated to Petitioners' homes. Respondent defined similarly situated structures as those located at a distance from the vegetation line that is similar to the distance between Petitioners' homes and the bluff line. Such a definition fails to take into account actual site conditions for a particular structure. Respondent relied solely on aerial photographs of the five region area to determine the distance between the vegetation line and each of the 87 structures. Aerial photographs provide only an approximation of the distance between the structure and the vegetation line. Respondent did not physically verify distances under actual site conditions ("ground truth"). If Respondent had ground truthed its cumulative impact analysis, site specific variations in the beach-dune system would significantly reduce potential armoring projected by Respondent. By not ground truthing actual site conditions for the 87 structures, Respondent failed to identify those structures that are not vulnerable to a five year return interval storm event due to enhanced dune viability. Respondent could not consider whether the beach-dune system at a particular site provided a structure with more protection due to: greater dune height; the condition of the shoreline; and the viability of the beach-dune system. If the foregoing considerations are taken into account, only 860 feet of shoreline in the five region area, or 0.8 percent, is subject to potential armoring. The impact on the beach-dune system of armoring 0.8 percent of the coastline in the five region area is inconsequential and will not have a significant adverse cumulative impact. It is unlikely that coastal armoring structures will be placed on publicly owned land. The State of Florida owns approximately 11,400 feet, or 22 percent, of the shoreline in the Archie Carr National Wildlife Refuge. The Refuge is within the State of Florida Archie Carr Conservation and Recreational Lands ("CARL") Project. The Refuge is ranked 7th on the 1992 CARL priority list. The priority ranking assigned to the Refuge means that Respondent has sufficient funds to acquire properties within the CARL project. Respondent has $10 million a year for the acquisition of land within the Archie Carr CARL project. Respondent could purchase the entire 9.5 miles of coastline in six years. Respondent has already purchased four parcels within the Archie Carr CARL Project totalling 29.88 acres. Respondent is actively negotiating with property owners and continuing to purchase land within the Archie Carr CARL Project. On October 22, 1991, the Governor and Cabinet authorized the purchase of 7.28 acres of land within the Archie Carr CARL Project. The United States Fish and Wildlife Service is also acquiring property in the Archie Carr National Wildlife Refuge. Congress appropriated $2 million in 1991 and $1.5 million in 1992 for the acquisition of such property. At the formal hearing, Respondent claimed that it would have to be 100 percent certain that no additional permits for armoring would be issued as a result of the proposed bulkhead in order for there to be no cumulative impact. As a practical matter, such a standard has the effect of a complete ban on all armoring and is clearly more restrictive than the 1990 policy from which the proposed bulkhead is exempt. Applicable statutes and rules do not authorize such a ban. Such a ban contravenes, not only existing statutes and rules, but also the express exemption granted by the Governor and Cabinet. Direct And Cumulative Impacts On Marine Turtles Florida has the second highest incidence of marine turtle nesting in the world. Loggerhead, green, and leatherback turtles currently nest on Florida beaches. Green turtles are endangered species while leatherbacks and loggerheads are threatened species. Respondent conducts yearly surveys of marine turtle nesting beaches and compiles the information in nesting summary reports. Nesting densities for each species are generally expressed as nests laid per kilometer of shoreline. Actual leatherback nests surveyed from Canaveral to Key Biscayne totaled 114 in 1991. One was located in the Canaveral National Seashore area. Another 44 and 32 were located on Hutchinson Island and Jupiter Island, respectively. Three nests were located in Boca Raton. Four nests were located in Broward County. Thirty nests were located in the Juno/Jupiter area. 38/ It is improbable that leatherback turtles will nest on the beach-dune system in front of Petitioners' homes. No leatherback turtles have ever been found on the beach in front of Petitioners' homes. Nesting densities for leatherback turtles are greater in St. Lucie, Martin, and Palm Beach counties than leatherback nesting densities in Indian River County. The Wabasso Beach survey area covers eight kilometers and includes the proposed project site. 39/ Wabasso Beach is not a significant nesting area for leatherback turtles. Nesting densities for leatherback turtles in Wabasso Beach are very low. Only one leatherback nested along the eight kilometers in Wabasso Beach in 1989, resulting in a nesting density of 0.125. There were no nests in 1990. The nesting density in 1991 was 0.62. The number of leatherback turtles that may be found in front of Petitioners' homes, expressed as a percentage of 1991 nesting density for Wabasso Beach, is 0.006. Wabasso Beach is not a significant nesting area for green turtles. In 1990, 2,055 green turtle nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting quality behind Jupiter Island, Brevard County, and Juno Beach. The likelihood of a green turtle nesting in front of Petitioners' homes is low to very low. Green turtle nesting densities for Wabasso Beach from 1989-1991 were as follows: 14 nests or 1.75 nests per kilometer in 1989; 55 nests or 6.9 nests per kilometer for 1990; and 7 nests or 0.87 nests per kilometer in 1991. Expressed as a percentage of nesting density for Wabasso Beach, the number of a green turtle nests to be found in front of Petitioners' homes was 0.0175 in 1989, 0.069 in 1990, and 0.0087 in 1991. 40/ Wabasso Beach is not a significant nesting area for loggerhead turtles. In 1990, 55,935 loggerhead nests were laid on the beaches from Canaveral to Key Biscayne. Wabasso Beach ranked fourth in nesting density behind Jupiter Island, Juno Beach, and south Brevard County. The nesting density for loggerhead turtles in Jupiter Island and south Brevard County, respectively, was five and two times greater than the nesting density in Wabasso Beach. Loggerhead nesting densities for Wabasso Beach from 1989-1991 were as follows: 1,256 nests or 157 nests per kilometer in 1989; 1,155 nests or 144.4 nests per kilometer for 1990; and 1,758 nests or 219.7 nests per kilometer in 1991. Even though Wabasso Beach is not a significant nesting area for loggerheads, it is likely that loggerhead turtles will nest on the beach-dune system in front of Petitioners' homes. Eleven loggerhead nests were laid on the beach in front of Petitioners' homes in 1990. On average, 13.2 loggerhead nests are laid in front of Petitioners' homes each season. Even if all of the green turtle and loggerhead nests laid in front of Petitioners' homes are destroyed as a result of the proposed project, that unlikely loss would not have a significant adverse impact on the total population of green and loggerhead turtles. Based on the number of nests and the number of times a female nests each season, there are 750 to 1,000 female green turtles and 20,000 to 25,000 female loggerhead turtles in the area between Canaveral and Key Biscayne. The loss of anywhere from 0.0087 to 0.069 green turtle nests and the loss of 13.2 loggerhead turtle nests would be insignificant compared to the overall turtle population for each species. The number of loggerhead nests destroyed in front of Petitioners' home, for example, would be 0.00009 percent of the total nests laid in Florida. Nesting data indicates an upward trend for both green turtles and loggerheads. The proposed bulkhead will not have an adverse impact on the upward trend for either species. Marine turtles do not nest landward of the dune bluff- line or vegetation line. The proposed bulkhead is located landward of the dune bluff line and landward of the vegetation line. Construction activities will not take place in the area of the beach where turtles nest and will not occur during the nesting season. Construction activities will not adversely affect the dune, will not cause damage to the dune, and will not destabilize the dune. False Crawls Adverse impacts on marine turtles from the proposed bulkhead, if any, will not occur unless erosion of the dune is so extensive that the proposed bulkhead is exposed. Even an exposed bulkhead will not have an adverse impact on marine turtles if a dry sandy area in the mid to high beach seaward of the bulkhead is available for nesting. If a nesting turtle encounters an exposed bulkhead, she probably will not nest at that site. She will likely return to the ocean, move up or down the beach, find a more suitable nesting area, and make her nest. This process is referred to as a false crawl. A turtle that false crawls at the site of the proposed bulkhead will not have far to go to nest at an unarmored site. The proposed bulkhead is only 303 feet long. The 1990 policy adopted by the Governor and Cabinet prohibits all armoring in the Archie Carr National Wildlife Refuge. Marine turtles frequently false crawl for reasons that are not completely understood. False crawls that occur when the bulkhead is exposed, if any, may not be attributable to the exposed bulkhead. A false crawl is not an abnormal event for marine turtles and is not necessarily harmful to them. Loggerheads may false crawl 50 percent of the time. In Wabasso Beach in 1990, there were 1,114 false crawls associated with 1,155 nests laid. Even on undisturbed beaches, the percentage of false crawls is as high as 50 percent. Marine turtles can successfully nest on the beach in front of the proposed bulkhead. Turtles have a long history of nesting in front of armoring structures in the Town of Jupiter Beach. Since March, 1989, turtle nests have been laid in front of the partial rock revetment at the toe of the dune escarpment along the shoreline fronting the Machata home. There is no evidence that these nests have not been successful. The percentage of false crawls in front of Petitioners' homes has been similar to false crawls on the rest of Wabasso Beach. Marine turtles sometimes emerge at low tide and nest below that portion of the beach inundated by high tide. Such nests are destroyed by the ensuing high tide. Waves and storm action commonly destroy turtle nests even on undeveloped and unarmored beaches. Racoon predation is a significant cause of turtle hatchling and egg mortality. Predation poses a considerably greater threat to eggs and hatchlings than does the proposed bulkhead. Exposed roots at the dune escarpment in front of Petitioners' homes may cause false crawls in the absence of the proposed bulkhead. Natal Beach Marine turtles return to their natal beach to nest. The proposed bulkhead will not adversely affect the ability of marine turtles to return to their natal beach. Female turtles return to a geographic area to nest. They do not return to the specific beach where they are hatched. Female turtles may nest on widely disparate beaches. One loggerhead that nested in the Carolinas also nested in Melbourne Beach. No tagged hatchling has ever returned to the specific beach where it was hatched. There is no agreement among experts on a precise length of beach that comprises a natal beach. However, the length of the proposed bulkhead is considerably smaller than the beach area encompassed by any definition of a natal beach. A turtle that returns to its natal beach and encounters an exposed bulkhead in front of Petitioners' homes can nest in another portion of its natal beach with no adverse impact from the bulkhead. Nest Relocation Marine turtles can be protected from adverse impacts of the proposed bulkhead through nest relocation. Nest relocation has a high success rate. Relocated nests attain hatchling success similar to that enjoyed by natural nests. In some cases, the hatchling success of relocated nests is greater than that of natural nests. Respondent routinely permits the relocation of large numbers of turtle nests. Thousands of nests have been relocated for threatened inundation, beach renourishment projects, beach cleaning, in heavy use areas, where lighting is a threat, and for research activities. In 1988, Respondent authorized the relocation of 199 loggerhead turtle nests in Brevard County for use in hatchling disorientation studies. More recently, Respondent allowed the Rosenstiel School at the University of Miami to relocate 10 nests to study the affect of sand on hatch success of loggerhead turtles. In 1990, Respondent issued permits allowing the relocation of 857 loggerhead turtle nests, containing 94,322 eggs, that were laid on portions of the beach in the City of Boca Raton, Jupiter Beach, Volusia County, Manalipan, and Daytona Beach. While Respondent has issued permits authorizing governmental agencies to relocate many thousands of turtle nests, Respondent maintains that it does not issue permits authorizing private parties to relocate turtle nests. However, Respondent's Division of Marine Resources has approved nest relocation as part of a sea turtle protection plan in the coastal armoring permit for Suntide Condominium. Petitioners have provided reasonable assurances that nesting turtles and their hatchlings will be protected. Petitioners have agreed to a number of permit conditions including the following: implementation of a sea turtle protection plan; implementation of a dune restoration plan within 90 days of the date the proposed bulkhead is completed; removal of the bulkhead once the bluff line recedes to the landward limit of either return wall; locating the bulkhead as far landward as practicable; placement of sand at a 2:1 slope along the entire dune escarpment adjacent to the bulkhead to enhance the stability of the dune; and yearly restoration of the beach profile fronting the bulkhead if surveys indicate that the profile has eroded. Relocation of turtle nests as an element of the sea turtle protection plan and the absence of any significant adverse direct or cumulative impacts provide reasonable assurances that nesting turtles, their hatchlings, and their habitat will be protected within the meaning of Sections 161.053(5)(c) and 370.12, and that the proposed project will not result in a "take" within the meaning of Section 370.12(1)(c)1. Other Considerations: Imminent Collapse; Public Access; And Local Requirements Petitioners' homes are not within the zone of imminent collapse within the meaning of Federal Emergency Management Agency ("FEMA") rules. The state is not qualified to issue certificates of imminent collapse under Section 1306(c) of the National Flood Insurance Act, as amended. Special permit conditions recommended by Respondent assure public access in the event erosion of the beach results in little or no dry sandy beach for access between the water and the proposed bulkhead. Petitioners are required to provide written evidence that a restrictive notice has been provided in the deeds and covenants and restrictions and recorded with the Clerk of the Court for Martin County. The restrictive notice must provide for a perpetual public access easement across the entire shore parallel width Petitioners' property. The easement must provide appropriate means of access and egress and allow passage along the shoreline. Clearly designated signs advising the public of the easement must be appropriately placed on Petitioners' property. Respondent typically requires applicants to grant public access easements when Respondent issues an armoring permit that may interfere with public beach access. The existing rock revetment in front of Petitioners' homes satisfies local requirements regarding setback requirements or zoning or building codes. Respondent may condition its approval of the proposed bulkhead upon receipt of written evidence that the proposed bulkhead will not contravene local requirements. Respondent has done so in connection with an earlier application by CTP Realty, Inc. (a/k/a Pishock) for a coastal armoring permit in the same region as the proposed project. Only Feasible Alternative Once Petitioners have clearly justified the necessity for the proposed bulkhead and shown that the direct and cumulative impacts clearly justify the proposed bulkhead, Petitioners' must demonstrate that the proposed bulkhead is the only feasible alternative. Alternatives asserted by Respondent in this proceeding include: "do nothing"; sand placement; and home relocation. Do Nothing And Sand Placement Respondent asserts that Petitioners should do nothing and rely on the existing dune for protection against high frequency storms. The "do nothing" alternative is not technically feasible. The existing dune does not provide the necessary protection for Petitioners' homes. The receding bluff line, eroding shoreline, and threat from high frequency storms expose Petitioners' homes to a high level of risk. Respondent also asserts that Petitioners should restore the existing beach profile through sand placement. Sand placement that provides a level of protection equivalent to the proposed bulkhead is not economically feasible. Sand placement at that level would require the placement of sand at a rate of 1.7 to 2.0 cubic feet per foot of shoreline for one half mile on either side of Petitioners' homes and in front of the proposed bulkhead. Due to the eroding nature of the shoreline, sand placement would need to occur more than once a year and would be economically prohibitive. Relocation: Technical Feasibility It is not technically feasible to relocate the Machata home. The structural design of the Machata home is unique. It has a 35 foot clear story from the finish floor up to a major ridge beam that supports the entire roof structure. The ridge beam bears on a bearing wall at its south end and the vertical standing fireplace at its north end. The fireplace in the Machata home is a two story, 38 foot high structure. It is the main support for the entire roof system of the home. The fireplace is constructed with concrete masonry and stone veneer and weighs 250,000 pounds. The fireplace rests on a slab foundation and is supported by six to eight 25 foot long piles. The piles are an integral structural element of the fireplace. Girder trusses on the second floor are connected to both sides of the fireplace. The trusses accept the loading of the second floor framing. The fireplace in the Machata home is cantilevered at the second floor. A cantilever beam off the fireplace supports the second story of the fireplace. The cantilevered nature of the fireplace means the fireplace is top heavy, out of balance, and out of symmetry. In order to relocate the Machata home, it would be necessary to sever the piles from the fireplace support structure. The piles that must be severed bear the loading associated with the cantilevered nature of the fireplace. Severing those piles may cause the fireplace to collapse. If the fireplace collapses, the ridge beam will collapse, and a large portion of the home will be destroyed. There is a wide variation in structural loading in the Machata home. Structural loading exceeds a quarter million pounds at the center of the home. Perimeter wall loads are 3,000 pounds per square foot. Interior wall loads are 1,500 pounds per square foot. Variations in structural loading prevent the home from being moved without tilting. If the Machata home is tilted during relocation, the fireplace will tilt or move off center. Due to the cantilevered and top heavy nature of the fireplace, the center of gravity will shift from the center of the fireplace to a point outside the fireplace. A shift in the center of gravity will create bending stress on the fireplace. The fireplace is not reinforced and not designed to withstand bending forces. The fireplace may crack and break under bending forces and fail. If the fireplace fails, the ridge beam will collapse and a large portion of the home will be destroyed. Relocation of the Machata home will alter the location of the property securing the interest of the mortgagee. Under the terms of his mortgage, Mr. Machata can not damage or substantially change his property. Relocation: Economic Feasibility Relocation of Petitioners' homes is not economically feasible. The direct cost of relocating the Machata home and garage is $315,000. The direct cost of relocating the Lanzendorf home is $75,000. Direct costs of relocation do not include the cost of restoration after the move. Relocation costs include the reasonable cost of restoring Petitioners' homes to the condition they were in prior to relocation. Respondent failed to explicate a justification for not including such costs in its proposed alternative. Such costs include: rebuilding the swimming pools, patios, retaining walls, driveways, walkways, planters, terraces, and equipment enclosure walls; disconnecting, reconnecting, and refurbishing electrical, air conditioning, plumbing and septic systems; landscaping and repairing or replacing the irrigation systems; repairing or relocating fences; earthwork such as clearing and filling; constructing new foundations; and exterior and interior refinishing and reconditioning. The cost of restoring Petitioners' homes after relocation is: MACHATA LANZENDORF a. Exterior demolition 45,878 11,923 b. Interior demolition 12,375 0 c. Earthwork 88,727 46,033 d. Concrete for retaining walls, planters, equipment enclosure walls, footings, terrace and steps 84,909 5,600 e. Pilings 37,500 15,700 f. Rebuild interior fireplace 52,000 0 g. Exterior refinishing 74,770 10,800 h. House reconditioning 32,700 13,500 i. Pool area 23,500 26,500 j. Deck drain, flashing, water proofing 3,000 1,000 k. Electrical 12,665 8,400 l. Plumbing 12,500 8,500 m. Air conditioning systems 11,000 1,250 n. Site grading, irrigation, landscaping 33,192 14,000 o. Driveway 23,256 8,165 p. Temporary shoring and structural support 7,500 0 q. Consulting fees 12,500 3,500 SUBTOTAL 567,972 174,871 r. Contingencies, wastes, and unknowns 42,597 13,155 s. Overhead and profit 128,217 39,477 TOTAL 738,786 227,503 The cost estimates for restoration are reasonable and customary based on what a general contractor would typically submit on such a project. The cost of restoring the Lanzendorf home after relocation is $227,503. When this cost is added to the direct cost of relocation ($75,000), the total cost of relocating the Lanzendorf home is $302,503. The cost of restoring the Machata home after relocation is $738,786. When this cost is added to the direct cost of relocation ($315,000), the total cost of relocating the Machata home is $1,053,786. The patios and terraces at the Machata home are not moveable. The costs of relocating the Machata home, therefore, can not be reduced by moving the terraces rather than demolishing and rebuilding them. Estimated exterior demolition costs of $45,878 include the cost of demolishing the terraces, planter walls, pool steps, segments of the driveway and driveway access that would have to be removed to pour concrete runways on which the home would be rolled to its new location. The cost includes trucking and disposal of the demolition material. The pool at the Machata home can not be moved. It is a reinforced mesh, pencil rod structure, sprayed with gunite. The work reasonably necessary to relocate the Machata home and restore it to its condition prior to relocation would require the pool to be demolished and rebuilt. The estimated cost of $37,500 for constructing a new pile foundation for the Machata home includes pilings, steel reinforcing cages, transition caps, and grade beams. The cost of constructing a new foundation would be greater if Respondent requires the new foundation to comply with the requirements of the relocated CCCL. Estimated earthwork costs of $88,727 for the Machata home include: clearing the site; filling the site to elevate the relocated home to flood elevations required by local government and current elevation; and compacting the fill material. It would also be necessary to grade the site, redo the irrigation system, landscape the site and plant sod, and replace fences to restore the site to its condition prior to the relocation. The air conditioning system at the Machata home is a heat exchange system that utilizes two wells. One well is an artisan well. The other is a shallow well. There are numerous connections between the air conditioning equipment and the two wells. The two wells would have to be relocated and reconnected to the air conditioning system. The underground electrical service to the Machata home would have to be disconnected, relocated, and reconnected. Estimated costs of $12,655 include the disconnection and reconnection of all electrical equipment as well as replacement of numerous pool lights at the new location. The Machata home can not be relocated with the fireplace intact. To assure against the structural collapse of the Machata home during relocation, the home must be properly shored. The fireplace must be disassembled and reassembled after the home is relocated. The cost of demolishing and removing the fireplace, temporarily shoring the home, and rebuilding the fireplace, including masonry reinforcement, internal duct work, structural ties, and Kentucky stone facing, is $71,875. Competing Cost Estimates The estimated relocation costs submitted by Intervenors' expert witness were neither credible nor persuasive. The cost estimates were based on visual observation of Petitioners' homes from an adjacent lot. The witness did not enter Petitioners' property to determine the size or quality of various appurtenances including swimming pools, driveways, tile terraces, retaining walls, and landscaping. The witness did not review structural plans for the Machata home. He was not familiar with structural characteristics of the Machata home and did not know the type of air conditioning used. Relocation costs are based on the estimated weight of each house. Estimating the weight of a structure that exceeds 300,000 pounds is integral to a determination of the cost of relocating that structure. The Machata house weighs 1,200 tons. Intervenors' cost estimates for moving the Machata home are based on a projected weight of 300 to 350 tons. When a structure's weight exceeds 150 tons, an accurate weight projection is integral to an accurate determination of relocation costs. The cost estimates submitted by Intervenors are not formal bids. The cost estimates submitted by Petitioners were prepared as formal bids by an expert in marine construction engineering. The formal bids were based on engineering drawings of the bulkhead. Costs set forth in formal bids are more likely to reflect actual costs than costs set forth in a cost estimate prepared for the formal hearing. The cost estimates submitted by Intervenors unnecessarily exaggerate the cost of the proposed bulkhead. For example, the $5,000 estimate for clearing is unnecessary because no clearing will be conducted. The mobilization/demobilization cost of $10,000 in Intervenors' estimate would actually be $2,500. The $12,000 allotted for site restoration is high and could be completed for $3,000 to $4,000. The $10,000 added for the deadman with tie rods is already included in the square foot cost submitted by Petitioners. Considering these and other examples, the total cost estimates submitted by Intervenors are exaggerated by $100,000. The 2:1 Requirement For Economic Feasibility Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. If the cost of relocation of the upland structure or dune enhancement does not exceed the cost of the proposed armoring by 2:1, then relocation or enhancement is considered to be economically feasible. Respondent requires compliance with the 2:1 requirement in all applications for coastal armoring, and the requirement has the direct and consistent effect of law. The 2:1 requirement is an agency statement of general applicability that implements, interprets, or prescribes policy, or imposes a requirement not included in existing statutes or rules and which has not been adopted in accordance with statutory rulemaking requirements (an "unwritten rule"). 41/ Respondent failed to explicate the reasonableness of selecting the 2:1 requirement over other means of assessing economic feasibility. Even if Respondent had justified its policy during the formal hearing, the cost of relocating Petitioners' homes is more than twice the cost of the proposed bulkhead and, therefore, is not economically feasible. The cost of constructing the proposed bulkhead is $136,000 including all labor, materials, and necessary equipment for the bulkhead and return walls. Of the total cost, $51,000 is attributable to the portion of the bulkhead related to the Lanzendorf home and $85,000 is attributable to the portion of the bulkhead related to the Machata home. The total cost of relocating the Machata home is $1,053,777. The total cost of relocating the Lanzendorf home is $302,464. Agency Requirements Satisfied Petitioners clearly justified the necessity for the proposed bulkhead in accordance with Rule 16B-33.005(1). Their homes are vulnerable to high frequency storms with return intervals as frequent as 10 to 15 years. Computer model results demonstrate that Petitioners' homes are vulnerable to high frequency storm events with return intervals as frequent as 10 to 15 years. The input variables used in the original and EDUNE computer models were reasonably related to Respondent's existing rules, the terms of Respondent's instruction manual, Respondent's long standing practice in all coastal armoring permits since 1988, and reasonable professional judgment. The direct or cumulative impacts on the beach-dune system and marine turtles clearly justify the proposed bulkhead within the meaning of Section 161.053(5)(a)3. The proposed bulkhead is adequately designed and will be properly constructed within the meaning of Rule 16B-33.005(3) and 16B-33.008. The proposed bulkhead is the only feasible alternative and will be located as far landward as possible within the meaning of Rule 16B-33.005(3)(c).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioners' application for a coastal armoring permit subject to conditions stated by Respondent on the record and imposed by the terms of this Recommended Order. DONE AND ENTERED this 16th day of February 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.
The Issue The issue is whether proposed regulations for Brevard County manatee protection areas by the Florida Fish and Wildlife Conservation Commission (FWCC), which are amendments to Rule 68C- 22.006, Florida Administrative Code, noticed in the April 20, 2001, Florida Administrative Weekly (F.A.W.)("Proposed Rule"), with a Notice of Change published in the F.A.W. on June 15, 2001, are an invalid exercise of legislative authority.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following material and relevant facts are found. Effective July 1, 1999, Respondent, FWCC became primarily responsible for implementation of the Florida Manatee Sanctuary Act, Section 370.12(2), Florida Statutes (2000) instead of the Department of Environmental Protection, by operation of Section 45, Chapter 99-245, Laws of Florida. FWCC is the State agency responsible for promulgating rules pursuant to Section 370.12, Florida Statutes. Respondent noticed proposed rules, and is a mandatory party to a challenge thereto. Section 120.56(1)(e), Florida Statutes. STANDING OF THE PARTIES McGill, Pritchard, Dovark, Gentile, Akins, Mason, Jaren, Robertson, Standing Watch, Inc., Save the Manatee Club, Inc., Florida Wildlife Federation, Inc., and Sea Ray Boats, Inc.1, are substantially affected by one or more of the Proposed Rules in that they operate motorboats in one or more of the areas proposed for regulation, or in that they represent the interests of members who operate motorboats in one or more of the areas proposed for regulations, or who desire to protect manatees and manatee habitats on behalf of members who derive aesthetic or other benefits from manatees, and who observe or otherwise enjoy manatees in Brevard County and elsewhere. Intervenor, Florida Power and Light Company (FPL), is a Florida corporation that owns and operates the Cape Canaveral Power Plant located in Cocoa, Brevard County, Florida. FPL's operations are specifically addressed in the proposed rule in that the proposed rule creates a no-entry zone along an area bordering the FPL Cape Canaveral Power Plant property boundary including easements and right-of-way where electrical generation operating equipment and electrical distribution and transmission equipment are located. Intervenor, Cocoa Beach is a Florida Municipal Corporation located in Brevard County. The Cocoa Beach Sports Area located with the Banana River Lagoon has been designated since 1988 as an area for water-related recreational activities for the residents of the City of Cocoa Beach and for the general public. The Proposed Rule seeks to impose speed restrictions for boats operating within this area and, if promulgated, will directly regulate and restrict the boating, fishing and other water-related recreational activities of the public within the area. Intervenor, Titusville is a Florida Municipal Corporation located in Brevard County, whose elected body has determined that a substantial number of its residents are substantially affected in the Proposed Rule. The parties alleged facts supported their standing in individual petitions, and the parties stipulated to standing. Therefore, none of the Petitioners presented any evidence regarding their standing. Petitioners and Intervenors are substantially affected by one or more sections of the proposed rule in that they operate motorboats in one or more of the areas proposed for regulation, or they represent the interests of members who operate motorboats in one or more of the areas proposed for regulation or who desire to protect the manatees and manatee habitat on behalf of members who derive aesthetic or other benefits from manatees and who observe or otherwise enjoy manatees in Brevard County. ADOPTION PROCESS FOR THE 2001 RULE PROPOSAL On September 6, 2000, the Commission authorized staff to initiate amendments to the Brevard County rules at a public meeting in Deland, Florida. On October 6, 2000, the Commission published a Notice of Rule Development in the Florida Administrative Weekly and announced a rule development workshop. On October 26, 2000, the Commission staff conducted a rule development workshop in Melbourne, Brevard County, Florida. On January 24, 2001, the Commission directed staff to conduct a second rule development workshop in Brevard County, Florida. On February 16, 2000, the Commission published notice in the Florida Administrative Weekly of the rule development workshop scheduled for March 7, 2000. On March 7, 2000, the Commission staff conducted a second rule development workshop in Viera, Brevard County, Florida. On March 30, 2000, the Commission conducted a public meeting in Tallahassee, Florida, and authorized publication of a Notice of Proposed Rulemaking in the Florida Administrative Weekly. On April 20, 2001, the Commission published a Notice of Proposed Rulemaking in the Florida Administrative Weekly and advertised public hearings to be held on May 3 and May 23, 2001. On May 3, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On May 23, 2001, the Commission staff conducted a public hearing on the Proposed Rule in Melbourne, Brevard County, Florida. On June 15, 2001, a Notice of Change was published in the Florida Administrative Weekly. There are no algorithms, formulae, protocols, matrices, math models, or metrics used by the Commission to combine the individual data sources into findings that idle-speed, slow-speed, or no-entry zones were required for any specific zone in question. Aerial surveys have been conducted by the Florida Marine Research Institute (FMRI) and others. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as follows: 1991 1,268 manatees 1991 1,465 manatees 1992 1,856 manatees 1995 1,443 manatees 1995 1,822 manatees 1996 2,274 manatees 1996 2,639 manatees 1997 2,229 manatees 1997 1,709 manatees 1998 2,022 manatees 1999 2,034 manatees 1999 2,354 manatees 2000 1,629 manatees 2000 2,222 manatees 2001 3,276 manatees During the most recent statewide synoptic survey, portions of Brevard County were observed in five counts made during January 5, 6, and 7, 2001. Of the 591 manatees observed in Brevard County on January 6, 2001, 457 manatees were adjacent to Florida Power and Light Company's thermal discharge, 38 manatees were in Sebastian River, 16 manatees were in Berkley Canal System, and 8 manatees were along the east Banana River shoreline on the southeastern extension of Merritt Island. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. These types of surveys are used by the FWCC in assessing manatee use of an area and then establishing manatee protection regulations. The most recent, comprehensive FMRI aerial survey in Brevard County consisted of 45 flights between September 1997 and September 1999. A standardized flight path designed to cover most probable manatee habitats was flown over Brevard County at least once per month during the two-year period at an altitude of approximately 500 feet (except for June 1999, where excessive smoke covered the area); the only area of the county not covered at all was restricted airspace associated with the Kennedy Space Center Complex. The highest number of manatees counted during this survey was 790 manatees in March 1999. General Description of Brevard County. Located in east central Florida, Brevard County is approximately 72 miles north-south and approximately 20 miles east-west. The west boundary of the county is the St. Johns River; the east boundary is the Atlantic Ocean. The Indian River Lagoon in Brevard County extends north of the Kennedy Space Center, at the north end of the county, to Sebastian Inlet, at the south end of the county. Brevard County consists of two major landforms and two major surface waters. From east to west, the geographical features are the Atlantic Ocean, a barrier island running the length of the county, the Indian River Lagoon, and the mainland. Northern Brevard County contains two other major geographical features. The barrier widens to form the Canaveral Peninsula on the east and Merritt Island on the west. Merritt Island is bordered by the Indian River on the west; the Banana River on the east; and the Mosquito Lagoon on the north. At the southern end of Merritt Island, the Banana River joins the Indian River. Besides Sebastian Inlet at the southern boundary of the county, the only navigable connection between the Indian River Lagoon and the Atlantic Ocean is at Port Canaveral. Port Canaveral cuts across the Canaveral Peninsula; along the west shoreline, the Canaveral Locks permit vessels to pass from the Port into the Banana River. The Mosquito Lagoon, Indian River and Banana River are located in a transitional zone between the temperate and tropical zones and form one of the most diverse estuaries in North America. The Indian River Lagoon varies from 0.5 to 5 miles in width and has an average depth of one meter (39.4 inches). The Indian River Lagoon system is not subject to significant periodic lunar tides. The water depths are depicted as mean lower low water, while the shorelines are represented in terms of approximate mean high water. In the lagoon system in Brevard County, the relative water levels rise and fall as influenced by wind, rainfall, storms, and tides. Expert witnesses with local knowledge of the waters acknowledged the variation in water level or relative depth and testified that the water level fluctuates in the Indian River Lagoon by more than three feet and fluctuates by two or two and one-half feet or greater annually. The Indian River Lagoon contains extensive sea grass beds, which are the preferred food for manatees. A bathymetric survey commissioned by the St. Johns River Water Management District determined the acreage of submerged land within the lagoon that can be potentially vegetated with submerged aquatic vegetation at a depth of six feet below mean sea level. Brevard County is the hub of the Atlantic Coast manatee population with a large year-round and a large migratory transient manatee population present throughout the year. THE MANATEE The West Indian manatee (Trichechus manatus) is one of endangered marine mammals in coastal waters of the United States. The West Indian manatee is presently classified as an "endangered species" by the federal Endangered Species Act and has protected status under the Marine Mammal Protection Act. The West Indian Manatee is one of the four living species of the mammalian Order Sirenia, the other three are the West African manatee, the Amazonian manatee and the dugong; the fifth species, Stellar's sea cow, was hunted into extinction. In the southeastern United States, manatees are limited primarily to Florida and Georgia and this group forms a separate subspecies called the Florida manatee (T. manatus latirostris). The Florida manatee (hereinafter "manatee") is a migratory species with a large range of movement along the Atlantic and Gulf Coasts of the United States. During the winter, cold temperatures keep the population concentrated in peninsular Florida, but during the late spring and summer they expand their range and are seen infrequently as far north as Rhode Island, and as far west as Texas. Manatees demonstrate "site fidelity" with some individual mammals adjusting their behavior to take advantage of changes in the availability of resources. Manatees often return to the same winter thermal refuges and the same summer habitats year after year. Manatees prefer water temperatures above 68 degrees F and when ambient water temperatures drop below 68 degrees, they seek warm water refuges, such as spring-fed rivers and power plans discharge outs. Florida Power and Light Company and Reliant Energy Power Plants and the Sebastian River are the primary warm water refuges sought by manatees in Brevard County. For feeding, resting, cavorting, mating and calving, manatees prefer shallow sea grass beds in coastal and riverline habitats with ready access to deep channels, particularly near the mouths of creeks, embayments and lagoons. Manatees sometimes prefer vegetation growing along the banks of waterways, instead of submerged or floating aquatic vegetation. Manatees seek and find sources of fresh water for drinking. In brackish or estuarine environment, they locate fresh water sources, either natural or artificial. They have been observed drinking fresh water at marinas, from air conditioning condensate discharge, from pockets of fresh water floating on the surface of the saltier water, from storm water outfalls and from springs. Typically, six-to-eight hours per day are spent on feeding, usually at one-hour intervals. Intermittently, between two and 12 hours per day are spent resting or sleeping either at the surface of the water or on the bottom. Time not devoted to feeding or sleeping is spent in traveling, socializing or exploring during both day and nighttime hours. The basic social unit consists of a female manatee and her dependent calf. Manatees, apart from winter aggregations at warm water resources and transient mating herds, are semi-social or mildly social mammals. Manatees usually prefer to swim below the surface at one to three meters (3.28 to 9.84 feet) depth, surfacing every few minutes to breathe. They typically have a swimming cruising speed between four and ten KM/HR (2-6 MPH), but can swim in short bursts at up to 25 KM/HR (15 MPH). Manatees have been seen in shallow waters with their backs and heads out of the water and on occasion have been observed fully or partially out of the water to feed or escape pursuing male manatees. Female manatees reach sexual maturity by age five years and males at the age of three to four years. Mating occurs when estrous females are successfully approached by dynamic epherimal mating herds of between five and 20 males (lasting up to four weeks). Female manatees will swim to very shallow water when pursued by mating herds of males as a preventive measure from mating. Manatees have a low reproductive rate and a long life expectancy. Manatee's gestation period is 11 to 14 months with usual birthing of one calf. Dependent calves remain near their mother's side from one to two years, swimming parallel to its mother, directly behind her flipper. Life expectancy for a manatee is in excess of 50 years. A significant decrease in adult survivorship due to, among other things, watercraft collisions could contribute to a long-term population decline. The manatee population in Florida has shown yearly increases resulting in more manatees now than there were in 1976 in the areas of Brevard County that are subject to the Proposed Rules. MANATEE PROTECTION PLANS The United States Fish and Wildlife Service developed an initial recovery plan for West Indian manatees in 1980, primarily for manatees in Florida. The plan was revised in 1989 and 1996. A third revision to the Recovery Plan was noticed for public comment in November 2000, and in July 2001. The recovery plans hereinabove recognized the major human-related cause of manatee mortality is collisions with watercraft. The existing and draft recovery plans state: Because watercraft operators cannot reliably detect and avoid hitting manatees, federal and state managers have sought to limit watercraft speed in areas manatees are most likely to occur to afford boaters and manatees time to avoid collisions. Avoidance technology research is ongoing for deterrent devices designed to "avoid collisions"; however, no device or combination of devices has gained acceptance and approval by the Marine Biological Scientific Community. The Florida Legislature has designated the entire State a refuge and sanctuary for the manatee--the Florida State marine mammal. Section 370.12(2)(b), Florida Statutes. HISTORY OF MANATEE PROTECTION IN BREVARD COUNTY The Florida Legislature initially authorized the adoption of manatee protection rules for Brevard County effective July 1, 1978, when it required the (former) Florida Department of Natural Resources to adopt rules regulating the speed and operation of motorboats between November 15 and March 31, 1978, in those portions of the Indian River within 3/4 mile of the then Orlando Utilities Commission (now Reliant) and Florida Power and Light Company power plant effluents. These rules became effective on March 19, 1997 (former Rule 16N-22.06, Florida Administrative Code ("Brevard County Manatee Protection Rules" or "BCMPR"). In 1989, a strategy to improve manatee protection in 13 key counties was approved by the Governor and Cabinet. The strategy called for development of manatee protection plans, for boat facility siting criteria, for priority land acquisition of critical manatee use areas, and improved aquatic preserve management for sea grass protection. Guidelines for implementation included new or expanded speed zones, refuges or sanctuaries for the regulation of boat speeds in critical manatee areas. Financial assistance was given Brevard County for its manatee protection plan in 1993. After creation of the FWCC, effective July 1, 1999, the BCMPR and other manatee protection rules were transferred from Florida Department of Environmental Protection (FDEP) to the FWCC, and the Secretary of State renumbered the prior rules to Chapter 68C-22, Florida Administrative Code. In 1994, FDEP amended BCMPR to establish manatee protection zones in the Canaveral Barge Canal and portions of adjacent areas of the Indian and Banana Rivers; to expand the existing "slow speed" zone in Sykes Creek (north of "S Curve") to include the channel; to establish a maximum 25 MPH zone in the Sykes Creek channel between Sykes Creek Parkway and the "S Curve"; and to renumber and correct map inconsistencies. This site- specific rule-making action was taken in response to proposed additional threats to manatees resulting from development of Abby Marina (now Harbortown Marina), pending completion of Brevard County comprehensive countywide manatee protection plan. In 1998, FDEP amended the BCMPR to establish seasonal "motorboats prohibited" and "no-entry" zones at the then Orlando Utilities Commission's (now Reliant) power plant and a seasonal "no-entry" zone at Florida Power and Light Company's power plant. THE PROPOSED MANATEE PROTECTION RULE AMENDMENTS FOR BREVARD COUNTY 1906 Section II - Proposed Rules THE FULL TEXT OF THE PROPOSED RULES IS: (Substantial rewording of Rule 68C-22.006 follows. See Florida Administrative Code for present text.) 68C-22.006 Brevard County Zones. The Commission hereby designates the waters within Brevard County, as described below, as areas where manatee sightings are frequent and where it can be assumed that manatees inhabit on a regular, periodic or continuous basis. The Commission has further determined that a likelihood of threat to manatees exists in these waters as a result of manatees and motorboats using the same areas. The primary purpose of this rule is to protect manatees from harmful collisions with motorboats and from harassment by regulating the speed and operation of motorboats within these designated areas. A secondary purpose is to protect manatee habitat. In balancing the rights of fishers, boaters, and water skiers to use these waterways for recreational and commercial purposes (as applicable under 370.12(2)(j), F.S.) with the need to provide manatee protection, the Commission has examined the need for unregulated areas or higher speed travel corridors through regulated areas. Such areas or corridors are provided in those locations where the Commission determined, on the basis of all available information, (1) there is a need for the area or corridor and (2) the area or corridor will not result in serious threats to manatees or their habitat. Unregulated areas or higher speed corridors are not provided in locations where both of the above findings were not made. The following year-round and seasonal zones are established, which shall include all associated and navigable tributaries, lakes, creeks, coves, bends, backwaters, canals, and boat basins unless otherwise designated or excluded. As used in this rule, ICW means the Intracoastal Waterway. Access to the NO ENTRY and MOTORBOATS PROHIBITED zones designated in paragraphs (2)(a) and (b) will be provided in accordance with procedures set forth in subsection (4), hereunder, and applicable provisions of Rule 68C-22.003. NO ENTRY (November 15 – March 31) Indian River, Reliant Corporation Delespine Power Plant Area: All waters within the discharge canal of the Reliant Corporation Delespine power plant, and; All waters southerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of the jetty on the north side of the power plant intake canal. Indian River, FPL Frontenac Power Plant Area: All waters in the vicinity of the Florida Power and Light (FPL) Frontenac power plant southerly of a line connecting the northern guy wires of the power poles immediately north of the FPL Unit 2 discharge area from the western shoreline of the Indian River to the third power pole east of the western shoreline (approximately 1,650 feet east of the shoreline), and westerly of a line running from said third power pole to the easternmost point (approximate latitude 28º 28' 07" North, approximate longitude 80º 45' 19" West) of the jetty on the north side of the FPL intake canal. MOTORBOATS PROHIBITED (All Year, except as noted) Indian River, Reliant Corporation Delespine Power Plant Area: All waters in the vicinity of the Reliant Corporation Delespine power plant southerly of a line bearing 90º from a point (approximate latitude 28º 29' 41" North, approximate longitude 80º 46' 35" West) on the western shoreline of the Indian River 95 feet north of the northernmost seawall of the power plant discharge canal, westerly of a line 250 feet east of and parallel to the western shoreline of the Indian River, and northerly of a line extending eastward from and following the same bearing as the southernmost seawall of the power plant discharge canal, with said line bearing approximately 70º. This zone is in effect from November 15 through March 31. C-54 Canal: All waters of the C-54 Canal (South Florida Water Management District Canal 54) east of the spillway (approximate latitude 27º 49' 50" North, approximate longitude 80º 32' 24" West) and west of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. IDLE SPEED (All Year, except as noted) Indian River, Power Plant Area: All waters west of the western boundary of the ICW channel, south of a line bearing 90° from a point (approximate latitude 28º 30' 13" North, approximate longitude 80º 46' 48" West) on the western shoreline of the Indian River approximately three-fourths of a mile north of the Delespine power plant discharge canal, and north of a line bearing 90° from a point (approximate latitude 28º 27' 27" North, approximate longitude 80º 45' 43" West) on the western shoreline of the Indian River approximately three-fourths of a mile south of the Frontenac power plant discharge canal, except as otherwise designated under (2)(a) and (b)1. This zone is in effect from November 15 through March 31. Banana River, Cape Canaveral Area: All waters north of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 331° from said point in the Banana River to a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 38' 19" West) on the State Road 528 Causeway (west of State Road 401). Section II - Proposed Rules 1907 Banana River, Manatee Cove Area: All waters of Manatee Cove (on the east side of the Banana River, just south of State Road 520) east of a line at the mouth of the cove running between a point (approximate latitude 28º 21' 21" North, approximate longitude 80º 36' 52" West) on the northern shoreline and a point (approximate latitude 28º 21' 09" North, approximate longitude 80º 36' 51" West) on the southern shoreline. Turkey Creek: All waters of Turkey Creek north and east (downstream) of Melbourne- Tillman Drainage District structure MS-1 and south and west of a line at the mouth of Turkey Creek that runs from the southeasternmost point (approximate latitude 28º 02' 21" North, approximate longitude 80º 34' 48" West) of Castaway Point to the northeasternmost point (approximate latitude 28º 02' 14" North, approximate longitude 80º 34' 43" West) of Palm Bay Point. Sebastian Inlet Area: All waters of the cove on the northern side of Sebastian Inlet (commonly known as Campbell Cove) northwest of a line running between the two rock jetties at the entrance to the cove. Sebastian River Area: All waters of the North Prong of Sebastian River, and; All waters of the North Fork Sebastian River (also known as Sebastian Creek) and the C-54 Canal west of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong and east of a line drawn perpendicular to the northern shoreline of the C-54 Canal at a point (approximate latitude 27º 49' 55" North, approximate longitude 80º 32' 00" West) on the northern shoreline 2,500 feet east of the spillway. SLOW SPEED (All Year) Mosquito Lagoon: All waters west of the ICW channel, south of the Volusia County/Brevard County line, and north of ICW channel marker “43,” and; All waters of Mosquito Lagoon (including the ICW channel) south of ICW channel marker “43,” southwest of a line commencing at ICW channel marker “43” and then running to ICW channel marker “45” and then on a bearing of 132° for a distance of 1,000 feet to the line’s terminus at a point in Mosquito Lagoon (approximate latitude 28º 44' 35" North, approximate longitude 80º 44' 35" West), and north of a line running from said point in Mosquito Lagoon on a bearing of 221° to the western shoreline of Mosquito Lagoon. Indian River, Turnbull Basin Area: All waters south and east of a line commencing at a point (approximate latitude 28º 44' 36" North, approximate longitude 80º 46' 19" West) on the eastern shoreline of Turnbull Basin (about one mile north of Haulover Canal) and then bearing 193° to a point 1,500 feet northwest of the ICW channel, then running in a southwesterly direction 1,500 feet northwest of and parallel with the ICW channel to a point (approximate latitude 28º 41' 22" North, approximate longitude 80º 49' 05" West) 1,500 feet northwest of ICW channel marker “12,” and then running in a southerly direction 1,500 feet west of and parallel with the ICW channel to the Florida East Coast Railroad Bridge, including all waters west of the ICW channel and south of an east-west line 1,500 feet north of the point where the Florida East Coast Railroad Bridge crosses over the ICW, but excluding the ICW channel as designated under (2)(e)2. Indian River, Titusville Area: All waters south of the Florida East Coast Railroad Bridge, east of the ICW channel, and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW, and; All waters west of the ICW channel south of the Florida East Coast Railroad Bridge and north of the State Road 402 Bridge and Causeway. Indian River, State Road 402 (Max Brewer Causeway) to State Road 405 (NASA Parkway): All waters within 2,000 feet of the general contour of the western shoreline of the Indian River, excluding the ICW channel where the channel is less than 2,000 feet from the western shore; All waters within one mile of the general contour of the eastern shoreline of the Indian River south and east of a point (approximate latitude 28º 36' 04" North, approximate longitude 80º 44' 44" West) on the western shoreline of Peacock’s Pocket (northwest of Banana Creek), and; All waters south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3. Indian River, State Road 405 (NASA Parkway) to State Road 528 (Bennett Causeway): All waters north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW, excluding the ICW channel as designated under (2)(e)3.; All waters west of the ICW channel and north of the overhead power transmission line that crosses the western shoreline of the Indian River approximately 1,200 feet north of State Road 528, excepting those areas otherwise designated for seasonal regulation under (2)(a), (b)1., and (c)1. when said seasonal zones are in effect; All waters south of said overhead power transmission line and west of a north-south line running through the second power pole east of the western shoreline; All waters within one-half mile of the eastern shoreline of the Indian River north of a point (approximate latitude 28º 25' 47" North, approximate longitude 80º 43' 24" West) on the eastern shoreline of the Indian River 1,500 feet south of the canal on the southern side of Meadow Lark Lane, including all waters of Rinkers Canal, and; All waters east of the ICW channel and south of the overhead power transmission line that crosses the eastern shoreline of the Indian River approximately 3,900 feet north of State Road 528. Indian River, State Road 528 (Bennett Causeway) to State Road 518 (Eau Gallie Causeway): All waters within 1,000 feet of the general contour of the western shoreline of the Indian River; All waters south of State Road 528 and within 1908 Section II - Proposed Rules 500 feet of the State Road 528 Causeway, within 500 feet of the State Road 520 Causeway, within 500 feet of the State Road 404 Causeway, and north of State Road 518 and within 500 feet of the State Road 518 Causeway; All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River between State Road 528 and State Road 520; All waters east of the ICW channel from State Road 520 to an east-west line 300 feet south of the southernmost point (approximate latitude 28º 19' 22" North, approximate longitude 80º 42' 00" West) of the spoil island east of ICW channel marker “80,” and; All waters within 500 feet of the general contour of the eastern shoreline of the Indian River south of the aforementioned east-west line and north of State Road 404 (Pineda Causeway). Indian River, State Road 518 (Eau Gallie Causeway) to Cape Malabar: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River; All waters south of State Road 518 and within 500 feet of the State Road 518 Causeway and within 500 feet of the State Road 192 Causeway; All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of State Road 518 and north of the easternmost point (approximate latitude 28º 02' 24" North, approximate longitude 80º 34' 48" West) of Castaway Point (including all waters of the Eau Gallie River and Crane Creek), and; All waters south of said easternmost point of Castaway Point, north of Cape Malabar, and west of a line commencing at a point (approximate latitude 28º 02' 29" North, approximate longitude 80º 34' 38" West) in the Indian River 1,000 feet northeast of said easternmost point of Castaway point, then bearing 130° to the westernmost point (approximate latitude 28º 02' 15" North, approximate longitude 80º 34' 19" West) of the spoil site west of ICW channel marker “14,” then bearing 153° to the westernmost point (approximate latitude 28º 01' 32" North, approximate longitude 80º 33' 55" West) of the spoil site southwest of ICW channel marker “15,” then bearing 138° to the line’s terminus at a point (approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar. Indian River, Cape Malabar to Grant: All waters within 1,000 feet of the general contour of the eastern shoreline of the Indian River south of Cape Malabar and north of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek); All waters south of Cape Malabar, north of the spoil island between ICW channel markers “25” and “27,” and west of a line commencing at a point approximate latitude 28º 01' 12" North, approximate longitude 80º 33' 35" West) in the Indian River approximately 2,400 feet northeast of Cape Malabar, then bearing 157° to the easternmost point (approximate latitude 28º 00' 26" North, approximate longitude 80º 33' 13" West) of the spoil site between ICW channel markers “16” and “17,” then bearing 152° to the easternmost point (approximate latitude 27º 59' 21" North, approximate longitude 80º 32' 35" West) of the spoil island west of ICW channel marker “22,” then bearing 166° to the line’s terminus at the easternmost point (approximate latitude 27º 57' 50" North, approximate longitude 80º 32' 10" West) of the spoil island between ICW channel markers “25” and “27;” All waters within 1,000 feet of the general contour of the western shoreline of the Indian River south of said spoil island between ICW channel markers “25” and “27,” and north of ICW channel marker “35,” and; All waters west of the ICW channel between ICW channel markers "35" and “38.” Indian River, Grant to the Indian River County Line: All waters west of the ICW channel between ICW channel marker "38" and the Brevard County/Indian River County line, including those waters east of the centerline of the U.S. 1 Bridge over the Sebastian River, and: All waters within 1,500 feet of the general contour of the eastern shoreline of the Indian River, south of a point (approximate latitude 27º 55' 59" North, approximate longitude 80º 30' 30" West) on the eastern shoreline of the Indian River (north of Mullet Creek) and north of an east-west line running through ICW channel marker “59” (approximate latitude 27º 51' 38" North, approximate longitude 80º 28' 57" West), including those waters within 1,500 feet west of the westernmost edge of the Mullet Creek Islands, within 1,500 feet west of the westernmost edge of the islands south of Mathers Cove, within 1,500 feet west of the westernmost edge of Long Point, and within 1,500 feet west of the westernmost extensions of Campbell Pocket south to said east-west line running through ICW channel marker “59,” and; All waters of the Indian River and Sebastian Inlet east of the ICW channel, south of said east-west line running through ICW channel marker “59,” north of the Brevard County/Indian River County line, and west of a line 200 feet southwest of and parallel with the centerline of the State Road A1A Bridge, except as otherwise designated under (2)(c)5. and excluding the marked Sebastian Inlet channel. Sebastian River Area: All waters of the Sebastian River (including waters also known as San Sebastian Bay), the South Fork San Sebastian River (also known as St. Sebastian River, Sebastian River and Sebastian Creek), and the North Fork Sebastian River (also known as Sebastian Creek) within Brevard County west of the centerline of the U.S. 1 Bridge and east of a north-south line from a point (approximate latitude 27º 50' 08" North, approximate longitude 80º 31' 02" West) on the northern shoreline of the North Fork Sebastian River at the intersection of the river and the North Prong of Sebastian River. Canaveral Barge Canal: All waters of the Canaveral Barge Canal east of the general contour of the eastern shoreline of the Indian River and west of the general contour of the western shoreline of the Banana River. Sykes Creek and Kiwanis Basin: All waters of Sykes Creek and Kiwanis Basin south of the Canaveral Barge Canal and north of the centerline of State Road 520. Section II - Proposed Rules 1909 Newfound Harbor: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Bridge and Causeway; All waters within 1,000 feet of the general contour of the western shoreline of Newfound Harbor north of the runway for the Merritt Island Airport (approximately one mile south of State Road 520), and; All waters within 1,000 feet of the general contour of the eastern shoreline of Newfound Harbor and an extension of said shoreline to a point 1,000 feet south of Buck Point. Banana River, North of State Road 528: All waters within 1,500 feet of the general contour of the western shoreline of the Banana River south of a point (approximate latitude 28º 26' 10" North, approximate longitude 80º 39' 35" West) on the shoreline near Kars Park on the boundary of the federal No Motor zone; All waters south of an east-west line running through the westernmost point (approximate latitude 28º 24' 42" North, approximate longitude 80º 38' 34" West) of the first spoil island north of the Canaveral Locks (commonly known as Ski Island), including those waters in Port Canaveral west of State Road 401, and; All waters east and south of a line commencing at the northernmost point (approximate latitude 28º 24' 44" North, approximate longitude 80º 38' 32" West) of Ski Island, then running to the southernmost point (approximate latitude 28º 24' 55" North, approximate longitude 80º 38' 31" West) of the second spoil island north of the Canaveral Locks, then following the eastern shoreline of said spoil island to its northernmost point, then bearing 6° to a point (approximate latitude 28º 25' 09" North, approximate longitude 80º 38' 29" West) in the Banana River underneath the overhead power transmission line south of the third spoil island north of Canaveral Locks, then following said transmission line (which is the boundary of the federal No Motor zone) in an easterly direction to the line’s terminus at a point (approximate latitude 28º 25' 16" North, approximate longitude 80º 36' 13" West) on the eastern shoreline of the Banana River. Banana River, State Road 528 to State Road 520: All waters south of State Road 528 and north of an east-west line 1,000 feet south of the point where the State Road 528 Bridge crosses over the main Banana River channel, except as otherwise designated under (2)(c)2.; All waters west of a line running from a point (approximate latitude 28º 24' 16" North, approximate longitude 80º 39' 30" West) on the State Road 528 Causeway east of the western State Road 528 Relief Bridge to a point (approximate latitude 28º 21' 26" North, approximate longitude 80º 39' 32" West) on the State Road 520 Causeway approximately 1,200 feet west of the water storage tanks, and; All waters south of a line bearing 270° from the southwesternmost point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 10" West) of Long Point in Cape Canaveral to a point (approximate latitude 28º 23' 29" North, approximate longitude 80º 37' 49" West) in the Banana River approximately 3,500 feet west of Long Point, and east of a line bearing 174° from said point in the Banana River to a point (approximate latitude 28º 21' 28" North, approximate longitude 80º 37' 35" West) on the State Road 520 Causeway approximately 1,000 feet west of Cape Canaveral Hospital Complex. Banana River, Cocoa Beach Area: All waters south of State Road 520 and within 1,000 feet of the State Road 520 Causeway, excluding the main Banana River channel; All waters within 1,000 feet of the general contour of the western shoreline of the Banana River, south of State Road 520 and north of Buck Point and an extension of said shoreline to a point 1,000 feet south of Buck Point, excluding the main Banana River channel where the channel is less than 1,000 feet from the western shoreline, and; All waters east of a line commencing at a point (approximate latitude 28º 21' 25" North, approximate longitude 80º 38' 30" West) on the State Road 520 Causeway (approximately 2,000 feet east of the State Road 520 Bridge over the main Banana River channel), then bearing 190° to a point (approximate latitude 28º 19' 15" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,900 feet west of the northwesternmost point of the Cocoa Beach Municipal Park, then bearing 270° to a point (approximate latitude 28º 18' 38" North, approximate longitude 80º 38' 55" West) in the Banana River approximately 1,700 feet west of the southwesternmost point of the Cocoa Beach Municipal Park, then bearing 171° for approximately 3,000 feet to a point (approximate latitude 28º 18' 07" North, approximate longitude 80º 38' 50" West) in the Banana River east of channel marker “15,” then bearing 124° to a point (approximate latitude 28º 16' 52" North, approximate longitude 80º 36' 45" West) in the Banana River 1,000 feet west of the eastern shoreline of the Banana River, then heading in a southerly direction 1,000 west of and parallel with the eastern shoreline of the Banana River to the line’s terminus at a point (approximate latitude 28º 15' 51" North, approximate longitude 80º 36' 38" West) in the Banana River near the northern boundary of Patrick Air Force Base. Banana River, South of Cocoa Beach to State Road 404 (Pineda Causeway): All waters south of an east-west line running through the southernmost point (approximate latitude 28º 16' 19" North, approximate longitude 80º 39' 25" West) of the more southerly of the two islands east of Macaw Way (on Merritt Island) and west of a line bearing 162° from said southernmost point to State Road 404; All waters south and east of the overhead power transmission line in the Banana River adjacent to Patrick Air Force Base, and; All waters north of the centerline of State Road 404 and within 2,000 feet of the State Road 404 Bridges and Causeway, excluding the main Banana River channel as designated under (2)(e)5. Banana River, South of State Road 404 (Pineda Causeway): All waters south of the centerline of State Road 404, including those waters east of a line bearing 270° from the southernmost point (approximate latitude 28º 08' 32" North, approximate longitude 80º 36' 15" West) of Merritt Island 1910 Section II - Proposed Rules (commonly known as Dragon Point) to the Eau Gallie Causeway, excluding the main Banana River channel as designated under (2)(e)5. 25 MPH (All Year) Mosquito Lagoon: All waters in the ICW channel south of the Volusia County/Brevard County line and north of ICW channel marker “43” (north of Haulover Canal). Indian River, Turnbull Basin and Titusville Area: All waters in the ICW channel southwest of ICW channel marker “1” (southwest of Haulover Canal) and north of an east-west line 1,200 feet south of the point where the Florida East Coast Railroad Bridge crosses over the ICW. Indian River, State Road 405 (NASA Parkway) Area: All waters in the ICW channel south of an east-west line 3,400 feet north of the point where the State Road 405 Bridge crosses over the ICW and north of an east-west line 3,000 feet south of the point where the State Road 405 Bridge crosses over the ICW. South Indian River Area: All waters in the ICW channel south of ICW channel marker “59” and north of the Brevard County/Indian River County line. South Banana River Area: All waters in the main Banana River channel south of a point in the channel 2,000 feet north of the State Road 404 Bridge, and north of a point (approximate latitude 28º 09' 15" North, approximate longitude 80º 36' 32" West) in the channel on the northern boundary of the local Idle Speed zone approximately 1,900 feet north of the Mathers Bridge. Commercial Fishing and Professional Fishing Guide Permits: The following provisions pertain to the issuance of permits to allow individuals engaged in commercial fishing and professional fishing guide activities to operate their vessels in specified areas at speeds greater than the speed limits established under subsection (2) above. Procedures related to the application for and the review and issuance of these permits are as set forth in 68C-22.003, Florida Administrative Code. Permits shall be limited as follows: Permits shall only be available for the zones or portions of zones described under (2)(d)1. through (2)(d)9., and (2)(d)13. through (2)(d)18. Permits shall not apply on weekends or on the holidays identified in s. 110.117, F.S. Permit applications may be obtained at the Commission’s Law Enforcement office at 1-A Max Brewer Memorial Parkway in Titusville or by contacting the Commission at Mail Station OES-BPS, 620 South Meridian Street, Tallahassee, Florida 32399 (850-922-4330). Access to the NO ENTRY and MOTORBOATS PROHIBITED zones is allowed for Reliant Corporation employees or their authorized agents (for the zones designated under (2)(a)1. and (b)1.) and for Florida Power and Light Company employees or their authorized agents (for the zone designated under (2)(a)2.) provided that entry into the zones is necessary to conduct activities associated with power plant maintenance, emergency operations or environmental monitoring. The Commission must receive notification of the activity prior to its commencement. In the event of an emergency activity, the Commission shall be notified no more than one week after the activity has been commenced. All vessels used in the operation or associated with the activity shall be operated at no greater than Idle Speed while within the zones and must have an observer on board to look for manatees. The zones described in 68C-22.006(2) are depicted on the following maps, labeled “Brevard County Manatee Protection Zones.” The maps are intended as depictions of the above-described zones. In the event of conflict between the maps and descriptions, the descriptions shall prevail. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE FWCC's staff who were primarily responsible for the development of the recommended revisions to the BCMPR to the FWCC included: Scott Calleson, who holds a Bachelor of Science degree in Marine Science and a Masters of Science degree with emphasis on Environmental Planning and Natural Resource Management, and has worked with manatee protection rules since 1992; David Arnold, who holds both a Bachelor of Science degree in Biology and a Master of Science degree in Biological Oceanography, and who supervised the Department of Environmental Protection's marine turtle protection program prior to becoming Chief of the Bureau of Protected Species Management in 1995; and Dr. Charles Deutsch, who has both a Bachelor of Science and a Doctorate degree in Biology with specialization in biology of marine mammals and behavior, animal behavior and behavioral ecology, and worked for the United States Geological Survey (USGS) in a number of analyses of manatee radio tracking along the Atlantic Coast. The verbal, narrative and graphical presentations of the experts were relied upon in making recommendations to the FWCC for the proposed rule revisions. FWCC's staff gave good faith consideration to the experts' opinions, publications, articles, data analysis, and reasonable inferences and predictions. MANATEE MORTALITY DATA FWCC relied upon manatee mortality data in evaluating manatee inhabitation (Brevard County Mortality Information and Brevard County Misc. Information), including FMRI manatee salvage database for Brevard County from January 1974 to December 2000 (including carcass recovery location and cause of death). AERIAL SURVEY DATA In evaluating manatee inhabitation, FWCC relied upon manatee aerial survey data in existing manatee inhabitations. Included in this process were: information on aerial surveys performed for Kennedy Space Center by Dynamic Corporation; Geographic Information System information for FMRI's 1997-1999 Brevard County aerial survey along with data in "Seasonal Manatee Distribution and Relative Abundance in Brevard County, Florida, 1997-1999"; Geographic Information System data from earlier Brevard County aerial surveys; and aerial surveys conducted by the Florida Marine Research Institute and others. Aerial Surveys Aerial surveys have been conducted by the Florida Marine Research Institute and others using various techniques. One type of aerial survey technique is a statewide survey. These surveys are typically flown in the winter, after the passage of a cold front. Typical winter aggregation areas are included in these surveys. The synoptic surveys are used for monitoring winter aggregations of manatees. Population biologists working on manatee recovery view synoptic survey results as the best available information about the minimum estimated size of the manatee population in Florida at this time. The statewide synoptic survey data from the past several years is as stated in Finding of Fact 23 herein above. In addition to statewide surveys, targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. The commission in assessing manatee use of an area and then establishing manatee protection regulations uses these types of surveys. SYNOPTIC AERIAL SURVEYS Considered by FWCC was the statewide synoptic survey for the period 1991 to 2001. These surveys are used for monitoring winter aggregation of manatees and provide a minimum estimate of the number of manatees observed. Population biologists view synoptic survey results as the best available information source to estimate the minimum size of the manatee population in Florida at the present time. The statewide synoptic survey data for the years 1991-2001 are detailed in paragraph 22 herein above. The Berkeley Canal system location, where manatees were observed on January 6, 2001, has four connecting canals to the eastern shoreline of the Banana River; the northernmost connection is just south of the Pineda Causeway and the southernmost connecting canal is located about three and three-fourths miles to the south between Carter's Cut and the Mathers Bridge. The West Banana River shoreline locations where manatees were observed on January 6, 2001, is the Banana River Marina. MANATEE DISTRIBUTION AND RELATIVE ABUNDANCE Targeted aerial surveys in specific areas are used to establish manatee distribution and relative manatee abundance. They are used in assessing manatee use of an area and then in establishing manatee protection regulations in those areas. Forty-five flights between September 1997 and September 1999 are the most comprehensive and recent FMRI aerial surveys in Brevard County. Aerial surveys possess an inherent bias because the location of animals can only be seen during daylight hours and do not account for nighttime locations. FWCC's aerial survey data were presented in various forms: raw data entry sheets completed by the surveyors; a composite, GSI plot of the data points for Brevard County; small- format GIS plots of data points that depicted manatees seen by month; and small-format GIS plots of data points that depicted manatees seen during each flight, along a flight path. Before the 1997-1999 Bervard survey, relative abundance and distribution surveys for portions of Brevard County were conducted in late-1985 through early-1987. The 1985-87 Banana River surveys included only the area between Launch Complex 39B and Eau Gallie, but included portions of Canaveral Barge Canal, Sykes Creek and Newfound Harbor. Flights were flown over the Cocoa Beach area during morning hours for a nine-month period (March 3, 1990- November 27, 1990), and showed more than one manatee during each flight, with one exception on March 3, 1990. SATELLITE TELEMETRY DATA AND VHF RADIO TELEMETRY DATA The FWCC relied upon manatee telemetry data in evaluating manatee inhabitation for Brevard County. Included in the satellite and VHF radio telemetry data relative to inhabitation was a GIS database obtained from the "United States Geological Survey (USGS) Biological Resources Division, Florida Carribean Science Center, Sirenia Project, Gainesville, Florida," and reports authored by Dr. Charles Deutsch who analyzed the USGS data. The USGS Sirenia Project data analyzed by Dr. Deutsch were collected from May 1986 to May 1998, and included both VHF radio and telemetry and satellite telemetry data for the 78 manatees that were tagged for varying amounts of time during that period along the lower East Coast of the United States, excluding data for manatees that were born and raised in captivity. This data was considered by Dr. Deutsch as the best telemetry data available. Of the full USGS Sirenia Project data evaluated by Dr. Deutsch, 61 manatees were tracked at some time during the study period in Brevard County, including 16 manatees that were only tracked using VHF radio tracking and not satellite telemetry. The maximum number of tagged manatees observed in Brevard County during the study period was 12 manatees at one time. Dr. Deutsch opined that about one or two percent of the documented East Coast manatee sub-population was tracked each year. The radio telemetry data subsets from the Sirenia Project covered a ten-year period from May 1986, and included over 6,000 manatee observations for 54 individual tagged manatees. Of those 6,000 observation points, three-quarters (almost 5,000) were actual visual sighting of manatees made by persons on shore or in vessels. Of those visual sightings, approximately ten percent were made by non-government employees. The satellite telemetry data evaluated by Dr. Deutsch included data for 45-tagged manatees that was collected from April 1987 to May 1998, with over 34,000 location records of Class 1, 2, or 3 accuracy. Of the 61-tagged manatees that were observed in Brevard County during the 12-year study period, the median tracking period was 135 days, with some animals tracked for several years while others were tracked for shorter periods of time. Of the 61 manatees tracked in Brevard County, approximately one-half were fitted with radio or satellite telemetry transmitters (tags) while in Brevard County, the other half were tagged in different areas of northeast Florida, in southeast Georgia, or in southeast Florida. A majority of the animals tagged outside of Brevard County were observed in Brevard County, and Dr. Deutsch opined that this data demonstrated Brevard County to be the hub of manatee activity along the Atlantic Coast. MIGRATORY RANGE OF TAGGED MANATEES The size of the migratory ranges of tracked manatees varied with considerable variation of movement by individual manatees in Brevard County. Some manatees would spend eight months of the year near Canaveral Sewer Plant (Banana River) and spend each winter near Port Everglades (Ft. Lauderdale). Many tagged manatees displayed strong site-fidelity, returning to the same seasonal locations yearly while others did not. Telemetry data points are not precisely a depiction of the actual and true location of the manatee at the time of data transmission from the tag to the satellite. Services Argos, the company that administers the hardware, assigned 68 percent of the data points within 150 meters of the true location in class three locations. In 1994, USGS performed accuracy experiments in Brevard County of satellite telemetry and found location class 3 data points to be within 225 meters of the true location, and 95 percent within 500 meters of the true location. In addition to Dr. Deutsch's reports, FWCC considered various telemetry papers and publications pertaining to Brevard County: "Tagged Manatee Use of the Cocoa Beach/Thousand Island Area;" "Winter Movements and Use of Warm-water Refugia by Radio- tagged West Indian Manatees Along the Atlantic Coast of the United States;" and "Easton, Tagged Manatee Movement through the Canaveral Barge Canal, Brevard County Florida" (February 14, 1997). MANATEE SIGHTING DATA FWCC relied upon manatee sighting data in its evaluation of manatee inhabitation. Included in the sighting data was the Brevard County 2001 Rule Development and Trip Notes of February 6- 7, 2001; Sea Ray Boats, Inc. Water Test Re-Run Manatee Sighting Records for 2000-2001; Canaveral Barge Canal Boater Activity and Compliance Study; Sharon Tyson's Sykes Creek Observation Records; and cold-seasons sighting logs for the C-54 canal structure. STUDIES AND REPORTS PERTAINING TO MANATEE DISTRIBUTION, RELATIVE ABUNDANCE, HABITAT, BEHAVIOR, OR OTHER MANATEE INFORMATION. FWCC considered and relied upon the Brevard County Manatee Protection Plan that included an inventory and analysis section about manatees, analysis of manatee mortality data, manatee legislation and protection, law enforcement, habitat issues, existing boat facilities, Brevard County boating activity patterns, and an inventory of present manatee education programs. The existing Federal Manatee Recovery Plan, to which members of the Bureau of Protected Species and Florida Marine Research Institute contributed, was relied upon. SCAR CATALOG DATA FWCC considered and relied upon scar catalog data in evaluating manatee protection needs with Brevard County Misc. Information as the source provider. EXPERT OPINIONS FWCC relied upon expert opinions in evaluating manatee inhabitation. A staff meeting with manatee experts, as part of the process, included, but was not limited to, meetings with Jane Provancha and Sharon Tyson in December 2000, meetings and discussions with Dr. Charles Deutsch between November 2000 and May 2001, and various discussions with members of the federal Recovery Plan Team. OTHER AVAILABLE SITE-SPECIFIC INFORMATION FWCC considered site-specific information that was available, principally drafts of the Brevard County Manatee Protection Plan. FWCC also considered site-specific information about water skiing areas and prospective additional travel times in various waters proposed for new, or changed, regulations. DATA ANALYSIS Threat Analysis Rule 68C-22.001(3), Florida Administrative Code, contemplates a qualitative assessment and exercise of discretion by taking into consideration a balancing of manatee protection needs, including an assessment of relative threats to manatees, with the right of boaters, fishers and water skiers. In assessing where threats to manatees may exist from motorboats, the manatee death database provides information on confirmed interactions, such as locations where manatee carcasses have been recovered. Manatee deaths, carcass recovery and confirmed interactions locations are maintained in FMRI's database. From January 1974 to December 2000, 728 manatees died in Brevard County and 184 of those deaths were because of interactions with watercrafts. Watercraft related deaths account for 23.5 percent of all manatee deaths recorded in Brevard County between 1974 and 2000. Approximately 19 percent of all watercraft related deaths of manatees in Florida have occurred in Brevard County. FWCC has determined that manatee death from watercraft interaction is due to blunt trauma more than 50 percent of the time. Deaths from propeller cuts account for less than 50 percent. Often injury instead of immediate death from motorboat strikes is the case. Many manatees have scars from previous sub- lethal motorboat strikes, and manatees have been observed with more than 30 different strike patterns. Where the cause of death is classified as watercraft related, carcass recovery may or may not be where the collision occurred depending upon the acuteness of the injury at the time of collision. Acuteness of the injury, wind, current, tide, and decomposition all affect the location of the carcass at the time of salvage. Additionally, operation of motorboats can disrupt essential manatee behaviors such as warm water sheltering, feeding, sleeping, mating, and nursing. This harassment can lead to cold-related illnesses and increase mortality risk by driving manatees from warm water refuges. The increase in the Atlantic Coast manatee population and the increase of the number of boat registrations result in an increase in the threat of harmful collisions between boats and manatees. Geographic Scope of Threat Analysis Section 370.12(2)(m), Florida Statutes, does not specifically describe the geographic scope of the FWCC's evaluation of "other portions of state waters" for manatee sightings and assumed inhabitation on a periodic or continuous basis. Subsection 370.12(2)(g), Florida Statutes, suggests that the evaluation of manatee sightings is appropriate for large portions of navigable waterways, such as the Indian River between St. Lucie Inlet and Jupiter Inlet. A "waterway" is generally defined as "a navigable body of water." (Webster's Ninth New Collegiate Dictionary, p. 1333.) Rule 68C-22.001(3)(a)2.f., Florida Administrative Code, contemplates a qualitative assessment of the "likelihood of threat" to manatees. The only reference is to the "characteristics of the waterway in question." The rule does not mandate the geographic scope of a "threat evaluation." The FWCC analyzed various data on different scales depending upon the nature of the inquiry - the evaluation of sighting "frequency" generally considered a large geographical area such as a section of a river. Conversely, the regulatory alternatives to protect manatees were evaluated at a smaller or finer scale. The Commission also considered segments of waterways divided by causeways or natural barriers. The Commission considered research that divided Brevard County (north of Eau Gallie) into 12 zones for purposes of analysis. In the Brevard County Manatee Protection Plan, the waterways were analyzed in terms of seven "planning zones," to include review of physical characteristics such as bathymetry and sedimentological conditions, shoreline conditions, and water quality; Manatee Habitat Features, including sea grass, mangrove/salt marsh, freshwater sources, warm water refugia, calving and resting areas, feeding areas, travel corridors, and habitat protection; Manatee Data including manatee abundance and distribution and manatee mortality; boat facilities; boating activity patterns; waterspouts areas; and manatee zones. The Commission's consideration of waterway characteristics and manatee behavior during the Brevard County rule-making process, including the geographic scope of manatee inhabitation and threat from watercraft, was reasonable and consistent with the approach taken by other resource management agencies and researchers as contemplated by the statutory purpose. Proximity and Degree of Known Boating Activities FWCC evaluated available boating activity information in assessing threat. Staff considered the general analysis of boating activity and detailed analysis of boating activity in specific portions of Brevard County as provided in the County's MPP; included therein were maps that show locations of the County's 72 marinas and 65 boat ramps, of which 27 are public ramps. Also considered was the study of Brevard County-Wide Boating Activity by Dr. J. Morris, of the Morris of Florida Institute of Technology. Dr. Morris' inquiry resulted in the following specific finding. First, Brevard County residents are the primary ones who launch at boat ramps, followed by residents of Orange, Osecola, Seminole, Indian River and Volusia counties. Second, the Inter Costal Waterways experiences increases in transient traffic during late fall and winter months, including out-of-state boats. Third, Class One boats (16 to 25 feet) are the most observed type, followed by Class A (less than 16 feet) vessels. Fourth, most boating activity occurs during weekends. Fifth, the greatest concentrations of boats were in specific areas such as NASA causeway (SR 405, Indian River), East Canaveral Barge Canal, SR 520 and the Banana River (the Merritt Island Causeway), the Pineda Causeway (SR 404, Banana River), the Melbourne Causeway (Indian River), near Grant Island Farm, the Sebastian River and the Sebastian Inlet. Dr. Morris concluded that the boating public preferred to cruise the waters of the lagoons with the marked channels and use Indian and Banana Rivers as highways for recreational boating purposes. The United States Fish and Wildlife Service (USFWS) closed a portion of the northern Banana River within the Merritt Island National Wildlife Refuge to public boat entry, limiting public entry to wading or by non-motorized vessels. The closed area has one of the largest concentrations of manatees in the United States, and recently has been the most important springtime habitat for the east coast manatee population. As a result of the March 1990 closing to motorized boats, an average increase of manatee use observed during the summer months in the area increased by 60 percent. The increased use is attributed to improved habitat quality aided by the lack of human disturbance and reduced propeller scarring of sea grass. In December of 1994, Dr. Morris submitted a report, "An Investigation of Compliance to Boat Speed Regulations in Manatee Protection Zones in Brevard County, Florida." This report contained an analysis from on-water and aerial observations in both "slow speed" and "idle speed" zones in various areas of Brevard County for a one-year period of April 1993 to April 1994. At Mosquito Lagoon, of 1,214 boats observed, speeds were clocked for 98 percent of the boats and 11 percent of those exceeded the posted Inter Costal Waterways 30 MPH speed limit, all of which were recreational boats. At the Indian River site between Grant and Sebastian, 2,511 boats were observed, speeds were clocked for 97 percent of the boats and 16 percent of those exceeded the posted ICW 30 MPH speed limit. In posted "slow speed" zones outside the ICW channel, 25 percent of boats observed underway were deemed non- compliant with the speed zone limitation. Of those non-compliant Class A powerboats, the violators were typically personal watercrafts ("Jet Ski" type vessels.) A detailed boater activity study was made of the Canaveral Barge Canal and Sykes Creek Area. The study found, in part, that: highest boating use occurred during holidays, except during bad weather; most use occurred on weekends; and in Canaveral Barge Canal and Sykes Creek 63 percent of the vessels were Class 1 boats and 74.3 percent of the vessels were Class 2 or Class 3 boats. INCREASED LEVEL OF BOATING ACTIVITY IN BREVARD COUNTY In general, the level of boating activity in Brevard County continues to increase with the increasing population, launching facilities, and boat registrations in Brevard County and nearby counties, including Orange and Seminole counties. In 2000, 34,316 vessels were registered in Brevard County. In the preceding year there were 31,842 vessels registered. In 1995, 28,147 boats were registered and in 1987, 23,352 boats were registered in Brevard County. In 2000, Florida registered 840,684 recreational vessels, an increase over the 695,722 vessels registered in 1994. Boating accidents increased with the increased registration of vessels with Brevard County ranking 10th out of the state's 67 counties with the number of boating accidents. Brevard County, since mid-1990's, has registered an increased number of "flats skiffs" which are shallow draft, low profile motorboats capable of speeds up to 50-60 MPH while operating in shallow (about 1 foot) water and often used for sight-fishing in shallow sea grass flats. SEASONAL AND/OR YEAR-ROUND PATTERNS OF MANATEE USE AND THE NUMBER OF MANATEES KNOWN OR ASSUMED TO OCCUR IN, OR SEASONALLY USE THE AREA FWCC staff evaluated whether seasonal restrictions could or would be effective. Staff concluded that the only seasonal regulation of motorboats justifiable by the data was at the power plant discharges in the Indian River. At those locations, extreme concentrations of manatees are regular during the cold season. Year-round manatee protections were proposed for this area, but they would have to be more restrictive during the winter months. During the coldest periods of winter, following a strong cold front, manatees have been observed in large concentrations in: the power plant discharges at Florida Power and Light Company's Indian River plant and at the adjacent Reliant Energy Plant and the Sebastian River Canal. The congregation of manatees at thermal refuges on cold winter days was not for the duration of the winter season. They have been known to leave the thermal refuge for a part of a day, a day, or for many days at a time. Sharon Tyson, observer, performed a detailed Brevard County Manatee Photo-Identification Project during late 1999 and early 2000 at the Brevard County power plants, and documented a number of manatees in the FPL discharge zone between December 24, 1999, and March 4, 2000. During that period the number of manatees in the zone varied greatly, through late-December to mid-January (from 7 to 57 manatees). On January 16, 2000, no manatees were present. On January 17, 2000, 10 manatees were present. On January 23, 2000, 29 manatees were counted. Two weeks later, February 6, 2000, 111 manatees were present. Similar sightings made at the C-54 Canal Structure (near Sebastian Creek), during the same time-period, found as few as 11 manatees to as many as 90 manatees. Apart from the extreme concentration of manatees during extremely cold periods, manatees are distributed through the county waterways during each season of the year. The 1997-1999 Brevard County Aerial Survey GIS Plots gave a clear representation of year-round manatee distribution patterns varying greatly. MANATEE MORTALITY TRENDS WITHIN THE AREA Only in rare cases is the approximate or actual location of a manatee and motorboat collision known. The FWCC considered and relied upon a review of the general trend of watercraft-related (and other) mortality County-wide to assess a generalized increased mortality trend. In doing so as part of the rule-making process, FWCC reviewed total manatee mortality for Brevard County for the period for which records existed from 1974 to 2000. That data base source indicated increasing watercraft mortality in recent years. FWCC evaluated manatee salvage data for January-March 2001 and preliminary information for April-May 2001. Staff employee, Scott Calleson's working file mortality information was reviewed and considered as was Dr. Ackerman's "Mortality Rates White Paper," which concluded that human-caused manatee mortality levels were at an unsustainable rate in the Atlantic, Brevard County, Tampa Bay, and Southwest Florida Regions. The Florida Inland Navigation District provided documentation that was considered in the FWCC rule making that included a regional evaluation of "Watercraft Related Manatee Deaths in the Nine Critical Counties of FIND" from 1990-1999. Of these nine critical east coast counties, Brevard County had the highest mortality trend. During the last two-to-three years, there has not been a clear trend of increased manatee mortality in Brevard County, but the number of watercraft-related mortalities is capable of being reduced, in part, through improved regulations. Historical manatee mortality data for Brevard County from 1977 through 2000 demonstrates a clearly increasing trend in watercraft-related manatee mortality. For each five-year increment, water-related manatee mortality has increased as follows: from 1977-1979 there were an average of 1.9 water-related mortalities/year; 1980-1985 there were 4.6 mortalities/year; 1986-1990 there were 7 mortalities/year; 1991-1995 there were 8.8 mortalities/year; and 1996-2000 there were 11.8 mortalities/year. EXISTENCE OF FEATURES WITHIN THE AREA THAT ARE ESSENTIAL TO THE SURVIVAL OF, OR KNOWN TO ATTRACT, MANATEES SUCH AS SEAGRASSES, FAVORABLE WATER DEPTHS, AND FRESH OR WARM WATER SOURCES Dr. Deutsch stated that his telemetry analysis indicated that the most important habitat correlation for Brevard County manatees was with sea grass, and in particular, often with outer edge of sea grass beds. Manatees prefer feeding on submerged, emergent and floating vegetation, generally in that order. Manatees extensively use Brevard County sea grass beds for feeding. Sea grass coverage is depicted on the Florida Department of Environmental Protection's Boater's Guide to Brevard County, which has no date, but was prepared by the DEP. Sea grass coverage in 1989 is depicted in the 2000 maps prepared by the STMC, using the Atlas of Marine Resources, Versions 1.2 and 1.3b. The most recent St. Johns River Water Management District sea grass coverage data for the Indian River Lagoon indicates a strong correlation between sea grass coverage in waters with an average depth of 66.93 inches (1.7 meters) or less. As of 1992, of the estimated 46.190 acres of sea grass in Brevard County, nine percent of the sea grass suffered light scarring from boat activity; 4.2 percent of the sea grass suffered moderate scarring; and 13.4 percent of the sea grass suffered severe scarring. Areas with boat scarring of sea grass included a number of areas that are included within proposed "slow speed" zones: the eastern portion of Turnbill Basin; the eastern shoreline of the Indian River between the NASA railroad bridge and Rinkers Canal; the Banana River around Manatee Cove and south of the City Golf Course; the northwest part of Newfound Harbor; and the western shoreline of the Banana River, between Newfound Harbor and Pineda Causeway. The location of the proposed manatee protection zones corresponds well to the location of sea grass beds, deeper waters and channels adjacent to sea grass beds or established migratory routes, and fresh warm water sources. FAVORABLE WATER DEPTHS Dr. Deutsch stated that his telemetry analysis indicated that bathymetry is an important habitat correlate for Brevard County. Generally, tagged manatees were observed in the area from a two-meter (6.65 feet) depth contour to the shoreline. FWCC consideration of "favorable water depths" took into account the fact that water levels fluctuate in the Indian River Lagoon. However, unlike many coastal areas of Florida, the Indian River Lagoon does not experience significant daily tidal fluctuation. On an annual basis, however, the water level fluctuates about 2.5 to 3 feet in response to environmental conditions. It was determined to be impractical to amend manatee protection rules (and to move regulatory signs implementing the rules) in response to changing water levels. Manatees usually swim between one to three meters (3.28 to 9.84 feet) below the surface, surfacing every few minutes to breathe, and typically feed at just below the surface to a depth of three meters. Manatee experts, including persons with extensive experience observing manatee behavior in Brevard County, all testified that manatees used areas where the water level at the time was less than three feet for mating, feeding, fleeing a pack of male manatees, and resting. The FWCC used a bathymetric survey prepared on behalf of the St. Johns River Water Management District for purposes of establishing preferred sea grass habitats during the rule-making and considered the bathymetry in conjunction with other data to predict areas where manatees are likely to inhabit. The St. Johns District advised the FWCC staff that the 1.7-meter depth on its bathymetric survey was the rough depth limit for sea grass, and provided the FWCC staff with a GIS file on the bathymetric survey at 0.3-meter depth intervals for most areas, although the approximate sea grass contour was shown as 1.5 to 1.7 meters. Surveys are tied to a horizontal datum and a vertical datum. A survey depicts the three-dimensional lagoon basin, part of the spheroid planet Earth, on a two-dimensional map. The hydrographic survey data used by the FWCC in the rule-making was based upon a survey tied to a horizontal datum - North American Datum (NAD) 83/90; and a vertical datum - North American Vertical Datum of 1988 (NAVD-88). The horizontal and vertical accuracy of the survey differs. Positional accuracy of horizontal (e.g. shorelines) points is within 1 to 5 meters (3.28 to 16.4 feet). Vertical accuracy of depth data points averages within .03 feet. The hydrographic survey states that it is not to be used for navigation - - "The use of NAVD-88 for the bathymetric survey gives the impression of deeper water than is actually present within the lagoon since the "0" contour of NAVD-88 is located on dry land approximately 1 foot above the ordinary water line." Manatee distribution from aerial surveys and 1992 bathymetry data was graphically depicted by the STMC and confirms manatee use of areas proposed for regulation in the proposed rules. FRESH WATER SOURCES FWCC considered and relied upon major fresh water sources that have been historically used by manatees such as: Turnbull Creek; Titusville Marina/POTW; Addison Canal; the two Indian River power plants; two wells along the eastern shoreline of the Indian River approximately two miles south of Rinkers Canal; the intersection of Bacardi and Dakar Drive in Sykes Creek; the Cape Canaveral POTW (sewer plant); the Banana River Marina; the outfall into the Indian River from the east shore of Merritt Island westerly of the south end of Newfound Harbor; the Indian River Isles; the Eau Gallie River; Crane Creek; Turkey Creek; and the Sebastian River. Also considered were less significant sources of fresh water found at many marina basins, at the Sear Ray Boats, Inc. facilities and in residential canals. WARM WATER SOURCES FWCC considered major warm water sources in the two Indian River power plants and the Sebastian River Canal. Minor sources of warm water include deeper water and areas with artesian springs such as: Port Canaveral; a basin off Wynar Street in Sykes Creek; the Banana River Marina; and the Berkeley Canals. CHARACTERISTICS OF THE WATERWAY IN QUESTION IN RELATION TO KNOWN BOATING ACTIVITY PATTERNS FWCC considered, as its basic source document, Morris' Final Report for Brevard County Boating Activity Study. Boating activity patterns in Brevard County are dependent upon weather, economic conditions, and other factors. Larger motorboats (including tug/barge combinations) are constrained in movement to deeper water--in some areas, primarily within marked or maintained navigation channels including the Canaveral Locks, Canaveral Barge Canal, ICW, and Banana River main channel. In the Indian River, south of the NASA railroad bridge, the deeper area outside of the marked channel widens to between half-a-mile to a mile with depths ranging from seven to 12 feet MLLW, all the way to Rock Point, just north of Grant. For most of the length of the County, larger boats have sufficient water depth to travel adjacent to the ICW channel. Waters outside the main channel in the Banana River are relatively shallow. The Canaveral Barge Canal is dredged to maintain a depth of approximately 15 feet. Barges and escorting tugs navigate through the Canaveral Locks and into the ICW. Some barges proceed northward from the Canaveral Locks into the Banana River channel to make deliveries to the Space Center, according to the Lockmaster, Mr. Querry. Sea Ray Boats, Inc.'s, design and production facilities located along the Canaveral Barge Canal use the Canal to access testing areas to the west in the Indian River ICW, to the east in the Banana River channel, and in the Atlantic Ocean. Limited retests are permitted in an area adjacent to the Canaveral Barge Canal facilities. Recreational motorboats and personal watercrafts can be operated outside of marked channels. Some of these recreational motorboats can navigate "on plane" and up to 60 MPH in water about one-foot deep. Motorboat users engage in a variety of activities having differing operational patterns. Fishers might prefer to travel at relatively high speed enroute to preferred fishing areas, and then operate with a push pole, trolling motor or adrift, in order to hunt certain species of fish. If no fish are located, then high-speed operation to another spot is used, repeating the pattern of locating fish by sight. Water-skiers usually operate at high speed in a relatively small area, usually protected from the wind, and often located near an island or park. BOAT-MANATEE INTERACTIONS FWCC considered that manatees display varying reactions to motorboats. Higher speed motorboat operation in relatively shallow water presents a greater threat to manatees than operation at slow speed or idle speed or than operation in relatively deeper waters, since manatees have fewer opportunities to avoid the collision. Manatees can swim or rest at the surface or underwater and must come to the surface to breathe air every two to three minutes for smaller, active manatees and up to 20 minutes for large, resting manatees. Their general cruising speed is two to six miles per hour, but they can travel at short bursts up to 15 MPH. Boats operated at "slow speed" vary in miles-per-hour over the bottom within a range of about seven to eight miles-per- hour. At "slow speed," the manatee and vessel operator have more time to avoid collision, or the manatee can avoid serious blunt trauma injury from collisions with most vessels. The ability of manatees to avoid being hit by motorboats has diminished in Brevard County as a result of an increase in the manatee population, increase of motorboats, increase in boating access points, and development and use of faster boats that operate in less-predicable (non-linear) patterns in relatively shallow waters where manatees often feed on submerged vegetation. TESTIMONY REGARDING MOTORBOAT-MANATEE INTERACTION Officer Dennis Harrah, qualified as expert in boating safety, marine law enforcement, and local knowledge of the waterways of Brevard County, testified that "slow speed" zones provide greater reaction time for the vessel operator to avoid collision than unrestricted speed areas and than the "25 MPH maximum speed" areas. He further testified that "idle speed" zones provide greater reaction time for vessel operators to avoid collision than "slow speed" areas. Dr. John Reynolds, qualified as expert in marine mammal conservation and policy, manatee biology and behavioral ecology of marine mammals, opined, based on frequent observation of motorboat-manatee interactions, review of videotapes of such interactions, and review of studies on the subject, that there is an increased threat to manatees associated with boats that operate in planing speeds as opposed to slow speeds. His opinion is based, in part, on "common sense" that objects moving faster have greater momentum and therefore greater magnitude of impact, and on the reduced reaction time of both vessel operators and manatees to avoid collision. Dr. Reynolds was not aware of any evidence to suggest that the majority of watercraft strikes to manatees are from vessels operating at "slow speed," and it is his belief that "a good percentage of manatee mortality was from fast-moving vessels." Ms. Spellman, qualified as expert in marine biology and in manatee rescue and salvage, testified that she had observed considerable variability in manatees' reactions to kayaks, canoes and windsurfers, including manatees approaching the vessel, manatees not reacting at all, and manatees swimming away. She has observed manatee reactions to small motorboats as highly variant, depending upon the animal, including: swimming under a slow-moving motorboat, moving just as a motorboat approaches at idle speed, or diving and leaving the area as soon as a motorboat got anywhere near. Ms. Spellman testified, based upon her presence in the waters of the Canaveral Barge Canal or in the Port east of the Locks, that she has been in the water with manatees on five occasions when a barge/tug combination came by and in all cases the manatees reacted to the barge well in advance of the barge coming near her and the manatee, and that in each instance the manatee swam to within 15 to 20 feet of the shoreline. Of the thousands of times that she has seen manatees, she estimated that 95 percent of the time the manatees had scars from boat propellers or skegs. Dr. Powell testified, based upon over 30 years of observation of boat-manatee interactions, that the typical reaction is a flight or startle response, often to dive to deeper water. The diving response may take the manatee under the boat, away from the boat, or across the path of the boat. Based on his observations, including manatees reacting to motorboats moving at "idle-speed," "slow-speed" and at "faster-speeds," Dr. Powell opined that the manatees' reactions resulted from acoustical cues, visual cues, and perhaps pressure cues. Captain Singley, tugboat operator in Brevard County for over 30 years, observed a group of manatees react to a fast moving planing hull; some animals broke the surface, others scattered to the right or left, and others dove to the bottom. Mr. Walden, Sea Ray's Boat, Inc.'s, performance and water test specialist, testified that he had observed manatees in the Barge Canal, and sometimes the manatees would react to the motorboat. The majority of time when the boat was operating at planing speed or faster the manatee would dive and go deeper, and would began evasive action, upon hearing and noticing the motorboat a couple of hundred feet away. Dr. Gerstein testified that fast moving boats can hit manatees and that he was not aware of any physical evidence, eye- witness account, or law enforcement report of a slow-moving boat hitting a manatee. STUDIES ABOUT MOTORBOAT-MANATEE INTERACTION KNOWN BOAT STRIKES FWCC considered that watercraft collisions with manatees are rarely reported to authorities, and, as a result, it is difficult to directly assess the circumstances of such collisions, such as boat size, type and speed at the time of collision. A summary entitled "Watercraft-related Manatee Deaths Where the Responsible Vessel is Known," indicates that barges, displacement hull vessels, and planing hull vessels are known to have been in fatal collisions with manatees. In those planing- hull incidents where the vessels and estimated speed are known, the speed of the vessel ranged from getting-up-on-plane (45-foot boat with twin 425 HP outboard motors) to 35 MPH (18-foot boat with 150 outboard motor). Two other incidents were a 46-foot boat with twin inboard motors operating at 18 knots and a 20- foot boat with 200 HP outboard operating at 20 MPH. The only indication that a slow-moving planing-hull vessel struck a manatee is a report from an individual who was operating at estimated five MPH in a flat hull vessel and reported to have "felt a bump on aft hull, saw two animals (manatees) swam off." PROTECTION OF MANATEE-SEA GRASS HABITAT FWCC considered protection of sea grass habitat a secondary purpose in the Proposed Rule for areas subject to Section 370.12(2)(m), Florida Statutes. The Florida Guide To Recreational Boating notes that: Sea grass beds have been severely scarred (torn up) by boats operated in extremely shallow water. This is due, in part, to the "flats fishing craze" and the rising popularity of vessels designed to operate in shallow water. The Guide recommends that operators set the boat's drive unit at the highest possible setting and that the operator "proceed at idle speed when moving through shallow grass beds." Dr. Reynolds testified that "idle speed" or "slow speed" shoreline buffer zones provide greater sea grass protection (and manatee conservation) than higher motorboat speeds. The Executive Director of the Indian River Guides Association testified that the group is promoting "pole and troll" areas within the Merritt Island National Wildlife refuge portions of the Indian River Lagoon. He stated that many people from Orlando and elsewhere bring their boats by trailers to Brevard County, or move to Brevard County, and operate their boats so as to tear up seagrass beds. FWCC correctly concluded that "slow speed" and "idle speed" zones provide a greater measure of protection to shallow seagrass beds than do higher speeds for motorboats. DATA SOURCES CONSIDERED BY FWCC IN PROMULGATING THE PROPOSED RULE Differing Opinions About Manatee Protection Areas FWCC's Opinion The FWCC, based on the following, took the position that the proposed rules are more likely to protect manatees from motorboat impacts than the existing rules, and that the proposed rules take advantage of the available science of manatee biology and conservation, using the same basic approach used in manatee conservation by officials in Australia to protect dugongs (another Sirenian) from motorboats. The FWCC postulates that "idle speed" and "slow speed" zones provide greater protection to manatees than do higher motorboat speeds. "Maximum 25 MPH" speed zones in deeper water areas provide greater manatee protection than do unregulated waters. Most motorboats observed operating in unregulated areas (outside "slow speed" or "idle speed" zones) in Brevard County, during Dr. Morris' boating compliance study, were operating at or below 25 MPH. The FWCC correctly concludes that "maximum 25 MPH" speed was reasonable in light of research into the minimum planing speed of most recreational motorboat models, the observations of typical motorboat speed and operation in unregulated waters of Brevard County. The FWCC considered 1997 DEP-solicited information from motorboat manufacturers to determine minimum planing speeds and maximum planing speeds, and draft on- and off-plane for various sizes and types of motorboats. Considered also by the FWCC was boating test literature to determine that most boat models could reach planing speed at or slightly below 25 MPH. The FWCC considered information that was submitted showing that many production boats reached planing speed between 20-25 MPH. For example, Scout Boats' 11 models planed between 20- 25 MPH, and Shamrock's 13 models planed between 20-25 MPH. The Florida Marine Research Institute's 1992 information on this topic found a range of minimum planing speed between 14 and 24 MPH. Motorboats operating at speeds higher than 25 MPH are many. Ranger Boats offered several models with maximum speed in the "upper 60's" to "low 70's"; Scout Boats' models had top speeds of 35-60 MPH; Shamrock's models ran at the top end between 36-41 MPH; Donzi Boats operate at speeds in the 70 MPH range; and Bayliner's Capri 1700LS had a top speed of 46 MPH, as did Stingray's 180RS. Since the FWCC's creation, speed zone rules adopted for Lee County included maximum 25 MPH zones. Rule 68C-22.005, Florida Administrative Code for Brevard County has regulated motorboats with a "maximum 25 MPH" speed in channels. Commission staff applied their professional judgment in developing recommendations on manatee protection areas, and presented those recommendations to the FWCC, who considered staff recommendation, in context with public comment, to determine what manatee protections were warranted. PETITIONERS' OPINIONS The various Petitioners advocate manatee protection zones that, in many cases, are similar to the FWCC's proposed rules, including "slow speed" shoreline buffer zones and "maximum 25 MPH channels." Petitioners' challenge to many of the protection zones alleges that FWCC's basic regulatory mechanisms are flawed. FEDERAL LAWSUIT-SETTLEMENT AGREEMENT On or about January 13, 2000, STMC and other related environmental groups filed a lawsuit in the Federal District Court against Alan Egbert as Executive Director of the FWCC. The suit alleged, inter alia, that the FWCC is in violation of the Endangered Species Act by permitting the unauthorized taking of manatees in the State of Florida. During the pendency of the litigation, FWCC engaged in a series of mediations resulting in a settlement agreement approved by FWCC and executed by the parties in April 2001. The agreement contained a series of maps with draft manatee (speed) zones for Brevard County. Petitioners alleged that "the genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Petitioners' speculative conclusion regarding this suit was tendered without one iota of evidence. Mr. Calleson, FWCC's staff employee, acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with speed zones in maps of the proposed rule. Mr. Calleson acknowledged that the FWCC did not direct staff to conduct negotiated rule-making on the proposed rule, and staff participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes, which provides, in pertinent part: (d)1. An agency may use negotiated rulemaking in developing and adopting rules. The agency should consider the use of negotiated rulemaking when complex rules are being drafted or strong opposition to the rules is anticipated. The agency should consider, but is not limited to considering, whether a balanced committee of interested persons who will negotiate in good faith can be assembled, whether the agency is willing to support the work of the negotiating committee, and whether the agency can use the group consensus as the basis for its proposed rule. Negotiated rulemaking uses a committee of designated representatives to draft a mutually acceptable proposed rule. * * * 3. The agency's decision to use negotiated rulemaking, its selection of the representative groups, and approval or denial of an application to participate in the negotiated rulemaking process are not agency action. Nothing in this subparagraph is intended to affect the rights of an affected person to challenge a proposed rule developed under this paragraph in accordance with s. 120.56(2). THOMAS MCGILL PETITIONERS Most of the McGill Petitioners support the adoption of rules that are consistent with the Citizens for Florida Waterway, Inc. (CFW), proposal submitted on December 29, 2000. The CFW proposal endorsed the use of "slow speed" zones, the use of "maximum 25 MPH zones," existing power plants "idle speed" and "motorboat prohibited" zones, and the use of shoreline buffers. The CFW proposal differed from the proposed rules primarily in scope of the proposed zones, rather than the nature of the proposed zones. The CFW proposal recommended numerous 25 MPH channels (in marked channels) through protected areas: from the Canaveral Locks through the Canaveral Barge Canal to the Indian River (except for three slow-speed boating safety zones); in North Sykes Creek; in the Banana River north of State Road 528 and between Bicentennial Park to the State Road 520 Relief Bridge. STANDING WATCH, INC. Stowell Robertson, one co-Petitioner of Standing Watch, Inc., is Executive Director of the Indian River Guides Association, Inc. (Guides). Mr. Robertson wrote the Guides' Recommendations, but his personal recommendation differed in two respects: in the North Indian River between NASA railroad bridge and the State Road 405 bridge, he would establish a "slow speed" zone from the western shoreline out to 500 feet (instead of 300); and he would impose a maximum 25 MPH speed in the Canaveral Barge Canal instead of 20 MPH. The Guides recommended that motorboat speed and operation be limited as follow: Mosquito Lagoon-make no changes to existing rule Turnbull Basin, North Indian River Create two "slow speed" zones in Turnbull - one in the Mimms Scottsmoor Canal, another from Jones Road boat ramp to Little Flounder Creek from the shore to 100 feet into the Basin; Set a new "slow speed" zone on the north side of the NASA railroad causeway and bridge out to 250 feet; Set a maximum 25 MPH in the ICW from Haulover Canal to the NASA railroad bridge; Take no further action [to change regulations]. Indian River, NASA railroad bridge to S.R. 402 Place "slow speed" zones on the south side of the NASA railroad bridge and causeway out to 250 feet; Reduce the [existing] west shoreline "slow speed" zone so that the western boundary is 350 feet from the ICW between markers R2 and G1; Set a maximum 25 MPH in the ICW; Take no further action [to change regulations] Indian River, State Road 406 to State Road 402 (1) and (2) Replace eastern "slow speed" zone with reduced "slow speed" zone extending from Peacock's Pocket to the existing "slow speed zone north of the State Road 405 Causeway, extending from shore to 250 feet west of the sand bar/drop off or three feet of water; Reduce the size of the "slow speed" zone north of State Road 405 Causeway to 300 feet; Reduce the size of the existing western shoreline "slow speed" zone to 500 feet from shoreline; Take no further action [to change regulations]. Indian River, State Road 405 to State Road 528 Bridge Close the warm water refuge sites at the power plants to manatees, not to boats; Deliver fuel to the power plants by land; Reduce the existing "slow speed" zone on the western shoreline to 1,000 feet from the shore; Take no further action [to change regulations]. Canaveral Barge (and Banana River to Locks) Maximum 20 MPH channel from Indian River to entrance to Canaveral Locks with "slow speed" zones at 100 feet either side of State Road 3 bridge, Sea Ray docks, Harbor Square Marina; Take no further action (to change regulations). Banana River (1) (2) All waters of Banana River, including channels, not otherwise regulated at "slow speed" should have 25 MPH limit; Reduce all existing "slow speed" zones along east and west shorelines, causeways, and bridges to 500 feet of shore; Retain existing "slow speed" zones in the two channels into "Long Point"[north and south ends of Canaveral Sewer Plant area]; Take no further actions [to change regulations]. Newfound Harbor (1) (2) All waters of Newfound Harbor, including channels, not otherwise regulated at "slow speed" should have a 25 PMH daytime limit and 20 MPH nighttime limit; Establish a "slow speed" zone along western shoreline from State Road 520 south to Two Islands; Establish a "slow speed" zone along eastern shoreline from State Road 520 south to the inside point north of Buck Point; The east and west "slow speed" zones be 500 feet from shorelines, and 200 feet[along northern shore] from S.R. 520; Take no further action. Sykes Creek North State Road 520 Set speed limit in marked channel at 20 MPH; All residential canals should be "slow speed"; Take no further action. Indian River State Road 528 to State Road 520 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 520 to State Road 404 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeway bridges; Take no further action. Indian River State Road 404 to State Road 518 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Take no further action. Indian River State Road 518 to State Road 192 Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; Establish Eau Gallie River "slow speed" zone with 20 MPH speed limit in marked channel daytime only, "slow speed" at night; Take no further action. Indian River (1) Establish 500 foot "slow speed" zones along western and eastern shorelines and 200 feet from causeways and bridges; (2)-(5) Crane Creek, Turkey Creek, St. Sebastian River, C-54 canal should be "slow speed"; Take no further action. Mr. James Kalvin, Standing Watch co-Petitioner and also President of Standing Watch, Inc., testified at deposition that neither he, nor the corporation, had any objection to the existing Brevard County manatee protection rules. SPECIFIC PROPOSED ZONES CHALLENGED The Petitioners' Challenge All Petitioners challenged the validity of Proposed Rule 68C-22.006, as "an invalid exercise of delegated legislative authority" as that phrase is defined in Section 120.52(8), Florida Statutes. MCGILL PETITIONERS The McGill Petitioners challenged the proposed rule amendment for Brevard County manatee protection areas, Proposed Rule 68C-22.006 (2)(d)2, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, and 18, as an invalid exercise of delegated legislative authority. They allege that additional slow speed zones in Brevard County are invalid because the FWCC exceeded the authority granted in Section 370.12(2), Florida Statutes. McGill Petitioners based their allegations on the FWCC's lack of definable principles or data and an erroneously assumed cause-effect relationship for boat-manatee collisions, failure by the FWCC to consider the hearing limitations and capabilities of manatees in their environment, and a failure by the FWCC to employ standards and definitions for critical terms in its rule promulgation. At the final hearing, McGill Petitioners agreed that they do not object to that portion of Proposed Rule 68C- 22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. The McGill Petitioners' position as set forth in their Prehearing Stipulation states: The Florida Fish and Wildlife Commission has exercised unbridled discretion and acted beyond the authority delegated in 370.12(2)(m), Florida Statutes, and has developed the proposed rule in an arbitrary and capricious manner. The proposed rule exceeds the delegated legislative authority because it is not based on scientifically definable principles or data. By failing to understand the root cause of watercraft mortality such as the manatee's inability to hear slow moving vessels, the Commission cannot deem their actions "necessary" to justify imposing speed restrictions as required by Section 370.12(2)(m), Florida Statutes. The Commission continues to impose speed motorboat restrictions even after finding that such restrictions are ineffective at preventing manatee mortality. The Commission relies on a flawed mortality database, a poor understanding of the limitations and applicability of satellite telemetry data, and lack of standards and definitions for critical terms. [emphasis added] The McGill Petitioners' Amended Petition alleged in paragraph 6: The Commission has not employed the best available science or even reasonable science. . . . aerial survey and telemetry data were misapplied. . . . in that areas that did not reflect frequent usage . . . were designated . . . slow speed zones. Also, the use of inaccurate telemetry tracking information was used as the basis for justifying areas where aerial survey data showed no manatee activity. . . . In support of their alleged inaccuracy of the satellite telemetry data, Petitioners presented the testimony of Mr. Dvorak and his Power-point Presentation of Aerial Survey Mortality, Telemetry and Bathymetry Assessment, and other technical papers. Mr. Dvorak did not include in his presentation/analysis survey data available on the Atlas or Marine Resources and did not include all telemetry data available from the United States Geological Survey, which was included in Dr. Deutsch's analysis presented for Respondent, FWCC. The Amended McGill Petition, paragraphs 10 and 12, stated: The McGill Petitioners advised the FWCC that creation of new "slow speed" zones was based upon incorrect assumption "that such slow speed zones alleviate collisions between vessels and manatee" and they suggested that "slow moving vessels are responsible for the majority of documented manatee collisions." McGill Petitioners' evidence proffered to demonstrate that "slow moving vessels are responsible for the majority of documented manatee collisions," consisted of inclusive studies and undocumented theories to demonstrate that slow speed zones do not alleviate collisions between vessels and manatees. FWCC considered an abundance of the best evidence of known or suspected collisions between vessels and manatees that demonstrated that "fast moving motorboats" are a known major source of manatee- vessel collisions. The McGill Petitioners further stated in paragraph 11 that: The rule does not consider the acoustic realities of the manatee's hearing limitations and its environment. McGill Petitioners presented the testimony of Dr. Edmund Gerstein regarding his measurements of the manatees' ability to hear noises. Dr. Gerstein concluded from his research that manatees have difficulty hearing and locating low-frequency sounds (below 400Hz), and they have difficulty detecting sounds of any frequency when it is not sufficiently louder than the ambient noise level. The testimony of Dr. Joseph Blue was given in support of the McGill Petitioners' position that low-frequency sounds are quickly attenuated in shallow water because of the Lloyd Mirror effect. Upon this foundation, Dr. Blue testified that since sound is shadowed ahead of the barge(s), the tugs that push the fuel oil barges between Prot Canaveral and the power plants on the Indian River emit low-frequency sound that is shadowed in the forward direction by the barge(s) and it would be undetectable to animals. Thus, the McGill Petitioners' witnesses concluded that there are acoustic consequences associated with slowing down boats. According to Dr. Gerstein, requiring motor boats to travel a slow speed deprives manatees of acoustic information they can use to detect, localize, and avoid boats. It is this "science of acoustics" Petitioners alleged that the FWCC gave no weight in promulgating the proposed rule. The FWCC considered the issues raised by acoustic studies. The FWCC's Executive Director was advised on the subject by the Manatee Technical Advisory Committee (MATC) whose recommendation resulted from a workshop on acoustic research and technology with presentations of the work of Drs. Gerstein and Blue. No reliable scientific sources, professional literature, expert opinions, and direct observations of manatee reactions to motorboats, supports the proposition of Drs. Gerstein and Blue that manatees cannot hear slow-moving motorboats. The FWCC rejected the studies of Drs. Gerstein and Blue. McGill Petitioners' alleged in paragraphs 3, 4, 13, and 14, of their Amended Petition that the FWCC did not provide a reasonable opportunity for and ignored much of the public's input. In their Prehearing Stipulation, the McGill Petitioners' acknowledgement of public hearings held by FWCC and the opportunity for pubic input during those hearings. There is an abundance of evidence in the record that demonstrates that the FWCC staff held non-mandatory pre-rule development meetings with interested persons, including some of the McGill Petitioners. The Staff held two rule development workshops in Brevard County. Staff held a public hearing specifically on the Proposed Rules in Brevard County. Staff considered the rule adoption at many hours of public hearings on three different dates and locations. Staff mailed special notices regarding the Proposed Rules to all identified waterfront property owners of whom many are the McGill Petitioners, and Staff mailed a series of survey documents to identified boaters and businesses in conjunction with the preparation of a statement of estimated regulatory cost. (CSERC) In paragraphs 7 and 9 of their Amended Petition, the McGill Petitioners alleged that the FWCC entered into a Negotiated Rule-Making Process with litigants to the exclusion of a balanced committee in violation of 120.54(2)(d)1., Florida Statutes. Section 120.54(2)(a), Florida Statutes, authorizes an agency to engage in development of a "preliminary text" or "preliminary draft" of proposed rules prior to the publication of a notice of rule development. Preliminary maps of amendments to the BCMPR were similar to maps being discussed as part of the federal mediation. This fact alone is not a basis to conclude violation of the above-cited statutes. A second rule development workshop was noticed to discuss a preliminary copy of the Staff's "zone configuration" being considered. Subsequent to the second workshop, the FWCC authorized publication of Notice of Proposed Rule-making that incorporated changes to the preliminary draft maps that were discussed at the workshop. The McGill Petitioners, during the hearing, agreed that they do not object to that portion of Proposed Rule 68C-22.006(2)(d)15 that reduces the width of the slow-speed zone in the Banana River between State Road 528 and State Road 520 causeways. Petitioners do, in fact, object to removal of the 25 MPH exemption for residential channels. Petitioners offered no testimony in support of this allegation, choosing rather to adopt the evidence and position proffered by Standing Watch, Inc., herein below addressed. In paragraphs 5 and 15 of their Amended Petition, the McGill Petitioners alleged that the Commission did not properly address the consideration of lower cost regulatory alternatives. The "lower cost regulatory alternatives" submitted by McGill, Pritchard and Dvorak were considered and were discussed in the draft SERC. The draft SERC gave reasons for the rejection of each of the proposed "lower cost regulator alternatives," primarily because none would substantially accomplish the objectives of the law being implemented. The SERC was finalized, as required by Sections 120.541(1)(a) and (c); and 120.56(2)(b), Florida Statutes, before filing for adoption with the Secretary of State. In paragraph 17 of their Amended Petition, the McGill Petitioners alleged that the FWCC failed to employ metrics or standards that could be used to validate the effectiveness of both proposed and existing rules, in rule promulgation, and that without the use of metrics, the FWCC had no way to determine and verify that speed zones they propose are necessary to protect harmful collisions with motorboats. The McGill Petitioners proffered no evidence of specific "metrics or standards" that would validate the effectiveness of the existing and or the proposed rule they contend the FWCC could have or should have used in the Proposed Rule development. The FWCC relied upon the best available and reliable information in its rule-making, including opinions of experts. To the information available to it, the FWCC applied its professional judgment, gave consideration to public comments/concerns provided during public meetings, and considered the estimated regulatory costs and other applicable rule-making requirements. In paragraph 18 of their Amended Petition, the McGill Petitioners alleged that the FWCC repeatedly ignored requests to sub classify watercraft-related mortalities in order to properly identify appropriate corrective action. The FWCC considered all available data regarding manatee injury and death resulting from the speed of motor boats and rejected Petitioner's contention that boat size, large boats such as tugs and barges, were more dangerous to manatees than smaller and faster motorboats. Sea Ray Boat, Inc. Petitioner, Sea Ray Boats, Inc., challenged only Proposed Rule 68C-22.006(2)(d)(11) that modifies the existing manatee protection speed zones in the Canaveral Barge Canal (that is 200 feet wide with a 125-foot navigation channel maintained at a depth of 12.5 feet) such that the entire Canal will now be designated a "slow speed" zone. Sea Ray does not argue that the FWCC did not consider all available information or that FWCC's consideration of the information was not complete. Sea Ray's position is, were one to consider the information presented to the FWCC, as balanced against the federal lawsuit filed by Save the Manatee Club, Inc., the challenged Proposed Rule is the result of the latter not the former and, therefore, is an invalid delegation of legislative authority. Sea Ray alleges that the FWCC did not analyze nor address the adequacy of the existing rule and speed zones in effect in the Canaveral Barge Canal. Sea Ray alleged that the FWCC did not consider the alternative (with weekend boating increases over weekdays) whether the risk to manatees would be reduced by "restricting slow speed zones in the channel to weekend and holidays." Sea Ray alleged that the FWCC failed to apply "properly" the mandatory balancing test of the impact of the proposed rule on the rights of commercial and recreational boaters. Section 370.12(2)(j), Florida Statutes. Sea Ray argues that the FWCC's consideration of information in formulating the Proposed Rule was devoid of "ascertainable quantitative criteria, standards or analytical processes," that Sea Ray maintains is required by Section 370.12, Florida Statutes. Standing Watch, Inc. Standing Watch, Inc.'s, Second Amended Petition challenged and alleged that the proposed speed in proposed Rule 68C-22.006(2)(e) 1-5 is not based upon "competent, substantial evidence" and does not comport with Section 370.12(2), Florida Statutes. Paragraphs 38 and 39 alleged that the proposed speeds in the Proposed Rule 68C-22.006(2)(c) 1-6 and (2)(d) 1-18 are not based upon "competent, substantial evidence" and do not comport with Section 370.12(2), Florida Statutes. Standing Watch, in essence, challenges all "idle," "slow" and "25 MPH" maximum speed zones proposed. Standing Watch argues that the FWCC failed to "quantify" by rule or working definition such terms such as "frequent" and "seasonal" and failed to define the term "periodic." Therefore, without working definitions the FWCC had no "threshold" from which to determine whether manatees were "frequently sighted," and the proposed rule is, accordingly, invalid in its entirety. Thus, it is alleged that the FWCC made no independent findings based upon the data reviewed that manatees were "frequently sighted" in any specific area of Brevard County. Standing Watch alleged, "The genesis of the Proposed Rule is this settlement agreement reached in the Egbert case, and there is a definite connection between the language of the Proposed Rule being challenged and the settlement agreement." Mr. Calleson acknowledged that portions of existing speed zones and proposed speed zones in maps resulting from the federal mediation process contained a "lot of similarities" with the speed zones in maps of the Proposed Rule. The FWCC declined to direct staff to conduct negotiated rule-making on the Proposed Rule. Accordingly, staff's participation in the federal mediation process was not a negotiated rule-making process pursuant to Section 120.54(2), Florida Statutes. Continuing their argument, Standing Watch alleged that the FWCC without algorithms, formulae, protocols, matrices, mathematical models, or metrics made no separate determination for each zone and/or area (of the proposed rule) and had no factual basis for the identification of separate speed zones, rendering all determinations made by the Commission as arbitrary and capricious. Based upon the foregone foundation, Standing Watch challenged Proposed Rule 68C-22.006 in its entirety as arbitrary and capricious. City of Cocoa Beach Watersports Area Cocoa Beach intervened to challenge that portion of Proposed Rule 68C-22.006(2)(d)16, that "reduces allowable speeds in the area known as Banana River, Cocoa Beach Waterspouts Area." In support of its challenge, Cocoa Beach adopted the Proposed Final Order submitted on behalf of Petitioners, Standing Watch, Inc., Jim, Kavin, Thomas Mason, Dougals P. Jaren and Stowell Robertson. Additionally, Cocoa Beach relied upon "facts" particularly applicable to the Cocoa Beach (Waterspouts Area). Cocoa Beach alleged that prior to the Proposed Rule and subsequent to 1988 the FWCC had no evidence of manatee deaths attributed to watercrafts having occurred in the Watersports Area; that two years prior to the proposed rule only one or two manatees were sighted in that area; that the sea grass preferred by manatees is not found in the area, and that the Watersports Area does not have the depth [bathymetry] preferred by manatees. Petitioners contend that a "sub-classification" would corroborate Mr. James Wood's view "a majority of watercraft collisions are caused by large, slow-moving vessels, not by small, recreational motorboats." Mr. Wood's analysis was inconclusive as to the characteristics of watercraft that caused manatee injury. The reliable and available evidence, including documentation on known or suspected boat strikes, scar catalog data, and affidavits of persons who perform manatee necropsies, does not support the view held by Mr. Wood. To the contrary, evidence and testimony of experts herein presented, established that small, fast moving motorboats kill and injure manatees and their habitat. The sub-classification of watercraft-related mortalities is not required for rule adoption. The proposition set forth by McGill Petitioners, and adopted by other Petitioners, that larger vessels and barge/tugs were responsible for Brevard County manatee mortalities was raised in an earlier rule challenge filed by McGill, and was rejected, as it is herein rejected. DOAH Case No. 99-5366, page 18 (officially recognized); Final Order, McGill v. Fish and Wildlife Conservation Commission, 23 F.A.L.R. (DOAH 2000). All data, 1997-1999 Brevard County relative abundance and distribution aerial survey, 2000 synoptic aerial survey, telemetry analyses, other data considered, and professional literature indicated that Brevard County is an important year- round habitat for manatees.
The Issue The issues to be determined in this case are whether the amendments to the Manatee County Comprehensive Plan adopted through Ordinance No. 11-01 (“Plan Amendments”), are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Gulf Trust Development, LLC (“Gulf Trust”) is a Florida corporation doing business in Manatee County. Gulf Trust is the contract vendee of property owned by Robinson Farms, Inc. Robinson Farms, Inc., is a Florida corporation doing business in Manatee County and owning real property in the County. Manatee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to section 163.3184. Standing John Neal, the owner and manager of Gulf Trust appeared and spoke at the May 5, 2011, transmittal hearing for the Plan Amendments and at a later work session of the Board of County Commissioners on the Plan Amendments. Neal testified that, on these occasions, he was speaking for Gulf Trust and for Robinson Farms. William Robinson, the president of Robinson Farms, confirmed that Neal was authorized in advance to represent Robinson Farms at the public meetings on the Plan Amendments. The County contends that there is no evidence that Neal represented any entity other than himself, but the testimony of Neal and Robinson constitutes evidence. The Plan Amendment All coastal communities must have a coastal management element of their comprehensive plans that, among other things, designates the coastal high-hazard area ("CHHA"). See § 163.3178(2)(h), Fla. Stat. The CHHA is defined in the statute as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model." The CHHA must be mapped in the comprehensive plan. See § 163.3178(9)(c), Fla. Stat. The Manatee County planning staff proposed the Plan Amendments as a response to the publication of the 2010 Statewide Regional Evacuation Study for the Tampa Bay Region ("Storm Tide Atlas") by the Tampa Bay Regional Planning Council. The Storm Tide Atlas is a public safety planning tool used to assist local governments with hurricane evacuation planning in a four-county region in the Tampa Bay Area, which includes Manatee County. It incorporates the SLOSH model to predict storm surge heights during hurricanes and includes storm tide zone maps depicting the landward extent of anticipated storm surge for the five categories of storms. The 2010 Storm Tide Atlas made use of a new mapping technique known as LIDAR, a remote-sensing laser terrain mapping system, which is more accurate than past technology used for topographic mapping. The Plan Amendments include an amendment to the definition of the CHHA, which brings the definition in line with the statutory definition. That change is not opposed by Petitioners. Petitioners' opposition focuses on the amended definition of Coastal Evacuation Area ("CEA") and the new maps of the CEA. The CEA is not a term used in chapter 163. The CEA is now defined in the Introduction and Definitions section of the Manatee Plan as follows: The evacuation for a Category 1 hurricane as established in the regional hurricane evacuation study applicable to Manatee County pursuant to Ch. [sic] 163.3178(2)(h), F.S. as updated on a periodic basis. The CEA is a tool for emergency management. It identifies the area where people must evacuate in the event of a category 1 hurricane. The purpose of the CEA is described in Policy 2.2.2.4.2 as follows: To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. To limit the amount of infrastructure, both private and public, within the CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CEA, and reduce the risk of exposing lives or property to storm damage. To accomplish shoreline stabilization along coastal areas by limiting development activity which may adversely impact shoreline stability. To protect coastal water quality by reducing impervious surface along coastal areas, thereby reducing the risk of incomplete treatment of stormwater runoff before discharge into coastal waters. To encourage, establish and maintain vegetative and spatial buffer zones, in order to maintain the capacity of natural vegetative communities in mitigating the negative effects of storm surge and tidal velocity, and the erosive effect of wave action. Policy 2.2.2.4.5 prohibits any amendment to the Future Land Use Map that would increase allowable residential density on lands within the CEA. Whether the CEA and the CHHA are the Same The Plan Amendments would change the definition of the CEA to remove the reference to section 163.31878(2)(h): Coastal Evacuation Area (CEA) - The evacuation Level A for a Category 1 hurricane as established in the hurricane evacuation study applicable to Manatee County, as updated on a periodic basis. Petitioners claim that the current definition of the CEA, cited in paragraph 11, above, makes the CEA identical to the CHHA and that by removing the reference to section 163.3178(2)(h), the CEA and the CHHA would be different for the first time. Although the definition of the CEA refers to section 163.3178(2)(h) where the CHHA is defined, the definition of the CEA does not express the proposition urged by Petitioners -- that the CEA and the CHHA are identical. As explained below, in order to map the CEA, the County begins with the map of the CHHA and then makes adjustments to it. Therefore, it is not illogical for the definition of the CEA to refer to section 163.3178(2)(h). The reference to the statute does not compel an interpretation that the CEA was intended to be identical to the CHHA. Another definition of the CEA appears in Policy 2.2.2.4.1 of the Future Land Use Element ("FLUE"). There, the CEA is defined as "the geographic area which lies within the evacuation area for a Category 1 hurricane." This definition of the CEA does not refer to section 163.3178(2)(h). Some of the testimony from County employees about the relationship between the CEA and the CHHA was ambiguous, but the ambiguity can be attributed to the way the witnesses were examined by Petitioners. Three County planners were each asked to admit that, because the definition of the CEA (in the definitions section of the Manatee Plan) refers to section 163.3178(2)(h), the CEA and the CHHA must be the same thing. The questions confused the witnesses. Kathleen Thompson, the Planning Manager, did not think the CHHA and the CEA are the same, Sharon Tarman, a planner, said they are. John Osborne, the Planning and Zoning Official, said the definition of the CEA "implied" that the CEA and CHHA are the same. A quick glance at the existing maps of the CHHA and the CEA in the Manatee Plan is sufficient to reveal that that the CHHA and the CEA are not the same. See Manatee County Exhibit 1, pages 232-234. The CHHA has irregular boundaries. The CEA is larger and has many regular (straight line) boundaries. Considering the two definition of the CEA, the ambiguous testimony of the County planners, and the CHHA and CEA maps, it is found that one definition of the CEA is ambiguous, but the County intended the CEA and the CHHA to be different and, as implemented, the CEA and the CHHA are different. The proposed change to the definition of the CEA in the definitions section to remove the reference to section 163.3178(2)(h) eliminates the ambiguity in the definition and makes it conform to the definition in FLUE Policy 2.2.2.4.1. It is not a substantive change. The CHHA is the area below a category 1 storm surge line as produced by a computer model. In contrast, the CEA is an evacuation zone. The Storm Tide Atlas states that emergency management officials use several factors in determining evacuation zones, not just storm surge data: [I]t is important to note that the storm tide boundaries are not the only data used in this determination. Local officials use their knowledge of the area and other data such as: areas of repetitive loss, surge depth, freshwater flooding, isolation issues and debris hazards, and typically choose known landmarks to identify boundaries for public warning and information. In Manatee County, emergency management officials started with the CHHA line, and then adjusted the boundaries to follow streets, natural geographical features, and parcel boundaries so that the resulting CEA provided a better tool for emergency management and public information. That is why the CHHA has irregular boundaries, but the CEA has many regular (straight line) boundaries. The proposed CEA includes 10,690 fewer acres than the existing CEA because of the substantial changes that resulted from using the newest generation of the SLOSH model and the new LIDAR technology. The proposed CEA includes 8,365 more acres than are within the proposed CHHA as a result of the adjustment of the CHHA line to coincide with nearby streets and other geographic features, and with parcel boundaries. Petitioners argue that the effect of the change in the definition of the CEA is to add 8,365 acres to the area which is subject to the prohibition in Policy 2.2.2.4.5 against increases in allowable residential density. However, because the change in the definition of the CEA is not substantive, the real effect of the new mapping of the CEA is to reduce the lands subject to the prohibition by 10,690 acres. Public Notice Petitioners contend that public notice requirements were not met for the public hearings for the Plan Amendments. That contention is based on the claim that the Plan Amendments cause 8,365 acres of land to be added to the area subject to the prohibition against future increases in allowable residential density. Because that claim is rejected, Petitioners public notice issues are also rejected. Furthermore, as discussed in the Conclusions of Law, allegations of inadequate public notice are irrelevant in a compliance determination. Data and Analysis Petitioners argue that the Plan Amendments are not based on relevant and appropriate data and analysis. The argument is based in large part on Petitioners' contention that the CEA and the CHHA used to be co-extensive, which is rejected above. Petitioners claim that the County failed to consider flooding, wave height, and other factors when mapping the CEA. The CEA boundaries were placed at streets and other physical landmarks as well as parcel boundaries, in order to make the area subject to evacuation clearer for emergency management officials and the public.2/ This is a sufficient basis to explain the boundaries of the CEA. The relevant data for such a purpose would be the location of the CHHA in relationship to nearby streets, other physical landmarks, and parcel boundaries. Petitioners did not show that any particular CEA boundary was illogical or inappropriate. Mitigation Petitioners contend that the Plan Amendments do not include the mitigation measures referred to in section 163.3178(9)(a). The statute states that a proposed amendment shall be found in compliance with the state coastal high-hazard provisions if: The adopted level of service for out-of- county hurricane evacuation is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale; or A twelve hour evacuation time to shelter is maintained for a Category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy Subparagraph 1 or Subparagraph 2 above. Appropriate mitigation shall include, without limitation, payment of money, contribution of land and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. These provisions are stated as alternatives. The mitigation measures referred to in subparagraph 3. are only applicable if the criteria stated in subparagraph 1. or 2. are not met. Petitioners did not prove that the County does not meet the standard described in subparagraph 2. Furthermore, as discussed in the Conclusions of Law, section 163.3178(9) does not require that the mitigation measures described in subparagraph 3. must be included in a comprehensive plan.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendments adopted by Manatee County Ordinance No. 11-01 are in compliance. DONE AND ENTERED this 2nd day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 2nd day of March, 2012.
The Issue The issue in this case is whether Amendment 00-1ER to the City of Bradenton's comprehensive plan is "in compliance."
Findings Of Fact The City of Bradenton (Bradenton) is in Manatee County. It is situated essentially along the south bank of the Manatee River. Its westernmost extent is Perico Island, some of which is in Bradenton and some of which is in unincorporated Manatee County. Perico Island is separated from the mainland by Perico Bayou, but State Road (SR) 64 (a/k/a Manatee Avenue West) bridges Perico Bayou and connects Perico Island to the rest of Bradenton. To the north of Perico Island is the mouth of the Manatee River and Tampa Bay; to the west is Anna Maria Sound, which separates Perico Island from Anna Maria Island, a barrier island along the Gulf of Mexico. From north to south, the Cities of Anna Maria, Holmes Beach, and Bradenton Beach (the Island Cities) occupy Anna Maria Island. SR 64 extends west from Perico Island and bridges Anna Maria Sound; its western terminus is in the City of Holmes Beach. To the south of Perico Island is Palma Sola Bay and Cortez Peninsula. SR 684 (a/k/a Cortez Road) extends west from the peninsula and bridges Sarasota Pass south of Anna Maria Sound; its western terminus is in the City of Bradenton Beach. Bradenton adopted a comprehensive plan in 1989, and the plan was found to be "in compliance." In 1995-1997, Bradenton conducted and evaluation and appraisal of the plan and issued an Evaluation and Appraisal Report (EAR). Bradenton then began the process of adopting EAR-based amendments to its comprehensive plan. Prior to June 10, 1998, most of South Perico Island-- i.e., Perico Island south of SR 64--was part of Bradenton. (Only the southeast corner of South Perico was in unincorporated Manatee County.) On the other hand, all of North Perico was in the unincorporated Manatee County. Effective June 10, 1998, Bradenton annexed 416 acres of North Perico by voluntary annexation, leaving only the southeast corner of North Perico and a small parcel in the southwest corner of North Perico in the unincorporated County. Bradenton's EAR-based amendments also addressed comprehensive planning for the 416 acres of North Perico annexed into the City effective June 10, 1998. Adoption Process Over the 22-month-long process of developing its EAR- based amendments, Bradenton published notice of opportunities for the public to comment on the City Plan at 15 monthly Planning Commission meetings and held a special workshop on several elements of the Plan on April 28, 1999. The Bradenton City Council (“City Council”) held the first required public hearing on Amendment 00-1ER on October 27, 1999. The October 17, 1999, published notice for this hearing was in the form of a notice for a public hearing on a change of land use, contained the title of the proposed ordinance adopting the Amendment, and included a map of the City. At the conclusion of the public hearing, the City Council passed a resolution authorizing transmittal of the proposed Amendment to DCA. During the transmittal meeting, counsel for the City advised that the adoption of a comprehensive plan amendment was a legislative enactment, and the next public hearing on the Comprehensive Plan would occur after DCA reviewed the Amendments, probably in February 2000. The City sent its transmittal package to DCA in early November 1999. DCA sent copies of the proposed Amendment to all of the reviewing agencies listed in Section 163.3184(4), Florida Statutes, and Florida Administrative Code Rule 9J- 11.009, including the County. However, the County did not submit any objections, recommendation or comments to the City between transmittal and adoption of Amendment 00-1ER. After DCA completed its review of the proposed amendments, the agency issued an Objections, Recommendations, and Comments (ORC) Report on January 20, 2000, containing written comments from the following: Florida Department of Environmental Protection, Florida Department of State, the Southwest Florida Water Management District, and the Tampa Bay Regional Planning Council. Manatee County (“County”) submitted no written comments for inclusion in the ORC report. The City Council held the second required public hearing on February 23, 2000, when it adopted as Ordinance 2619 the proposed amendments with changes responding to the concerns raised in the ORC Report. The newspaper notice for the second public hearing, published on February 11, 2000, was in the form of a notice for a public hearing to change land use, and contained the title of the proposed ordinance adopting the Amendment and a map of the City. The City transmitted the adopted Amendment to DCA on March 6, 2000. On March 24, 2000, the City wrote DCA to correct two errors in the adopted Plan. The City submitted what it said was the proper Future Land Use Map (“FLUM”), which had been inadvertently omitted from the transmitted package; the City also said it was correcting a scrivener’s error referencing a 8-foot contour line in Coastal Policy 5.5.1, instead of the 2- foot contour line (the latter of which was consistent with other provisions of the City’s Plan and comments and explanations by City Planning Staff at the adoption hearing). DCA issued a Notice of Intent to find Amendment 00- 1ER in compliance on April 18, 2000. Standing Petitioner resides and owns property in Bradenton. She addressed the City Council at the February 23, 2000, adoption hearing. In her comments, she complained that she did not know about the transmittal hearing on October 27, 1999, and only learned of the adoption hearing the morning of February 23, 2000. She suggested better ways to give notice of the transmittal and adoption hearings besides the legally required notice. Unaware of the proposed plan amendment, Schember had not read or reviewed it at the time of her comments and did not provide any additional oral or written comments, recommendations, or objections before or during the adoption hearing. Bradenton is located within Manatee County. It is undisputed that the County adjoins Bradenton. The Island Cities also are municipalities with the County. They are located on Anna Maria Island, a barrier island on the Gulf of Mexico separated from the mainland by open waters Anna Maria Sound and Sarasota Pass. No part of Bradenton is on Anna Maria Island; as such, the land of the Island Cities does not touch or abut the land of Bradenton. As previously stated, SR 64 crosses the Anna Maria Sound over the Anna Maria Bridge between Anna Maria Island and Perico Island. The western terminus of Anna Maria Bridge is within the City of Holmes Beach. The City of Anna Maria (Anna Maria) is to the north of Holmes Beach, at the extreme north end of Anna Maria Island. Tampa Bay lies to the north of Anna Maria; Anna Maria Sound is to the east and separates Anna Maria from Perico Island by Anna Maria Sound. Bradenton Beach is to the south of Holmes Beach. Near where Bradenton Beach adjoins Holmes Beach, Bradenton Beach is separated from Perico Island by Anna Maria Sound; farther south, it is separated from the Cortez Peninsula, which is part of the County, by a narrower body of water called Sarasota Pass. West Cortez Road (SR 684) bridges Sarasota Pass over the Cortez Bridge; the western terminus of the bridge is within the Bradenton Beach, but the eastern terminus is in the County. Unlike Holmes Beach, no road or bridge directly connects Anna Maria and Bradenton Beach to Bradenton; transportation routes from those cities to Bradenton all go through Holmes Beach. The Intergovernmental Coordination Element (ICE) of Anna Maria's comprehensive plan identifies Holmes Beach and Bradenton Beach as "adjacent municipalities" but omits Bradenton. Similarly, Anna Maria's plan names Holmes Beach as its southern boundary but names either Tampa Bay, Anna Maria Sound, or Palma Sola Bay as its eastern boundary. In a section called "Residential Growth Trends," Anna Maria's plan states that it "connected to the mainland by two bridges; namely, the Manatee Avenue and Cortez Bridges." Based on the evidence, Bradenton Beach also identifies Holmes Beach but not Bradenton as an adjoining local government. (The excerpt from Bradenton's Beach plan placed in evidence does not include the ICE.) Similarly, Bradenton Beach's plan names Holmes Beach as its northern boundary but names Sarasota Bay and Anna Maria Sound as its eastern boundary. In a section called "Residential Growth Trends," Bradenton Beach's plan states that it "is adjoined by the Manatee County unincorporated on the mainland." The ICE of the Holmes Beach comprehensive plan emphasizes coordination with Anna Maria and Bradenton Beach as adjoining local governments. However, ICE Policy 1.1.13 of the Holmes Beach plan also specifically mentions Bradenton (along with the County) in terms of hurricane evacuation coordination; and Future Land Use Element (FLUE) Policies 3.1.4 and 3.1.5 specifically address potential impact of development along SR 64 in the vicinity of Perico Island, the latter requiring Holmes Beach to request the opportunity for input on such development decisions. The County and Island Cities alleged that Bradenton's Plan Amendment will produce substantial impacts on the increased need for publicly funded infrastructure. But whether such impacts will result from Bradenton's Plan Amendment depends primarily on the allegation that Bradenton's plan for the annexed 416 acres on North Perico allows substantially more residential development than the County's plan. As found infra, Petitioner and Intervenors (P/I) did not prove this premise beyond fair debate. See Finding of Fact 50, infra. In addition, not all of any new need for publicly funded infrastructure will be funded by the County and Island Cities; some will be funded by the State. The County also asserted a substantial impact, regardless whether the City's plan for North Perico allows substantially more residential development, because the County will lose impact fees from development on North Perico. But the loss of impact fees was the result of annexation, not Amendment 00-1ER. Besides, as a result of annexation, some services for North Perico will be provided by the City instead of the County. It was not proven that the "net" impact from services that will continue to be provided by the County without impact fees will be substantial. The County also alleged that Bradenton's Plan Amendment will produce substantial impacts on areas designated for protection or special treatment within the jurisdiction of the County. (It was not suggested by the evidence that any such areas have been designated by the Island Cities.) The County cited its participation in the Sarasota National Estuary Program and Tampa Bay Natural Estuary Program, as well as its FLUE Policy 2.9.4.4 on natural waterfront vistas. Substantial impact on the water quality of waterways part of the Sarasota National Estuary Program and Tampa Bay Natural Estuary Program was not proven by the evidence. To the extent that the County relied on alleged allowance of substantially more residential development on North Perico under the City's plan, the allegation was not proven beyond fair debate. See Finding of Fact 50, infra. As for FLUE Policy 2.9.4.4, it was not proven that Amendment 00-1ER itself will have a substantial impact on the County's natural waterfront vistas. While Bradenton's plan does not contain a natural waterfront vista protection policy per se, the City Plan does contain measures to protect the environment and the shoreline of the waterfronts. Meanwhile, as found infra, the County's protection measures are neither mandatory nor definite. It cannot be determined during comprehensive plan review how either jurisdiction's plan provisions will be implemented during the development process. Maximum Prospective Residential on North Perico Not just Intervenors' standing but also most of the instances of noncompliance alleged by P/I in this case depend on the allegation that the City's Plan Amendment allows greater residential development on North Perico than the County's plan did. These include allegations of: urban sprawl; incompatibility, inconsistency, and conflict with the County, regional, and state plans; lack of coordination with the County's plan (via incompatibility, inconsistency, and conflict with it); alleged increased storm vulnerability; increased traffic; increased hurricane evacuation clearance times; reduced availability of hurricane shelters; increased need for public infrastructure; and the necessity for additional data and analysis on the foregoing aspects of Bradenton's plan. Bradenton's Plan Amendment designates 243 of the annexed 416 acres of North Perico as RES-3, with density limited to 3 units per acre. The RES-3 land use designation was created especially for coastal areas like North Perico. It is the lowest density assigned to any land within the City. Bradenton's Plan Amendment designates the remaining 173 acres of the annexed 416 acres of North Perico as Conservation. P/I argue that the Conservation designation could allow golf courses, athletic fields, and other similar recreational facilities. It is true that Bradenton's FLUE Policy 1.1.1 designates a land use category called "Recreational/Conservation" with the following range of uses: "Parks, designated open areas and conservation." But the amended FLUM differentiates between Recreational/Open Space and Conservation, and the FLUM series includes a separate Future Recreation Map (which does not include the Conservation land on North Perico.) These FLUM designations evidence an intent to distinguish between active recreational uses and conservation. In any event, it is clear that residential land use is not authorized in the areas designated Conservation under Bradenton's plan. Bradenton's combined Coastal Management/Conservation Element (CM/CE) Policy 5.1.2 in Bradenton's Plan clearly prohibits "construction of building, roadways and parking areas in that zone except to provide shoreline access points as determined necessary or of overriding public interest by City Council." For purposes of calculating maximum prospective gross residential density, Bradenton's plan should be interpreted as not allowing any residential land use in areas designated Conservation on its FLUM. The County's Plan provided a RES-3 designation on the western and northern portions of the annexed 416 acres on North Perico, and a RES-6 designation on the southeastern portion. Policies 2.2.1.10.3 and 2.2.1.12.3 of the County Plan's FLUE provides for a "maximum gross residential density" in those categories of three and six dwelling units per acre, respectively. Considering just these provisions, it is clear that maximum prospective gross residential density on North Perico is significantly less under Bradenton's Plan Amendment than it was under the County's plan. FLUM A of the County Plan depicts wetlands. The County Plan's Conservation Element Policy 3.3.1.1 prohibits "removal, alteration or encroachment within wetlands except in cases where no other practical alternatives exist." But, if no practical alternatives exist, the County Plan's FLUE Policy 2.3.1.1 provides for transfer of density "from wetlands and associated buffers to upland portions of the same project site." Such density transfers "shall be limited to wetland acreage less than or equal to 20% of total gross project acreage." Adding consideration of the County's conditional prohibition against alteration of wetlands, along with the provision for density transfer, it remains clear that maximum prospective gross residential density on North Perico is significantly less under Bradenton's Plan Amendment than it was under the County's plan. Bradenton's plan also has provisions addressing transfer of density out of wetlands to uplands. Policy 9.2 ("[i]nnovative development with mixed use where consistent with the [FLUM]") of the FLUE Goal states: Discourage removal, alteration or encroachment of wetlands by permitting the transfer of density or intensity from wetlands and associated buffers to upland portions of the same project site. Such transfer . . . shall be limited to wetland acreage less than or equal to 20% of total gross project acreage. CM/CE Policy 5.1.4 requires to City to "establish a lower priority for the funding of public infrastructure with[in] the CHHA [Coastal High Hazard Area] and includes the language: For purpose of determining dwelling unit density in coastal areas, residential or non-residential developments may transfer density to upland portions of the same project site. Any such development transfer is subject to project approval through the site plan process, as determined necessary or of overriding public interest by the City Council. It is not at all clear how or why these provisions should apply on North Perico to effect a transfer of nonexistent density from the 173 acres designated Conservation on Bradenton's FLUM to the 243 acres designated RES-3. It seems clear on the face of these provisions that they (like the County's density transfer provisions) address projects located in areas that are designated for development but which contain some wetlands in those areas that would reduce development potential of the project site below the designated FLUM densities. It appears that Peter Dailey, expert for P/I, may have recognized this when he commented that use of Bradenton's transfer of density provisions on North Perico seemed to be awarding a density "bonus." Notwithstanding the apparent inapplicability of Bradenton's transfer of density provisions to North Perico, the expert planners who testified at final hearing (including Dailey) presumed for purposes of comparing development potential on North Perico under the City and County plans that Bradenton's transfer of density provisions would apply and allow transfer of (presumably, RES-3) density from the 173 acres designated Conservation to development on the 243 acres designated RES-3, up to a maximum of 20% of the total acreage of the site. To attempt a more precise comparison of the maximum prospective gross residential density on North Perico under the FLUMs in the two plans, the City called Harold Frediani, an engineer, who testified that it is possible to use a planimeter--a device used to measure the area of a polygon on a map--together with the FLUM map scales to approximate the acreage within the areas designated RES-3 and RES-6 on the County's FLUM for North Perico. Using these accepted engineering methods, Frediani calculated 321 acres of RES-3 and 95 acres of RES-6 under the County FLUM. He then assumed that the 173 acres designated Conservation on the City's FLUM constituted the wetlands on the annexed 416 acres and determined that density from only 83 acres of those wetlands (20% of the total 416 acre site) could be transferred to uplands under either plan. Using these assumptions and calculations, Frediani calculated the maximum prospective gross residential density on the annexed 416 acres on North Perico to be 2.35 units per acre under the City plan and 2.89 units per acre under the County Plan. In terms of residential units, Frediani calculated 979 units under the City Plan and 1202 under the County's plan. (Planning witness for P/I, Peter Dailey, calculated 981 units under the City plan--a "close fit.") It was not explicit but could be inferred from Frediani's testimony that Frediani somehow apportioned the assumed 173 of wetlands between RES-3 and RES-6 on the County FLUM. Otherwise, it would not have been possible to accurately calculate maximum prospective gross residential density on North Perico under the County's FLUM. (In addition, assigning all of the assumed wetlands to either RES-3 or to RES-6 would not yield the result Frediani obtained under the County plan.) Frediani's assumption that the 173 acres designated Conservation on the City's FLUM constituted the wetlands on the annexed 416 acres was incorrect and in fact understated the extent of wetlands on North Perico. See Finding of Fact 139, infra. It is not clear from the evidence how much more wetlands are actually on North Perico; nor is it clear exactly how much difference using the actual wetland acreage would have made in the comparison Frediani was attempting. But it probably would not have greatly affected the comparison. Other Provisions Affecting Density on North Perico P/I assert that other parts of the County's plan reduce gross residential density on North Perico under the County's plan. But two of the County plan provisions cited as reducing gross residential density were not in effect on the date of annexation of North Perico (on June 10, 1998). New policies on coastal evacuation areas (CEA), along with a CEA map overlay, and FLUE natural waterfront vistas Policy 2.9.4.4 were adopted by County ordinances enacted on April 2, 1998, but not legally effective until June 11, 1998, the day after annexation. See Conclusion of Law 185, infra. (Bradenton and DCA argued that coastal storm vulnerability area (CSVA) policies and overlay map also were created by the ordinances, but the evidence was that ordinances simply renamed as CSVA pre-existing coastal high hazard area policies and overlay map which applied to the geographic area of the County seaward of the 5-foot contour line.) The testimony of all land use planning witnesses called by P/I assumed the applicability of FLUE natural waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map on before annexation. There was no evidence as to how much the other County plan provisions, excluding FLUE natural waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map, would reduce the gross residential density that actually would be allowed on North Perico under the County's plan. Even including consideration of FLUE natural waterfront vistas Policy 2.9.4.4 and the CEA policies and overlay map with the other County plan provisions, it cannot be ascertained at this time how much County plan provisions would reduce the gross residential density that actually would be allowed on North Perico under the County's plan. FLUMs E and F of the County Plan apply the CSVA Overlay and CEA Overlay, respectively, to North Perico. As previously mentioned, County FLUE Policy 2.2.2.5.1 defines the CSVA as "the geographic area which lies seaward of the 5 foot topographic contour line, including all areas of known coastal flooding." Under County FLUE Policy 2.2.2.4.1, the CEA is the "geographic area which lies within the evacuation areas for a Category 1 hurricane." FLUE Objective 2.2.2 of the County Plan provides that the Overlay Districts "establish targeted geographic areas, within which the application of highly specialized policies can be implemented." Policy 2.2.2.1 under that Objective provides that the Overlay Districts are set forth as "comprising the second part of the future land use classification system " Table 2-1 of the County Plan FLUE, captioned "Summary of Future Land Use Classification System," lists the various Overlay Districts and describes the "Function" of each. The functions of the CSVA and CEA are stated as follows: Coastal Storm Vulnerability Area: Limit Public Expenditures And Subsidized Development Within These Coastal Areas, And Direct Population Concentration Away from Known or Predicted Coastal Storm Vulnerability Areas. Coastal Evacuation Area: Direct Population Concentrations Away From The Coastal Evacuation Area. Policies for the CSVA and CEA are provided in almost identical form in Policies 2.2.2.5.2 and 2.2.2.4.2 of the County Plan's FLUE. The only difference between the two policies is in the first paragraph; the others are identical. For ease of reproduction, the following quotation consists of the first paragraphs of each policy and a combination of the subsequent identical paragraphs: To limit population in the areas most vulnerable to coastal storm events. (CSVA). To limit population in the Category 1 hurricane evacuation area requiring evacuation during storm events. (CEA). To limit the amount of infrastructure, both private and public, within the CSVA/CEA Overlay District and thereby limit magnitude of public loss and involvement in mitigating for loss of private infrastructure to Manatee County residents. To, through exercise of the police power, increase the degree of protection to public and private property, and to protect the lives of residents within the CSVA/CEA, and reduce the risk of exposing lives or property to storm damage. To accomplish shoreline stabilization along coastal areas by limiting development activity which may adversely impact shoreline stability. To protect coastal water quality by reducing impervious surface along coastal areas, thereby reducing the risk of incomplete treatment of stormwater runoff before discharge into coastal waters. To encourage, establish and maintain vegetative and spatial bumper zones, in order to maintain the capacity of natural vegetative communities in mitigating the negative affects of storm surge and tidal velocity, and the erosive effect of wave action. Policy 2.9.4.4 of the County Plan's FLUE states: "Protect natural waterfront vistas as a defining characteristic of Manatee County. Protection measures may include but are not limited to . . . increased waterfront setbacks and buffers, . . . maintaining conservation areas in public or joint ownership arrangements, . . . and limitations on height and size of structures." Taken together with FLUE Policy 2.6.2.7, requiring clustering as appropriate to limit impacts on adjacent conservation, open space or environmentally sensitive uses, the natural waterfront vistas policy might have the effect of reducing density. But the protection measures in FLUE Policy 2.9.4.4 are optional, not mandatory; besides being optional, they do not specify height or any other limitations. All the land use planning experts agreed that it cannot be ascertained at this time how much application of any of these other policies would reduce the gross residential density that actually would be allowed on North Perico under the County's plan. That would depend on implementation of the policies through LDRs and the development project permitting process. This fact is reflected in several County Plan provisions. County Plan FLUE Policy 2.2.1.6 provides that "nothing in this Comprehensive Plan shall guarantee the achievement of maximum development potential, as shown on the Future Land Use Map." FLUE Policy 2.2.1.6 is to: Require that a specific project’s maximum potential be established only through the application of the implementing land development regulations, including zoning districts, which may restrict development potential to less than the maximum provided for in this Comprehensive Plan . . .. (Emphasis added.) Similarly, County Plan FLUE Policies 2.2.2.4.4(a) (CEA) and 2.2.2.5.4(a) (CSVA) (combining the CEA and CSVA provisions for ease of reproduction in this quotation) provide: Effective Mapping: Any project which is at least partially within the CEA/CSVA Overlay District shall be submitted for approval under the special approval process . . .. The area designated under the [CEA/CSVA] Overlay District on the Future Land Use Map shall also be subject to all goals, objectives and policies for any future land use category overlaid by the [CEA/CSVA] district, except where policies associated with the CEA/CSVA Overlay conflict with such goals, objectives and policies. In this event, policies associated with the [CEA/CSVA] Overlay shall override other goals, objectives and policies. Likewise, FLUE Objective 2.1.1 requires the County to "follow a mapping methodology . . . which recognizes existing development . . . and a possible development density and intensity less than the maximum specified on the Future Land Use Map." (Emphasis added.) In reviewing maximum prospective gross residential density in a plan, DCA must consider whether overlay districts and other plan provisions reduce the density (and intensity, where applicable) specified by FLUM designations by an objectively ascertainable amount. For that reason, it is appropriate to consider the effect of the provisions in both plans prohibiting residential development of wetlands and limiting density transfer to uplands. But when specific reductions cannot be ascertained at the plan review stage, DCA must assume the maximum objectively ascertainable prospective density. Otherwise, DCA would have to speculate as to density. Bradenton's and DCA's land use planning experts appropriately declined to enter into such speculation. On the other hand, planning witnesses for P/I were willing to speculate as to how much the County's other plan provisions might drive down density. Peter Dailey testified: "[E]xperience tells me that at a minimum you are looking at probably a 25 to 30 percent reduction in density based on the imposition of those overlay districts." He then testified that it could go "50 or 60 percent" and that one-third would not surprise him. County Comprehensive Plan Administrator Michael Wood, testified: "I don't know that you can meet the intents of all those policies without having some reduction below the maximum . . . in my mind I think that it has to be at least a third below what the Future Land Use Map is showing as the Res-3." Manatee County Commission Chairman Joe McClash, testified that density on North Perico is constrained to less than "if you just purely look at the future land use map." He then testified "in a general sense," based on "general guidelines" he believed would be used by the Board of County Commissioners in development project permit review, he "would imagine that anywhere from the one to the maximum of two units to the acre would be the appropriate density in the Perico area." He also characterized this as a reduction of one-third to one-half of the three units per acre from the FLUM designation. (It is not clear whether Commissioner McClash was referring to the RES-6 southeastern portion of North Perico as well as the RES-3 portion.) But as previously indicated (and as indicated by the general and differing estimates of ultimate residential density on North Perico given by these witnesses) the precise reduction from the County's FLUM density cannot be determined at this time. It would not be appropriate for DCA to assign such imprecise densities for purposes of comprehensive plan amendment review of maximum prospective gross residential density. Besides the uncertainty of how density would be limited under the County's plan and LDRs, there are provisions in the City plan that could lower residential density on North Perico below the 3 units per acre designated on the City's FLUM. While the City plan does not use overlay districts per se, Amendment 00-1ER adopted Neighborhood Recommendations 12.04A, which identify and address development issues specific to North Perico. Among other things, they include recommendations to "strictly enforce the flood protection ordinance for development of the island" and that "[h]urricane evacuation and traffic impacts on State Road 64 shall be considered as an important issue in review of applications for development approval." Under the City's plan, Neighborhood Recommendations have the effect of policies by virtue of Policy 1.2 of the FLUE Goal in the City’s Plan, which states: The recommendations for each neighborhood contained in this plan are hereby adopted as part of this plan and are to be adhered to in all land use decisions. In addition, CM/CE Policy 5.5.1 designates "undeveloped coastal acreage with[in] areas below the 8-foot contour line as PDP (planned development project) and limit residential development to low density" there. Although the PDP process is not spelled out in Bradenton's plan, several witnesses characterized it as the functional equivalent of the County’s Special Approval. In general, Bradenton and the County have taken different approaches to assigning residential densities in their plans. In the County's Plan, the objectively ascertainable maximum gross residential density, as least for North Perico, is higher than the City's; on the other hand, it is clearer in the County plan than in the City's that the ultimately achievable density after consideration of other plan policies (and implementing LDRs) during the development permitting process may well be somewhat less than the maximum. Nonetheless, it is still possible for consideration of other City plan policies (and implementing City LDRs) during the development permitting process to reduce the ultimately achievable gross residential density below that objectively ascertainable maximum in the City plan. The preceding discussion focuses on gross residential density. From their presentations at final hearing, Petitioner and Intervenor also appeared to be attempting to make an issue as to net density, but their proposed recommended orders did not mention net density. Perhaps they recognized that the County plan allowed transfer of density from wetlands to uplands (assuming the City's plan also does) and that, under County FLUE Policies 2.2.1.10.3 and 2.2.1.12.3 and Coastal Policy 4.3.1.5, RES-3 and RES-6 net density limits "may be waived for appropriate clustered projects." Based on these findings on maximum prospective residential density and development potential on North Perico under the City and County plans, it cannot be found that the City's Plan Amendment allows any more residential density or development on North Perico--gross or net--than the County's plan did. At the comprehensive plan review stage, the question remains at least subject to fair debate. As previously indicated, these findings on maximum prospective residential density and development potential are dispositive of several other issues raised by P/I. Intergovernmental Coordination P/I allege that the City's Plan is not consistent with the requirement for intergovernmental coordination. But the City's Plan contains several strong and specific requirements to carry out the intergovernmental coordination requirements of state law. ICE Objective 1.3 requires that the City: "Maintain coordination between Bradenton and Manatee County." ICE Policy 1.3.1 requires the City to: "Continue coordination of City and County Comprehensive Plans through mutual review and criticism as a means of ensuring consistency." Policy 1.3.3 requires that the City: "Carefully coordinate land use and development policies along city/county fringe areas and in hurricane evacuation zones to ensure compatibility." Discussion in the ICE of the need for intergovernmental coordination in the FLUE also states: "Land use plans affecting the property on the periphery of the City and plan amendments to address annexed areas must be carefully coordinated with the County." ICE Policy 1.3.8 also states: "Amendments to the City's Comprehensive Plan to address annexed property shall be compatible with Manatee County's Comprehensive Plan in regard to density and intensity limits and level of service standards." Objective 7 of the City's FLUE Goal requires: "Consistency of the City's land use policies . . . to the extent possible with those of the County and adjacent communities." Policy 1 under Objective 7 requires the City to "review annually the current state, regional, county and local plans and amend this plan as necessary for consistency." There is nothing inconsistent between any part of the Plan Amendment and the requirements for intergovernmental coordination in the City's Plan. The requirements for intergovernmental coordination are not weakened, diluted, or in any way changed by Amendment 00-1ER. Analyzed closely, what P/I have argued is that the City failed to follow its extraordinarily strong procedural and substantive intergovernmental coordination policies in adopting Amendment 00-1ER. Procedurally, as already noted, Bradenton sent the County a copy of its proposed Plan Amendment for review and comment at the time of transmittal to DCA. In addition, County Planning Staff had knowledge of the City’s ongoing amendment process. The City and County engaged in formal and informal intergovernmental coordination. As recognized in the City Plan, the City and County have daily interaction concerning areas of mutual concern including public safety, planning, and provision of public infrastructure. One mechanism for intergovernmental coordination is a process of regularly exchanging meeting agendas for their respective planning commissions and County Commission and City Council meetings. Notwithstanding the process in place for intergovernmental coordination, and notwithstanding concerns about development on North Perico expressed at the time of annexation, the County made no comments on the City's proposed Plan Amendment at any time during the transmittal and adoption. Another indication of the City's coordination with the County in developing its Plan Amendment is that much of the data and analysis utilized by the City in preparing Amendment 00-1ER came from the County, including the County's EAR. Among other things, this data and analysis included a biological hotspots map and list of endangered and threatened species and habitat, the County’s analysis of hurricane evacuation shelters, and information on roads and traffic for levels of service. Substantively, P/I seem to take the position that the City's Plan Amendment is incompatible and inconsistent with the County's Plan because its provisions are not identical with the County's Plan provisions. But it is clear that compatibility and consistency do not require identical provisions. Even if not insisting on identical plan provisions, P/I sometimes seem to insist that the City's plan must utilize overlay districts to the same extent as in the County's Plan, at least for North Perico, in order to be compatible and consistent with the County's plan. First, as already mentioned, the City's Plan Amendment had Neighborhood Recommendations that functioned like the County's overlay districts. Second, the County's use of overlay districts was a more appropriate planning tool for the larger geographic area covered by the County's Plan than it would be for a smaller jurisdiction like Bradenton. For those reasons, Bradenton's Plan Amendment is not incompatible or inconsistent with the County's Plan just because it did not use overlay districts in the same manner. The requirement for land use compatibility at the comprehensive planning stage generally means that the allowable types of land uses of adjacent parcels of land should be compatible. Any residential use adjacent to another residential use meets that requirement. Issues related to building types, building height, and clustering of density and intensity of development are properly addressed and resolved at the development approval stage with reference to applicable land development regulations. With respect to maximum prospective gross residential density, the City reviewed the County’s FLUM when creating a land use designation for North Perico on the City FLUM. On its face, the City's FLUM designation is consistent and compatible with the County's FLUM for North Perico. In fact, as previously found, taking all objective measures into account, it is at least fairly debatable that the City actually "down-planned" North Perico. Meanwhile, the existing developments on Perico Island have gross densities of 4 to 11 units per acre. Amendment 00-1ER's residential density is neither inconsistent with the County's planning for North Perico nor incompatible with existing development. The City’s planning for South Perico pre-dates Amendment 00-1ER. It includes Neighborhood Recommendations 12.04B, which are very similar to Neighborhood Recommendations 12.04A for North Perico in Amendment 00-1ER under review. The geography, environment, and proposed land uses for North and South Perico also are very similar. DCA's previous finding that the City Plan for South Perico is compatible with the County Plan for North Perico is strong evidence that Amendment 00-1ER also is compatible with the County Plan for North Perico (as well as the rest of the County's Plan.) P/I also argue that Amendment 00-1ER is inconsistent and incompatible with the County's FLUE Policy 2.9.4.4 calling for protection of natural waterfront vistas. As found, while Bradenton's plan does not contain a natural waterfront vista protection policy per se, the City Plan does contain measures to protect the environment and the shoreline of the waterfronts. Meanwhile, the County's protection measures are neither mandatory nor definite. It cannot be determined during comprehensive plan review how either jurisdiction's plan provisions will be implemented during the development process. As a result, it cannot be found beyond fair debate that the City Plan is inconsistent or incompatible with the County's FLUE Policy 2.9.4.4. P/I also alleged that Amendment 00-1ER created a conflict with the County's plan by amending Public Facilities Element (PFE) Objective 3.1 to increase the City's potable water LOS standard to 125 gallons per person per day (up from 100). But this change merely reflected actual capacity, as reflected by current data and analysis. It did not relate to water conservation measures and was not in any way inconsistent or incompatible with the County's plan. Internal Consistency Not only was internal inconsistency in relation to intergovernmental coordination not proven beyond fair debate, no other internal inconsistency in Bradenton's plan was proven beyond fair debate to have been occasioned by Amendment 00- 1ER. P/I alleged that internal inconsistency arose in Bradenton's plan as a result of the amendment of CM/CE Policy 5.1.1. In response to statutory requirements and the request of DCA, the City in Amendment 00-1ER revised the definition of the the coastal high hazard area (CHHA) in CM/CE Policy 5.1.1 to include all of the lands within the evacuation zone for a Category 1 hurricane (Evacuation Zone A). Before Amendment 00-1ER, CM/CE Policy 5.1.1 defined the CHHA as land below the 2-foot elevation contour line. This change in the definition greatly enlarged the CHHA. All of Perico Island as well as much of the City on the mainland was brought into the newly- defined CHHA, including the City Hall, a hospital, and multiple commercial and residential areas within the City limits. The City omitted to also amend CM/CE Policy 5.5.2, which continue to read: "Locate all public facilities outside of the coastal high hazard area." But it is clear that the City did not intend to require all public facilities to be located outside the newly-defined CHHA. Amendment 00-1ER also amended CM/CE Policy 5.1.4 to establish a lower priority, not a prohibition, against funding of public infrastructure with[in] the CHHA as compared to non-CHHA areas; in certain listed exceptions, funding was not required to be lower priority in the CHHA. Clearly, Bradenton inadvertently omitted to amend CM/CE Policy 5.5.2 in light of the change in the definition of CHHA in CM/CE Policy 5.1.1 to apply only to the part of the newly-defined CHHA below the 2-foot contour line. But the City's clear intent can be gleaned by reference to the related goals, objectives, and policies. As previously found, CM/CE Policy 5.5.1 contained a scrivener's error. See Finding of Fact 12, supra. P/I also alleged that internal inconsistency was the result. But the City corrected the error while DCA was still reviewing Amendment 00-1ER for compliance. Besides, CM/CE Policy 5.5.1 was not changed or in any way affected by Amendment 00-1ER. See Conclusion of Law 164, infra. Finally, it is clear by reference to related goals, objectives, and policies that the City did not intend to limit non-residential development below the 8-foot contour to water-dependent uses. Hazard Mitigation Amendment 00-1ER supplemented the City Plan’s hazard mitigation policies with the addition of post disaster redevelopment policies and with changes to the CHHA policies to make them consistent with state law. As already found, Amendment 00-1ER changed the definition of the CHHA in CM/CE Policy 5.1.1 to include all of the lands within the Evacuation Zone A for a Category 1 hurricane, not just lands below the 2-foot contour line. This change resulted in all of Perico Island (as well as much of the land on the mainland in the City) being included in the CHHA. CM/CE Objective 5.1 of the City Plan is to "[s]everely limit development in low-lying coastal areas." The City Plan contains several policies implementing that objective which include establishing a conservation zone to include all lands below the 2-foot contour line, prohibiting filling below the 2-foot contour line, and limiting funding of infrastructure in the CHHA. (Policies 2, 3, and 4 of CM/CE Objective 5.1) CM/CE Objective 5.5 of the City Plan is to "[k]eep population and investment low in areas vulnerable to coastal flooding." Several pre-Amendment policies implement this objective. CM/CE Policy 5.5.1 limited residential development to low density below the 8-foot contour and limited, as previously found, limited non-residential development below the 2-foot contour to water dependent uses. As previously found, CM/CE Policy 5.5.2 states: "Locate all public facilities outside of the coastal high hazard area." (As also previously found, the clear intent was to locate public facilities outside the portion of the CHHA below the 2-foot contour.) In addition to the FLUM designations for North Perico and the policies relating to the CHHA, Amendment 00-1ER also added the policies contained in Neighborhood Recommendations 12.04A, which require that the flood protection ordinance be strictly enforced, and that hurricane evacuation be considered as an important issue in review of applications for development approval on North Perico. The City incorporates Federal Emergency Management Agency (FEMA) flood protection regulations by reference in the City Plan (ICE Policy 1.6.1) FEMA regulations require coastal development to be constructed to withstand flooding associated with hurricanes, and include regulations specifying minimum floor elevations, and other protective measures to minimize the potential for storm damage. Amendment 00-1ER adds objectives and policies related to the management of storm water, and includes textual updates related to the City’s stormwater system. CM/CE Policy 2.2.1 was amended to require that stormwater from new developments meet the level of service (LOS) standards of SWFWMD and the City’s NPDES stormwater permit. In general, the City meets the LOS for stormwater. In addition, all projects must be designed so that discharges will meet state water quality standards. (Public Facilities Element (PFE) Policy 4.1.1) Preexisting CM/CE Policy 5.6.1 policy required strict enforcement of a flood ordinance based on FEMA regulations in the event of post-disaster redevelopment. In response to the ORC Report, the City provided for development of a post disaster redevelopment plan by 2000. CM/CE Objective 5.7 requires the City to adopt a Local Mitigation Strategy (LMS) and coordinate its implementation with the County. The City participated in the development of a county-wide LMS and adopted it by Resolution as the City's LMS in 1999. The LMS has been accepted by DCA. Bradenton's preexisting CM/CE Policy 6.1.1 recognized that the City plays a subordinate role to the County in planning and response to hurricanes and other disasters. City and County staff and the elected officials from the Island Cities characterize the local municipalities within the County as supporting the planning and response efforts of the County. Bradenton also provides staff to support the County during hurricanes. Bradenton's preexisting CM/CE Policy 6.1.4 required adoption of development regulations requiring new developments in high priority hurricane evacuation areas to submit hurricane evacuation plans to the County Emergency Management Division by December 1, 1989. Amendment 00-1ER required adoption by 2000. Historically, few hurricanes and tropical storms have impacted the Bradenton area. No hurricanes have approached Bradenton from the north since records have been maintained. While history is no guarantee, hurricane predictor models also indicate that the likelihood of a major storm hitting Manatee County is relatively small. (The Tampa Bay Regional Planning Council Hurricane Evacuation Study does not even include a model for a storm with a northerly approach in its hurricane study.) In addition, while there is a substantial fetch of open water over Tampa Bay to the north of Perico Island, it is more likely that a storm would approach Manatee County from the west, east, or south than from the north. Perico Island is buffered by land masses from all those directions. Based on data from the FEMA Flood Insurance Study and the TBRPC Storm Tide Atlas, a Category 1 hurricane would have a recurrence interval of about 1 in 6 years and a maximum storm surge of about 4 feet above sea level at the tip of North Perico; a Category 2 hurricane would have a recurrence interval of about 1 in 40 years and a maximum surge of about 7.4 feet; a Category 3 hurricane would have a recurrence interval of about 1 in 300 years and a maximum surge of about 10.3 feet; and a Category 4 hurricane would have a recurrence interval of about 1 in 1000 years and a maximum surge of 13.2 feet. Assuming it remains in place, the existing approximately 5-foot berm around the western and northern uplands of North Perico should keep out a Category 1 hurricane. Roads can be elevated to levels above the Category 1 storm surge and buildings can be elevated sufficiently to meet FEMA requirements for the protection of persons and property. If such measures are taken, flooding of residential structures would be fairly unlikely. Hurricane shelter capacity in Manatee County, although under study and possibly subject to additional hardening requirements, appears to be satisfactory for a Category 2 (1 in 40 years recurrence) hurricane, with increasing deficits of shelter space for lower probability, greater severity hurricanes. SR 64 is the evacuation route for the northern half of Anna Maria Island, Perico Island, and a portion of the mainland. So far, Anna Maria Island residents and the Island Cities have opposed proposals to widen of the Anna Maria Island Bridge. It is not clear whether widening the bridge would facilitate their evacuation or increase their safety since approaches to the bridge would remain two-lane under the proposals so far. Evacuations are typically ordered 24 to 36 hours before the onset of hurricane force winds. Based on predicted evacuation times, a mandatory in-county evacuation can be completed prior to the onset of hurricane force winds. The addition residential units on North Perico probably would not result in insignificant increases in in-county evacuation times. Hurricane evacuation times predicted from Manatee County to an out-of region point at I-75 in Wildwood or I-4 East of Orlando, in the event both the Tampa Bay area and southwest Florida are evacuated, are considerably higher; but such times are beyond the ability of any local government to cure. In-county alternatives are therefore recommended by the agencies. Availability of Public Facilities The Public Facilities Element (PFE), Recreation and Open Space Element (ROSE) and Transportation Element (TE) of the City Plan contain policies and procedures which implement concurrency requirements for public facilities and services. The LOS standards for potable water, wastewater, solid waste, and drainage are identified in the Goals, Objectives, and Policies of the PFE; the LOS standards for roadways and mass transit in the goals objectives and policies of the TE; and the LOS standards for parks and recreation space are identified in the Recreation and Open Space Element. (PFE Policies 2.1.2, 2.3.1, 4.1.1, 5.1.1; TE Traffic Circ. Policy 3.2; TE Public Trans. Policy 1.2; ROSE Policy 1.3.1) The City's TE Traf. Circ. Objection 1.3 is "non- degradation of the LOS of the roadway system." Policy 1.3.3 defines degradation to mean reduction below the designated LOS for the road or, if the road already is functioning below the LOS standard, "a significant increase in traffic volume." City and DCA witnesses interpreted "significant increase" to mean in excess of "an impact that would not affect more than 1 percent of the maximum volume at the adopted level of service of the affected transportation facility." The City’s LOS standards for roadway capacity are the same as the LOS on state highways. The LOS standard for potable water is being met. It was adjusted upward as a design standard to reflect system capacity. Development cannot occur unless utilities and roadway capacities are available at the identified levels of service. (FLUE Policies 1.2.1 and 1.2.2) The City's PFE contains a description of the Concurrency Management System and Concurrency Determination Procedures. The City Plan's TE contains a Roadway Capacity Analysis that identifies the operating LOS on each segment of the major roads within the City. The Roadway Capacity Analysis is based on determining the percentage of roadway capacity used at peak hour. Peak hour traffic volumes were estimated as 10% of the average daily traffic volume determined by traffic counts completed by the County and FDOT. The LOS assigned to the percentage volume was derived from the FDOT Generalized Two Way Peak hour volumes for Florida’s urbanized areas. The City Plan’s Roadway Capacity Analysis Table does not accurately reflect the operating and projected LOS for two segments of SR 64 (15th Street West to 26th Street and 26th Street West to 59th Street) because the analysis did not take into account the change in capacity occurring at 43rd Street. However, the text on page 200:17 of the Plan corrects this discrepancy by breaking the second segment into two sub- segments which more accurately reflect the capacity of the roadway. Likewise, a scrivener’s error on page 200:12 listing SR 64 75th Street West to the City limits as a LOS E should list the segment as LOS D. Consequently, that roadway segment properly does not (and should not) appear on the list of projected deficiencies contained on page 200:17. The correct LOS for that segment is shown on the Manatee County Concurrency Link sheets. A third discrepancy alleged by Petitioner’s traffic expert, Randall Toth, resulted from a misreading of the Table. Because the City Plan’s Roadway Capacity Analysis is generalized, the City’s Concurrency Determination Procedure also allows applicants for development approval to submit detailed traffic studies to demonstrate that roadway capacity is available. A detailed traffic study of SR 64 in the vicinity of Perico Island shows that the road is operating at LOS D, which is the acceptable LOS for roadways in Bradenton. The study also shows that sufficient available capacity exists so that additional trips from development of 898 new residential units on Perico Island would not downgrade the operating LOS of SR 64 below LOS D. For new development, the City determines concurrency at the time of development approval based on the standards defined in the Comprehensive Plan. Because concurrency determinations are based on projected impacts of a specific development, a concurrency determination cannot be made in the abstract, or based solely on the FLU designation on the City’s FLUM. Amendment 00-1ER includes an updated Capital Improvements Element (CIE). The CIE is based upon the City’s ongoing 5-year improvement plan which contains all of the City’s major planned expenditures for capital improvements to meet LOS standards for the City, including maintenance, expansion, and upgrading of City roads, utilities and parks. Policy 2.3 under the City Plan's FLUE Goal directs that the land use development regulations shall allow the City to require developers as a condition of development approval to provide utilities and roadways needed to serve the proposed development. CIE Policy 1.1.1 provides for the City to "continue to use extraction as a means of insuring that developers contribute their proportionate share of the cost of roads, parks, water and sewer facilities required to meet adopted LOS standards." CIE Policy 1.1.2 provides that the City may consider impact fees if the "City determines that the developers are not paying their pro rata share of costs to maintain level of service standards." (Both of these policies were in Bradenton's plan before Amendment 00-1ER and were unchanged by the amendment.) The City’s CIE does not contain any planned expansion of potable water or public utilities on Perico Island because the City and County have entered into an Interlocal Agreement Regarding Water and Sewer Service. If any other utility improvements are needed to serve new development, the developer would bear the cost of the improvements. Protection of Natural Resources It is undisputed that North Perico is environmentally sensitive. Aerial photographs of North Perico show extensive vegetation in the uncleared areas. There are extensive areas of wetland and mangrove on North Perico, including the areas designated Conservation on the City's FLUM. Mangrove habitat "pretty much envelopes the island." Extensive sea grasses grow "all the way around" the island. North Perico and the waters surrounding serve as prime habitat for numerous species of wildlife identified as endangered, threatened and species of special concern by state and federal wildlife agencies. These include the common snook, Atlantic loggerhead turtle, Atlantic green turtle, gopher tortoise, gopher frog, little blue heron, snowy white egret, tri-colored heron, wood stork, brown pelican, American oystercatcher, limpkin, reddish egret, Louisiana heron and West India manatee, as well as the little green heron. North Perico also has listed species of plants, including the giant leather fern, scrub palmetto, dwarf palmetto, blue stem, wild pine and spring ladies tresses. Bradenton's Plan includes a map obtained from the County's EAR called Manatee County Florida Hot Spots of Biological Resources, which is consistent with the presence of species on North Perico. The City's expert, James Hudgens, testified: "Wetlands provide essential breeding, nesting, resting and feeding grounds for many species of fish and wildlife, and provide habitat for a wide range of vegetative communities." Wetlands also operate to retain and detain storm waters and thereby reduce the potential for flooding. They also function to filter pollutants from upland activities. Wetlands, including specifically mangrove wetlands, provide important coastal buffer and coastal storm protection. Coastal vegetation other than wetlands is also important to protect because it stabilizes the shoreline, provides a windbreak and can dissipate wave energy, playing a very important role in mitigating storm damage. The City's Plan Amendment provides, in CM/CE Policy 4.2.2: By 2000 adopt regulations that require approvals for development of uplands adjacent to wetland areas to stipulate that the developer take such measures necessary to ensure that uplands construction has no negative effect upon adjacent wetlands; or incorporate wetlands buffers meeting the requirements of the Southwest Florida Water Management District (SWFWMD); or meet the SWFWMD mitigation standards; and include a provision prohibiting unacceptable cumulative impacts within the drainage basin. Prior to Amendment 00-1ER, the SWFWMD options were not part of the policy. There were differences of opinion as to how the City's CM/CE Policy 4.2.2 should be interpreted. Witnesses for P/I thought the policy would allow developers to choose which of the three wetland protection measures--no negative impact, SWFWMD buffers, or SWFWMD mitigation--to apply to their projects. Bradenton countered that the evidence supports an interpretation allowing the City to choose the alternative affording the most wetland protection possible. The City's interpretation is reasonable and would be consistent with the CM/CE goal and objective which the policy implements. SWFWMD is the agency to which State has given the responsibility to establish a permitting program to protect wetlands in Manatee County from adverse impacts. SWFWMD regulations regarding wetland buffers are designed to protect water quality, protect wetlands from physical intrusion, and protect habitat. SWFWMD requires a wetland buffer of a minimum of fifteen feet in width and an average of 25 feet in width. P/I contend that wetlands had better protection under the County plan. The County's Conservation Element Policy 3.3.1.5 requires that wetlands be protected from land development activities by requiring natural area buffers adjacent to all post-development wetlands, of a minimum 30- foot width adjacent to isolated wetlands generally and 50 feet adjacent to "all in flowing water courses located in . . . all Outstanding Florida Waters and Aquatic Preserves." It also provides that these buffer widths "may be increased for large areas of significant wetlands" and for other purposes. County Natural Resources Administrator Douglas Means testified that this 50-foot-plus buffer would apply to all of the wetlands on North Perico with the exception of any "isolated systems," that is it would apply to "the broad swath of wetlands . . . at the northern tip sweeping down through the center and along the coast" of North Perico. He also opined that, in permitting, the policy probably would be applied to require a buffer greater than 50 feet on North Perico, "certainly along the northern and western areas," perhaps up to 100 feet. Appropriate buffer width is ordinarily addressed in the permitting process. There is no single ideal buffer width. SWFWMD's average 25-foot buffer is generally considered adequate. In some cases, very narrow buffers can be as effective or more effective than wider buffers; in other cases the opposite is true. Generally, wider buffers can provide "more treatment area" for stormwater nutrient runoff. A greater buffer also would allow less encroachment into the wetlands by human activity. For that reason, the width of a wetland buffer can affect the integrity of wildlife habitat, and a 25-foot buffer may be more appropriate that SWFWMD's 15- foot minimum width for North Perico. One of the witnesses for P/I, Dr. Robert Young, opined that the minimum appropriate wetland buffer width for North Perico was 100 feet. His testimony was based in part on the premise that one purpose of wetland buffers is to allow room for landward migration of a coastal wetland. But the evidence was that landward migration of wetlands on North Perico will be impeded by a pre-existing berm separating the uplands from the wetlands. Considering the slope of the berm, it would take approximately 600 years for the wetlands to migrate over the berm. City expert Hudgens, who has wetland permitting experience along the Atlantic and Gulf Coasts from New York to Texas, knew of no jurisdiction in which landward migration of wetlands is a criterion for determining adequate buffer width. On their face, SWFWMD's buffer standards are less generous than the County's. In practice, however, the County has allowed variable width buffers in which buffers as narrow as 25 feet were allowed adjacent to certain coastal wetlands as long as the difference was made up in other buffers elsewhere. As with many of the non-objective policies that may affect residential density on North Perico, the buffers ultimately required for North Perico under either the City or County plans are not certain at this time. It was not proven beyond fair debate that the City's plan provisions regarding wetland buffers will be inadequate, or that the City's plan provisions signal a clear retreat from buffer protections required under the County's plan. P/I also seek to contrast the County's Conservation Policy 3.3.1.1 with the City's CM/CE Policy 5.1.2, which establishes the conservation zone applicable to the mangrove and wetlands of North Perico, prohibits the "construction of building, roadways and parking areas" below the two-foot contour line, and prohibits the removal of "wetland vegetation except for limited access points." They contend that the City's policy allows clearing unvegetated portions of wetlands for active recreation or other uses, where the County's does not. But there was no evidence of any unvegetated wetlands on North Perico. It also was not clear from the evidence that City's plan would allow active recreation (such as golf course and ball fields) in unvegetated wetlands, if there were any. Finally, it also is not clear that the County's Conservation Policy 3.3.1.1 is an outright prohibition against such use of unvegetated wetlands, if any; the County's policy allows wetland impacts "where no other practical alternatives exist or where there is an overriding public benefit." Meanwhile, County Policy 3.3.1.6 also allows dredge and fill of wetlands "when the activities are consistent with Objective 4.1.5 (relating to spoil sites). County Policy 4.1.2.2 also allows alteration of coastal wetland habitat for water-dependent uses, in cases of overriding public interest, and "when necessary to avoid the taking of private property." On the whole, protections afforded by the City's policy are comparable to the County's. In addition, the City's CM/CE Policy 5.1.2 was not changed by Amendment 00-1ER under review. There is a berm surrounding upland on North Perico. It was not clear from the evidence whether the berm is part of a coastal ridge. The berm and interior are disturbed uplands, having been used for agriculture. Undesirable exotics such as Brazilian pepper and Australian pine are prevalent. There also are sea grapes, cabbage palms and young (small) live oak growing, especially in the vicinity of the berm. Other non- wetland vegetation on North Perico includes some slash pine, wax myrtle, silver leaf, prickly pear cactus, and xeric hammock. According to Hudgens, these non-wetland species are found "all along the berm and in those isolated areas where there is upland and not either held onto or colonized by wetland." The County's Plan protects non-wetland coastal vegetation as well as wetland vegetation. The City's Plan Amendment specifically protects wetland vegetation but not non-wetland vegetation per se. But the City plan does afford protection to various wildlife habitat, which would include protection of non-wetland vegetation. For that reason, the significance of the differences in the two plans as to protection of non-wetland vegetation was not clear from the evidence. School Siting The City's FLUE Policies 1.4.1, and 1.4.2 provide that public schools are an appropriate land use within the residential, professional, and commercial land use categories, and that public schools shall be allowable as special exceptions in other land use categories. FLUE Policy 1.4.3 outlines concerns to be considered when school sites are proposed. In addition, the City's FLUM clearly depicts existing schools and their proximity to public facilities, such as recreation areas. School siting is reviewed on a case-by-case basis. When local governments are between ninety and 95% completely built out, as Bradenton is, there may be little or no land to site future schools. If so, the local government must demonstrate this fact, and present it to the Department to comply with the Act’s school siting requirements. Other factors also are taken into account in deciding whether a local government has met school siting requirements "to the extent possible." P/I contend that the "special exception" option in the City's FLUE Policy 1.4.2 somehow violates school siting requirements. To the contrary, this provision actually enhances the collocation of schools in that schools are allowable as special exceptions only if they are compatible with existing or anticipated nearby uses. Urban Sprawl Petitioner and Intervenor attempted to argue that the City's FLU designations for the annexed 416 acres on North Perico constituted urban sprawl. But none of the indicators of urban sprawl were present in this case. The western extreme of Bradenton is not developed as much or as densely as much of the rest of Bradenton, and densely developed barrier islands are just across the Anna Maria Bridge to the west of Perico Island. Looked at from that scale and perspective, it would not be illogical to view development on Perico Island as in the nature of "infill." In addition, both the City's preexisting FLUM designations for South Perico and the County's former FLUM designations on North Perico included low density residential. Since the County's low density residential designations have been found to not to encourage urban sprawl, it would be illogical for DCA to now find that the City's similar designation encourages urban sprawl. Finally, from the time of its 1989 comprehensive plan, and in order to discourage urban sprawl, the County established a "Developing Urban Core" in the western part of the County for future urbanization, in contrast to its reservation of a "Future Development Area" in the eastern part of the County. Perico Island has always been in the County's "Developing Urban Core." Consistency with State and Regional Plans The applicable adopted state comprehensive plan is found in Section 187.201, Florida Statutes. The applicable regional policy plan is the Tampa Bay Regional Planning Council's Strategic Policy Plan. P/I alleged numerous violations of the state and regional policy plans. But there was no persuasive evidence, that Bradenton's Amendment 00-1ER was either in conflict with, or failed to take action in the direction of realizing goals or policies in, either the state or regional policy plan, construed as a whole. Data and Analysis The evidence was that voluminous data and analysis supported Amendment 00-1ER. Some of this data and analysis was provided to DCA during review of both the proposed and adopted amendment. This initial data and analysis included Bradenton's EAR, which DCA found to be sufficient, and data and analysis obtained from the County. Some of the data and analysis obtained from the County had been used to support the County's FLUM designations for North Perico. P/I tried to make much of a statement included in Bradenton's letter dated March 6, 2000, transmitting Amendment 00-1ER to DCA. The letter stated in part: "No new data and analysis were necessary to support these amendments." P/I tried to characterize the statement as a damaging admission of failure to support Amendment 00-1ER with data and analysis, but all Bradenton intended by the statement was that data and analysis already provided was adequate. The City and DCA also relied on external agency reviews of the Plan Amendment, and the agencies’ expertise in certain areas. The City relied on certain SWFWMD permitting programs, while DCA relied on external agency reviews of the Plan Amendment. The Department of State, the Florida Department of Transportation ("DOT"), SWFWMD, the Tampa Bay Regional Planning Council ("TBRPC"), and the Florida Department of Environmental Protection ("Department of Environmental Protection (DEP)") all reviewed Amendment 00- 1ER, and none had any objections. When P/I challenged the adequacy of Bradenton's data and analysis in this proceeding, Bradenton produced voluminous additional data and analysis supporting the amendment. Additional analysis was provided through final hearing. Evidence presented by P/I did not challenge very much of this voluminous data and analysis as being either not the best available or not professionally acceptable. Indeed, none of the witnesses called by P/I had reviewed all of the data and analysis relied on by Bradenton to support Amendment 00-1ER. Bradenton based its population estimates on estimates developed by the Shimberg Center for Affordable Housing at the University of Florida. Shimberg estimates were developed under contract to DCA as part of DCA's development of affordable housing information for use in local comprehensive plans. The population estimates by the Shimberg Center were based upon the mid-range of the population estimates prepared by the Bureau of Economic and Business Research at the University of Florida (BEBR). While challenged by P/I, the evidence was that this population data was the best available and was professionally prepared. The evidence at final hearing disclosed some errors in data and analysis that were included as part of Amendment 00-1ER. Most of these errors were in the nature of typographical or arithmetical errors or omissions. Analysis provided during final hearing cured these defects. To the extent that some errors might be characterized as data, data errors were not significant, and the correct data supported Amendment 00-1ER. As found, it was not proven that Bradenton's FLUM designations and land use planning for North Perico allowed greater residential density than the County's plan allowed. For that reason, Bradenton's reliance on the data and analysis obtained from the County to support its land use designations and residential density for North Perico (as well as may other aspects of Amendment 00-1ER) cannot be faulted. Alleged FLUM Error Towards the end of their case-in-chief at final hearing on March 26, 2001, P/I called Bradenton's senior planner, Ruth Seewer, who was principal drafter of Bradenton's FLUE amendments. Among other things, Seewer testified that the split between 243 acres of "Vacant" land and 173 acres of "Recreational/Open Space" in Current Land Use Data and Current Land Use Map for Neighborhood 12.04A (the annexed 416 acres on North Perico), as well as the RES-3 and Conservation land designations depicted on Bradenton's FLUM amendment for the annexed 416 acres on North Perico, were based on a certified survey. After Seewer's testimony, counsel for Petitioner and the Island Cities sought production of a copy of the certified survey; in response to the production request, the City produced a copy of a letter dated October 23, 1998, from Thomas McCollum, a land use planner in a land use, engineering and surveying consulting firm working for the owner of the annexed part of North Perico. Attached to the letter was a "drawing" "for use in the amended comprehensive plan." The drawing was not a certified survey and bore a legend stating that it depicted mangrove area in cross-hatch, a "contour," a total of 416 acres, 173 acres of conservation/wetland, and 243 acres of upland. The 173 acres of conservation/wetland corresponded to the 173 acres of Conservation depicted on the FLUM amendment, and the 243 acres of upland corresponded to the 243 acres of RES-3 on the FLUM amendment. Late in the afternoon on March 29, 2001, the second-to-last day of final hearing, Bradenton called Seewer during its case-in-chief to explain the City's production of the letter and uncertified drawing, which was introduced as P/I Ex. F (and also to give testimony on data and analysis inaccuracies in the FLUE amendment.) Seewer explained that her testimony two days earlier was unintentionally incorrect and that the FLUM amendment for North Perico actually was not based on a certified survey but rather on the drawing attached to McCollum's letter. Under examination by counsel for Petitioner and the Island Cities, Seewer explained that her recollection and understanding at the time of her earlier testimony was influenced by the circumstances of her dealings with McCollum. She testified that she had asked McCollum for a survey of the mangroves on the annexed 416 acres on North Perico for purposes of designating conservation and residential land uses on the FLUM amendment. She viewed McCollum's consulting firm as consisting of engineers and surveyors, and she assumed that McCollum would respond to her request with a certified survey (or least a document based on a certified survey). Seewer defended her assumption on her disbelief that an engineering firm would "lie" in response to her request. It does not appear that Seewer noticed that the drawing McCollum sent her was not a certified survey. In any event, she never asked that it be replaced by an actual certified survey. Seewer also did not base the FLUM amendment land use designations for North Perico on any information other than McCollum's drawing. Other documents available by the time of adoption of Amendment 00-1ER on February 23, 2000, indicated that there are more than 173 acres of jurisdictional wetland on North Perico. One such document is a certified Boundary Survey by McCollum's firm dated January 14, 1999, which is P/I Ex. G in evidence. The Boundary Survey depicts an area labeled Mangroves marked by a line which appears to coincide with what is labeled "CONSERVATION AREA/WETLAND LINE" on the aerial photograph dated June 15, 1999, and overlay introduced by Bradenton as City Ex. 9 and 9A. Bradenton witness Hudgens testified that the "CONSERVATION AREA/WETLAND LINE" on City Ex. 9A was determined through inspection and agreement with SWFWMD, which certified its accuracy. (It is not clear from the evidence when these determinations were made and certified by SWFWMD, or when City Ex. 9A was prepared.) This same line appears as the "JURISDICTIONAL WETLAND LINE" on the map introduced by Bradenton as City Ex. 8. (It also is not clear from the evidence when City Ex. 8 was prepared.) The copy of the County's FLUM A introduced in evidence also appears to depict wetlands on North Perico approximately coincident with the wetland lines on City Ex. 8, 9 and 9A and on the Boundary Survey certified on January 14, 1999. The County's FLUM A also was in existence on February 23, 2000, when the City's Plan Amendment was adopted; however, it is not drawn to scale. In addition, since it covered the entire county, the copy introduced in evidence could not be precise because it was on letter-sized paper. It is evident from review of these exhibits, along with the SWFWMD aerial photographs and elevation contours dated in 1984 and in evidence as P/I Ex. 65, that the 173 acres designated Conservation on Bradenton's FLUM amendment does not include all jurisdictional wetlands. Essentially, it excludes jurisdictional wetland interior to the berm constructed on the western and northern portions of North Perico.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the City's Amendment 00-1ER in compliance. DONE AND ENTERED this 16th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2001. COPIES FURNISHED: William R. Lisch, Esquire 519 13th Street, West Bradenton, Florida 34205-7418 Daniel J. Lobeck, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street, Suite 403 Sarasota, Florida 34237 James A. Minix, Esquire Manatee County Post Office Box 1000 Bradenton, Florida 34306-1000 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Gary P. Sams, Esquire Douglas S. Roberts, Esquire Leigh H. Kellett, Esquire Hopping, Green, Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered by the Commission dismissing the Department's petition for the reasons set forth above. DONE AND ENTERED this day of September, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 day of September, 1997. COPIES FURNISHED: Anne Longman, Esquire Lewis, Longman and Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32302 Steven H. Parton, Esquire Dennis Silverman, Esquire Division of Legal Services 625 Larson Building Tallahassee, Florida 32399-0333 Robert S. Cohen, Esquire Pennington, Moore, Wilkinson and Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302 Elsie Crowell, Chairperson Commission on Hurricane Loss Projection Methodology Larson Building, Fifth Floor Tallahassee, Florida 32399-0300
