11-002016 Joe Burgess And Thomas Fullman vs. Martin County Board Of County Commissioners And Department Of Environmental Protection Status: Closed Recommended Order on Monday, November 7, 2011.

Summary: Martin County provided reasonable assurance that a Mooring Field and Dingy Dock in a Aquatic Preserve in the Indian River Lagoon meets statutory and rule criteria for an ERP and a soverengty submerged lands lease.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEP H BURGESS and THOMAS FULLMAN, )

)

Petitioner s , )

)

vs. ) Case No. 11 - 20 16

)

MARTIN COUNTY BOARD OF COUNTY )

COMMISSIONERS A nd DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondent s . )

_______________________________ ___ )

RECOMMENDED ORDER

This case was heard by David M. Maloney, Administrative Law

Judge of the Division of Administrative Hearings on June 14 - 17,

2011, in Stuart, Florida.

APPEARANCES

For Petitioner s : Virginia P. Sherlock, Esquire

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995 - 1197

For Respondent Department of Environmental Protection :

Ronald Woodrow Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florid a 32399 - 3000

For Respondent Martin County Board of County Commissioners:

David A. Acton, Esquire

Martin County

2401 Southeast Monterey Road

Stuart, Florida 3 4996 - 3322

STATEMENT OF THE ISSUE

Whether the petition that initiated this case was timely as

to Petitioner Fullman? If so, whether Petitioner Fullman has

standing?

Whether Petitioner Burgess has standing?

Whether the record demonstrates reasonable as surances for

approval of Martin County's application for a Consolidated

Environmental Resource Permit and Sovereign Submerged Lands

Lease to construct and operate a public moo ring field in the

Jensen Beach to Jupiter Inlet Aquatic Preserve and to construct

and operate a "dinghy" dock immediately south of the Jensen

Beach Causeway to support the mooring field ?

PRELIMINARY STATEMENT

On December 24, 2009, the County applied to the Department

for an Environmental Resources Permit (the "Permit") and a

Sovereign ty Submerged Lands Lease (the "Lease") to construct and

operate a public mooring field and dinghy dock.

Pursuant to its permitt ing authority under Part IV of

chapter 373 and c hapter 253, Florida Statutes, the Department

issued a Consolidated Notice of In tent that indicated its intent

to i ssue the Permit and enter the Lease on March 4, 2011. On

March 17, 2011, the County published the DepartmentÓs

Consolidated Notice of Intent to Issue in the Stuart News .

The proposed mooring field would occupy 34.29 acre s of the

Jensen Beach to Jupiter Inlet Aquatic Preserve in the Indian

River Lagoon, just south of the Jensen Beach Causeway, and would

consist of 51 permanently anchored buoys that would accommodate

vessels of 20 feet to 60 feet in length. The project wou ld also

authorize the constr uction and operation of a 1,832 square - foot

L - shaped Ðdinghy d ockÑ within an additional 0.178 - acre area in

the Aquatic Preserve to accommodate up to 18 vessels under Part

IV of chapter 373 and c hapter 253, Florida Statutes.

On M arch 31, 2011, the Petitio ner Joseph Burgess, through

counsel, filed a request for extension of time to file a

petition for administrative hearing challenging the project. On

April 5, 2011 , the Department issued Petitioner Joseph Burgess

an extension of t ime until April 14, 2011, to file the petition.

On April 14, 2011, Petitioners Joseph B urgess and Thomas

Fullman filed a Petition for Administrative Hearing, which was

forwarded to DOAH on April 19, 2011 for assignment of an

administrative law judge. On A pril 27, 2011, the County filed a

Motion for Summary Hearing . It was denied on May 9, 2011.

On June 10, 2011, the Department, without objection, filed

a Request for Official Recognition of Part : IV of c hapter 373,

and c hapters 253 and 258, Florida Statute s; Florida

Administrative Code Chapters 18 - 20, 62 - 330, 62 - 341, 62 - 343 ; the

1995 version of the South Florida Water Management District

rules ; the Indian River Lagoon Aquatic Preserve Management Plan

adopted by the Board of Trustees on January 22, 1985 ; the

Conceptual State Lands Management Plan adopted by the Board of

Trustees on March 17, 1981, and amended July 7, 1981 , and

March 15, 1983; s ections 120.569, 120.57, 120.60, 403.815,

Florida Statutes; and Florida Administrative Code Cha pters 28 -

106, 62 - 4, 6 2 - 110 and 62 - 113 . The request was granted.

At the final hearing, Martin County presented the testimony

of four witnesses: Christie Barrett, who was accepted as an

expert in marine biology and is currently a Project Manager for

Coastal Systems Internationa l, Inc. (CSI) ; Daniel Moretz, a

former Department employee and permit processor for the Project,

and current Project Manager for CSI ; Timothy Blankenship, P.E.,

the Director of Engineering for CSI , who was accepted as an

expert in coastal engineering ; and Penny Cutt, the Regional

Manager for CSI, who was accepted as an expert in marine biology

and coastal zone management. Martin County offered 27 exhibits,

marked for identification as MC Exhibits 1 - 6, 9 - 25, and 27 - 30.

All were admitted.

The Department pre sented the testimony of one witness,

Jennifer Smith, Program Administrator for the Submerged Lands

and Environmental Resource Program for the Southeast District

Office of the Department, who was accepted as an expert in

environmental resource permitting. Respondent Department moved

into evidence its Exhibits 2 and 19, and both were admitted.

Petitioners Joseph Burgess and Thomas Fullman testified as

fact witnesses, and Petitioners also called : Daniel Moretz;

George Jones, the Executive Director for the Ind ian Riverkeeper

Treasure Coast Environmental Defense Fund, who was accepted as

an expert in the areas of natural resource management and

protection, mooring field operation and management, and

recreational and sport boating; James Egan, the Executive

Direc tor of the Marine Resources Council of East Florida, who

was recognized as an expert in environmental science; and

Kathy Fitzpatrick, P.E., Martin CountyÓs coastal engineer.

Petitioners moved into their evidence Exhibits 9, 10, 29, 31 ,

and 36, all of whic h were admitted.

The Hearing Transcript was filed with DOAH on July 6, 2011.

The parties were given until August 8, 2011, to file proposed

recommended orders. Proposed R ecommended O rders were timely

submitted by all three parties and have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

The County, the Lagoon and the Aquatic Preserve

1. Martin County (the "County") is located on the Atlantic

Coast in southeast Florida .

2. The Indian River Lagoon (the "Lagoon") runs along the

eastern edge of the County in a north - south direction parallel

to the coast. T he Lagoon is separated from the Atlantic Ocean

by barrier islands except for a connection to the ocean through

the St. Lucie Inlet .

3. The Lagoon is designated an "Outstand ing Florida Water"

("OFW") and its water s are classified as Class III by the

Department .

4 . The portion of the Lagoon within the County's

boundaries is part of the state - designated Jensen Beach to

Jupiter Inlet Aquatic Preserve (the "Aquatic Preserve") , o ne of

three aquatic preserves in the Lagoon.

5 . The waters and submerged lands of the Aquatic Prese rve

are used extensivel y by the public for commercial, recreational,

and scientific purposes consistent with statutory authority that

allows uses other than preservation . Uses include commercial

docking facilities, d efined by rule 18 - 20.003(16) as "docking

facilities for an activity which produces income, through rental

or any other means . . . ."

The Parties

a. Martin County Board of County Commissioners

6 . The Martin County Board of Cou nty Commissioners (the

"Board of County Commissioners") is the County's governing body .

7 . In the name of the Board of County Commissioners, t he

County applied for the permit and sovereignty submerged lands

lease that is the subject of this proceeding.

8 . The P ermit and L ease will allow the County to construct

and operate a managed mooring field for boats (the "Mooring

Field" or the "Project") t o be located within a near - shore area

of the A quatic P reserve . B oats now comm only anchor in the area

in a random, un - regulated manner and will continue to do so

without the permit and the lease .

b. The Department

9 . The Department is the state agency with responsibility

to conserve, protect, and control water resources pursuant to

Part IV, c hap ter 373, Florida Statutes, and c hapter 62, Florida

Administrative Code.

10. The Department also has the authority to administer

the state's program for leases of sovereignty submerged lands,

unless such responsibility has been delegated b y the Board of

Trustees to a water management district or the Department of

Agriculture and Consumer Services by an operating agreement.

1 1 . The parties agree that the Department has the

authority to administer the sovereignty submerged lands lease

appl ied for in this case. See Petitioners' Proposed Recommended

Order, para. 3 at 6; Martin County's Proposed Recommended Order,

para. 5 at 7; and the Department's Proposed Recommended Order,

para. 2 at 6.

Petitioners

12 . P etitioner Joseph Burgess resides w ith his wife in an

unincorporated area of the County known as Jensen Beach . He has

a direct view of the Lagoon from the rear deck of his home,

approximately six - tenths of a mile west of the Project site.

Mr. Burgess's wife holds record title to the prope rty, acquired

before their marriage. H e has a spousal interest in the

homestead. He helped his wife to design and build their home on

the property and the two have lived there for the past 14 years.

They intend to live there for the foreseeable future.

13 . Mr. Burgess visits the area of the Project several

times a week . He frequently takes his grandchildren and out - of -

town friends to the area to appreciate the beauty of the Aquatic

Preserve, watch the fishermen, and enjoy the environmental

diversity o f the Lagoon.

14 . When Mr. Burgess drives to the area by way of the

Jensen Beach Causeway (the " Causeway") he often finds it

difficult to find a parking spot.

15 . Mr. Burgess attended community meetings when the

Mooring Field was proposed and discussed its impact to the area

with other members of the community including Petitioner

Fullman. He contacted the Department regarding the status of

the Project and requested notice of permit activity. Notice,

however, was not provided to him directly; he learn ed of the

Department's intent to issue the permit from counsel.

1 6 . Mr. Burgess has a number of concerns about the

Project. He fears it will diminish his way of life and the

character of the area in which he resides. He worries that it

will add congestion to a near - by rotary for vehicular traffic

that he negotiate s to get to and from his home nearly every day.

He is concerned that the Project will destroy habitat for marine

life and the birds which nest and feed in the ecosystem of the

Aquatic Preserve and the Lagoon.

1 7 . Petitioner T homas Fullman owns and resid es in a home

in Jensen Beach overlooking the Project site. He and his family

have enjoyed the Lagoon and the Aquatic Preserve for the past 20

years and he has a deep appreciation for them.

18 . Mr. Fullman's concerns for the Aquatic Preserve and

the Lago on led him to challenge the issuance of a permit to

construct a seawall in another administrative proceeding. The

seawall was proposed to be constructed on the opposite si de of

the Causeway several hundred feet north of the proposed Mooring

Field. The ch allenge was successful. See Reily Enterprises,

LLC v. Fla . Dep't of Envtl. Prot. , 990 So. 2d 1248 (Fla. 4th DCA

2008).

1 9 . Mr. Fullman boated in the Lagoon frequently when his

children were growing up. He now boats in the Lagoon once or

twice a year. He enjoys fishing in the Lagoon. He is an avid

bird - watcher who enjoys looking for osprey and hawks in

particular. Mr. Fullman often walks by the site proposed for

the Project and enjoys the natural scenery and wildlife that

populates the Lagoon and the Aquatic Preserve. He frequently

visits the Causeway Park adjacent to the Project site to observe

the scenery and wildlife and to picnic with his family.

20 . In his practice as a family therapist, Mr. Fullman

occasionally takes clients to the Causeway to view the Lagoon

and the Aquatic Preserve because they provide a pleasant setting

conducive to productive therapeutic discussion.

21 . Mr. Fullman plans to remain in his home. He is

concerned that the Mooring Field, if installed, will affect his

continue d enjoyment of his property, cause an increase in

vehicular traffic and traffic safety hazards on the route he

takes to and from his home daily, limit public parking on the

parkway he frequents for recreation and professional purposes,

and cause harm to th e Lagoon and Aquatic Preserve environmental

resources important to him and his family.

22 . Mr. Fullman learned of the Department's intent to

issue the permit through counsel and authorized counsel to

request an extension of time to file a petition for a formal

proceeding on his behalf. Mr. Burgess was "taking the lead on

keeping in touch with DEP," tr. 714 , but Mr. Fullman did not

have a formal arrangement with Mr. Burgess regarding securing an

extension of time for the filing of an administrative hearin g.

23 . The Department issued an O rder on April 5, 2011, that

granted " a request made by the Petitioner, Joe Burgess, to grant

an extension of time to file a petition for an administrative

hearing." The Order extended the time for the filing to

April 1 4, 2011. The Order did not mention Mr. Fullman.

24 . On April 14, 2011, a petition was filed with the

Department on behalf of both Mr. Burgess and Mr. Fullman.

Unlike Mr. Burgess, however, Mr. Fullman, ha d not been granted

an extension of time for the f iling of a petition on his behalf

at the time the petition was filed .

The County's Application

25 . The County submitted its application for the Permit

and the Lease on December 24, 2009. The application was

prepared by a consulting firm, Coastal Systems International

("CSI"), whom the County had hired to obtain the necessary

approvals for the Project from the Department and the U.S. Army

Corps of Engineers (the "Corps") .

26 . The Department acknowledged receiving the County's

application in a letter to the County dated January 22, 2010.

Beginning with a request for additional information ("RAI")

included with that letter, the Department conducted a review

process that included more RAIs from the County and from other

State agencies. Nearly a year later , the Department notified

the County by letter dated January 26, 2011, that the

application had been deemed complete.

27 . After the application w as deemed complete but before

the Consolidated NOI ( see , below) was issued, the County's

consultant submitted additional information to the Department

that included copies of documents submitted to the Corps in

response to the Corps' requests for additional information. The

additional information was overlooked by the Department and ,

therefore, was not incorpora ted into the Permit and Lease.

28 . D uring the review process , significant changes were

made to the Project proposed by the application. For example,

the configuration or "footprint" of the mooring field was made

smaller than originally proposed and the number of buoys allowed

was lowered. The dinghy dock was relocated and altered in

design and materials. Additional terms and conditions were

added to the operational requirements. The Project was modified

to address the site specific conditions in the P reserve and the

possible adverse impact of shading on seagrasses . ( T his

included reduction and relocation of the Mooring Field, re -

siting of the Dinghy Dock, and elimination of a proposed "wave

attenuator.") The design of the Project considered the

characteristics of the vessels that would us e the Project, both

in the Mooring Field and at the Dinghy Dock.

29 . On February 22, 2011, the Board of Trustees determined

pursuant to rule 18 - 20.004(1)(b) that it is in the public

interest to lease approximately 34.47 acres of sovereignty

submerged lan ds to the County for 25 years for the Project. The

amount of acreage to be leased is 25% less than what was

originally proposed, consistent with the changes made to the

Project during the review process.

The Consolidated NOI, the Project Design and its Lo cation

30 . On March 4, 2011, the Department issued a Consolidat ed

Notice of Intent to Issue an Environmental Resource Permit and

State Lands Authorization (the "Consolidated NOI") to the

County .

31 . The Consolidated NOI authorizes the County to

constru ct and operate a public mooring field with in 34.29 acres

of the Aquatic Preserve just south of the Jensen Beach Causeway.

T he proposed site of the Mooring Field is an area that was

dredged for the filling of submerged lands to create the nearby

west island of the Causeway .

32 . The general area of the Project is a busy waterway

that has heavy boat traffic from the north, south, east and

west . It is a pproximately 500 feet from th e Intracoastal

Waterway near the Intracoastal's intersection with the

Okeecho bee Waterway .

33. T he Project area is close to established upland

facilities such as boat ramps, fish cleaning stations, a fishing

pier, restrooms, picnic shelters, and public parking for cars

and boat trailers, all maintained by the County on the west

i sland of the Jensen Beach Causeway. The Causeway on its

eastern end connects the mainland to a large, populated barrier

island. On the mainland shore, several hundred yards west of

the Project area is SunDance Marina, a com mercial facil ity that

offers fuel , repair, docking and other services for boaters.

The facilities operated by the County, the marina, the local

population and the heavy b oat traffic in the area contribute to

the per capita boat ownership in Martin County, among the

hi ghest for counties in Florida.

34 . Amenities in or near a county park at the west island

of the Je nsen Beach Causeway include 140 - car parking spaces, 58

car/trailer parking spaces and a wooden viewing platform

adjacent to the boat ramp on the south side of the Causeway.

There is currently a small dock and a sandy beach along the

causeway near the boat ramp along the south portion of the

Causeway enjoyed by boaters while they also use the park

facilities. Boaters would lose the use of the existing dock a nd

the beach if the Project is constructed but would gain the

benefits provided by the Project .

35 . The Causeway has a vertical concrete seawall parallel

to the Project area. There is a section of the Causeway that

connects to the shoreline, called a re lief bridge that promotes

flushing and circulation otherwise impeded by the Causeway .

36 . Prevailing winds are out of the southeast. Since the

Lagoon is a large, open, water body, the wind traveling across

it contributes to wave height which increases t urbidity.

37 . At present, in the absence of a mooring field,

a pproximately 20 vessels a nchor in and around the Jensen Beach

area at any one time. Many anchor in the shallow seagrass area

and remain for extended periods of time. The anchoring is

haphaza rd and poses a risk of scarring and otherwise damaging

seagrass beds.

38 . The Project a rea has been plagued by dilapidated and

sunken vessels. The County has removed seven of them recently,

plus another three from nearby waters of the Aquatic Preserve.

Dilapidated vessels pose the potential to leak hazardous

materials, be navigational hazards and prevent seagrass growth ,

all of which can damage the Aquatic Preserve .

39 . The Project Area is not currently managed or

maintained by the County. The Proje ct is proposed as a

management tool to encourage boaters to utilize mooring buoys

located in an area where seagrass is either sparse or barren

instead of anchoring in shallow seagrass areas where the boats

may damage the seagrass .

40 . Know n as the Jensen Beach Managed Mooring Fi eld , the

Project is authorized for 51 buoys permanently attached to

helical mooring anchors drilled into the submerged bottom lands

of the Preserve and a new Dinghy Dock on the south shore of the

nearby west Causeway Island .

41 . The helical mooring anchor is approximately 12 inches

in diameter and will be secured to the Lagoon bottom by

hydraulic methods. The anchoring system contains a shock

absorber designed to provide flexibility when a vessel is moored

by allowing the vessel the ability to swing with wind and wave

energy. This swinging mechanism reduces potential impacts to

seagrass from shading. Vessels moored in a boat slip or at a

marina do not have swinging capability. Th e anchors are

designed to provide safe mooring wi thstanding winds up to 80

miles per hour. Removal of vessels is mandatory in the event of

a Category One hurricane (74 miles per hour) or above.

42 . The Mooring Field w ill accommodate ves sel s from 20 to

60 fee t in length.

43 . The Mooring Field will be open to the general public

on a first - come, first - serve basis as defined in rule 18 -

21.003(27). Furthermore, as a mooring field of buoys rather

than a dock or marina with fixed boat slips, the waters of the

Aquatic Preserve within the M ooring Field will remain open and

accessible to public use by any vessels especially in the open,

buoy - free lanes (or " F airways") 75 feet wide. The fairways will

bisect the Mooring Field in north - south and east - west directions

and thereby create four quadrant s in which buo ys will be

present. Permanent markers w ill mark the perimeter of the

Mooring Field to provide notice of its existence.

44 . The Mooring Field w ill be operated by the County as a

not - for - profit operation. A fee w ill be collected from users

with the proce eds to pay for the County's management by a

Harbormaster and for maintenance of the buoys, the Dinghy Dock

and associated upland amenities available to the users of the

Mooring Field.

45 . The design of the Mooring Field was determined by

bathymetric dept hs taking into consideration the draft of the

vessels that would occupy the field to ensure that there w ill be

at least one foot between the draft of the vessels and the

submerged bottom land.

46 . The d epth inside the Mooring Field varies within a

foot o r so of 9 feet. The anticipated draft of the vessels

entering the field will be 2 to 4 1/2 feet. Vessels traversing

the field should not disturb the submerged land.

47 . In addition , 34.29 acres of sovereign submerged land

in the Aquatic Preserve occupi ed by the Mooring Field, the

Dinghy Dock will be 1,832 square feet and occupy .178 acres of

the Preserve. It will L - shaped, with a 5' x 163.5' "access

walkway" from shore out to a 5' x 203' "terminal platform"

designed to allow temporary mooring of up to 18 small vessels.

48 . The access walkway at the Dingy Dock will be

constructed from Fiberglass light - transmitting grates atop

pilings and elevated as high as 6 feet above the water level.

The terminal platform will float on the water in order to comply

with requirements of the Americans with Disabilities Act for

access by handicapped boaters.

49 . The Dinghy Dock is designed to ensure that

environmental resources will not suffer impacts. It will

connect to the bulkhead and existing riprap on the upland s. The

pilings of the dock will be constructed of concrete. The slips

will be 13 feet wide and 20 feet long and will accommodate a

vessel up to 20 feet in length. A 20 - foot vessel has a maximum

draft of 2 to 2 1 /2 feet. The water depth below the propos ed

Dinghy Dock's slips ranges from 7 to 10 feet.

50 . The Dinghy Dock's terminal platform will be located

over an area with no seagrass or other s ubmerged aquatic

resources .

Publication of Consolidated NOI

51 . On March 17, 2011, the County published th e

Department's Consol id ated NOI in the Stuart News .

Resources Located at the Site

52 . In the summer of 2010, Coastal Systems International,

Inc. ("Coastal Systems") performed an inspection of the existing

upland structures on the Jensen Beach Causeway we st island and

the submerged lands located southwest of the Causeway. "The

surveyed area is the site of the proposed Jensen Beach Managed

Mooring Field Project . . . ." MC Ex. 11.

53 . Three prior surveys had been conducted by Coastal

Systems in the gene ral Project area. In each of the surveys, in

2005, 2008 and 2009, "seagrass was observed along the mainland

shoreline of Jensen Beach, west of the proposed Project area,

and in the nearshore shoreline region of Jensen Beach Causeway,

just north of the pro posed mooring field." Id. at 2.

54. Four species of seagrass were observed in the

nearshore area: Manatee Grass, Shoal Grass, Paddle Grass and

Johnson's Seagrass.

55. Seagrass beds serve several functions important to the

Aquatic Preserve. They stab ilize sediments; entrap silt;

recycle nutrients; provide shelter, habitat and substrate for

animals and other plant life forms; are nursery grounds for fish

and shellfish; and are important direct food sources for various

species, including the endangered manatee. Many commercially

important fishes spend at least part of their lives in seagrass

beds.

5 6 . Coastal Systems submitted its Field Observation Report

(the "Report") to the Department on July 16, 2010. The Report

describes its purpose as follows:

The purpose of this inspection was to verify

the previous marine resource survey of the

submerged lands conducted in 2009 by Coastal

Systems and to confirm the location,

composition and density of marine resources,

including the federally listed species

Jo hnson's Seagrass ( Halophila johnsonii

. . .) .

Id.

57 . The Report concluded that consistent with the previous

marine resource survey conducted in 2009, seagrasses were found

in shallower portion s of the survey area. The most extensive

areas of seagrass "were observed in the immediate nearshore area

along the southwest portion of the Causeway, the southwest

quadrant of the survey area [different from the quadrants into

which the Mooring Field is divided] and the southeast quadrant

of the survey area (See sheet 5 in attachment 1)." MC Ex. 11,

"Conclusion" at 3.

58 . Sheet 5 in Attachment 1 to the Report is entitled

"R esources and Propose d Work" for the "Jensen Beach Mooring

Field." It shows seagrass patches consistent with the

description in the Report 's Conclusion.

59 . Depicting the proposed Mooring Field divided by

Fairways into four quadrants , Sheet 5 shows the two eastern

quadrants to be barren of seagrass. Portions of t he two western

quadrants are shown to be sparsely inhabited by seagrass at a

le vel of 1 percent or below.

60 . The northwest quadrant and the southwest quadrant are

inhabited by seagrass at the 1 percent or below level . The area

of sparse seagrass is no more than 10 percent of the northwest

quadrant . In contrast, most of the sou thwest quadrant, at least

75 percent of its area, is shown to be i nhabited by seagrass .

61 . The 2009 survey was confirmed in 2010 when the Report

was prepared. Field work done both in 2009 and the next year in

2010 were done during the growing season wh en the seagrass ,

including federally - listed Johnson S eagrass, would be most

prevalent and easily observed. The seagrass that was observed

in the footprint of the Mooring Field was "paddle grass

decipiens." Tr. 73. No Johnson S eagrass was observed within

the footprint of the Mooring Field in either the 2009 survey or

the field work done in July of 2010 during the growing season in

advance of the Report.

62 . Fish and manatees feed in seagrass areas. They would

likely feed in the areas of dense seagras s in the Project Area

found outside the Mooring Field where the sediments consisted of

shelly, sandy materials and where Paddle, Manatee and Johnson 's

S eagrass were identified.

63 . Macroalgae was present throughout the Project area in

varying densities. The type s observed included Common Caulerpa,

Graceful Red Weed, Green Feather Algae, Hooked Red Weed, Spiny

Seaweed, and Y Branched Algae. Macroalgae is a leafy algae and

important marine resource. It provides habitat, shelter and

food for various speci es in the Aquatic Preserve including the

manatee and different fish species .

64 . Fish observed included Atlantic Spadefish, Gray

Snapper, Gulf Pipefish, Leopard Sea Robin, Sheepshead, Southern

Puffer and other unidentified juvenile fish.

65 . Other mari ne fauna observed during one field

inspection included Amber Penshell, Blue Crab, Caribbean Spiny

Lobster, Feather Duster Worms, Hermit Crabs, Horseshoe Crab,

Hydroids, Lightning Whelk, Spag h etti Worms, Spider Crab and

Sponges.

66 . The Project area is also habitat for various

endangered and threatened species and species of special concern

such as birds, reptiles and mammals, including the wood stork,

manatee, Atlantic green turtles, and the saltmarsh snake.

Wading birds such as the great blue heron an d roseate spoonbill

inhabit the area. The Florida Manatee use s the area and is

known to feed on the types of seagrasses found there.

67 . Fish and manatees are unlikely to feed within the

footprint of the Mooring Field because seagrass is either not

pre sent or extremely sparse.

The Mooring Field's Footprint: Seagrass Opportunity

68 . The sediments within the mooring field are silty and

muddy. Dependent on sunlight for growth, seagrass grows best in

shallow areas of good water clarity that allows for s unlight

penetration. Silty bottoms interfere with sunlight penetration

whenever there is turbidity in the area that kicks up the silt.

Seagrass is also more prone to grow in sandy sediments as

opposed to silty or muddy sediments. Seagrass root systems h old

fast in sandy sediments; they do not adhere well in silty

sediments. The Mooring Field's sediment explains why its

footprint is either barren of seagrass or inhabited by seagrass

at such a sparse level.

69 . Nonetheless, the presence of seagrass with in the

Mooring Field indicates that seagrass has the opportunity to

grow there, that is, at least in the parts of the two western

quadrants of the Mooring Field which constitute seagrass

habitat. Mr. Egan elaborated at hearing:

[S]ince the footprint of the mooring area

already contains sparse seagrass, that area

which is within the footprint of the mooring

field itself, though quite sparse now, could

easily rebound in much thicker growth were

water quality conditions to be good for it

. . . .

[T]o put a source of water quality impacts

in close proximity to . . . the sparse

seagrass fields . . . [eliminates] the

opportunity for these seagrass beds to

expand in an area where we have evidence to

see that seagrass beds have been expanding.

Tr. 859 - 60 (empha sis added ) .

70 . The impacts referred to by Mr. Egan are from shading

caused by vessels moored in the four quadrants of the Mooring

Field and the bioaccumulation in plants of toxic substances and

biocides, like copper and zinc, that typically leach from t he

bottom paint of vessels. While Mr. Egan did not predict with

certainty the impact of substances leaching from the bottoms of

vessels in the Mooring Field, he was able to opine that in areas

where circulation is reduced like the Project area because of

the nearby Causeway, the levels of the toxic substances will

increase and the plants and animals in the area can be expected

to accumulate the substances to a degree that produces "a

certain level of concern." Tr. 850.

71 . That seagrass beds are expan ding in the Project area

is evident from a comparison of images provided by the South

Florida Water Management District between 2006 and 2009 . They

show a doubling of the seagrass beds on the side of the channel

opposite the Mooring Field site. Whether s uch expansion will,

in fact, occur in the Mooring Field footprint, however, were the

footprint free of shading and toxic substances leached from boat

bottoms, is speculative. The sediment would still remain silty

and unlikely to provide a good basis for s eagrass root

structure.

The Dinghy Dock

72 . The types of vessels that will most likely use the

Dinghy Dock include johnboats, dinghies, and sailboats. The

Project allows sufficient distance for boats to traverse the

Mooring Field and gain access to the Dinghy Dock without

encroaching on seagrass beds.

73 . The edge of the Dinghy Dock slip closest to the

seagrass beds is approximately 25 feet away from the beds.

Boater can avoid traversing marine resources whether seeking

ingress or egress from their sl ips. Seagrass, moreover, is not

likely to suffer impacts from vessels at the Dinghy Dock because

there is a 7 to 10 - foot depth under the slips. There is

sufficient room between the Dinghy Dock and the Johnson 's

Seagrass.

74 . A small portion of the Ding hy Do ck's walkway from the

Causeway I sland traverses a narrow band of nearshore seagrass.

The access walkway is constructed of fiberglass grated decking

material and is elevated 6 feet above high water to minimize the

impact of shading. The grated deckin g allows sunlight to reach

the seagrass when the sun is directly overhead. Keeping the

walkway at a 6 - foot elevation above high water allows light to

penetrate under the walkway as the sun moves from east to west.

The potential for impacts to seagrass fr om shading by the

walkway is not significant.

FWC and Archaeological /Historical Resources

75 . Florida Fish and Wildlife Conservation Commission

("FWC") recommended approval of the Project if two manatee

conditions are added to the permit. The Department relies on

FWC for its expertise related to impacts to endangered or

threatened species and their habitats, including impacts to

manatees or seagrass habitat.

76 . There are no archaeological or historical resources in

the area.

Resource Protection Area s

77 . Resource Protection Areas ("RPAs") are divided into

three categories . The three categories are defined in rule 18 -

20.003 as follows:

(54) "R esource Protection Area (RPA) 1" -

areas within the aquatic preserves which

have resources of the highest q uality and

condition for that area. These resources

may include, but are not limited to, corals;

marine grassbeds; mangrove swamps; salt -

water marsh; oyster bars; archaeological and

historical sites; endangered or threatened

species habitat; and, colonial water bird

nesting sites.

(55) "Resource Protection Area 2" - Area

within the aquatic preserves which are in

transition with either declining resource

protection are 1 resources or new pioneering

resources within resource protection area 3.

(56) "Reso urce Protection Area 3" - Areas

within the aquatic preserve that are

characterized by the absence of any

significant natural resource attributes.

78 . The existence of sparse seagrass in the footprint of

the Mooring Field , the Johnson's Seagrass , and the dense

seagrass beds near by a re indicia that the Project area is within

a Resource Protection Area 2.

Water Quality and the Management Plan

79 . Adverse impacts to water quality caused by haphazard

anchoring will be eliminated when boaters instead use the

Mooring Field. The Mooring Field will enable boaters to secure

their vessels to mooring buoys instead of dropping anchors into

the substrate. A nchors hitting bottom cause turbidity. V e ssels

anchored to the substrate are a continual source of turbidity

because the anchor can move back and forth with the wind or

water current. I mpacts of turbidity from prop dredging when

boats anchor in shallow areas w ould also be reduced because the

Mooring Field is in deeper water .

80 . The Project will enhance water quality in the Jensen

Beach area through the implementation of the Jensen Beach

Manage ment Plan (the "Management Plan ") .

81 . The Management Plan is a list of best management

practices. The provisions most significant to water qu ality

enhancement include : 1) all vessels must pump out their septic

tank waste within 24 hours of entering the Mooring Field and

every three days thereafter; 2) all major repairs are

prohibited; 3) the scraping of a vessel's hull is prohibited;

4) throwing trash overboard is pr ohibited; 5) cleaning a vessel

is prohibited; 6) throwing anchor in the leased area is

prohibited; and 7) all vessels are required to be operational.

82 . The Mooring Field and the Dinghy Dock will be

regulated and managed by a harbor master under the pla n. The

harbor master is responsible for the day - to - day operations of

the Mooring Field under the Management Plan. For example, if

there is an illegal discharge, the harbor master is charged with

notifying FWC so that it can conduct enforcement.

83 . The Board of Trustees proposed a leas e condition that

requires vessels to contain their graywater in onboard holding

tanks so that it will not be discharged into the Aquatic

Preserve. (Graywater is not potable and not contaminated with

sewage but has been used , for example, dis hwashing water.)

84 . Tierra Consulting Group, Inc. performed the water

quality analysis at the Project site. Its finding s indicate

that water quality in the area meets water quality standards.

85 . Flushing in the area is adequate due to strong

currents and the relief bridge which assist in offsetting the

effects of the Causeway's presence.

86 . The P ermit addresses water quality during the

construction phase by implementing a turbidity management plan.

The turbidity plan require s a curtain to be deployed during

construction. The curtain will prevent water quality violations

from occurring outside the curtained area during construction.

The curtain will protect seagrass and microalgae outside the

curtain from the effects of turb idity. The County has also

agreed to conduct post - construction water quality monitoring to

confirm that water quality in the Project area has not been

impaired by construction.

Navigation

87 . The Project is located a safe distance from the

Intracoastal, existing boat ramps, and the Sundance Marina.

88 . The Mooring Field design provides adequate distance

between buoys to ensure that vessels will be properly spaced.

The Fairways provide safe corridors for two vessels t o pass each

other in the Fairways .

Board of Trustees Authorization

89 . The Project requires a lease because it invo lves

placing mooring buoys over sovereign ty submerged lands. The

lease i s required to be approved by the Board of Trustees and

could not be delegated to the Department for two reasons: 1) it

was deemed to be a matter of "heightened public concern"; and 2)

it would result in the addition of 50 slips. The Board's

approval was unanimous .

90 . The upland portion adjacent to the Project is owned by

the Board of Trustees.

91 . The public interest benefits from the Project include

enhancement to water quality in the Aquatic Preserve; the first -

come, first - serve basis on which it is open to the public;

accessibility to the upland public amenities for patrons;

protection of seagra ss beds; and removal of dilapidated vessels

in the area.

92 . The Board of Trustees agreed to waive lease fees

because all of the revenue the County collects associated with

the Project will be used to operate and maintain the facility.

93 . There are ap proximately 19 mooring fields currently in

operation on lands owned by the Board of Trustees. None is

located in an aquatic preserve. Two are located in the National

Marine Sanctuary in the Florida Keys.

94 . The Aquatic Preserve Management Plan that applies to

the Project area is the 1985 Indian River Lagoon Management

Plan.

95 . The Conceptual State Lands Management Plan also

applies to the Project area. The Conceptual State Lands

Management Plan emphasizes balancing the resources of aquatic

preser ves with public use and benefit of the preserves.

Most Current Permit Drawing and Management Plan

96 . The Department's Consolidated NOI does not contain the

most current permit drawings or the most current management

plan. Changes to the drawings and th e plan occurred after the

Department deemed the application complete. The changes were

submitted by County with the intention that they be included.

97. The most current drawings were attached to a Response

to an Army Corps RAI. These drawings should h ave been included

in the Department's Consolidated NOI but were overlooked. The

changes clarify the dimensions of the Mooring Field boundary and

elevated the dinghy dock from 5 feet to 6 feet to allow for more

light penetration for the benefit of the seag rass.

98. The most current management plan (also attached to the

Response to the Army Corp RAI and submitted by the County to the

Department in a timely fashion) includes two revisions.

99. First, it revises s ection 2.5.1 to require the harbor

master t o fill Mooring Field Quadrants 1, 2 or 3 ahead of

quadrant 4. Quadrant 4 is the quadrant with the seagrass. The

order of filling was prescribed to protect the sparse seagrass

observed by Coastal Systems in Quadrant 4.

100 . Second, the Management Plan w as revised to address

waste management and marine pollution by adding s ection 2.7. It

provides a schedule for Martin County's waste management vessel

to pump out the septic tanks of vessels that use the facility.

It specifies how often vessels should be pumped out and requires

that information be provided to each patron on arrival.

101 . If authorized, the changes to the drawings and the

Management Plan not included in the Consolidated NOI will not

have to be reviewed by the Board of Trustees because the

Department regards them to be "minor modifications." See Fla.

Admin. Code. R. 62 - 343.100(1)(a).

The County's Aspiration and Past Department Action

102. The County seeks a uthorization for the Project in

hopes for less adverse impacts from boaters anchor ing in

seagrass, traversing seagrass, and discharging wastewater,

graywater and waste materials into the Aquatic Preserve.

103. Prior to this case, t he Department has n ot authorized

a Mooring Field within an Aquatic Preserve.

CONC LUSIONS OF LAW

104. T he Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57.

Timeliness

105. The Consolidated NOI's publication on March 17, 2011,

gave petitioners fourteen days or until March 31, 2001, to file

a petition challenging the permit and the lease. See Fla.

Admin. Code. R. 62 - 110.106(3). See also City of St. Cloud v.

Dep't of Env't'l. Reg. , 490 So. 2d 1356 (Fla. 5th DCA 1986).

106. Petitioner Burgess obtained a valid extension of time

to file the petition that initiated this case and the petition

was filed within the time allowed by the order granting the

extension. Petitioner Fullman, however, di d not seek an

extension of time to file the petition in writing and the order

granting the extension of time to Mr. Burgess did not extend the

time for filing a petition to Mr. Fullman.

107. The petition that initiated this case was untimely as

to Petitioner Fullman. Petitioner Fullman should be dismissed

as a petit ioner. See Fla. Admin. Code R. 110.106(4); Somero v.

Hendry Gen . Hosp . , 467 So. 2d 1103 (Fla. 4th DCA 1985).

Mr. Burgess' Standing

108. Mr . Burgess contends that he has standing as a party

because he is a person "whose substantial interests will be

affe cted by propo sed agency action." § 120.52(13)(b) , Fla.

Stat .

109. In order for a Mr. Burgess to demonstrate that he

meets the definition of a "party" and therefore has standing to

initiate an administrative proceeding , he must meet the two -

pronged test of Agrico Chemical Corp. v. Dep't of Envtl. Reg. ,

406 So. 2d 478 (Fla. 2d DCA 1981) , as clarified by St. Johns

Riverkeeper , Inc. v. St. Johns River Water M gmt. Dist . ,

54 So. 3d 1051 (Fla. 5th DCA 2011), that is , that he has a

substantial interest that rea sonably could be affected by the

agency action in question and that the injury is of the type

that the proceeding is designed to protect .

110. The proof offered by Mr. Burgess meets the test for

standing. Mr. Burgess has standing to initiate this procee ding

pursuant to sections 120.569 and 120.57.

Burden

111. At the outset of this proceeding, Martin County had

the burden of ultimate persuasion to show by a preponderance of

the evidence that its permit application should be approved and

the sovereignty submerged lands lease be authorized. See Fl a.

D ep t . of Transp . v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla.

1st DCA 1981).

112. T he County made a prima facie case that it is

entitled to the authorizations sought . The burden , therefore,

shifted to Mr. Burgess and Mr. Fullman ( if the petition is

ultimately accepted as timely as to Mr. Fullman ) to rebut the

prima facie case an d support the allegations in their petition.

For the Petitioners to prevail, their e vidence must be of

equivalent or greater qual ity t han the evidence presented by the

County and the Department . Otherwise, the authorizations sought

should be issued. Id.

Permitting and Leasing Criteria

113 . Chapter 18 - 20 governs Florida Aquatic Preserves.

Rule 18 - 20.004 establishes "Management P olicies, Standards and

Criteria" for requests for activities on sovereignty submerged

lands in aquatic preserves.

114 . Rule 18 - 20.004 requires all activities in aquatic

preserves with an adopted management plan to demonstrate

consistency with the plan. See rule 18 - 20.004(7).

115 . The County and the Department presented evidence that

a Mooring Field in the proposed location is consistent with the

applicable management plan. The applicable management plan is

the Indian River Lagoon Aquatic Preserves Man agement Plan

adopted on January 22, 1985. The County also presented evidence

that the Mooring Field is consistent with the Conceptual State

Management Plan. The Petitioners did not present contrary

evidence of equivalent quality to rebut a determination that the

Project is consistent with the management plans.

116 . Rule 18 - 20 . 004(5) (d) provides "Standards and Criteria

for Docking Facilities" that apply only to "commercial" or

"other revenue generating/income related" docks such as the

Mooring Field. Am ong those criteria are:

1. Docking facilities shall be authorized

only in locations having adequate

circulation and existing water depths in the

boat mooring, turning basin, access

channels, and other such area which will

accommodate the proposed boat use to ensure

that a minimum of one foot clearance is

provided between the deepest draft of a

vessel and the bottom of the waterbody at

mean or ordinary low water.

2. Docking facilities and access channels

shall be prohibited in a Resource Protection

Area 1 or 2, except as allowed pursuant to

Section 258.42(3), Florida Statutes, while

dredging in Resource Protection Area 3 shall

be strongly discouraged.

117. Section 258.42(3)(e)3 provides:

Commercial docking facilities shown to be

consistent with the use or management

criteria of the preserve may be approved if

the facilities are located within a

reasonable distance of a publicly maintained

navigation channel . . . . The distance

shall be determined in accordance with

criteria established by the trustees by

rule, based on the depth of the water,

nature and condition of bottom, and presence

of manatees.

118 . The Project complies with the requirements of the

rule except that it is in a Resource Protection Area 2. It is

located , however, approximately 500 feet from the Intracoastal

Waterway. It is within a reasonable distance of a publicly -

maintained navigation channel. The Project, therefore, is

eligible for approval under the statute.

119 . Rule 18 - 20.003(19) defines the term "dock" as "a

fixed or flo ating structure, including moorings, used for the

purpose of berthing buoyant vessels either temporarily or

permanently. " Rule 18 - 20.003(16) defines the term "Commercial,

industrial, and other revenue generating/income related docks"

as "docking facilitie s for an activity which produces income,

through rental or any other means . . . ." The Project is a

"revenue generating/income related dock."

120 . Rule 18 - 20.004(5)(a) provides "Standards and Criteria

for Docking Facilities" to which all docking facil ities are

subject. Among the criteria are the following:

2. Certain docks fall within areas of

significant biological, scientific,

historical, or aesthetic value and require

special management considerations. The

Board [of Trustees] shall require design

modification based on site specific

conditions to minimize adverse impacts to

these resources, such as relocating docks to

avoid vegetation or altering configurations

to minimize shading.

3. Docking facilities shall be designed to

ensure that vessel use will not cause harm

to site specific resources. The design

shall consider the number, lengths, drafts

and types of vessels allowed to use the

facility.

121 . The County and the Department demonstrated compliance

with the rule. The evidence in suppor t of compliance was not

rebutted.

122 . The Project qualifies under r ule 18 - 20.004(1)(e)4.

The County, therefore, does not have to meet the requirements

contained in r ule 18 - 20.004(1)(g) because it applies only to

projects that qualify under rule 18 - 20.0 04(1)(e)7 - 10.

123 . Rule 18 - 20.004(2), entitled "Public Interest

Assessment Criteria," provides that "[i]n evaluating requests

for the sale, lease, or transfer of interest, a balancing test

will be utilized to determine whether the social, economic

and/or environmental benefits clearly exceed the costs. "

124 . The cost/benefits balancing test is to be made in

light of "the quality and nature of the specific aquatic

preserve." Fla. Admin. Code R. 18 - 20.004(2)(a)2. Projects in

less developed, more pristine aquatic preserves (such as

Apalachicola Bay) are subject to a higher standard than a more

developed preserve, id. , such as the Jensen Beach to Jupiter

Inlet Aquatic Preserve.

125 . The Project ' s environmental benefits of enhancing

water quality and preve nting damage to existing seagrass beds

outweighs the environmental cost of diminishing the opportunity

for seagrass to grow in the Mooring Field. The social, economic

and environmental benefits of the Project outweigh the cost of

the loss of whatever envi ronmental benefit might be gained if

the opportunity remained for the seagrass within the footpri nt

of the Mooring Field to expand.

126 . Rule 18 - 20.004(5)(a)2 requires an applicant to

minimize adverse impacts to resources by lo cating the Dinghy

Dock to a void vegetation and minimize shading. Both the Mooring

Field and the Dinghy Dock were downsized and relocated to avoid

impacts to vegetation. The impacts from shading caused by the

Dinghy Dock will be minor.

127 . Section 373.414(1) directs the Departme nt to not

issue a permit unless the applicant provides reasonable

assurance that state water quality standard s will not be

violated.

128 . The Project will not violate water quality standards

but poses the potential for enhancement of water quality in the

Aquatic Preserve.

129 . Mr. Egan's opinion that the concentration of boats in

the Mooring Field create s concern because of toxic substances

that will leach from boat bottoms is outweighed by the Tierra

Consulting Group's water quality analysis, the curre nt

conditions in the Project area that include adequate flushing

and heavy vessel traffic, the number of boats typically moored

in the area at any one time, and the dilapidated vessels sunken

in the substrate.

130 . Reasonable assurance must be provided t hat proposed

activity in, on, or over surface waters designated as OFW "will

be clearly in the public interest." § 373.414(1). The public

interest test involves a balancing of the seven enumerated

criteria listed in section 373.414(1)(a).

131 . The Coun ty has provided reasonable assurance that the

Project is clearly in the public interest through the testimony

at hearing, the conditions in the proposed permit, the

supporting documentation in the application, and the County's

r emoval of the dilapidated v essels from the Lagoon.

132 . The Project will positively affect the public health,

safety, welfare, and property of others. Boaters will be able

to safely secure their vessels to a mooring buoy instead of

anchoring in well - developed seagrass beds; the p roject provides

boaters safe navigation within the Mooring Field, to and from

the Dinghy Dock, and to and from the Intracoastal Waterway; and

the ecological and aesthetic value in the Lagoon will be

enhanced through implementation of the Management Plan an d

removal of the dilapidated vessels.

133 . The Project will positively affect the conservation

of fish and wildlife, including threatened or endangered species

and their habitat.

134 . The Project will positively affect navigation and not

adversely af fect the flow of water or cause harmful erosion or

shoaling.

135 . The Project will positively affect the fishing or

recreational values or marine productivity in the vicinity of

the Project.

13 6 . The permanent nature of the Project will have a

positiv e effect in the Lagoon.

137 . The Project will not adversely affect historical or

archaeological resources in the area since there are none.

138 . The Project will have a positive effect on the

current condition and relative value of functions being

perfo rmed by areas affected by the proposed activity.

139 . Rule 40E - 4.301(1)(f) requires the County to provide

reasonable assurance that the construction and operation of the

surface water management system will not cause adverse secondary

impacts to the wate r resources.

140 . The evidence at hearing established that the Project

will not result in secondary impact s to water resources in the

Lagoon but rather will improve water resources in the area. The

improvement will be accomplished through observance of the

requirements in the Management Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department enter a Final Order

issuing Consolidated Environmental Resource Permit and Sovereign

Submerged La nds Lease, Department File No. 43 - 0298844 - 001 and

Lease No. 430345996, to the County . It is also recommended that

the Consolidated Environmental Resource Permit and Submerged

Lands Lease incorporat e the current drawings and revised

management plan submitt ed by the County after the application

was deemed complete.

DONE AND ENTERED this 7th day of November, 2011, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of November, 2011.

COPIES FURNI SHED:

Virginia P. Sherlock, Esquire

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995 - 1197

Ronald Woodrow Hoenstine, III, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

M ail Station 35

Tallahassee, Florida 32399 - 3000

David A. Acton, Esquire

Martin County

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail S tation 35

Tallahassee, Florida 32399 - 3000

Tom Beason, Gen eral Co unsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

Department of Environmental Protecti on

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.