95-002552RP Bonita Bay Properties, Inc.; Jim Hohnstein; And Edward Fischl vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, December 12, 1995.

Summary: Proposed rule invalid due to substantially deficient economic impact state- ment and proposed speed zones to protect manatees exceed statutory standard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BONITA BAY PROPERTIES, INC., )

JIM HOHNSTEIN, and EDWARD FISCHL, )

)

Petitioners, )

)

vs. ) CASE NO. 95-2552RP

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

and )

)

SAVE THE MANATEE CLUB; FLORIDA )

WILDLIFE FEDERATION; HIBISCUS )

POINTE AT BAY BEACH, LTD.; and )

IRA RAKATANSKY, )

)

Intervenors. )

______________________________________)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on July 31-August 4,

1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Terry E. Lewis, Esquire

Kenneth W. Dodge, Esquire

Lewis, Longman & Walker, P.A.

2000 Palm Beach Lakes Boulevard, Suite 900

West Palm Beach, Florida 33409

For Intervenor: Audrey E. Vance, Esquire

Lee County 2115 Second Street

Fort Myers, Florida 33901

For Respondent: Jonathan Glogau, Esquire

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Intervenors: David Gluckman, Esquire

Save the Manatee Gluckman & Gluckman

Club and Florida 541 Old Magnolia Road

Wildlife Crawfordville, Florida 32327

Federation

For Intervenors: Cindy L. Bartin, Esquire

Hibiscus Pointe Landers & Parsons

at Bay Beach, Post Office Box 271

Ltd., and Ira Tallahassee, Florida 32302

Rakatansky

STATEMENT OF THE ISSUE

The issue presented is whether the Department of Environmental Protection's

proposed Rule 62N-22.005, Florida Administrative Code, constitutes an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

Pursuant to Section 120.54(4), Florida Statutes, Petitioners filed their

Petition for Administrative Determination of Invalidity of Proposed Rules

challenging Rule 62N-22.005, Florida Administrative Code, in its entirety as an

invalid exercise of delegated legislative authority, challenging specific

portions of that proposed rule which would establish speed zones in specific

geographic areas in Lee County, and challenging the sufficiency of the economic

impact statement developed by the Department of Environmental Protection for its

proposed rule. Thereafter, Lee County's Petition for Leave to Intervene in

support of Petitioners' challenge to the proposed rule was granted, and Save the

Manatee Club and the Florida Wildlife Federation's Petition to Intervene in

support of the Department of Environmental Protection's rule, and the Petition

to Intervene in Support of Proposed Rule 6N-22.005, F.A.C. filed by Hibiscus

Pointe at Bay Beach, Ltd., and Ira Rakatansky were granted.

At the final hearing, Petitioners presented the testimony of Grace Marie

Johns, Ph.D.; Michael F. Stephen, Ph.D.; Bruce B. Ackerman, Ph.D.; R. Kipp

Frohlich; James K. Hohnstein; Ross McWilliams; Joanne Bean; Dennis E. Gilkey,

and by way of deposition, Stephen J. Boutelle, Edward T. Fischl, Michele

Correia, and Patrick M. Rose. Additionally, Petitioners' Exhibits numbered 1-

20, 24-37, 39, 40, 42, 43, 45, and 46 were admitted in evidence.

Intervenor Lee County presented the testimony of Thomas A. Kucharski.

Additionally, Intervenor Lee County's Exhibit numbered 1 was admitted in

evidence.

The Department of Environmental Protection presented the testimony of Scott

Calleson, R. Kipp Frohlich, and Patrick M. Rose. Additionally, the Department's

Exhibits numbered 1-3 and 5-9 were admitted in evidence.

Intervenors Save the Manatee Club and Florida Wildlife Federation presented

the testimony of Frederick W. Bell, Ph.D., and Patricia J. Thompson.

Additionally, Save the Manatee Club and Florida Wildlife Federation's Exhibit

numbered 1 was admitted in evidence.

Intervenors Hibiscus Pointe at Bay Beach, Ltd., and Ira Rakatansky offered

no evidence.

On September 21, 1995, Intervenor Lee County filed its Notice of Withdrawal

voluntarily withdrawing from this proceeding based upon its settlement agreement

with the Department of Environmental Protection whereby the Department of

Environmental Protection, subsequent to the final hearing, has agreed to a

number of amendments to its proposed rule and has agreed to publish a Notice of

Change announcing the revisions subsequent to the conclusion of this proceeding.

The remaining parties except for Intervenors Hibiscus Pointe at Bay Beach,

Ltd., and Ira Rakatansky have submitted post-hearing proposed findings of fact.

A specific ruling on each proposed finding of fact can be found in the Appendix

to this Final Order.

STIPULATED FACTS AND LEGAL CONCLUSIONS

A. Bonita Bay Properties, Inc. (hereinafter "Bonita Bay"), is the

developer of a residential community in Lee County, which includes a full

service marina consisting of 126 wet slips and 350 dry slips on the Imperial

River. The development is an approved Development of Regional Impact pursuant

to Chapter 380, Florida Statutes.

B. Jim Hohnstein (hereinafter "Hohnstein") is a resident of Lee County and

holder of a captain's license issued by the U.S. Coast Guard to operate and

navigate passenger-carrying vessels of not more than 50 gross tons within 50

miles of shore in the Atlantic Ocean and the Gulf of Mexico. Hohnstein is the

manager of Bonita Bay Marina.

C. Edward Fischl (hereinafter "Fischl") is a resident of Lee County and

holder of a captain's license issued by the U.S. Coast Guard to operate and

navigate passenger-carrying vessels of not more than 50 gross tons within 50

miles of shore in the Atlantic Ocean and the Gulf of Mexico. Fischl is the

owner and operator of a boat chartering business in South Estero Bay.

D. The Department of Environmental Protection (hereinafter "Department")

is the State agency responsible for adopting rules pursuant to Section 370.12,

Florida Statutes. Such a proposed rule is the subject of this rule challenge.

E. Save the Manatee Club (hereinafter "SMC") is a non-profit Florida

corporation with over 550 members who reside within Lee County and whose main

purpose is to protect and preserve Florida's remaining endangered West Indian

manatee population, for the benefit of the manatees and of SMC and its members.

Numerous members of the organization observe, study, and photograph manatees for

educational and recreational purposes in the waters of Lee County sought to be

regulated by the proposed rule. SMC sponsors and organizes outings to view,

photograph, and study manatees in the waters of the State including areas for

which speed limits are established by the proposed rule.

F. Florida Wildlife Federation, Inc. (hereinafter "FWF"), is a non-profit

Florida corporation with over 15,000 members within the State, many of whom

reside in and use the waters of Lee County. The main purpose of FWF is to

protect and assist in the management of Florida's wildlife and its habitat for

the benefit of FWF, its members, and all members of the general public who

desire to participate in outdoor recreation in Florida. The members of FWF

observe, study, and photograph manatees for educational and recreational

purposes in the waters of Lee County sought to be regulated by the proposed

rule.

G. Hibiscus Pointe at Bay Beach, Ltd. (hereinafter "Hibiscus Pointe"), is

a limited partnership organized under the laws of Florida. Estero Island

Partners is the general partner.

H. Ira Rakatansky (hereinafter "Rakatansky") is the owner of a unit in the

Hibiscus Pointe Development, with exclusive rights to boat slip #90.

I. On April 28, 1995, the Department published notice in the Florida

Administrative Weekly of its intent to adopt regulations establishing speed

zones in Lee County pursuant to Section 370.12, Florida Statutes.

J. On May 18, 1995, Bonita Bay, Hohnstein, and Fischl timely filed a

challenge to the proposed regulations.

K. All Petitioners and Intervenors in this proceeding have standing to

challenge or defend proposed Rule 62N-22.005, Florida Administrative Code.

L. Manatee protection zones may be established in State waters where

manatees are frequently sighted and it can be assumed that manatees inhabit such

waters periodically or continuously.

FINDINGS OF FACT

BACKGROUND

1. The Department derives its authority to regulate the speed of motorboat

traffic for the protection of the manatee from Section 370.12(2), Florida

Statutes, the "Florida Manatee Sanctuary Act" (hereinafter "the Act").

2. Two provisions within this Act describe the standard that must be met

before the Department may impose speed zones. Section 370.12(2)(j), Florida

Statutes, authorizes speed zones within specific identified geographic areas

"...where manatee sightings are frequent and it can be generally assumed that

they inhabit these areas on a regular or continuous basis." Section

370.12(2)(n) authorizes the Department to identify other areas where manatees

are "...frequently sighted and it can be assumed that manatees inhabit such

waters periodically or continuously" and then establish appropriate speed zones.

Although the specific authority for the challenged rule is subparagraph (n), in

practice, the Department does not differentiate between subparagraphs (j) and

(n) when establishing speed zones. The Department utilizes the same standards

or process regardless of which subparagraph is applicable.

3. For the waters of Estero Bay, the Department proposes that North Estero

Bay be regulated at 25 miles per hour at all times. Conversely, it proposes

that South Estero Bay be regulated at "slow speed" at all times except for

certain portions of two marked channels that would be regulated at 25 miles per

hour. Rule 62N-22.002(7), Florida Administrative Code, defines slow speed as

"...the speed at which a vessel proceeds when it is fully off plane and

completely settled into the water."

4. The Bonita Bay residential community and marina is located on the

Imperial River in Lee County, and a boat leaving the marina must travel west

down the Imperial River and north through South Estero Bay to reach the Gulf of

Mexico. Captain Hohnstein conducted a timed run from the Bonita Bay Marina to

the Gulf of Mexico and found that it took approximately 18 minutes under

existing regulations and approximately 40 minutes under the proposed rule.

Thus, under the proposed rule, it will take over twice as long for a boat to

make this trip, negatively impacting the demand for slips in the marina and the

value of Bonita Bay's boat slips. Recreational and commercial use of South

Estero Bay will also be greatly restricted if the proposed rule is adopted.

ECONOMIC IMPACT STATEMENT

5. Section 120.54(2)(b), Florida Statutes, requires the Department, under

certain circumstances, to prepare an Economic Impact Statement (hereinafter

"EIS") prior to rule adoption. Section 120.54(2)(c) then sets forth eight

requirements that must be included within the EIS for it to be valid. These

include:

2. An estimate of the cost or the economic

benefit to all persons directly affected by

the proposed action;

3. An estimate of the impact of the proposed

action on competition and the open market for

employment, if applicable;

* * *

8. A detailed statement of the data and

methodology used in making the estimates

required by this paragraph.

6. The Department prepared an EIS in conjunction with the proposed rule

challenged herein. The Department has stipulated that Petitioners requested

that an EIS be prepared and that request was made on an ongoing and continuous

basis since early 1994.

Cost to Affected Persons

7. The Department contracted with Florida Atlantic University (FAU) to

have FAU prepare the EIS for proposed Rule 62N-22.005, Florida Administrative

Code. Michelle Correia was primarily responsible for its development. Aided by

two research assistants who do not have degrees in economics, she prepared the

EIS on a budget of approximately $1,600. She submitted her final draft of the

EIS in January, 1995, and other than limited telephone contact with the

Department, performed no further work on the EIS. The January draft of the EIS

does not contain any reference to how the proposed rule would impact the demand

for marina facilities such as the Bonita Bay Marina, nor did the Department's

April 1995 EIS draft made available when the Department published its proposed

rule which is the subject of this proceeding.

8. Four days before the formal hearing in this cause, on July 25, 1995,

the Department produced another draft of the EIS that makes only cursory

reference to marina facilities. This draft merely states that impacts to

marinas are not quantifiable and would not be further considered unless

"specific quantitative information is submitted." This statement was included

in the July 25th EIS at the direction of Scott Calleson, a Department employee

who is not an economist.

9. The Department's July 25 draft of the EIS does not estimate the cost of

the proposed rule on marina facilities, a water-dependent industry. Further,

the Department did not attempt to ascertain the rule's impact on marinas. FAU's

attempt to do so was limited to telephone calls to two of Lee County's 24

marinas. One owner estimated a 50 percent loss of business and one estimated

losing 100 percent of his business. Neither FAU nor the Department contacted

Bonita Bay to try to quantify the impact Bonita Bay had been communicating to

the Department for over one year.

10. Bonita Bay has made a substantial investment in its marina. It has

recently added more slips and is currently not operating at a profit, although

it projects a profit within 10 years of the marina's initial construction.

Bonita Bay had projected cost and revenue figures for the marina up to the year

2002 that it had relied upon in making its investment. The ability of the

marina to achieve these projections and realize a profit will be substantially

diminished by the proposed rule which would increase the time required to reach

the Gulf of Mexico, restrict fishing and sightseeing in the back bay areas, and

place Bonita Bay at a competitive disadvantage with other marinas.

11. To obtain permits for the construction of the marina, Bonita Bay was

required to restrict by deed approximately 50,000 linear feet of shoreline, from

the mouth of the marina along the Imperial River and South Estero Bay, to

prevent the construction of any future boat docks. The marina also has six

different manatee signs in the basin as well as manatee awareness placards,

informative brochures, and a waterway map. All of these costly requirements

help protect the manatee and raise boater awareness of manatee safety issues.

12. Petitioner Hohnstein, the manager of the Bonita Bay Marina, will also

be impacted by the proposed rule. The imposition of a slow speed zone in South

Estero Bay would limit access to the marina and restrict both commercial and

recreational use of these waters. Since his employment and remuneration are

related to the financial health of Bonita Bay's marina, Hohnstein is a person

likely to be affected by the proposed rule.

13. Petitioner Fischl has owned and operated a boat chartering business

out of the Bonita Bay Marina for the last eight years, spending approximately a

thousand hours a year on the waters of South Estero Bay. Many of the

sightseeing tours and fishing trips he conducts will be impossible or

impractical under the proposed rule due to the increase in time to reach desired

destinations or the impossibility of reaching these areas if his boat is

required to travel through South Estero Bay at slow speed. Captain Fischl

estimates that the proposed rule would result in a 40 to 50 percent reduction to

his personal income. The EIS does not address the impact on Fischl or similar

businesses.

14. The EIS does not address the impact to waterfront property values in

Lee County. For example, waterfront property values at Bonita Bay would be

adversely impacted by the proposed rule as a result of the increased time

required to reach open water and the additional restrictions imposed on South

Estero Bay. Although the Department asked Michelle Correia what methodology

should be used to estimate property value impacts, neither FAU nor the

Department attempted to estimate the impact of the proposed rule on property

values.

Competition and Employment

15. The EIS also fails to estimate the impact of the proposed rule on

competition and the open market for employment between those marina facilities

affected and those unaffected by the proposed speed zones. Different marinas

will be impacted by their location to the proposed speed zones. The Department

conducted no case study or any other analysis to determine how the proposed

speed zones would put one marina at a competitive advantage or disadvantage over

another. Bonita Bay will be at a competitive disadvantage not shared by other

marinas not impacted by the speed zones because of their location elsewhere in

Lee County.

16. A nearby marina in Collier County with travel time constraints similar

to those imposed by the proposed rule was forced to charge 8 percent less for

slip rentals than Bonita Bay and has a lower occupancy rate. A similar impact

can be anticipated for Bonita Bay's fee structure and occupancy figures if the

proposed rule is adopted, causing a loss to Bonita Bay of $70,000 per year or

$186 annual income loss per slip.

Data and Methodology

17. Another statutory requirement missing from the EIS is a detailed

statement of the data and methodology used by the Department in reaching the

estimates that are included within the EIS. The EIS provides little or no

information on how the Department derived its figures or conclusions in many

areas, including the impacts on marinas, boat charter businesses and waterfront

property values.

18. Although the Department contends data was not available in those

areas, Lee County maintains and updates detailed information on Lee County's

economy, including detailed information on marina facilities and other marine

industries. This information could have been utilized by the Department in

developing and interpreting the data and methodology for estimating impacts to

this segment of the economy. The Department did not contact the office which

maintains this information.

19. Rather, the Department improperly relied upon the Fishkind Study

conducted for a four-county area on the east coast of Florida to assume the

impact of the rule in Lee County. The EIS uses an $8.60 contingent value

derived from this study relating to speed zones in Volusia County, not in Lee

County. However, the $8.60 figure is based upon a survey question requesting an

expression of funding support, not boating enjoyment, as was represented in the

EIS. It is not a measure of the impact on marinas, charter businesses, or

waterfront property values. The EIS contains no analysis of the similarities

between or the difference in economies and populations of those counties and Lee

County, which makes the EIS' reliance on the Fishkind Study inappropriate.

Failure to Consider Specific Information

20. Correspondence submitted by Bonita Bay to the Department contains

detailed information and concerns as to the economic impact of this proposed

rule on marinas and other marine dependent industries in Lee County. Bonita Bay

received no response to these letters and this information was not considered by

the Department in preparing the EIS. The Department acknowledged receipt of

these letters in the July 1995 version of the EIS, four days before the final

hearing in this cause.

21. The EIS also fails to consider specific economic information that was

submitted to the Department by the Petitioners demonstrating the substantial

economic impact of the proposed rule on Bonita Bay's, Fischl's and Hohnstein's

operations. This failure to consider the information submitted substantially

impairs the fairness of this rulemaking proceeding.

INVALID EXERCISE OF DELEGATED LEGISLATIVE AUTHORITY

No Ascertainable Standards

22. To establish speed zones, the Department must determine whether

manatees are frequently sighted in a particular area so that it can be assumed

that they inhabit the area on a periodic or continuous basis. Neither Section

370.12, Florida Statutes, nor the rules promulgated pursuant to that statute

contain definitions of the terms "frequent", "periodic", or "continuous."

Likewise, there exists no Department memorandum, position paper, or other

document which defines these operative terms that establish the standards for

establishing speed zones.

23. While the Department's witnesses stated that the word "frequently" is

given its common dictionary definition, the Department is unable to state with

any quantitative certainty how many sightings in a particular place constitute

"frequent" sightings. In the Department's view, a single manatee seen in the

same place every month would be a frequent sighting. In the Department's

scheme, there is no difference between one manatee sighted monthly and one

hundred manatees. Thus, so long as any manatee is sighted, the Department may

determine frequency, assume periodic or continuous habitation, and establish

speed zones without limitation.

24. In determining whether manatees are frequently sighted, the Department

considers aerial survey data, manatee mortality data, radio telemetry data,

anecdotal sightings and reports, geographic or habitat-related bathymetry,

boating access points, and public opinion and input. The Department may also

consider other information, but such information was not identified nor was it

explained how it was used in formulating the proposed rule. Further, some of

the data considered does not indicate the presence of manatee, such as boat

access points.

25. The Department has no method of determining how it relates each of

these data sources into a finding that manatees are "frequently sighted." There

is no formula, matrix, ranking of importance, or any other method by which an

individual could determine how this information is utilized to determine

"frequency" or otherwise establish a speed zone.

26. The Department, in setting speed zones, begins with the premise that

idle or slow speed is necessary to protect manatees. A Department witness

responsible for administering the rule considers any speed regulation faster

than slow speed to be a concession by the Department to gain the cooperation of

local government.

27. Within regulated areas, the top speed zone in Lee County is 25 miles

per hour under the proposed rule. In other counties, however, speed zones range

up to 30 and 35 miles per hour. The Department has no scientific basis or

formula for establishing the top speeds allowed. The disparity in speeds among

counties is the result of political compromise.

28. The Department's regulations for establishing speed zones, whether

developed under the authority of Section 370.12(2)(j) or (2)(n), Florida

Statutes, require that it not generally regulate areas so as to unduly interfere

with the rights of boaters, fishermen, and waterskiers. To accomplish this, the

Department is required to limit the geographic area of speed zones to only that

area warranted for manatee protection. Further, the Department must consider

the timing of the rule so that it is enforced only when necessary to protect

manatees. Thus, if manatees were frequently sighted in a waterbody only during

a particular season, then only seasonal speed zones can be established, so as

not to unduly interfere with the rights of boaters, fishermen, and waterskiers.

29. The definition of "undue interference" is contained in Rule 62N-

22.002, Florida Administrative Code. Before proposing a speed zone, the

Department considers the use of the area by boaters, fishermen, and waterskiers

to avoid "unduly interfering" with these persons. The Department conceded,

however, that it has no formula, policy, or any other identifiable procedure or

standard to explain how it factors the recreational use of the waters by these

persons into a determination that a rule should or should not be implemented in

a particular geographic area. In the case of South Estero Bay, the proposed

rule effectively prohibits boaters from using substantial portions of the water

previously accessible only at higher planing speeds due to the shallow nature of

those areas.

30. There exists no statutory definition of the term "continuous" to guide

the Department in applying its standard for establishing speed zones. Using the

common understanding as to what this word means, the Department witness who

oversees all management aspects of manatees under the purview of the Department

conceded that manatees do not inhabit Estero Bay on a continuous basis.

31. Likewise, there exists no statutory definition of the term "periodic"

to guide the Department. A Department witness who was involved in all aspects

of the rule's development relies on the dictionary definition of the term

"periodic" and does not necessarily interpret the term "periodic" to be the same

as "seasonal."

32. That witness further testified that if manatees hypothetically were

present in the Orange River during the winter months, that could be described as

a periodic appearance, and if they appeared only every other year, that would be

periodic as well. In the Orange River, the Department has established periodic

speed zones to coincide with the manatees' use of that area during the winter

months.

33. In the Department's current view, manatees seen in an area every few

years could justify the imposition of speed zones.

INTERNAL INCONSISTENCY OF THE RULE

Habitat Comparison

34. As applied to Estero Bay, the Department proposes different speed

regulations for North and South Estero Bay based on habitat differences. Both

bays are very shallow, with 90 percent of North Estero Bay and over 90 percent

of South Estero Bay being less than one meter in depth at mean low water. The

remaining 10 percent of North and of South Estero Bays have water depths greater

than one meter. The deeper water is found, in both bays, close to tidal passes

or maintained channels. In both bays manatees, when seen, are found in these

deeper water areas.

35. There is no significant difference in freshwater sources or quantities

between North and South Estero Bays nor are there any warm water sources in

either of these bays. Similarly, there is no appreciable difference in either

the amount or dispersion of seagrasses in either of the bays. The zip codes

surrounding both bays have a similar number and type of registered vessels, and

there is no appreciable difference in boat traffic. The bathymetry of each bay

is essentially the same, and there exists no physical characteristic of either

bay that would support different boat speed regulations for the protection of

manatees. The Department treats Estero Bay as a functional unit in collecting

data but divided the Bay into North and South for the purpose of establishing

different speed zones in its proposed rule.

North and South Estero Bay, Use of Manatee Data

36. The aerial survey data relied upon by the Department consists of a 48-

flight study conducted in 1984 and 1985. The data indicates little difference

in manatee use between North and South Estero Bays and that manatees are not

typically sighted in all parts of either the North or South Estero Bay system.

This is substantiated by more recent data collected by the Department in October

1994 through May 1995 which indicates that only 2 percent of the total manatee

sightings in Lee County are in North Estero Bay and only another 2 percent are

in South Estero Bay. The Department relied on the 10-year-old data in

promulgating its proposed rule and not the current data.

37. The aerial survey data also demonstrates that the manatees that are

seen in Estero Bay are located in close proximity to channels of at least six

feet in depth from which aquatic vegetation is available. In the bay waters

outside these channels, which make up the vast majority of Estero Bay, manatees

typically are not sighted. Moreover, there have been few manatee sightings in

the middle or east portions of South Estero Bay.

38. This aerial survey data is consistent with the experience of

Petitioners Hohnstein and Fischl. Although he is on the waters of South Estero

Bay on a daily basis, Fischl seldom sees manatees and the few he does see are

confined to specific areas with deeper water, not throughout the shallow waters

which comprise most of Estero Bay. Hohnstein has seen very few manatees in

South Estero Bay, causing his belief that additional boat speed regulation in

this area is unnecessary and overly restrictive.

39. In the winter months of November, December, January and February the

Department's data indicates that manatees are seldom sighted in Estero Bay. In

fact, approximately 80 percent of all manatees sighted in Lee County are in the

Caloosahatchee and Orange Rivers with the remaining 20 percent spread throughout

the remainder of Lee County. As Estero Bay is but one bay system in Lee County,

it is fair to conclude from this data that the combined percentage of manatee

sightings for both North and South Estero Bay during the winter months is less

than 1.5 percent of the manatees in Lee County. These figures are confirmed by

studies conducted by the Department.

40. In Estero Bay, Department data collected for a study of the Lee

County/Collier County border area indicates that during the 6-month period of

November through April, the mean number of manatee sightings in Estero Bay never

rose above .5 or one manatee per two surveys.

41. Because 80 percent of all manatees are sighted in the Caloosahatchee

and Orange Rivers in the winter months, the Department has established seasonal

speed zones in this area to coincide with the high population of manatees in the

winter and their dispersal in the spring. Although it is undisputed that this

seasonal pattern likewise exists in Estero Bay, the Department has not proposed

seasonal speed regulation, choosing instead to regulate year-round. The Bonita

Bay Marina is a seasonal business with its busiest activity taking place during

the winter months, when very few manatees are seen in Estero Bay.

42. There are many more manatee sightings in Lee County during the winter

months than there are in the summer. During the summer months much of the

manatee population leaves Lee County and goes either north or south before

returning again in the winter to warm water refuges.

43. During the winter manatees congregate and remain close to these warm

water refuges. There are no warm water refugees in South Estero Bay. There is

a warm water refuge northeast of North Estero Bay known as the Ten-Mile Canal

where manatees have been sighted with frequency during the winter months.

Manatees travelling to warm water refuges would take a fairly direct route and

travel in one to two meters of water.

44. The mortality data in Lee County relied upon by the Department has

been collected since approximately 1974. From January 1974 through December

1994, or 21 years, the data indicates there have been seven watercraft-related

manatee mortalities in North Estero Bay and five watercraft-related manatee

mortalities in South Estero Bay. On average, therefore, there has been less

than one mortality attributed to watercraft in South Estero Bay every four

years. There is no obvious trend demonstrating an increase in mortality in

either North or South Estero Bay.

45. The Department does not consider a single watercraft related manatee

mortality to be acceptable. While conceding that the elimination of all human-

caused mortalities is unrealistic, the Department is unable to articulate and

has no formula or standard to determine how many watercraft-related mortalities

would be acceptable for a given area or for a specific speed zone.

46. The overall population of manatees in Lee County has increased since

1974. Moreover, the manatee mortality data for South Estero Bay over the last

20 years does not indicate an increasing trend generally or in boat-related

deaths.

47. In the vast majority of cases the Department does not know where a

watercraft-related manatee mortality actually occurred. Manatees can become ill

or injured in one area and swim to another area before dying, and the carcass

may drift for several days before being discovered. The Department's data,

therefore, simply indicates where the carcass of the animal was recovered, not

the location where a watercraft struck a manatee.

48. In developing the proposed rule the Department also relied upon data

collected by tracking radio tagged manatees in Lee County. The manatees were

tagged in the Caloosahatchee River and tracked by the Department for

approximately eighteen months. The data indicated that manatees stayed in the

Caloosahatchee River during the winter months until spring, when the majority of

these animals disperse down the Caloosahatchee River. Most manatees then head

north to the Charlotte Harbor area and beyond, up to Tampa Bay. Throughout this

study period, no radio-tagged manatee was located in either North or South

Estero Bay. The Department concedes that this study is representative of

overall manatee behavior in Lee County.

49. The Department also relies on anecdotal data when establishing speed

zones. The Department presented no evidence that it had received more informal

reports of manatees in South Estero Bay than in North Estero Bay. In contrast,

Petitioners Hohnstein and Fischl, who have spent thousands of hours on the

waters of Estero Bay, have both seen as many or more manatees in North Estero

Bay.

50. The Department chose to regulate North and South Estero Bay

differently for two primary reasons: (1) because of the presence of marked

channels in South Estero Bay which the Department did not believe existed in

North Estero Bay, and (2) in order to provide for some recreational

opportunities in the Estero Bay system. Neither of these reasons is recognized

under Section 370.12, Florida Statutes, which provides the only authority for

the establishment of speed zones.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Sections 120.54(4) and 120.57(1),

Florida Statutes.

52. Petitioners' Motion to Strike was filed on October 3, 1995. Page 22

of Respondent's Proposed Final Order argues that Petitioners lack standing to

challenge the EIS because they failed to request that an EIS be prepared for the

proposed rule. As correctly asserted in the Motion, the Department stipulated

during the final hearing that Petitioners had an ongoing and continuous request

that the Department prepare an EIS for the proposed rule. The Department's

unilateral attempt to set aside post hearing a stipulation it entered into

during the final hearing will not be countenanced. Further, the Department's

assertion is contrary to the uncontroverted facts in this case. Petitioners'

Motion to Strike is granted.

53. All Petitioners and Intervenors are substantially affected by the

proposed rule and have standing, pursuant to the stipulation of the parties.

Further, Petitioners have standing to challenge the proposed rule based upon the

EIS.

54. In addition to challenging the entire proposed rule as an invalid

exercise of delegated legislative authority, Petitioners contend that

Subsections (2)(d) 12 and 13, (2)(g)(1), and (2)(g)3.a-e of proposed Rule 62N-

22.005, Florida Administrative Code, are invalid even if the entire proposed

rule is not. Subsection (2)(g)(1) establishes a 25 m.p.h. speed zone at all

times in North Estero Bay. The Petition for Administrative Determination of

Invalidity of Proposed Rule filed by Petitioners attacks those specific portions

of the proposed rule relating to South Estero Bay. Although the parties

presented evidence regarding North Estero Bay as it relates to Estero Bay as a

whole and as part of Petitioners' challenge to the proposed rule to show its

internal inconsistency, Petitioners did not specifically attack the speed zone

for North Estero Bay in their Petition. Therefore, any specific challenge to

Subsection (2)(g)(1) is not considered herein.

55. The Department's argument that Petitioners cannot specifically

challenge Subsection (2)(d)13 is without merit. That subsection imposes a slow

speed restriction at all times on the Imperial River. The Department argues

that the subsection causes no change since boat traffic on the Imperial River is

currently restricted to slow speed by county ordinance. A county ordinance is

not the same as a State agency rule. Since Subsection (2)(d)13 would make the

year-round slow speed restriction on the Imperial River a State law, and since

Bonita Bay residential community is bordered on one side by the Imperial River

and the Bonita Bay Marina is on the Imperial River, Petitioners have properly

challenged that subsection.

56. Petitioners have the burden of establishing by a preponderance of the

evidence that the challenged rule is invalid. Agrico Chemical Co., et al. v.

Dept. of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979). They

have met their burden of proving the invalidity of Rule 62N-22.005 in its

entirety and of Subsections (2)(d)12 & 13 and (2)(g)3.a-e.

57. A petitioner may seek to invalidate a rule by challenging the EIS on

the grounds that (A) the agency failed to adhere to the procedure for

preparation of the EIS provided by Section 120.54(2), Florida Statutes, or (B)

the agency failed to consider information submitted to it regarding specific

concerns about the economic impact of the rule which failure substantially

impaired the fairness of the agency's rulemaking. Section 120.54(2)(d), Florida

Statutes. Petitioners have challenged the EIS prepared for the proposed rule on

both grounds.

58. In the event an agency prepares an EIS for a proposed rule, the agency

is obligated to provide specific information which includes:

(2) An estimate of the cost or the economic

benefit to all persons directly affected by the

proposed action;

(3) An estimate of the impact of the proposed

action on competition and the open market for

employment, if applicable;

* * *

(8) A detailed statement of the data and

methodology used in making the estimates

required by this paragraph.

Section 120.54(2)(c), Florida Statutes. An agency's failure to include any of

the above requirements is grounds for invalidating a proposed rule. E. L.

"Shorty" Allen; Wigwam, Inc., et al. v. Honorable Bob Martinez, et al., DOAH

Case No. 88-5797R (March 20, 1989) (EIS found deficient for failing to estimate

the cost to all persons directly affected by the rule and failing to include a

detailed statement of the data and methodology used in its preparation); Stuart

Yacht Club & Marina, Inc. v. Dept. of Natural Resources, 625 So.2d 1263 (Fla.

4th DCA 1993) (EIS found deficient for failing to consider the economic impact

to a marina, failing to estimate the impact on competition and employment, and

failing to include a detailed statement of the data and methodology used in

reaching the estimates made).

59. The Department has failed to adhere to the procedures necessary to

prepare an adequate EIS for proposed Rule 62N-22.005, Florida Administrative

Code, as required by Section 120.54(2)(c), Florida Statutes, by failing to

include the information required to be included by Subsections (2), (3), and

(8). The Department's failure substantially impaired the fairness of its

rulemaking proceeding.

Estimate of Costs to all Persons

60. The January 1995 draft of the EIS prepared by FAU did not estimate the

cost of the proposed rule to Petitioner Bonita Bay's marina facilities or marina

facilities in Lee County generally. The Department's July 1995 EIS likewise

does not include a cost estimate to marina facilities, though such costs were

and are reasonably ascertainable. Both the Petitioners' and Lee County's

economic experts testified that the EIS was deficient in this area and SMC/FWF's

expert stated that he would have included marinas as an impacted industry and

analyzed the impact of the speed zones to that industry.

61. Consistent with the plain meaning of Section 120.54(2)(c)(2), Florida

Statutes, the EIS must contain an estimate of the cost of a rule to all affected

persons. Petitioners, as owners and operators of a marina and marina-related

businesses, were never considered until four days prior to hearing and then the

Department only concluded that no cost of the rule impact could be estimated.

However, no attempt to estimate that impact was made.

62. In this case, the preponderance of the evidence establishes that the

EIS did not consider the cost of the rule to marina facilities. It is also

undisputed that the EIS did not consider the impact of the rule on the value of

waterfront property in Lee County, though Petitioners and Lee County presented

evidence that the rule would significantly impact waterfront land values. As

was found in Stuart Yacht Club & Marina, Inc., these deficiencies invalidate the

EIS and substantially impact the fairness of the Department's rulemaking.

Competition and Employment

63. The undisputed evidence in this cause is that the imposition of speed

zones would put certain marinas at a competitive advantage (or disadvantage)

over others, depending upon their location. In Florida Ass'n of Academic

Nonpublic Schools, et al. v. Dept. of Health and Rehabilitative Services, DOAH

Case No. 86-2272R (October 3, 1986), the Hearing Officer struck down the

agency's EIS for, among other things, failing to include an analysis of the

impact on competition and the open market for employment. In this case, as in

Florida Ass'n, the EIS does not address competition or employment and is

therefore inadequate.

Data and Methodology

64. The Department has failed to include within the EIS a detailed

statement of the data and methodology used in reaching its conclusions. An

individual reading the EIS would in many instances have no indication how the

Department's figures were derived.

65. In one area where the methodology is included within the EIS, it

references data collected in a study of a four-county area on the east coast of

Florida which is not applicable to show impacts in Lee County. First, the $8.60

contingent value derived from the study relates to speed zones not shown to have

any similarity with speed zones in Lee County. Second, the survey question that

this figure is estimated from requested an expression of funding support, not

boating enjoyment, as was represented in the EIS. Third, a vast difference

exists in economies and populations between those east coast counties and Lee

County. Use of this study in the EIS for Lee County is, accordingly, misleading

and deceptive.

66. In E. L. "Shorty" Allen, supra, the Hearing Officer found the proposed

rule to be an invalid exercise of delegated legislative authority because, in

part, the Department failed to prepare an adequate EIS since it did not include

a detailed statement of the data and methodology used in making each of its

estimates. Likewise, in this case there is often no hint of the data and method

used, if any, in reaching many of the conclusions in the EIS. This omission,

standing alone, requires its invalidation.

Failure to Consider Submitted Information

67. The Department failed to consider information submitted by the

Petitioners and, accordingly, substantially impaired the fairness of its

rulemaking. For over a year Petitioners corresponded with the Department

requesting that an EIS be prepared and submitting detailed concerns regarding

the economic impact of the proposed rule. Petitioners have satisfied the

requirements of Section 120.54(2)(d), Florida Statutes.

68. In Dept. of Health and Rehabilitative Services v. Wright, etc., 439

So.2d 937 (Fla. 1st DCA 1983), the Court held:

[T]he absence or insufficiency of an economic

impact statement is harmless error if it is

established that the proposed action will

have no economic impact...or if it is shown

that the agency fully considered the asserted

economic factors and impact. Id. at 941.

In that case, in striking down the EIS the court found impacts to adult

congregate living facilities and their residents caused by a rule were ignored.

Here, similarly, impacts to marinas and related facilities were ignored.

Section 120.54(2), Florida Statutes, and relevant case law mandate substantial

compliance with all relevant EIS requirements. An EIS is not sufficient if it

fails to address all areas required by Section 120.54(2)(c), Florida Statutes.

Florida League of Cities, Inc. v. Dept. of Environmental Regulation, 603 So.2d

1363, 1371 (Fla. 1st DCA 1992).

69. Further, such failure with respect to Petitioners has substantially

impaired the fairness of the proceedings. While expert witnesses for all

parties agree that impacts (and quite likely substantial impacts) to marinas,

ancillary businesses and waterfront land values will be caused by these rules,

the Department has ignored those impacts.

70. The Department's argument that Petitioners are required to perform the

studies necessary to show the impact on marinas, marina-related businesses, and

waterfront property values finds no support in the law and is not persuasive.

Petitioners did what is required of them by Section 120.54(2)(d), Florida

Statutes; they provided the Department with sufficient information to make the

Department aware of their specific concerns. The Department, on the other hand,

failed to do what is required of it by Section 120.54(2)(c) by failing to

estimate the cost and impact on Petitioners and by failing to disclose how that

estimate was formulated.

INVALID EXERCISE OF DELEGATED LEGISLATIVE AUTHORITY

71. Section 120.52(8), Florida Statutes, provides as follows:

"Invalid exercise of delegated legislative

authority" means action which goes beyond

the powers, functions, and duties delegated

by the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one or more

of the following apply:

(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.

72. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,

Florida Administrative Code, exceed delegated legislative authority and enlarge,

modify, and contravene Section 370.12(2)(n), Florida Statutes. Section

370.12(2)(n) authorizes the Department to designate by rule State waters where

manatees are frequently sighted, and it can be assumed such waters are

periodically or continuously inhabited by manatees. Rules may be adopted to

prevent harmful collisions with motorboats and protect manatees from harassment.

73. The preponderance of the evidence establishes that manatees do not

frequent waters less than one meter in depth, and more than 90 percent of North

and of South Estero Bay is less than one meter in depth at mean low water.

Substantially all water within Estero Bay, other than improved channels, that is

deeper than one meter at low water is located near the western edge of North and

South Estero Bays near passes connecting to the Gulf of Mexico. Manatees are

sighted in the deeper water along this western perimeter and in the Imperial

River. With the exception of Ten Mile Canal northeast of North Estero Bay,

manatees are not typically sighted in North or South Estero Bay during the

winter months of November through April. Manatee mortality statistics for 1974

to 1995 reveal no trend of increased boat-related mortalities.

74. Yet, all of South Estero Bay except portions of two channels has been

designated slow speed even though manatees are only sighted with any frequency

at all in discreet deepwater areas along the western edge of the Bay. In

addition, the only-periodic habitation by manatees in the summer months has not

been considered, and there is no evidence to suggest boaters' rights have been

considered as to South Estero Bay.

75. Further, the Department has used "recreational opportunity" and the

presence of marked channels as shown on navigation charts to establish different

speed zones between North and South Estero Bay. On the face of the statute,

recreation and marked channels should be no basis for differentiation, all other

factors being equal.

76. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,

Florida Administrative Code, are vague, fail to establish adequate standards for

agency decisions, and vest unbridled discretion in the agency. Critical terms

contained within Section 370.12(2)(n) such as "frequently sighted" and

"periodically or continuously inhabited" are not defined within the statute or

by the challenged rule. Rather, Department staff testified that the words have

their ordinary dictionary definitions.

77. Nonetheless, testimony revealed the standard is, in essence, no

standard. There is no quantitative number for Lee County, North or South Estero

Bay, or, for that matter, the State of Florida that constitutes "frequent"

sighting of manatees. Similarly, "periodic" can mean "seasonal" or a variety of

other possibilities including once a month, on an annual basis, or once every

few years. Continuous habitation of manatees is defined in a similarly vague

way.

78. Department staff testified that they use a number of factors in

establishing motorboat speed zones. The factors include such items as manatee

mortality data, aerial survey data, satellite telemetry, manatee sightings, scar

catalogs, and expert opinions. However, when asked to explain how these

criteria were used in determining speed zones, Department answers varied from

concluding that it was somewhat a political decision to testifying that it

varies from place to place based upon their professional judgment and

discretion.

79. Critical terms have meanings that vary from location to location

according to Department interpretation or other factors. The ultimate

conclusions regarding whether manatees are frequently sighted and periodically

or continuously inhabit a particular area is, therefore, an exercise of

unbridled discretion by Department staff.

80. The consequence of such a process is that there are no ascertainable

quantitative criteria, standards or analytical process which can be applied to

determine how and where manatee speed zones should be established. Such

unbridled discretion and application of a vague, standardless process requires

rule invalidation. Merritt v. Dept. of Business and Professional Regulation,

Bd. of Chiropractic, 654 So.2d 1051 (Fla. 1st DCA 1995). In Merritt, the court

found the proposed rule to be an invalid exercise of delegated legislative

authority (and arbitrary and capricious) because it failed to apply the

statutory standard set forth by the Legislature, thus providing no clear

guidance for those impacted by the rule. The court stated:

Rather than elaborate the statutory standard,

the challenged rule replaces that standard

with the personal judgment of the members of

the peer review committee. Id. at 1053.

* * *

The rule thus serves more to obfuscate the

statutory language than to elaborate statutory

criteria or standards. Id. at 1054.

Likewise, in this case, the rule leaves the meaning of operative terms entirely

within the judgment of Department staff rather than clarifying the standard for

establishing speed zones.

81. The Department argues that its interpretation of the terms "frequent",

"periodic", and "continuous" found in Section 370.12(2)(n), Florida Statutes,

involves agency expertise and is, therefore, entitled to great deference. Yet,

the Department's witnesses testified that they have interpreted and applied

those words only in accordance with the common, dictionary definition of each.

Accordingly, no agency expertise is involved, and the Department's argument is

contrary to the evidence in this cause and not persuasive.

82. Rule 62N-22.005 and Subsections (2)(d)12 and 13 and (2)(g)3.a-e,

Florida Administrative Code, are arbitrary and capricious. Further, the rule is

not reasonably related to the purpose of the enabling legislation. As explained

in Agrico Chemical Co., et al.,

A capricious action is one which is taken

without thought or reason and irrationally.

An arbitrary decision is one not supported by

facts or logic, or despotic. Administrative

discretion must be reasoned and based upon

competent substantial evidence. Id. at 763.

Competent substantial evidence of arbitrary and capricious behavior can include

identification of rule provisions which are internally inconsistent or simply

irrational. A rule that is internally inconsistent is both irrational and

illogical. St. Johns North Utility Corp. v. Florida Public Service Comm'n, 549

So.2d 1066, 1069 (Fla. 1st DCA 1989) (failure to provide a reasonable

explanation for inconsistent results based on similar facts violates Chapter

120, Florida Statutes, and the equal protection guarantees of the Florida and

federal constitutions).

83. The evidence in this cause demonstrates that there are no substantial

differences in habitat between North and South Estero Bays. Yet, they are

treated radically different as to speed zones. Bathymetry is similar. Seagrass

distribution and density is comparable. There are no warm water refuges to

attract winter populations of manatees.

84. Similarly, the evidence demonstrates there are no substantial

differences in the frequency of manatee sightings between North and South Estero

Bays. There also appears to be no difference in either numbers or seasonality

(periodicity) of occurrence of manatee within North and South Estero Bays, and

the Department's data does not even differentiate between the two. In sum, the

Department's own data does not demonstrate any more interference with or

endangerment to manatees in South Estero Bay than in North Estero Bay.

Accordingly, the proposed rule is internally inconsistent in its disparate

treatment of North Estero Bay and South Estero Bay.

85. The Department's use of 10-year-old aerial survey data in developing

this proposed rule, without considering the 1994-95 data being collected by it

or without waiting for the conclusion of its current study and then analyzing

that data, is itself arbitrary and capricious. The Department's own rules

regulating the establishment of speed zones require it to consider "all

available information." Rule 62N-22.001, Florida Administrative Code.

86. Finally, the one reason provided for establishing 25 mile per hour

speed zones within North Estero Bay as opposed to South Estero Bay was to

provide recreational opportunities within North Estero Bay. No evidence was

offered as to why recreational opportunities should not be provided in South

Estero Bay.

87. The Department proved that its policy is to establish speed zones

pursuant to Section 370.12(2)(n), Florida Statutes, in accordance with the

standards found in Subsection (2)(j) which prohibits the Department from

regulating boat speeds generally "...thereby unduly interfering with the rights

of fishermen, boaters, and water skiers using the areas for recreational and

commercial purposes." However, under its proposed rule, the Department has

deviated from that policy by establishing a slow speed year-round requirement

for all of South Estero Bay despite the fact that over 90 percent of the water

is too shallow for manatee to use most of the time. Since the evidence reveals

that the Department proposes to regulate in waters not used by manatee, and

since the evidence reveals that manatee are sighted in the deeper areas only

part of the year, the proposed rule regulates excessively, both as to area and

as to time. Accordingly, Subsections (2)(d)12 and 13 and (2)(g)3.a-e of Rule

62N-22.005, Florida Administrative Code, unduly interfere with the rights of

fishermen, boaters, and water skiers using South Estero Bay for recreational and

commercial purposes.

88. The radically-different treatment of similar water bodies, the general

and excessive regulation of South Estero Bay, and the failure of the proposed

rule to provide any ascertainable standards require a determination that the

rule is arbitrary and capricious.

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

ORDERED and CONCLUDED that the Department's proposed Rule 62N-22.005,

Florida Administrative Code, and Subsections (2)(d)12 and 13 and (2)(g)3.a-e of

that proposed rule are an invalid exercise of delegated legislative authority.

DONE and ORDERED this 12th day of December, 1995, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT

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 12th day of December, 1995.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-2552RP

1. Petitioners' proposed findings of fact numbered 1-11, 13-42, and 44-50

have been adopted either verbatim or in substance in this Final Order.

2. Petitioners' proposed findings of fact numbered 12 and 43 have been

rejected as not constituting findings of fact but rather as constituting

argument of counsel, conclusions of law, or recitation of the testimony.

3. The Department's proposed finding of fact numbered 33 has been adopted

either verbatim or in substance in this Final Order.

4. The Department's proposed findings of fact numbered 3, 5, 17-19, 24,

25, 37, 41, and 45 have been rejected as being irrelevant to the issues under

consideration in this cause.

5. The Department's proposed findings of fact numbered 8-11, 15, 16, 21,

23, 28, 40, 44, 47, and 53 have been rejected as being subordinate to the issues

herein.

6. The Department's proposed findings of fact numbered 39 and 46 have been

rejected as not constituting findings of fact but rather as constituting

argument of counsel, conclusions of law, or recitation of the testimony.

7. The Department's proposed findings of fact numbered 4 and 31 have been

rejected as not being understandable.

8. The Department's proposed findings of fact numbered 1, 2, 6, 7, 12-14,

20, 22, 26, 27, 29, 30, 32, 34-36, 38, 42, 43, 48-52, 54, and 55 have been

rejected as not being supported by the weight of the competent, credible

evidence in this cause.

9. Save the Manatee Club and Florida Wildlife Federation's findings of

fact numbered 9, 18-23, and 58 have been rejected as not being supported by the

weight of the competent, credible evidence in this cause.

10. Save the Manatee Club and Florida Wildlife Federation's proposed

findings of fact numbered 12-17 and 47-49 have been rejected as being

subordinate to the issues herein.

11. Save the Manatee Club and Florida Wildlife Federation's proposed

findings of fact numbered 10, 11, 24-46, 50-57, and 59 have been rejected as not

constituting findings of fact but rather as constituting argument of counsel,

conclusions of law, recitation of the testimony, or a stipulation of the

parties.

COPIES FURNISHED:

Terry E. Lewis, Esquire

Kenneth W. Dodge, Esquire

Lewis, Longman & Walker, P.A.

Suite 900

2000 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

Jonathan Glogau, Esquire

Attorney General's Office

PL-01, The Capitol

Tallahassee, Florida 32399-1050

M. B. Adelson, Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

David Gluckman, Esquire

Gluckman & Gluckman

541 Old Magnolia Road

Crawfordville, Florida 32327

Robert E. Goodwin, Jr., Esquire

500 North Maitland Avenue

Suite 210

Maitland, Florida 32751

Cindy L. Bartin, Esquire

Landers & Parsons

Post Office Box 271

Tallahassee, Florida 32302

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

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.