91-005336RX Florida Electric Power Coordinating Group, Inc. vs. Trustees Of The Internal Improvement Trust Fund Status: Closed DOAH Final Order on Thursday, June 4, 1992.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN D. REMINGTON and BARRETT OTT, )

IDLEWYLD CORPORATION, INC., LOST )

TREE VILLAGE CORPORATION, ROGER )

BRODERICK, THEODORE WATROUS and )

THOMAS MUNZ, DEPOT KEY JOINT )

VENTURE PARTNERSHIP and GEORGE REX )

ANDREWS, FLORIDA ELECTRIC POWER )

COORDINATING GROUP, INC., )

)

Petitioners, )

)

vs. ) CASE NOs. 91- 5329RX

) 91- 5330RX

BOARD OF TRUSTEES OF THE INTERNAL ) 91- 5331RX

IMPROVEMENT TRUST FUND, ) 91- 5334RX

) 91- 5335RX

Respondent, ) 91- 5336RX

and )

)

SIERRA CLUB, INC. and FLORIDA )

AUDUBON SOCIETY, )

)

Intervenors. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, James E. Bradwell, held a formal hearing in this

case on October 28-29, and November 4-8, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioners M. Christopher Bryant, Esquire

Broderick, Munz and Robert C. Downie, Esquire

& Watrous: OERTEL HOFFMAN FERNANDEZ & COLE

Post Office Box 6507

Tallahassee, Florida 32314-6507

For Petitioner Mary F. Smallwood, Esquire

Lost Tree: and Margaret Ray Kemper, Esquire

RUDEN BARNETT McCLOSKY SMITH

SCHUSTER & RUSSELL

Monroe Park Tower, Suite 1010

101 North Monroe Street

Tallahassee, Florida 32301

For Petitioners Robert P. Diffenderfer, Esquire,

Remington, Ott R. Steve Lewis, Esquire

& Idlewyld: and Anne Longman, Esquire

MESSER VICKERS CAPARELLO MADSEN

LEWIS & METZ

2000 Palm Bch Lakes Boulevard, Suite 900

West Palm Beach, Florida 33409

For Petitioners Deborah A. Getzoff, Esquire and

Andrews & Depot Pamela Presnell Garvin, Esquire

Key: FOWLER WHITE GILLEN BOGGS

VILLAREAL & BANKER

Monroe Park Tower, Suite 910

101 North Monroe Street

Tallahassee, Florida 32301

For Respondent Debra W. Schiro, Esquire

Board of and Edwin Steinmeyer, Esquire

Trustees: Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 3000

For Intervenor Debra Swim, Esquire

Sierra Club: Route 35, Box 1815

Tallahassee, Florida 32310

For Intervenor Jozeph Z. Fleming, Esquire

Florida Audubon JOZEPH Z. FLEMING, P.A.

Society: 620 Ingraham Building

25 Southeast Second Avenue

Miami, Florida 33131

ISSUES PRESENTED FOR DECISION HEREIN

Whether or not the proposed amendments to Respondent's Rules 18-21.003 and

18-21.004, Florida Administrative Code, comply with Section 120.54, Florida

Statutes, or is otherwise an invalid exercise of delegated legislative

authority.

Specifically, the following issues are raised by the pleadings and

presentation of the parties: a) Whether the proposed rule amendments exceed the

Respondent's grant of authority by placing a moratorium on the issuance of

requests to use sovereign submerged lands adjacent to coastal islands, as more

specifically defined by the rule; b) Whether Respondent failed to materially

follow rulemaking procedures as prescribed by Section 120.54, Florida Statutes

in preparation of the economic impact statement; c) Whether the amendments are

arbitrary and capricious because they are unnecessary and are unrelated to the

administration and management of sovereign submerged lands; d) Whether the

proposed amendments contained terms and definitions which are vague and

ambiguous, because the terms as defined are not ascertainable; e) Whether the

proposed amendments effectuate a "taking" of Petitioner's property; and f)

Whether the claims of Petitioner's Andrews, Depot Key and Lost Tree that the

Board of Trustees are estopped from promulgating the proposed amendments are

without merit. Additionally, Respondent raised the issue of whether the

Petitioners had standing to bring the subject rule challenge.

PRELIMINARY STATEMENT

The Governor and the Cabinet, acting as the trustees of the Internal

Improvement Trust Fund (herein Trustees or Respondent) are responsible for

protecting the public trust in the management and regulation of submerged

sovereignty lands. By virtue of constitutional provisions, the Trustees may

only grant leases or easements or convey any such sovereignty property held in

public trust when doing so is in the public interest, Article X, Section 11 of

the Florida Constitution as amended in 1970.

The Trustees, in the process of reviewing applications for the use of

sovereignty lands protected by the foregoing constitutional mandate and

statutory provisions became concerned that allowing utilization of public lands

to encourage, facilitate and enable development of unbridged islands could

result in utilization of public lands which would be contrary to the public

interest or otherwise not in the public interest. As a result of that concern,

the Trustees commissioned Respondent to work in conjunction with other

appropriate agencies to formulate and promulgate specific rule amendments

regarding permitting of public trust lands for the purpose of facilitating

development on coastal islands. Following the Trustees commission, Respondent

held a series of workshops to address the concerns and to study the issues

presented and formulated the subject proposed rule. During the interim, a

temporary moratorium was implemented to defer pending applications regarding

such unbridged coastal islands, which proposed rule amendments are now being

challenged here by Petitioners.

Following the conclusion of Petitioners' case, Respondent moved to dismiss

as to all Petitioners for lack of standing and Intervenor Audubon moved for a

directed verdict but later abandoned its motion. The motion to dismiss was

briefed prior to submission of proposed final orders. That motion, as well as

all pending motions, will be ruled upon herein.

Petitioners qualified as expert witnesses, Erik Olsen in coastal

engineering and civil engineering; James Nicholas in land economics; and Ross

McWilliams in biology and marine biology and related state permitting issues.

The Trustees qualified as expert witness, George Schmahl in biology, coastal

ecology and coastal resource management. Intervenor, Sierra Club, qualified as

expert Russell Nelson in fisheries and fisheries management. Intervenor Florida

Audubon qualified as expert Mark Benedict in ecology specializing in coastal

ecosystems and plant ecology and related natural resource management areas and

Bernard Yokel in fisheries biology, estuarine ecology and related water quality

impacts.

Based on my consideration of the entire record compiled herein, the

following relevant facts are found.

FINDINGS OF FACT

1. The Board of Trustees of the Internal Improvement Trust Fund (Trustees)

holds state land in trust for the use and benefit of the people of the State of

Florida, pursuant to Section 7, Article II, and Section 11, Article X of the

State Constitution.

2. The Division of State Lands within the Department of Natural Resources

( DNR) performs all staff duties and functions related to acquisition,

administration and disposition of state lands, title to which is or will be

vested in the Trustees pursuant to Section 253.002, Florida Statutes.

3. The Trustees are vested and charged with the acquisition,

administration, management, control, supervision, conservation, protection and

disposition of all lands owned by, or which may inure to, the State or any of

its agencies, departments, boards, or commissions, except for certain exceptions

contained in Section 253.03(1), Florida Statutes. Among lands vested in the

Trustees are all tidal lands and all lands covered by shallow waters of the

ocean or gulf or bays or lagoons thereof, and all lands owned by the state

covered by freshwater (i.e., sovereign submerged lands).

4. The Trustees are authorized to administer all state-owned lands and are

responsible for creating an overall and comprehensive plan of development

concerning acquisition, management, and disposition of state-owned lands so as

to insure maximum benefit and use. To accomplish this mandate, the Trustees are

empowered to adopt all necessary rules and regulations pursuant to Section

253.03(7)(a), Florida Statutes.

5. Currently, the administration and management of sovereign submerged

lands is governed by the provisions of Chapters 18-18, 18-20 and 18-21, Florida

Administrative Code. Pursuant to rules contained therein, the Trustees may

approve the following types of uses of sovereign submerged lands: a) Consents

of use, b) Easements, c) Management Agreements, d) Use Agreements and e) Leases.

6. On June 27, 1989, the Trustees were asked to consider approving the

issuance of a 5-year sovereign submerged land lease for the construction of a

42-slip private residential docking facility located adjacent to Atsena Otie

Key, an island located off the coast of Cedar Key, which would serve a proposed

upland development. Approval of that lease would, if granted, preempt over

14,500 sq. ft. of sovereign submerged lands.

7. Under pertinent rules in place when the Trustees considered the Atsena

Otie Key request, Trustees' staff recommended that they approve the requested

use. However, based on written public opposition to the approval of that

request, the Trustees, during the subject Cabinet meeting, heard from eight

persons appeared who urged denial of the requested use maintaining that the

proposed project was not in the public interest.

8. Based on public opposition and the concerns raised, the Trustees

rejected staff's recommendation and unanimously deferred action on the Atsena

Otie lease request. Additionally, the Trustees directed the Division of State

Lands to compile a report of what types of federal and state protection of

coastal islands currently existed. The Trustees thereafter commissioned its to

pull together their authority and promulgate a rule enunciating common standards

for application on barrier islandseasurer Gallagher moved to have the DNR

develop rules for the trustees to follow when making decisions regarding

development on coastal islands which was to be presented to the Trustees at the

August 22, 1989 Cabinet meeting.

9. Based on the Trustees desire to develop a more clearly enunciated

policy of what the state would allow its lands adjacent to coastal islands to be

used for in the future and to put the public on notice as to what they could

expect the Trustees to permit in terms of the use of sovereign submerged lands

adjacent to coastal islands and to also provide its staff with guidance as to

how they would analyze requests prior to submitting them for consideration, the

proposed rule here under challenge was promulgated to put in place a statewide

policy regarding development of undeveloped coastal islands. In addition, the

Trustees were concerned about issues being raised as to the use of sovereign

submerged lands to facilitate coastal island development which was not being

adequately addressed by the local governments comprehensive planning processes.

10. The next developmental stage of the coastal island policy was agendaed

at the August 22, 1989 Cabinet meeting. At that meeting, staff presented a

report entitled, "Analysis Of Existing Policy And Programs Affecting Florida's

Coastal Resources." That report summarized and analyzed the existing federal

and state programs affecting Florida's coastal islands. It is noted that there

existed no single state or federal program with sufficient standards and

authority to adequately protect and manage the entire beaches, dunes, back

barriers and wetland systems of Florida's coastal islands. Likewise, there was

no easy accessible resource data base or model criteria to assist local and

state agencies in the planning, management and regulation of coastal island

development and protection. The findings in that report triggered the Trustees

to approve a temporary moratorium on authorizations for the use of sovereign

submerged lands that would facilitate development of currently unbridged,

undeveloped coastal islands until such time as the Trustees could adopt a policy

for considering such requests. At that meeting, the Trustees invited public

comment before taking action on staff's recommendations. Following public

discussions, the Trustees unanimously accepted the staff's report and a

temporary moratorium was placed on authorizations for use of sovereign submerged

lands that would facilitate development of currently unbridged, undeveloped

coastal islands until DNR's Division of State Lands could propose a

comprehensive policy for such requests. Following approval of the staff's

report and recommendations, the Trustees reconsidered the Atsena Otie Key

request for authorization to construct the 42-slip docking facility and the

Trustees approved the lease request but made the approval subject to several

amendments including a reduction in size from a 42-slip to a 25-slip private

residential docking facility.

11. The Trustees next addressed the developing coastal island policy at

the December 19, 1989 Cabinet meeting. At that meeting, the Trustees deferred

voting on staff's recommendation that they adopt an interim policy governing the

use of sovereign submerged lands adjacent to unbridged coastal islands until the

February 1990 Cabinet meeting.

12. At the February 6, 1990 Cabinet meeting, following a lengthy public

discussion, the Trustees again deferred action on adoption of the interim policy

until they more fully reviewed the issues surrounding the emerging policy at a

Cabinet workshop.

13. During that meeting, the Trustees were advised by opponents to their

policy about the potential environmental impacts that would arise if the

policies were implemented and developers were forced to seek alternative means

of providing sewer, water and electricity to their developments. After listing

to those concerns, the Trustees considered the opponents position but retained

their position of restricting the use of sovereign lands. At the conclusion of

the discussion, the Trustees voted unanimously to defer action for 90 days until

a Cabinet level workshop could be held to delineate the issues regarding the use

of sovereign lands to facilitate upland development and to define the extent of

the Trustees' jurisdiction and authorization to proceed.

14. During the March 12, 1990 Cabinet workshop, the Trustees received

input on their emerging coastal island policy from the Department of

Environmental Regulation ( DER), the Department of Community Affairs ( DCA) and

both the Governor's coastal resources Interagency Management Committee ( IMC) and

the Citizen's Advisory Committee ( CAC). 1/

15. As a result of the workshop at the May 8, 1990 Cabinet meeting, the

Trustees directed the staff to develop recommendations for continuing the

moratorium and to develop a plan for identifying specific islands that would be

protected under the policy. Staff was also directed to work with the DCA to

secure funding to complete the inventory and compile data on natural resource

values, as a potential land use/development status and development potential on

all unbridged coastal islands.

16. At the May 8, 1990 meeting, several of Petitioners voiced opposition

to the moratorium but spoke in support of the agency proceeding with rulemaking.

17. Following comments from the public, the Trustees voted to approve and

extend the moratorium imposed on August 22, 1989, and for staff to begin

rulemaking immediately to begin development of an interim policy until a

comprehensive policy and rules governing coastal islands could be adopted by the

Board of Trustees. Staff was also directed to work with relevant agencies

including the DCA, the coastal resources IMC, and the CAC to develop a

definition of coastal islands and undeveloped coastal islands and to give

reasonable consideration to development of a comprehensive plan which would be

compatible with the Coastal Barrier Resources Act ( CBRA). Also, during that

meeting, staff was directed to work with the DCA, the IMC and the CAC to develop

definitions of "coastal island" and "undeveloped coastal island". The Trustees

reiterated the directions to staff to give reasonable consideration to the

comprehensive plans of coastal communities and that the policy be compatible

with CBRA.

18. The first draft was to be presented to the Trustees in June and a

final form of the proposed rule was to be presented at the Trustee's second

meeting in September.

19. The Trustees directed staff to include, at a minimum, all unbridged,

undeveloped coastal islands units contained within CBRA and all unbridged

undeveloped coastal islands within aquatic preserves. The rule was to also

address islands which were heavily developed at one end and totally undeveloped

at the other. Finally, the staff was to consider the local government's

comprehensive plans for coastal communities.

20. At the June 12, 1990 Cabinet meeting, the Trustees were asked to adopt

the draft rule prepared. The Trustees after considering the draft, authorized

staff to proceed with rulemaking by publishing the rule in the Florida

Administrative Weekly and conducting at least three public meetings.

21. On August 31, 1990, DNR received petitions challenging the proposed

rules and the moratorium. The petitions raised several issues regarding the

proposed rule which had been voiced at the public hearings. In response to

those issues, DNR staff sought authority to make amendments to the proposed

rule. A report outlining the status of the rule and the revisions were

presented to the Trustees at the October 9, 1990 Cabinet meeting. At that

meeting, the Trustees accepted the status report including the revision to the

amendment to Rules 18-21.003 and 18-21.004, Florida Administrative Code, and

authorization to proceed was given to revise the proposed rule.

22. At the October 23, 1990 Cabinet meeting, staff presented the revised

proposed rule to the Trustees and requested authorization to formally withdraw

the originally proposed rule and to give notice of revision on the instant rule

for adoption. An outline explaining the revisions were included within the

report. At that meeting, the Trustees approved staff's recommendation to

withdraw the original rule and allow the CAC and the IMC to be afforded an

opportunity to review the revised rule.

23. On November 11, 1990, the IMC held a public meeting on the revised

rule at which time the Trustees received comments, both pro and con, to the

revised rule. As a result of those comments, modifications were suggested to

the revised rule. At the December 18, 1990 Cabinet meeting, the Trustees

authorized staff to withdraw the original proposed amendments and to provide

notice of the withdrawal in the Florida Administrative Weekly. As a result of

the Trustees consideration of the modification to the rule recommended by the

IMC, the following amendment was made to Section 18-21.004(1)(h)(1), Florida

Administrative Code:

The application is for the purpose of

obtaining authorization for a use which was

included in a development project which has

undergone development of regional impact

review and a final development order has

been issued pursuant to Chapter 380, Florida

Statutes as of the effective date of this rule,

and is otherwise permitted by and consistent

with the provisions of Rule Chapters 18-18,

18-20, and 18-21, Florida Administrative Code

provided, however, that in the case of a

substantial deviation to said development

order, no authorization of use may be granted

for any use that was not included in the

original order.

24. Additionally, staff amended the definition of "coastal island segment"

to be consistent with CBRA and to provide that if an island segment had an

overall density of less than one structure per 5 acres of fastland as of the

effective date of the rule, that it be included within the operation of the

revised rule.

25. Prior to approval, opponents of the proposed rule engaged the Trustees

in a discussion about whether the local government's comprehensive plan process

adequately addressed the Trustees' concerns about the protection of natural

resources. Following consideration of that discussion, the Trustees made no

modification to their policy. The Trustees thereafter voted to continue the

moratorium until adoption of the proposed coastal island rule.

26. On August 2, 1991, the Trustees published notice in the Florida

Administrative Weekly, Volume 17, No. 31, of their intention to adopt the

proposed rule amendments to Rules 18-21.003 and 18-21.004, Florida

Administrative Code. As specific authority, Sections 253.03(7) and 258.43(1),

Florida Statutes was referenced.

27. On August 31, 1991, Petitioners herein filed challenges, with the

Division of Administrative Hearings, to the proposed rule amendments.

28. On September 12, 1991, staff presented the Trustees with a status

report regarding the proposed rule in view of the pending challenges. At that

meeting, the Trustees reaffirmed their desire to protect undeveloped coastal

islands and their adjacent natural resources and directed staff to defend the

proposed rule against challenges.

29. In support of this position, the Trustees reaffirmed their desire to

curtail development of undeveloped barrier islands as development of such

islands poses threats to the natural resources and coastal marine environment

and their stated desire to protect those resources.

30. In Section 18-21.003, Florida Administrative Code entitled,

"Definitions", was amended by the Trustees' adoption of its coastal island

policy to include four new definitions: "Coastal Island", " Fastland",

"Undeveloped Coastal Island" and "Undeveloped Coastal Island Segment."

31. The DNR's Office of Marine and Program Planning primarily developed

the definitions included in the rule.

32. George Schmahl, an employee at DNR for approximately two years who was

accepted herein as an expert in the fields of biology, coastal ecology and

coastal resource management, was assigned the task of coordinating the drafting

of the definitions. Mr. Schmahl received his guidance for the development of

the necessary definitions from the Trustees at the May 8, 1990 staff meeting.

The initial draft of the definitional section of the rule contained only the

terms "coastal island" and "undeveloped coastal island." Thereafter, the draft

was expanded to include definitions for the terms " fastland" and "undeveloped

coastal island segment." The definitions were presented to the Trustees for

consideration at the June 12, 1991 Cabinet meeting, at which time the Trustees

approved staff's draft and directed them to proceed with the rulemaking process.

33. The rule defines "coastal island" as:

[A] coastline geological feature lying above

mean high water that is completely separated

from the coastal mainland by marine or estuarine

waters, including those parcels of land which

become insular due to natural causes, and is

composed of any substraint material, including

spoil material. This specifically includes,

in addition to exposed coastal island;

(a) All islands within aquatic preserves except

for Lake Jackson, Rainbow River, Lake Weir and

Wekiva River aquatic preserves; and

(b) Other islands within confined or

semi-confined marine or estuarine waters with

an open connection to the Atlantic Ocean or

Gulf of Mexico such as bays, lagoons, or

inlets. Except for coastal islands within the

specified aquatic preserves, it does not include

islands or portions of islands within rivers

leading into marine and estuarine waters more

than one mile upstream of a line drawn at the

river mouth from headland to headland.

34. The nucleus for the definition of "coastal island" was derived from

the existing definition of "coastal barrier island" found at Section 161.54,

Florida Statutes. Schmahl modified the definition in Chapter 161 to take into

consideration the phrase as defined by CBRA, and be further modified it to

encompass virtually all islands within Florida's coastline.

35. Spoil islands were included in the definition of "coastal island"

because the definition of "coastal barrier island" in Chapter 161 specifically

includes islands created from spoil disposal. Schmahl opined that "an island so

far as the impacts to state lands and the benefits of islands in terms of

protection to landward aquatic habitats and mainland ... it didn't matter what

the composition of the island ... the issues were the same."

36. Schmahl excluded islands more than one mile upstream from the mouth of

a river because the rule was not intended to include, within its operations,

islands that occur in river and lake systems within the interior portion of the

state. Thus, by excluding islands more than one mile upstream from the mouth of

the river, the rule would primarily capture those islands located in close

proximity to Florida's coastline.

37. Schmahl explained the choice of one mile upstream as the point at

which to connect a line drawn at the river mouth from headland to headland after

rejecting other forms of measurements, such as the water salinity or the extent

of the tidal influence in the river system, because such methods were difficult

to implement and the choice provided a standardized form of measurement which

could be objectively applied.

38. A section within the definition of "coastal island" was added to

insure that the rule encompassed all islands within aquatic preserves except

those islands within freshwater preserves. The freshwater aquatic preserves

listed in the rule were identified as islands within freshwater preserves by

reviewing aerial maps and excluding any islands located entirely within

freshwater aquatic preserve systems.

39. The rule defines the term " fastland" as:

That portion of a coastal island above the

upper limit of tidal wetland vegetation or

if such vegetation is not present, that portion

of the island above the mean high water line.

40. Fastland is a common term which is defined in Webster's Third

International Unabridged Dictionary as "high and dry land or land above the

range of the tides." The term was included within the federal legislation

implementing CBRA and was therefore, included within the rule to comply with the

Trustees' direction that the definitions be compatible with CBRA's legislation.

41. The term " fastland" was defined to determine whether a particular

unabridged island met the definitions for "undeveloped coastal island" and

"undeveloped coastal island segment."

42. The rule defines "undeveloped coastal island" as:

[A] coastal island not directly or indirectly

connected to the mainland by a bridge suitable

for automobile traffic, and which has an overall

density of less than one structure per five

acres of fastland as of December 18, 1990. For

the purpose of this definition, a structure means

a wall and roofed habitable structure that is

principally above ground and affixed to a

permanent foundation with a projected ground

area exceeding 200 square feet and constructed

in conformance with all applicable legal

requirements. For the purpose of determining

density, facilities such as docks, groins,

utility poles and pipelines are not counted as

structures.

43. The term "undeveloped coastal island" was primarily derived from

definitions used by the Department of Interior Legislation implementing CBRA and

is in keeping with the Trustees' instruction that the rule definitions be

compatible with CBRA. Likewise, the density threshold of one man-made structure

per five acres was taken directly from CBRA's implementing legislation.

44. The term "undeveloped coastal island segment" is defined as:

[A]n unbridged coastal island with an overall

density of greater than or equal to one

structure per five acres of fastland, a

segment or portion of the island which either

is at least one-quarter mile in linear shoreline

length or comprises a minimum of 25% of the

total fastland of the island and which consist

of less than one structure per five acres of

fastland as of December 18, 1990. A segment

boundary shall be contiguous with a line drawn

from the shore at the point of the outermost

structure within a developed area to intersect

each shoreline, then continue laterally along

the sinuosity of each shoreline until another

developed area is encountered or the end of

the island is reached. See "undeveloped

coastal island" for the definition of a

structure.

45. This phrase was included as a result of specific input from the IMC

who convinced the Trustees of the importance of protecting large undeveloped

areas of island when one or more portions of the islands were developed.

46. In keeping with instructions received from the Trustees and relying on

his professional experience, Schmahl also relied on a review of the following

documents in developing the rules definitional sections: Coastal Barrier

Resources Act, Public Law 97-348, 16 USC, Section 3500; and the Executive

Summary of the Report of Congress on the Coastal Barrier Resources System.

47. Section 18-21.004, Florida Administrative Code, entitled "Management

Policies, Standards and Criteria," was amended by the Trustees' adoption of the

coastal island policy to include four exceptions to the application of the rule.

The Division of State Lands drafted language for this section under the

direction of the Division's Director who viewed the rule's purpose as a means to

modify the moratorium which had been opposed as the Trustees developed and

refined the coastal island policy. The rule was to serve as an interim device

until a multi-agency comprehensive policy could be developed to address

development of and protection of coastal islands and their adjacent resources.

48. The Trustees policy is reflected in language of Section 18-21.004(h),

Florida Administrative Code, which provides:

No application to use sovereignty, submerged

land adjacent to or surrounding an unbridged,

undeveloped coastal island or undeveloped

island segment may be approved by the Board of

Trustees unless it meets the following criteria... .

The remaining section codify exceptions to the

moratorium which had been defined over the

approximate 18-month development stage that

the policy underwent.

49. Exception (1), contained in 18-21.004, states:

The application is for the purpose of

obtaining authorization for a use which was

included in a development project that has

undergone development of regional impact review

and a final development order has been issued

pursuant to Chapter 380, Florida Statutes, as

of the effective date of this rule and is

otherwise permitted by and consistent with the

provisions of Rule Chapters 18-18, 18-20 or 18-21,

Florida Administrative Code, as applicable,

provided, however, that in the case of a

substantial deviation to said development order,

no authorization of use may be granted for any

use that was not included in the original order.

50. The rationale for the exception was premised on the fact that if a

project had undergone DRI review, both regional and state agencies had had an

opportunity to participate in review of the development. Therefore, such

proposed projects had undergone a higher level of review as to the propriety and

continuity with development plans than would have otherwise occurred had the

review been conducted only at the local level.

51. Thus, the exception was a way of lending credence to this state's

policy of encouraging developers to use the DRI review process.

52. The second exception to the Trustees coastal island policy states:

The proposed facility is limited to a 2-slip

private residential dock that complies with

the standards set forth in Section

18-20.004(5)(b), Florida Administrative Code

and the upland parcel to which the facility

will be attached was not created by platting

or subdividing after December 18, 1990.

However, as an alternative to multiple private

residential docks, the Board may authorize a

private docking facility of more than 2-slips

if it determines that such a facility would

result in greater environmental protection for

sovereignty submerged land resources than

multiple individual docks, and provided the

facility complies with all of the applicable

standards. The number of slips associated

with such a facility shall not exceed the

number of slips which would have been

authorized as individual docks.

53. This exception recognized that under certain circumstances a person

could construct a dock on their property. However, the intent was to provide

notice that as to those purchasers of waterfront property on a coastal island

within the definition of the rule after the December 18, 1990, date would be on

notice that they would not be permitted to construct a single-family dock and

will therefore have no reasonable expectation to receive one. The Trustees

recognized that riparian owners have a right to access their property but that

such does not extend to a statutory right to construct a dock.

54. The third exception which addresses the provision of utility services

provides:

With respect to applications to use

sovereignty submerged lands for the provision

of public utility services, such services were

in place as of December 18, 1990, and the

requested usage of sovereignty, submerged land

will not result in a upgrade of capacity or

will not serve additional customers on a

unbridged, undeveloped coastal island or

undeveloped coastal island segment.

Applications may be approved under this

provision only to allow the maintenance or

repair of existing utility lines, or as

necessary to maintain public safety as ordered

by the Public Service Commission.

55. The purpose of that exception was to provide notice to the utility

companies that if utility service already existed on an island, and it became

necessary for the company to work on lines either to repair or maintain existing

service, the rule would not prohibit such activity. The purpose was one of

protecting some sovereign submerged resources and not facilitate development by

use of sovereign lands, and that utility companies would be prohibited from

using sovereign lands to serve additional customers or to upgrade existing

service.

56. The final exception to the Trustees' policy states:

The proposed use is for the purpose of allowing access, for public purposes,

to publicly owned uplands or submerged lands for recreation, research,

conservation, mosquito control or restoration activities only, at the discretion

of the Board, and is otherwise consistent with the provisions of Rule Chapters

18-18, 18-20, or 18-21, Florida Administrative Code.

57. This exception was developed to allay concerns that the state had

acquired a number of coastal islands pursuant to its "Save Our Coast Program"

for public recreation which would be subject to the moratorium and therefore not

used and the exceptions made clear that the use of coastal islands for public

purposes and for the general public's enjoyment, remained in tact.

Development of the Economic Impact Statement

58. Pursuant to Section 120.54(2)(b), Florida Statutes, each agency shall

provide information on its proposed action by preparing a detailed Economic

Impact Statement ( EIS) which shall include an estimate of the cost to the agency

of the implementation of the proposed action, including the estimated amount of

paperwork; an estimate of the cost or the economic benefit to all persons

directly affected by the proposed action; an estimate of the impact of the

proposed action on competition and the open market for employment, if

applicable; a detailed statement of the data and method used in making each of

the above estimates; and an analysis of the impact on small business as defined

in the Florida Small and Minority Business Assistance Act of 1985.

59. DNR prepared an EIS which was included with the proposed rule

amendments that contained estimates of the cost to the agency of the

implementation of the proposed action including the estimated amount of

paperwork; of the cost of the economic benefit to all persons directly affected

by the proposed action; of the impact of the proposed action on competition in

the open market for employment; of the data and method used in making each of

the above estimates; and contained an analysis of the impact on small business

as defined in the Florida Small and Minority Business Assistance Act of 1985.

60. The EIS was prepared for DNR by Ed Wood, a senior management analyst,

with the Division of State Lands. He is coordinator for rule development at the

Division and is responsible for the budget and personnel functions for the

Division. He holds a master's degree in education and administration with a

specialty in school finance and a bachelor's degree in business administration.

He has prepared similar EIS's and received a primer from staff on the agency's

rationale for proposing the subject rule.

61. Wood read the draft EIS prepared by Dr. Bell, an economist for the

Department, who was hired to assist in the preparation of the EIS. Wood

consulted with DNR staff regarding information received at public hearings from

citizens possibly affected by the proposed rule in order to assess public

opinion about the rule prior to undertaking the paths of development of the EIS.

Wood relied heavily on the Department of State's document entitled, "Guide to

Rules Promulgation Under The Florida Administrative Procedures Act" dated

November 1986, which included examples of EISs. Based on his familiarity with

the Division's budget and personnel functions, he is infinitely familiar with

cost and both paperwork and manpower necessary to implement the proposed action

which would be affected by the proposed rules.

62. At the time Wood consulted with Department staff, there were only six

applications pending out of an estimated 867 coastal islands. Based on an

inadequate sample of potentially affected parties, Wood did not rely on them as

a basis for determination of economic impact, as such would have been

speculative.

63. Those portions of Dr. Bell's EIS which were relevant were adopted and

utilized heavily by Wood in preparation of the EIS. Likewise, irrelevant

portions including analysis of benefits from storm protection, hazard avoidance

and shoreline protection, none of which are under the Division's jurisdiction

were excluded.

64. The Division fully considered all impacts that were capable of being

considered based on the information which was furnished and which was reliable.

Estimates of the impact on the action of competition and the over-market for

employment were taken verbatim from Dr. Bell's draft EIS. The criteria utilized

and adopted from Dr. Bell's draft EIS were sufficiently documented to be

utilized and therefore was in fact utilized by Wood in the subject EIS. The

information relied upon by Wood in preparation of the EIS was included in the

statement of data and methods used. At the time of Wood's preparation of the

EIS, there were no pending applications for marinas on affected islands and

therefore any impact in that area was deleted as being mere speculation.

Finally, as to those estimates of the various impacts which were indeterminate,

they were stated as such and Wood failed to speculate as to such costs.

Facts Relevant to Petitioner's Depot Key

Joint Venture Partnership and George Rex Andrews

65. After being deferred by the Board at its June 27, 1989 meeting, the

Andrews lease application for the multi-slip docking facility was Item 22 on the

Board's agenda for the August 22, 1989 meeting. Item 21 on the agenda was for

recommendation for approval of a moratorium on authorizations for use of

sovereignty, submerged land that would facilitate development of unbridged,

undeveloped coastal islands. Based on the staff's recommendation in favor of

the moratorium, the Andrews lease application was recommended for withdrawal.

66. The Board first approved the lease after amending it to allow 25 slips

and approved the moratorium.

67. In April 1991, George Rex Andrews and Verna Andrews Woodlief

transferred title to Atsena Otie to the Depot Key Joint Venture to obtain

financial resources to develop Atsena Otie in accordance with the approved

development plan. The development plans for Atsena Otie include an electrical

transmission line to be laid between the town of Cedar Key and Atsena Otie. An

easement for the utility transmission line will be required from the Board of

Trustees. The proposed rule amendments will prohibit the Trustees from granting

the easement necessary for the utility transmission line. Petitioners Andrews

and Depot Key Joint Venture argue that the marketability of the lots at Atsena

Otie will be greatly reduced if they are unable to obtain the easement required

for the utility transmission line.

Facts Relevant to Petitioner Lost Tree Village Corporation

68. Lost Tree owns undeveloped islands within the Indian River in Indian

River County, Florida, which are unbridged, not served by public or private

utilities and which were not platted or subdivided prior to December 18, 1990.

69. Lost Tree has preliminary development plans for a residential

development and a golf course on seven of its islands. Other islands which have

large areas of wetlands will not be developed but would be part of an overall

environmental enhancement and preservation plan. Lost Tree's proposed plan of

development will require approval for the use of sovereign, submerged lands.

70. The proposed rule would prohibit a bridge to the island across

sovereign submerged lands, the extension of utilities, and docks on the islands.

Facts Relevant to Petitioners Munz, Watrous and Broderick

Thomas Munz - Burgess Island

71. Thomas Munz is the majority owner of a corporation, Burgess Island

Associates, which owns an island known as Burgess of Little Bokeelia Island in

Pine Island Sound, Lee County, Florida; the minority interest owners are Munz'

wife and children. The island is over 100 acres in size of which about 26 acres

is uplands. The applicable local zoning will limit development of the island to

27 units.

72. Munz' development plans for the islands offer a total of 27 homes on

the island including any of the four existing structures which continue to be

used as residents; some of which may be converted to an office and a museum.

The existing residences are served by septic tanks and obtain potable water

through a combination of wells and cisterns. The island was not platted or

subdivided as of December 18, 1990.

73. Variances have been sought from some local zoning regulations relating

to road widths and other development standards, which request was in process as

of October 18, 1991.

74. There are currently four docks serving the island. As no bridge will

be constructed, plans are to provide a dock for each lot for access, although

physical restrictions may require some lots to share a common dock.

Authorization for such docks will be needed from the Trustees.

75. Sewage treatment is to be by septic tanks. Potable water would be

provided through wells and a Reverse Osmosis (RO) system--either individual RO

plants or a central system. Permits necessary for water withdrawal, treatment

and distribution systems had been applied for as of October 1991, including a

consumptive use permit from the South Florida Water Management District ( SFWMD);

and an industrial discharge permit from DER; and a water plant and distribution

system permit from HRS. A surface water management permit from SFWMD was also

being sought.

76. Sufficient electrical facilities are in place to meet the needs of the

proposed development. Electricity in the form of an overhead utility line from

Pine Island which is submerged for a portion of its route to go underneath a

channel.

77. Petitioners urge that the marketability and value of the lots on

Little Bokeelia Island would decrease without the availability of individual

docks for prospective lot owners. Petitioners urge that a distant, central dock

is impractical.

Ted Watrous - Buck Key

78. Ted Watrous is the majority owner of a parcel of property,

approximately 100 acres in size, on an unbridged island known as Buck Key and

Pine Island South. The island is approximately 325 acres in size, the remainder

of which is owned by the federal government and the Sanibel-Captiva Conservation

Foundation.

79. The island is not connected by bridge to any other land mask, nor is

the island platted, subdivided, or currently served by any utilities. Watrous

plans to develop 28 to 30 single-family homes on a portion of Buck Key; current

local land use regulations would allow up to 35 or 36 single-family residences.

Primary plans are for 20 of those lots to be waterfront with individual docks.

80. Buck Key is separated from Captiva Island by a channel approximately

500 ft. wide and which gradually slopes to a depth of approximately 8 ft.

Access to Buck Key would be by boat from Captiva Island, which is bridged to the

mainland through Sanibel Island.

81. Watrous' plans for the Buck Key development include electric utility

lines and telephone cable from Captiva Island. The alternative energy source

available is diesel generators. Sewage treatment would be handled on-site via

septic tanks. The proposed rule would allow Watrous a single two-slip dock for

his parcel which he contends would be impractical and would lower his selling

price for the lots due to the limited access which would be occasioned by the

two-slip dock for the development.

Roger Broderick - Chino Island

82. Roger Broderick is the owner of Chino Island, a 55 acre island located

in Pine Island Sound. The island is unbridged or proposed to be bridged to

another island and is not currently served by utilities.

83. Broderick plans to develop up to 15 single-family residences on the

southernmost 15 acres of the island in two phases, the first phase consisting of

10 homes. The northern portion of the island will be maintained in its natural

state except that as a condition of a DER permit for the installation of a

subaqueous utility line to the island. An existing man-made berm around the

perimeter of the northern portion of the island would be removed to improve the

flushing in the area and promote reestablishment of mangroves and other native

vegetation. Exotic or nuisance vegetation species such as Brazilian pepper and

Australian pine would also be removed as a condition of that permit.

84. Broderick desires to live on the island in addition to developing

homesites for sale. A majority of the island including wetlands is proposed to

be placed under a conservation easement in perpetuity.

85. Of the southern portion of the island where homes are proposed to be

located, a man-made canal exist in the interior of the island with direct deep-

water access to Pine Island Sound. It is anticipated that individual docks to

serve the residential lots will be constructed in the canal on privately owned

submerged lands so no Trustee authorization would be needed to construct docking

facilities.

86. Broderick has received authorization for many aspects of his

development specifically SFWMD has approved a surface water management permit

for control of stormwater runoff. Broderick proposes to provide water to

residences with a well and a distribution system; SFWMD has issued a withdrawal

permit for the water and HRS has issued a permit for the distribution system.

87. Broderick proposes to provide electricity to the island with a

submerged utility cable. The cable would be installed by supersaturating the

bottoms with water to create a trench then immediately laying the cable in the

trench and allowing settlements to settle in over the cable. Both DER and the

U.S. Army Corps of Engineers have issued dredge and fill permits for the

installation of the subaqueous line.

88. DER investigated the alignment of the submerged utility line and

determined that its impacts would be insignificant.

89. A portion of the submerged utility line is co-located in the

maintenance channel of an existing easement for an overhead utility line issued

by the Trustees to the Lee County Rural Electric Cooperative for an electric

utility line running from Pine Island to Sanibel Island. An application has

been submitted to the Trustees for the submerged line covering both the co-

located portion of the line and the spur necessary to run to Chino from the

existing corridor. As of the final hearing, that application was not complete.

90. Broderick urges that he has explored the possibility of alternative

means of providing electricity and determined that the cost would be prohibitive

and the alternatives would be inconvenient, unreliable, adversely affecting the

marketability of the lots.

91. Lee County has issued a final development order for the project,

authorizing commencement of construction of the infrastructure and housepads.

Lee County has found the development consistent with its comprehensive plan.

92. Sewage treatment will be provided by individual treatment systems that

will disinfect the effluent prior to discharge to a drainfield; the septic tank

system is not the typical design and was specifically designed to avoid

impacting shellfish harvesting areas.

CONCLUSIONS OF LAW

94. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this action pursuant to Section 120.54(4),

Florida Statutes.

94. Petitioners have the burden of proving that the proposed rules are an

invalid exercise of delegated legislative authority.

95. Petitioners adequately established that they have the requisite

standing to challenge the proposed rule amendments.

96. Section 120.52(8), Florida Statutes, provides in pertinent part that:

"Invalid exercise of delegated legislative

authority" means action which goes beyond the

powers, functions, and duties delegated (to

an agency) by the Legislature.

It further provides that if any one or more of the following applies, an

agency's proposed or existing rule is invalid:

(a) The agency has materially failed to follow

the applicable rulemaking procedures set forth

in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or contravenes

the specific provisions of law implemented,

citation to which is required by s. 120.54(7);

(d) The rule is vague, fails to establish adequate

standards for agency decisions, or vests unbridled

discretion in the agency; or

(e) The rule is arbitrary or capricious.

97. As noted herein, the Trustees followed all applicable rulemaking

procedures set forth in Section 120.54, Florida Statutes in the promulgation of

its amendments to Chapter 18-21, Florida Administrative Code. Specifically,

notice was given of the proposed amendments in the Florida Administrative

Weekly, including the complete text and a statement of the economic impact of

the proposed rules. These proposed amendments were filed with the Department of

State as required. The Trustees approved the adoption of the proposed rules

and, in keeping with its authority, actively participated in their development.

The Trustees, responding to their statutory mandate to manage sovereign

submerged lands for the benefit of all people of Florida, developed a coastal

island policy that led to the promulgation of the proposed rules. Additionally,

it is herein found that the Economic Impact Statement prepared by the Department

of Natural Resources complied with Section 120.54(2)(b), Florida Statutes, as it

included the essential requirements as set forth in that section. Although the

parties debate some of the estimates provided, all of the concerns that were

required to be addressed were included in the Economic Impact Statement. See

Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d

237, 247 (Fla. 1st DCA 1985, rev. denied. 486 So.2d 596 (Fla. 1986)).

Petitioners failed to show any deficiencies which were so grave as to impair the

fairness of the proceeding, even with the minute scrutiny that they presented at

the formal hearing herein. See, Healthcare and Retirement Corporation v.

Department of Health and Rehabilitative Services, 463 So.2d 1175 (Fla. 1st DCA

1984).

98. The rule does not exceed the Department's rulemaking authority or

otherwise enlarge, modify, or contravene specific provisions of law.

Specifically, the authority for the proposed rules is contained in the

provisions of Sections 253.03(7) and 258.43(1), Florida Statutes. Generally,

these sections authorize Trustees to promulgate rules which further their

statutory authority to acquire, manage and administer state-owned lands which

they hold in trust for the people of the State of Florida, pursuant to Section

253.03, Florida Statutes. The rules presently proposed are in response to the

Trustees' express need to implement a policy to manage sovereign submerged lands

for the benefit of Floridians. The actions of the Trustees in development of

the policy was based upon well-reasoned responses to a public concern expressed

at all levels of government. In so doing, the Trustees complied with their

statutory mandate to manage and administer state-owned lands for the benefit of

the people of Florida, pursuant to Section 253.03, Florida Statutes. The

proposed rules are not arbitrary or capricious and are reasonably related to the

purposes of the enabling legislation and are within the Trustees authority. See

Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985). Several cases have

commented upon the authority of the Trustees and the rights of riparian owners.

Courts have uniformly held and reasoned that because riparian owners have no

title in lands and because consent to erect structures on sovereign submerged

lands involve the state's proprietary interest as owners of the lands, Trustees

have the authority to prohibit the building of structures on sovereign submerged

lands. e t h e r o r n o t t h h e r u s t e e s a c t i o T n w n  T u r n i n g t o t h g e s s u e r e s p e c t i i s

were otherwise arbitrary and capricious, a recent case decided that the Trustees

have the authority to preclude the construction of private docks when it is in

the public interest to do so. Here, there has been an adequate showing that the

Trustees had a reasonable basis to implement a policy to protect the sovereign

submerged lands and this policy furthers their efforts to do so in a logical and

reasonable manner. The development of the policy was not done in an arbitrary

and capricious manner and there was statutory authorization for the Trustees to

so act. See Marie M. Krieter v. Lawton Chiles, et al, 17 FLW 444 (Fla. 3d DCA

Feb. 21, 1992). The proposed rule does not constitute an unconstitutional

taking of property without due process and just compensation and the proposed

rule, including its terms, is clear and plain.

99. Finally, equittable estoppel does not apply to bar the Trustees from

denying submerged land permits to the Petitioners. See Residence Inn Resort v.

Department of Community Affairs, 11 FALR 5692 (1989).

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that:

The Petitions filed herein seeking an administrative determination of the

invalidity of proposed rules 18-21.003 and 18-21.004, Florida Administrative

Code, are hereby dismissed for failure to demonstrate the invalidity of the

proposed amendments to rules 18-21.003 and 18-21.004, Florida Administrative

Code, and the relief sought herein is denied.

DONE and ORDERED this 4th day of June, 1992, in Tallahassee, Leon County,

Florida.

___________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 1992.

APPENDIX

Rulings on Respondent, Board of Trustees of the Internal Improvement Trust

Fund proposed Final Order:

Paragraphs 10, 12, 13, 26 and 30, rejected as a recitation of commentary

and unnecessary.

Paragraph 14, adopted as modified, Paragraph 8, Final Order.

Paragraph 15, rejected, irrelevant and unnecessary.

Paragraph 15, rejected, unnecessary.

Paragraph 19, adopted as modified, Paragraph 9, Final Order.

Paragraph 34, rejected, unnecessary and/or irrelevant.

Paragraph 36, adopted as modified, Paragraph 10, Final Order.

Paragraph 49, adopted as modified, Paragraph 23, Final, Order.

Paragraph 50, rejected, irrelevant and unnecessary.

Paragraph 58, adopted as modified, Paragraph 29, Final Order.

Paragraph 108, rejected, irrelevant and unnecessary.

Paragraphs 132 and 133, rejected, irrelevant and unnecessary.

Paragraph 142, rejected, irrelevant and unnecessary.

Rulings on Petitioners' proposed Final Order: 1/

Paragraph 2, adopted as modified, Paragraph 3, Final Order.

Paragraph 3, rejected, irrelevant.

Paragraph 4, rejected, unnecessary.

Paragraph 5, rejected except the last sentence which is adopted as

modified, Paragraph 2, Final Order.

Paragraph 6, rejected, unnecessary.

Paragraph 8, adopted as modified, Paragraph 7, Final Order.

Paragraph 9, rejected, irrelevant and unnecessary.

Paragraph 13(E), last paragraph, rejected as contrary to the greater weight

of evidence.

Paragraph 14, last paragraph, rejected as being contrary to the weight of

evidence and factual findings demonstrating that the action taken by the

Trustees were based on a fully developed and comprehensive policy through the

use of input from Petitioners and other concerned regulatory agencies during a

series of workshops, see Paragraphs 9-19, Final Order.

Paragraphs 15-19, rejected as presenting an illogical hypothetical of which

Petitioners failed to introduce like situations in their respective

applications.

Paragraph 20, rejected, irrelevant and/or speculative.

Paragraph 22, adopted as modified, Paragraphs 29 and 36, Final Order.

Paragraph 24, rejected as contrary to the greater weight of evidence,

Paragraphs 19 and 29, Final Order.

Paragraph 25, rejected as contrary to relevant findings, Paragraph 15,

Final Order.

Paragraph 26, rejected as contrary to relevant findings, Paragraphs 19, 24

and 50, Final Order.

Paragraph 27, rejected, irrelevant.

Paragraph 28, rejected, unnecessary.

Paragraph 29, rejected, unnecessary.

Paragraph 30, last paragraph rejected as being contrary to the weight of

evidence and no evidence of arbitrariness was adduced at hearing, Paragraph 9,

Final Order.

Paragraph 31, rejected as contrary to the weight of evidence which

indicates that the proposed rules were based on substantial input from all

regulatory agencies including Petitioners through a series of workshops and

public meetings where public comment was invited. Paragraphs 9-19, Final Order.

Paragraph 32, rejected, irrelevant.

Paragraph 33, rejected, irrelevant and not probative of the issues posed.

Paragraphs 34-38, rejected, irrelevant, speculative and/or unnecessary to

resolve the issues posed.

Paragraph 39, rejected, irrelevant.

Paragraph 40, rejected, irrelevant and unnecessary and contrary to the

greater weight of evidence.

Paragraph 41, rejected as being argument.

Paragraph 42, rejected, irrelevant and unnecessary.

Paragraph 43, rejected, irrelevant and speculative.

Paragraphs 44-50, rejected, unnecessary and irrelevant.

Paragraph 52, rejected, speculative and unnecessary or irrelevant.

Paragraphs 53 and 54, rejected, irrelevant and not probative.

Paragraph 55, rejected, irrelevant and unnecessary.

Paragraphs 57 and 59, rejected, contrary to the greater weight of evidence,

Paragraph 40, Final Order.

Paragraph 60, rejected, contrary to the weight of evidence, Paragraphs 60

and 61, Final Order.

Paragraph 61, rejected, irrelevant and not probative.

Paragraph 62, rejected as contrary to the greater weight of evidence,

Paragraphs 62-64, Final Order.

Paragraph 63, rejected as contrary to the greater weight of evidence,

Paragraph 64, Final Order.

Paragraphs 64, 65 and 66, rejected, Paragraphs 62-64,  F i n a l O r d e r .

Paragraph 67, rejected, contrary to the greater weight of evidence,

Paragraphs 58, 59 and 64, Final Order.

Rulings on Intervenor Florida Audubon Society's proposed Final Order:

Paragraph 1, adopted as modified, Paragraph 17, Final Order.

Paragraph 4, rejected as being more in the form of a recitation of

testimony and argument in support of the proposed rule amendments and not in the

nature of proposed findings of fact.

Rulings on Intervenor Sierra Club, Inc.'s proposed Final Order:

Paragraphs 2-5, rejected, irrelevant and unnecessary.

Paragraph 6, adopted as modified, Paragraph 3, Final Order.

Paragraphs 7-10, rejected, unnecessary and not probative.

Paragraph 11, adopted as modified, last sentence, Paragraph 3, Final Order.

Paragraphs 12-34, rejected as not probative and unnecessary. While the

proposed findings are factually correct and lie at the core of the Trustees'

concern respecting the development of a comprehensive policy and their desire to

curtail development of undeveloped barrier islands as they pose threats to the

natural resources and coastal marine environment and a e t o r p o t e r c i e d d e t a t s  s t

those resources, as noted in Paragraph 29, Final Order, these proposed findings

were not necessary to determine whether the propose rule amendments complied

with Section 120.54, Florida Statutes.

Paragraph 35, adopted as modified, Paragraph 4, Final Order.

Paragraphs 36-38, rejected, irrelevant and unnecessary.

Paragraph 39, adopted as modified, Paragraph 17, Final Order.

Paragraph 40, adopted as modified, Paragraphs 9, 13 and 19, Final Order.

Paragraph 41, adopted as modified, Paragraphs 8 and 9, Final Order.

Paragraphs 42-52, rejected, not probative or unnecessary.

Paragraph 53, adopted as modified, Paragraphs 14 and 19, Final Order.

Paragraph 54, rejected, unnecessary.

Paragraphs 55 and 56, adopted as modified, Paragraph 43, Final Order.

Paragraphs 57-61, rejected, unnecessary and not probative.

Paragraph 62, adopted as modified, Paragraph 9, Final Order.

Paragraph 63-67, rejected, irrelevant, unnecessary and/or a statement of

position.

Paragraph 68-80, rejected, unnecessary.

APPENDIX ENDNOTE

1/ The Citizen's Advisory Committee ( CAC) is an advisory body comprised of 17

members appointed statewide by the Governor and represents a broad and diverse

perspective on coastal issues. The CAC advises the Governor and cabinet, state

agencies, the interagency management committee, the Legislature and Congress on

ways to improve implementation of the coastal management program. The

Interagency Management Committee ( IMC) consist of the secretaries of the

Department of a l R e g u l a t i o n , D e p a r t m e n t t o n m Commerc  e , D e p a r t m e n t o f E n v i r o n e f

Transportation (DOT), Department of Health and Rehabilitative Services (HRS) and

veteran and community affairs, the director of the Archives and Forestry

Department and the executive director of the Department of Natural Resources,

the Game & Fresh Water Fish Commission, and the director of the Governor's

office of planning and budgeting. Members were selected based on the importance

of each agency's program to coastal management. The IMC serves as a central

mechanism for carrying out a coordinated interagency coastal management program.

COPIES FURNISHED:

ANNE LONGMAN ESQ

STEVE LEWIS ESQ

MESSER VICKERS CAPARELLO,

MADSEN LEWIS & METZ P.A.

PO BOX 1876

TALLAHASSEE FL 32302 1876

MARY F SMALLWOOD ESQ

RUDEN BARNETT McCLOSKY SMITH

SCHUSTER & RUSSELL P.A.

MONROE-PARK TOWER, STE 1010

101 N MONROE ST

TALLAHASSEE FL 32301

M CHRISTOPHER BRYANT ESQ

OERTEL HOFFMAN FERNANDEZ

& COLE P.A.

PO Box 6507

TALLAHASSEE FL 32314 6507

DEBORAH A GETZOFF ESQ

FOWLER WHITE GILLEN BOGGS

VILLAREAL & BANKER P.A.

101 N MONROE ST STE 910

TALLAHASSEE FL 32301

WILLIAM H GREEN ESQ

RICHARD S BRIGHTMAN ESQ

HOPPING BOYD GREEN & SAMS

123 S CALHOUN ST

TALLAHASSEE FL 32314

DEBRA W SCHIRO ESQ

ASST GENERAL COUNSEL

DEPT OF NATURAL RESOURCES

3900 COMMONWEALTH BLVD MS 35

TALLAHASSEE FL 32399 3000

KENNETH J PLANTE ESQ

DEPT OF NATURAL RESOURCES

3900 COMMONWEALTH BLVD MS 10

TALLAHASSEE FL 32399 3000

LIZ CLOUD CHIEF

BUREAU OF ADMINISTRATIVE CODE

THE CAPITOL RM 1802

TALLAHASSEE FL 32399 0250

CARROLL WEBB EXECUTIVE DIRECTOR

ADMINISTRATIVE PROCEDURES COMMITTEE

HOLLAND BLDG RM 120

TALLAHASSEE FL 32399 1300

DEBRA SWIM

RT 35 BOX 1815

TALLAHASSEE FL 32310

JOSEPH Z FLEMING

620 INGRAHAM BLDG

25 SE SECOND AVE

MIAMI FL 33131

VIRGINIA D WETHERELL

EXECUTIVE DIRECTOR

DEPT OF NATURAL RESOURCES

3900 COMMONWEALTH BLVD

TALLAHASSEE FL 32399 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.

=================================================================

DISTRICT COURT ORDER

=================================================================

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

DECEMBER 20, 1993

JOHN D. REMINGTON and

BARRETT OTT,

Appellant(s),

v. CASE NO. 92-02476

DOAH CASE NO. 91- 5329RX

BOARD OF TRUSTEES OF THE

INTERNAL IMP. TRUST FUND,

Appellee(s).

______________________________/

BY ORDER OF THE COURT:

Counsel for appellant(s) having filed a notice of voluntary dismissal, upon

consideration, it is ORDERED that this appeal is hereby dismissed.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

_________________________

WILLIAM A. HADDAD, CLERK

c: Robert P. Diffenderfer, Esquire Kenneth J. Plante

Terry E. Lewis, Esquire

Joseph Z. Fleming, Esquire

Deborah Swim, Esquire