98-001326 Jeffery Jay Frankel vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, January 12, 1999.

Summary: Applicant failed to provide necessary reasonable assurances to justify his receipt of environmental resource permit and authorization to use state-owned lands for his collection of "live sand."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY JAY FRANKEL, )

)

Petitioner, )

)

vs. ) Case No. 98-1326

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on July 21, 1998, by video teleconference, at sites in

Key West and Tallahassee, Florida, before Stuart M. Lerner, a

duly designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey Jay Frankel, pro se

963 Hawksbill Lane

Sugarloaf Key, Florida 33042

For Respondent: Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioner should be granted the relief requested in

his petition challenging the Department of Environmental

Protection's Consolidated Notice of Denial [of] Environmental

Resource Permit and Consent of Use to Use Sovereign Submerged

Lands.

PRELIMINARY STATEMENT

On or about January 8, 1998, the Department of Environmental

Protection (Department) served on Petitioner a Consolidated

Notice of Denial [of] Environmental Resource Permit and Consent

of Use to Use Sovereign Submerged Lands (Consolidated Notice).

By letter dated January 20, 1998, Petitioner challenged the

Consolidated Notice and requested an administrative hearing on

the matter. On March 20, 1998, the case was referred to the

Division of Administrative Hearings (Division) for assignment of

an Administrative Law Judge to conduct the hearing Petitioner had

requested.

As noted above, the hearing was held on July 21, 1998. Four

witnesses testified at the hearing: Petitioner; Grady Sullivan;

Edward Barham, an Environmental Specialist II with the

Department; and Randal Grau, an Environmental Manager with the

Department. In addition to the testimony of these four

witnesses, various exhibits were offered and received into

evidence.

The evidentiary record was left open to allow the Department

the opportunity to take the depositions of R. J. Helbling and

Bill Lyons and to offer the transcripts of these depositions into

evidence in lieu of the deponents' live testimony. Petitioner

was advised that, if he desired to present any additional

evidence to rebut Mr. Helbling's and Mr. Lyons' testimony, he

needed to so notify the undersigned in writing no later than

seven days from the date of the filing of the deposition

transcripts.

On October 20, 1998, the transcripts of Mr. Helbling's and

Mr. Lyons' depositions (along with two exhibits, Respondent's

Exhibits 25 and 26, that were discussed during the depositions)

were filed with the Division. As of November 12, 1998,

Petitioner had not filed written notification that he desired to

present any rebuttal evidence. Accordingly, on that date, the

undersigned issued an Order in which he announced the following:

1. The transcripts of Mr. Helbling's and Mr.

Lyons' depositions, together with

Respondent's Exhibits 25 and 26, are received

into evidence.

2. Proposed recommended orders in this case

shall be filed with the Division of

Administrative Hearings no later than

January 4, 1999.

Petitioner and the Department, on December 29, 1998, and

January 4, 1999, respectively, filed their proposed recommended

orders. These post-hearing submittals have been carefully

considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is a collector and wholesaler of various

"saltwater products," as defined in Chapter 370, Florida

Statutes. 1

2. He possess a saltwater products license (issued pursuant

to the provisions of Chapter 370, Florida Statutes, and Chapter

46-42, Florida Administrative Code), with a restricted species

and marine life endorsement, which allows him to engage in these

activities.

3. Petitioner collects and sells, among other things, what

is referred to as "live sand," a calcium carbonate sediment used

in public and home aquaria as a decorative detoxifying agent.

4. "Live sand" is found on offshore water bottoms in the

Florida Keys (where Petitioner engages in his collection

activities) and other areas in Florida.

5. "Live sand" consists primarily of the calcified (dead)

remains of Halimeda plants.

6. Halimeda plants (generally on a seasonal basis) produce

plates, which they ultimately shed. These plates, through

various physical and biological processes, are broken down over

time into smaller and smaller granules.

7. Halimeda plants are very productive (in terms of the

number of plates they produce), but they are found only in

certain (not all) offshore areas in the Florida Keys.

8. While the granules that make up the "live sand"

Petitioner collects and sells consist of dead plant matter,

thousands of micro and macroorganisms (in a cubic foot area),

representing numerous species, live amongst these granules and

therefore are also removed from the water as a result of

Petitioner's collection activities.

9. The microorganisms living in "live sand" include

nitrosomous bacteria. The presence of nitrosomous bacteria

enables "live sand" to neutralize the ammonia waste products of

fish in public and home aquaria.

10. Among the macroorganisms living in "live sand" are

mollusks, worms, arthropods, and echinoderms.

11. These organisms are an important part of the diet of

other species, including protected species such as the spiny

lobster ( Panulirus argus ), which itself is part of the food

supply for fish in the area.

12. Petitioner collects "live sand" by diving underwater

and using his hands to scoop up and place in buckets the top

layers of the bottom ("live sand") substrate.

13. Such collection activities have negative environmental

consequences that are not insignificant.

14. They adversely impact water quality in the waters in

which they occur and in adjacent waters inasmuch as they increase

turbidity and reduce biological diversity. Excavation of the top

layer of bottom substrate exposes the siltier sediment below,

which, when disturbed, reduces water clarity and therefore also

the amount of sunlight that penetrates the water. Furthermore,

this newly exposed substrate, because of its anaerobic nature, is

unable to attract a significant benthic community comparable to

that found in the "live sand" that previously covered it.

15. In addition, because these collection activities result

in the removal of organisms that are important components of the

aquatic food chain and in loss of their habitats, these

activities have an adverse effect on marine productivity and,

resultantly, on fishing and recreational values.

16. The "live sand" that is the subject of the instant

controversy is located in Monroe County within the boundaries of

the Florida Keys National Marine Sanctuary in state waters

designated Class III, Outstanding Florida Waters (OFW). 2

17. Petitioner first contacted the Department in writing

regarding the removal of this "live sand" in May of 1997, when he

sent the Department a letter which read, in pertinent part, as

follows:

REF: Collection of Sand for Use in Aquari[a]

Pursuant to our recent telephone

conversation, I respectfully request that I

receive a letter of de minimis for the

aforementioned activity.

The sand is collected by hand using five

gallon buckets. The collection occurs under

water [at] a depth of approximately 20 feet.

The sand occurs in an area devoid of marine

grasses, plants and corals. No sand is taken

from or near shorelines and no sedimentary

resultant is produced. I intend to collect

four five gallon buckets each of which

contains 50 pounds of sand. This collection

is to occur once a month. . . .

18. By letter dated June 2, 1997, the Department

acknowledged receipt of Petitioner's letter and requested that he

provide "additional information" to enable the Department to

determine whether it should grant him "an exemption from the need

for an Environmental Resource Permit pursuant to Part IV, Chapter

373, Florida Statutes (F.S.), and an authorization to use state-

owned submerged lands, pursuant to Chapters 253 and 258, F.S., to

collect sand, by hand, from underwater."

19. On August 28, 1997, Petitioner supplied the Department

with an "addendum to [his] original request for consideration" in

which he specified the location of his "proposed collection" of

"live sand" as "Lat. N 24.31.29 - Lon. W 081.34.40.

20. The Department deemed Petitioner's "addendum"

insufficient to render his paperwork "complete." By letter dated

September 23, 1997, the Department so advised Petitioner. Along

with letter, the Department provided Petitioner with the

following "revised request for additional information identifying

the remaining items necessary to complete [his] application":

Part I

REVISED COMPLETENESS SUMMARY FOR SAND

COLLECTION

1. The proposed project will require an

Environmental Resource Permit. The correct

processing fee for this project is $500.00.

Provide a $500 processing fee payable to the

Department of Environmental Protection.

2. In your letter received May 6, 1997,

requesting a De Minimis exemption you state

you intend to collect four (4), five (5)

gallon buckets of sand each of which contains

fifty (50) pounds of sand per month. A

letter you submitted to the Department from

the Army Corps of Engineers (dated May 9,

1997) states you will collect four (4) or

five (5), five (5) gallon buckets three (3)

times per month. Please indicate the

quantity of sand you propose[] to collect per

month.

Part II CONSENT OF USE (Chapters 18-18, 18-20

and 18-21, Florida Administrative Code)

For your information

If the project develops to the point where

proposed dredging will be recommended for

authorization, payment for the removal of

sovereign submerged land will be required at

$3.25 per cubic yard, or a minimum payment of

$50.00 prior to issuance of the

authorization. Do not provide payment until

requested by Department staff. [See 18-

21.011(3)(a), F.A.C.]

21. Petitioner timely responded to the Department's

"revised request for additional information" by letter dated

October 10, 1997, to which he attached the requested "processing

fee." In his letter, Petitioner advised the Department that it

was his "intent to collect approximately 600 (six hundred) pounds

of material each month."

22. Following its receipt of Petitioner's letter and

accompanying "processing fee," the Department sent letters to

potentially affected parties advising them of Petitioner's

"proposed [sand collection] activit[ies]" and soliciting their

comments concerning these activities. The Florida Department of

Community Affairs responded to the Department's request by

indicating, in written correspondence it sent to the Department,

that it had "no objection to the proposed project." The National

Oceanic and Atmospheric Administration (NOAA) also provided

written comments to the Department. It did so by letter dated

November 21, 1997, which read as follows:

The following are comments from the Florida

Keys National Marine Sanctuary (FKNMS)

concerning the application from Jeff Frankel

to collect live sand, File No 44-0128760-001.

These comments reflect the consensus of both

NOAA and FDEP Sanctuary staff.

The harvest of live sand is viewed by the

Sanctuary as dredging. This activity is

considered neither fishing nor traditional

fishing activity. Therefore, "harvesting of

live sand" is within the prohibition against

dredging, or otherwise altering the seabed of

the Sanctuary and does not fall within the

exception for "traditional fishing

activities" as Mr. Frankel asserts. As such

this activity should not be conducted in the

Sanctuary without a Federal or State permit.

The Sanctuary is opposed to permitting this

activity in Federal or State waters for the

following reasons:

1) As stated above, it is a dredging 3

activity which is prohibited.

2) The Sanctuary exists because of the

unique and nationally significant resources

found here. These resources exist due to the

dynamic ecosystem of which sand, and the

meiofaunal communities found therein, is a

major component. The Sanctuary is opposed to

unnecessary alteration of the ecosystem

particularly when viable alternatives exist

such as harvesting outside the FKNMS in Gulf

waters and aquaculture.

3) Sixty-five percent of the Sanctuary

seabottom is State sovereign lands. Removal

of the quantities of substrate for commercial

purposes does not appear to be in the public

interest.

4) Pursuant to the intragency compact

agreement between the State of Florida and

the National Oceanic and Atmospheric

Administration dated May 19, 1997, NOAA will

not permit a prohibited activity in federal

waters in the Sanctuary that is not allowed

in the State waters of the Sanctuary.

We appreciate the opportunity to comment on

this application.

23. On January 8, 1998, the Department issued its

Consolidated Notice of Denial [of] Environmental Resource Permit

and Consent of Use to Use Sovereign Submerged Lands. In its

Consolidated Notice, the Department gave the following reasons

for its action:

The Department hereby denies the permit for

the following reason:

The proposed project will directly impact

water quality by removal of approximately 660

pounds of "live sand" from state-owned

sovereign submerged land each month. The

material collected consists of dead

calcareous green algae ( Halimeda spp.) and

calcium carbonate grains. This substrate is

important habitat for grazers and

detritivores and it contains an extensive and

diverse invertebrate community. . . .

The project as proposed does not comply with

the specific criteria within; Chapter 373,

F.S., F.A.C. Rule 62-300, and Section 4.2 of

the Basis of Review for Environmental

Resource Permit Applications within the

South Florida Water Management District.

The above impacts are expected to adversely

affect marine productivity, fisheries,

wildlife habitat, and water quality.

The applicant has not provided reasonable

assurance that the immediate and long-term

impacts of the project will not result in the

violation of water quality standards pursuant

to F.A.C. Rule 62-312.150(3) and 62-312.070.

Specific State Water Quality Standards in

F.A.C. Rules 62-302.500, 62-302.510, 62-

302.560 and 62-4.242 that will be affected by

the completion of the project include the

following:

Biological Integrity- . . . .

This project will also result in the

following matter which are not clearly in the

public interest pursuant to Section

373.414(1)(a), F.S.:

a. adversely affect the conservation of fish

and wildlife, including endangered species,

or their habitats;

b. diminish the current condition and

relative value of functions being performed

by areas affected by the proposed activity;

c. adversely affect the fishing or

recreational values or marine productivity in

the vicinity of the activity;

d. the activity will be permanent in nature;

e. adversely affect the functions and

relative value of the habitat within the area

of the proposed project.

Therefore, the Applicant has not provided

reasonable assurance that the project is

clearly in the public interest pursuant to

Section 373.414(1)(a), F.S.

The request for authorization to use

sovereign submerged lands is denied because

the Applicant has not met all applicable

requirements for proprietary authorizations

to use sovereign submerged lands, pursuant to

Article X, Section 11 of the Florida

Constitution, Chapter 253 F,S., associated

Chapter 18-21, F.A.C., and the policies of

the Board of Trustees.

Specifically, operation of the activity is

inconsistent with management policies,

standards and criteria of F.A.C. Rule 18-

21.00401(2) and 18-21.004. The Applicant has

not provided reasonable assurance that the

activity will be clearly "in the public

interest," will maintain essentially natural

conditions, will not cause adverse impacts to

fish and wildlife resources or public

recreation or navigation, and will not

interfere with the riparian rights of

adjacent property owners.

In addition, the project is inconsistent with

the goals and objectives of the "Conceptual

State Lands Management Plan," adopted by the

Board of Trustees on March 17, 1981.

The . . . activity is inconsistent with

Section 18-21.00401(2), F.A.C., the

authorization to use sovereign submerged

lands cannot be approved, in accordance with

Sections 18-21.00401 and 62-343.075, F.A.C.,

because the activity does not meet the

conditions for issuance of a standard general

of individual permit under Part IV of Chapter

373, F.S., as described above.

24. The Consolidated Notice accurately describes the

adverse impacts of the "project" which is subject of the instant

case (Project).

25. Petitioner has not proposed any measures to mitigate

these adverse impacts.

26. If the Department authorizes the Project, it is

reasonable to anticipate that other collectors of "live sand"

would seek the Department's approval to engage in similar

activity in the area.

27. If these other projects were also approved, there would

be additional adverse environmental consequences.

28. As the Consolidated Notice alleges, Petitioner has

failed to provide reasonable assurance that the Project would not

degrade the ambient water quality of the OFW in which the Project

would be undertaken, nor has he provided reasonable assurance

that the Project is clearly in the public interest.

CONCLUSIONS OF LAW

29. Article X, Section 11, of the Florida Constitution

provides as follows with respect to "[s]overeignty lands," such

as those in the Florida Keys National Marine Sanctuary from which

Petitioner proposes to remove "live sand":

The title to lands under navigable waters,

within the boundaries of the state, which

have not been alienated, including beaches

below mean high water lines, is held by the

state, by virtue of its sovereignty, in trust

for all the people. Sale of such lands may

be authorized by law, but only when in the

public interest. Private use of portions of

such lands may be authorized by law, but only

when not contrary to the public interest.

30. Pursuant to 253.03(1), Florida Statutes, the Board of

Trustees of the Internal Improvement Trust Fund (Board), which is

comprised of the Governor and Cabinet, "is vested and charged

with the acquisition, administration, management, control,

supervision, conservation, protection, and disposition" of all

state-owned lands, including those "sovereignty lands" referenced

in Article X, Section 11, of the Florida Constitution.

31. The Board has also been delegated the authority to

adopt rules necessary to carry out these functions. Section

253.03(7)(a), Florida Statutes.

32. The Board has adopted such rules.

33. One such rule the Board has adopted is Rule 18-21.004,

Florida Administrative Code, which sets forth "[m]anagement

[p]olicies, [s]tandards, and [c]riteria." It provides, in

pertinent part, as follows:

The following management policies, standards,

and criteria shall be used in determining

whether to approve, approve with conditions

or modifications, or deny all requests for

activities on sovereign submerged lands.

(1) General Proprietary

(a) For approval, all activities on

sovereignty lands must be not contrary to the

public interest, except for sales which must

be in the public interest.

(b) All leases, easements, deeds or other

forms of approval for sovereignty land

activities shall contain such terms,

conditions, or restrictions as deemed

necessary to protect and manage sovereignty

lands.

(c) Equitable compensation shall be required

for leases and easements which generate

revenues, monies or profits for the user or

that limit or preempt general public use.

Public utilities and state or other

governmental agencies exempted by law shall

be excepted from this requirement.

(d) Activities on sovereignty lands shall be

limited to water dependent activities only

unless the [B]oard determines that it is in

the public interest to allow an exception as

determined by a case by case evaluation.

Public projects which are primarily intended

to provide access to and use of the

waterfront may be permitted to contain minor

uses which are not water dependent if:

1. located in areas along seawalls or other

nonnatural shorelines;

2. located outside of aquatic preserves or

class II waters; and

3. the nonwater dependent uses are

incidental to the basic purpose of the

project, and constitute only minor nearshore

encroachments on sovereign lands. . . .

(e) Stilt houses, boathouses with living

quarters, or other such residential

structures shall be prohibited on sovereignty

lands.

(f) The State Lands Management Plan shall be

considered and utilized in developing

recommendations for all activities on

sovereignty lands. . . .

(2) Resource Management

(a) All sovereignty lands shall be

considered single use lands and shall be

managed primarily for the maintenance of

essentially natural conditions, propagation

of fish and wildlife, and traditional

recreational uses such as fishing, boating,

and swimming. Compatible secondary purposes

and uses which will not detract from or

interfere with the primary purpose may be

allowed.

(b) Activities which would result in

significant adverse impacts to sovereignty

lands and associated resources shall not be

approved unless there is no reasonable

alternative and adequate mitigation is

proposed.

(c) The Department . . . biological

assessments and reports by other agencies

with related statutory, management, or

regulatory authority may be considered in

evaluating specific requests to use

sovereignty lands. Any such reports sent to

the [D]epartment in a timely manner shall be

considered.

(d) Activities shall be designed to minimize

or eliminate any cutting, removal, or

destruction of wetland vegetation (as listed

in Rule 17-4.020(17), Florida Administrative

Code) on sovereignty lands. . . .

(g) Severance of materials from sovereignty

lands shall be approved only if the proposed

dredging is the minimum amount necessary to

accomplish the stated purpose and is designed

to minimize the need for maintenance

dredging.

(h) Severance of materials for the primary

purpose of providing upland fill shall not be

approved unless no other reasonable source of

materials is available or the activity is

determined to be in the public interest.

(i) Activities on sovereignty lands shall be

designed to minimize or eliminate adverse

impacts on fish and wildlife habitat.

Special attention and consideration shall be

given to endangered and threatened species

habitat.

(j) To the maximum extent feasible, all

beach compatible dredge materials shall be

placed on beaches or within the nearshore

sand system. . . .

34. Another rule adopted by the Board pursuant to the

authority delegated it pursuant to Section 253.03(7)(a), Florida

Statutes is Rule 18-21.003, Florida Administrative Code,

subsection (40) of which provides as follows:

"Public interest" [as used in Rule 18-21.004,

Florida Administrative Code] means

demonstrable environmental, social, and

economic benefits which would accrue to the

public at large as a result of a proposed

action, and which would clearly exceed all

demonstrable environmental, social, and

economic costs of the proposed action. In

determining the public interest in a request

for use, sale, lease, or transfer of interest

in sovereignty lands or severance of

materials from sovereignty lands, the [B]oard

shall consider the ultimate project and

purpose to be served by said use, sale,

lease, or transfer of lands or materials.

35. The rules adopted by the Board in Chapter 18-21,

Florida Administrative Code:

are to implement the administrative and

management responsibilities of the [B]oard

and [D]epartment regarding sovereign

submerged lands. Responsibility for

environmental permitting of activities and

water quality protection on sovereign and

other lands is vested with the Department of

Environmental Protection. These rules are

considered cumulative. Therefore, a person

planning an activity should consult other

applicable department rules as well as the

rules of the Department of Environmental

Protection.

Rule 18-21.002(1), Florida Administrative Code.

36. The Board is authorized to delegate to the Department

"any statutory duty or obligation relating to the acquisition,

administration, or disposition" of state-owned land. Section

253.002(1), Florida Statutes. "Delegations to the [D]epartment

. . . of authority to take final action on applications for

authorization to use submerged lands owned by the [B]oard . . . ,

without any action on behalf of the [B]oard . . . , [must] be by

rule." Section 253.002(2), Florida Statutes.

37. The Board has adopted a rule, Rule 18-21.0051, Florida

Administrative Code, delegating to the Department:

the authority to review and take final agency

action on applications to use sovereign

submerged lands when the application involves

an activity for which that agency has

permitting responsibility . . . unless the

proposed activity includes any of the

following:

(a) docking facilities with more than 50

slips, and additions to existing docking

facilities where the number of proposed new

slips exceeds 10% of the existing slips and

the total number of existing and proposed

additional slips exceeds 50;

(b) docking facilities having a preempted

area, as defined in Subsection 18-21.003(38),

F.A.C., of more than 50,000 square feet, and

additions to existing docking facilities

where the size of the proposed additional

preempted area exceeds 10% of the existing

preempted area and the total of existing and

proposed additional preempted area exceeds

50,000 square feet;

(c) private easements of more than 5 acres;

or

(d) the establishment of a mitigation bank.

38. In exercising its delegated authority "to review and

take final agency action on applications to use sovereign

submerged lands," the Department must act in accordance with the

provisions of Article X, Section 11, of the Florida Constitution,

Chapter 253, Florida Statutes, and Chapter 18-21, Florida

Administrative Code.

39. Section 373.427, Florida Statutes, authorizes the

Department to adopt a rule "requiring concurrent application

submittal and establishing a concurrent review procedure for any

activity regulated under [Chapter 373, Part IV, Florida Statutes]

that also requires . . . [p]ropriety authorization under

[C]hapter 253 . . . to use submerged lands owned by the [B]oard,"

such as the dredging and collection activity proposed by

Petitioner in the instant case. 4

40. The Department has adopted such a rule, Rule

62-343.075, Florida Administrative Code, which provides, in

pertinent part, as follows:

(1) A single application shall be submitted

and reviewed for activities that require an

individual or standard general environmental

resource permit under Part IV of Chapter 373,

F.S., and a proprietary authorization under

Chapters 253 . . ., F.S., to use sovereign

submerged lands. In such cases, the

application shall not be deemed complete, and

the timeframes for approval or denial shall

not commence, until all information required

by applicable provisions of Part IV of

Chapter 373, F.S., and proprietary

authorization under Chapters 253 . . ., F.S.,

and rules adopted thereunder for both the

environmental resource permit and the

proprietary authorization is received.

(2) No application under this section shall

be approved until all the requirements of

applicable provisions of Part IV of Chapter

373, F.S., and proprietary authorization

under Chapters 253 . . ., F.S., and rules

adopted thereunder for both the individual or

standard general environmental resource

permit and the proprietary authorization are

met. The approval shall be subject to all

permit conditions imposed by such rules.

(3) For an application reviewed under this

section for which a request for proprietary

authorization to use sovereign submerged

lands has been delegated to the Department

. . . to take final action without action by

the Board of Trustees of the Internal

Improvement Trust Fund, the Department . . .

shall issue a consolidated notice of intent

to issue or deny the environmental resource

permit and the proprietary authorization

within 90 days of receiving a complete

application under this section. . . .

(5) . . . [I]f an administrative proceeding

under Section 120.57, F.S., is properly

requested on both the environmental resource

permit and the proprietary authorization

under this section, the review shall be

conducted as a single consolidated

administrative proceeding. If an

administrative proceeding under Section

120.57, F.S., is properly requested on either

the environmental resource permit or the

proprietary authorization under this section,

final agency action shall not be taken on

either authorization until the administrative

proceeding is concluded.

(6) Appellate review of any consolidated

order under this section is governed by the 5

provisions of Section 373.4275, F.S. . . .

41. Before determining whether, and under what conditions,

if any, it should grant a request for an environmental resource

permit under Chapter 373, Part IV, Florida Statutes (made, as

required by Rule 62-343.075, Florida Administrative Code,

concurrently with a request for proprietary authorization to use

state-owned submerged lands), the Department must evaluate the

request in light of the following provisions of Section 373.414,

Florida Statutes:

(1) . . . [T]he [D]epartment shall require

the applicant to provide reasonable assurance

that state water quality standards applicable

to waters as defined in s. 403.031(13) will 6

not be violated and reasonable assurance

that such activity in, on, or over surface

waters or wetlands, as delineated in s.

373.421(1), is not contrary to the public

interest. However, if such an activity

significantly degrades or is within an

Outstanding Florida Water, as provided by

[D]epartment rule, the applicant must provide

reasonable assurance that the proposed

activity will be clearly in the public

interest.

(a) In determining whether an activity,

which is in, on, or over surface waters or

wetlands, as delineated in s. 373.421(1), and

is regulated under this part, is not contrary

to the public interest or is clearly in the

public interest, . . . the [D]epartment shall

consider and balance the following criteria:

1. Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the activity will adversely

affect the conservation of fish and wildlife,

including endangered or threatened species, 7

or their habitats;

3. Whether the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will adversely

affect or will enhance significant historical

and archaeological resources under the

provisions of s. 267.061; and

7. The current condition and relative value

of functions being performed by areas

affected by the proposed activity.

(b) If the applicant is unable to otherwise

meet the criteria set forth in this

subsection, . . . the [D]epartment, in

deciding to grant or deny a permit, shall

consider measures proposed by or acceptable

to the applicant to mitigate adverse effects

that may be caused by the regulated activity.

Such measures may include, but are not

limited to, onsite mitigation, offsite

mitigation, offsite regional mitigation, and

the purchase of mitigation credits from

mitigation banks permitted under s. 373.4136.

It shall be the responsibility of the

applicant to choose the form of mitigation.

The mitigation must offset the adverse

effects caused by the regulated

activity. . . .

(8) . . . [T]he D]epartment, in deciding

whether to grant or deny a permit for an

activity regulated under this part shall

consider the cumulative impacts upon surface

water and wetlands, as delineated in s.

373.421(1), within the same drainage basin as

defined in s. 373.403(9), of:

(a) The activity for which the permit is

sought.

(b) Projects which are existing or

activities regulated under this part which

are under construction or projects for which

permits or determinations pursuant to

s. 373.421 or s. 403.914 have been sought.

(c) Activities which are under review,

approved, or vested pursuant to s. 380.06, or

other activities regulated under this part

which may reasonably be expected to be

located within surface waters or wetlands, as

delineated in s. 373.421(1), in the same

drainage basin as defined in s. 373.403(9),

based upon the comprehensive plans, adopted

pursuant to chapter 163, of the local

governments having jurisdiction over the

activities, or applicable land use

restrictions and regulations. . . .

42. "Reasonable assurance," as used in Section 373.414,

Florida Statutes, "contemplates . . . a substantial likelihood

that the project [for which the environmental resource permit is

sought] will be successfully implemented." Metropolitan Dade

County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992).

43. Section 373.414, Florida Statutes, "is prohibitory. It

requires reasonable assurance before the project is started that

water quality [and the public interest] will not be violated. It

is not within the [Department's] province to allow [an applicant]

to proceed with a project . . . with no idea as to what the

effect on water quality [and the public interest] will be."

Metropolitan Dade County v. Coscan Florida, Inc. ,

609 So. 2d 644, 648 (Fla. 3d DCA 1992).

44. In determining the adverse effects of a proposed

project, the Department should take into consideration not only

the direct impacts of the project, but also the "secondary"

impacts caused or enabled by the project. See Florida Power

Corporation v. Department of Environmental Regulation , 605 So. 2d

149, 152 (Fla. 1st DCA 1992); The Conservancy, Inc. v. A. Vernon

Allen Builder, Inc. , 580 So. 2d 772, 779 (Fla. 1st DCA 1991).

45. An applicant seeking an environmental resource permit

"need not show any particular need or net public benefit as a

condition of obtaining the permit." In cases where the proposed

activity "would substantially degrade water quality or materially

harm the natural environment, [however,] the fact that a

substantial public need or benefit would be met by approving the

project may be taken into consideration in balancing adverse

environmental effects. This is the purpose of the public

interest test and the seven statutory criteria." 1800 Atlantic

Developers v. Department of Environmental Regulation , 552 So. 2d

946, 958 (Fla. 1st DCA 1989).

46. Where, as in the instant case, the Department issues a

consolidated notice of intent to deny the environmental resource

permit and proprietary authorization sought by the applicant, the

applicant bears the ultimate burden (in a Section 120.57(1)

hearing on such preliminary action) of demonstrating, by a

preponderance of the evidence, entitlement to the requested

permit and authorization. See Metropolitan Dade County v. Coscan

Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Pershing

Industries, Inc., v. Department of Banking and Finance , 591

So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v. Department of

Environmental Regulation , 582 So. 2d 652, 654 (Fla. 1st DCA

1991); Department of Transportation v. J.W.C., Co. , 396 So. 2d

778, 787 (Fla. 1st DCA 1981); Department of Health and

Rehabilitative Services v. Career Service Commission , 289 So. 2d

412, 414-15 (Fla. 4th DCA 1974).

47. When the record evidence in the instant case is

examined in light of the constitutional, statutory, and rule

provisions cited above governing the issuance of environmental

resource permits and proprietary authorizations it must be

concluded that Petitioner has failed to meet his burden of proof.

48. He has not provided, through his evidentiary

presentation, reasonable assurances that the Project (which would

be undertaken on state-owned submerged lands in an Outstanding

Florida Water) would not result in violation of state water

quality standards, that the Project would be clearly in the

"public interest," as that term is used in Section 373.414,

Florida Statutes (relating to requests for environmental resource

permits), or that the Project would not be contrary to the

"public interest," as defined in Rule 18-21.003(40), Florida

Administrative Code (relating to requests for proprietary

authorizations).

49. It does not appear from the evidentiary record in this

case that there is a reasonable likelihood that the adverse

effects of the Project would be outweighed by the Project's

benefits. Furthermore, Petitioner has not proposed, nor has he

agreed to, any specific mitigative measure or measures that would

offset the adverse effects of the Project to such an extent as to

justify the Department's approval of the Project.

50. In view of the foregoing, Petitioner should be granted

neither an environmental resource permit for the Project, nor a

lease to use sovereign submerged lands.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order denying

Petitioners' application for an environmental resource permit and

for a lease to use sovereign submerged lands.

DONE AND ENTERED this 12th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 1999.

ENDNOTES

1 "Saltwater products," as used in Chapter 370, Florida Statutes,

are "any species of saltwater fish, marine plant, or echinoderm,

except shells, and salted, cured, canned, or smoked seafood."

2 With respect to Petitioner's collection of "live sand" in

federal waters outside the boundaries of the Florida Keys

National Marine Sanctuary, Petitioner received the following

correspondence, dated May 9, 1997, from the United States Army

Corps of Engineers:

Reference is made to your inquiry on 3 May

1997, concerning the collection of sand which

is located in various depths of water beyond

the three mile limit outside the boundaries

of the Florida Keys National Marine

Sanctuary. The sand is collected underwater

by hand and placed in five gallon buckets and

then winced to the surface. The amount

collected is normally four or five buckets

(each bucket weighs approximately 50 pounds)

three times a month. The sand is collected

from unvegetated areas, which are also devoid

of marine communities such as hard or soft

corals, offshore of Monroe County, Florida.

The project as proposed is considered de

minimis activity and is not currently

regulated under Section 10 of the Rivers and

Harbors Act of 1899. Furthermore, a permit

will not be required in accordance with

Section 404 of the Clean Water Act as it will

not involve the discharge of dredged or fill

material into waters of the United States.

This letter does not obviate the requirement

to obtain any other Federal, State, or local

permits which may be necessary for your

project.

Thank you for your cooperation with our

permit program.

3 NOAA's regulations governing the Florida Keys National Marine

Sanctuary are found, among other places in 15 CFR Part 922,

Section 922.163(a)(3) of which provides, in pertinent part, as

follows:

§ 922.163 Prohibited activities--Sanctuary-

wide.

[T]he following activities are prohibited and

thus are unlawful for any person to conduct

or to cause to be conducted:

(3) Alteration of, or construction on, the

seabed. Drilling into, dredging, or

otherwise altering the seabed of the

Sanctuary, or engaging in prop-dredging; or

constructing, placing or abandoning any

structure, material, or other matter on the

seabed of the Sanctuary, except as an

incidental result of: . . .

(ii) Traditional fishing activities not

otherwise prohibited by this part; . . .

4 "Dredging," as used in Part IV (Sections 373.403 through

373.461) of Chapter 373, Florida Statutes, is defined in Section

373.403(13), Florida Statutes, as follows:

"Dredging" means excavation, by any means, in

surface waters or wetlands, as delineated in

s. 373.421(1). It also means the excavation,

or creation, of a water body which is, or is

to be, connected to surface waters or

wetlands, as delineated in s. 373.421(1),

directly or via an excavated water body or

series of water bodies.

"Dredging" in state waters is an activity regulated by Chapter

373, Part IV, Florida Statutes, for which an environmental

resource permit must be obtained unless the activity is exempt

from such permitting requirements pursuant to Section 373.406,

Florida Statutes, which provides as follows:

373.406 Exemptions.–

The following exemptions shall apply:

(1) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to affect the right of any

natural person to capture, discharge, and use

water for purposes permitted by law.

(2) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to affect the right of any

person engaged in the occupation of

agriculture, silviculture, floriculture, or

horticulture to alter the topography of any

tract of land for purposes consistent with

the practice of such occupation. However,

such alteration may not be for the sole or

predominant purpose of impounding or

obstructing surface waters.

(3) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to be applicable to

construction, operation, or maintenance of

any agricultural closed system. However,

part II of this chapter shall be applicable

as to the taking and discharging of water for

filling, replenishing, and maintaining the

water level in any such agricultural closed

system. This subsection shall not be

construed to eliminate the necessity to meet

generally accepted engineering practices for

construction, operation, and maintenance of

dams, dikes, or levees.

(4) All rights and restrictions set forth in

this section shall be enforced by the

governing board or the Department of

Environmental Protection or its successor

agency, and nothing contained herein shall be

construed to establish a basis for a cause of

action for private litigants.

(5) The department or the governing board

may by rule establish general permits for

stormwater management systems which have,

either singularly or cumulatively, minimal

environmental impact. The department or the

governing board also may establish by rule

exemptions or general permits that implement

interagency agreements entered into pursuant

to s. 373.046, s. 378.202, s. 378.205, or s.

378.402.

(6) Any district or the department may

exempt from regulation under this part those

activities that the district or department

determines will have only minimal or

insignificant individual or cumulative

adverse impacts on the water resources of the

district. The district and the department

are authorized to determine, on a case-by-

case basis, whether a specific activity comes

within this exemption. Requests to qualify

for this exemption shall be submitted in

writing to the district or department, and

such activities shall not be commenced

without a written determination from the

district or department confirming that the

activity qualifies for the exemption.

(7) Nothing in this part, or in any rule or

order adopted under this part, may be

construed to require a permit for mining

activities for which an operator receives a

life-of-the-mine permit under s. 378.901.

Petitioner maintains that he is not required to obtain an

environmental resource permit from the Department to collect

"live sand" from state waters in the Florida Keys National Marine

Sanctuary because he has already been issued a saltwater products

license that authorizes him to collect Halimeda . The argument is

without merit. Halimeda is a restricted "tropical ornamental

marine plant" that Petitioner, by virtue of having obtained his

saltwater products license, is permitted to harvest alive . See

Rules 46-42.001(4)(b), 46-42.002(14), and 46-42.0035, Florida

Administrative Code. His saltwater products license, however,

does not authorize him to engage in the dredging activity

involved in the collection of "live sand" (which contains the

remains of dead Halimeda plants) from state waters. Such

dredging activity is subject to the permitting requirements of

Chapter 373, Part IV, Florida Statutes. Had the Legislature

desired to exempt the excavation of bottom material by those

possessing a saltwater products license from these requirements

it could have provided for such an exemption in Section 373.406,

Florida Statutes. Its failure to have done so is compelling

evidence that no such exemption was intended. See Department of

Health and Rehabilitative Services v. Hartsfield , 443 So. 2d 322,

324-25 (Fla. 1st DCA 1983); Florida Legal Services v. Department

of Labor and Employment Security , 381 So. 2d 1120, 1122 (Fla. 1st

DCA 1979)("Therefore the rule ' expressio unius est exclusio

alterius," seems to apply. Where the legislature creates

specific exceptions to the language in a statute, we may apply

the rule to infer that 'had the legislature intended to establish

other exceptions it would have done so clearly and

unequivocally.'"). Petitioner also argues, in the alternative,

that he should be issued "a letter of de minimis " pursuant to

subsection (6) of Section 373.406, Florida Statutes. Petitioner

had the burden of proving his entitlement to this exemption by

showing that his "activities . . . will have minimal or

insignificant individual or cumulative adverse impacts on . . .

water resources." Cf . Green v. Pederson , 99 So. 2d 292, 296

(Fla. 1957)("It is well settled that he who would shelter himself

under an exemption clause in a tax statute must show clearly he

is entitled under the law to [the] exemption."). A review of the

evidentiary record in the instant case reveals that Petitioner

failed to make such a showing.

5 Section 373.4275, Florida Statutes, provides, in pertinent

part, as follows:

(a) The final order issued under this

section shall contain separate findings of

fact and conclusions of law, and a ruling

that individually addresses each

authorization, permit, . . and approval that

was the subject of the review.

(b) If a consolidated order includes

proprietary authorization under chapter 253 .

. . . to use submerged lands owned by the

Board of Trustees of the Internal Improvement

Trust Fund for an activity for which the

authority has been delegated to take final

agency action without action of the [B] oard.

. . ., the following additional provisions

and exceptions to s. 373.114(1) apply:

1. The Governor and Cabinet shall sit

concurrently as the Land and Water

Adjudicatory Commission and the Board of

Trustees of the Internal Improvement Trust

Fund in exercising the exclusive authority to

review the order;

2. The review may also be initiated by the

Governor or any member of the Cabinet within

20 days after the rendering of the order in

which case the other provisions of s.

373.114(1)(a) regarding acceptance of a

request for review do not apply; and

3. If the Governor and Cabinet find that an

authorization to use submerged lands is not

consistent with chapter 253 . . ., any

authorization, permit, . . . or approval

authorized or granted by the consolidated

order must be rescinded or modified or the

proceeding must be remanded for further

action consistent with the order issued under

this section. . . .

6 Rule 62-4.242(2), Florida Administrative Code, prescribes

"state water quality standards" applicable to Outstanding Florida

Waters. It provides, in pertinent part, as follows:

(2) Standards Applying to Outstanding

Florida Waters

(a) No Department permit or water quality

certification shall be issued for any

proposed activity or discharge within an

Outstanding Florida Waters, or which

significantly degrades, either alone or in

combination with other stationary

installations, any Outstanding Florida

Waters, unless the applicant affirmatively

demonstrates that: . . .

2. The proposed activity of discharge is

clearly in the public interest,

and . . . .

b. The existing ambient water quality within

Outstanding Florida Waters will not be

lowered as a result of the proposed activity

or discharge, except on a temporary basis

during construction for a period not to

exceed thirty days . . . .

7 "If the proposed project will have an adverse effect on the

endangered species or its habitat, then the standard [described

in subsection (1)(a)2 of Section 373.414, Florida Statutes] is

violated. This is so even if the adverse effect is not so great

as to jeopardize the continued existence of the species."

Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d 644,

650 (Fla. 3d DCA 1992).

COPIES FURNISHED:

Jeffrey Jay Frankel, pro se

963 Hawksbill Lane

Sugarloaf Key, Florida 33042

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Office of the General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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

this recommended order should be filed with the agency that will

issue the final order in this case.

1 "Saltwater products," as used in Chapter 370, Florida

Statutes, are "any species of saltwater fish, marine plant, or

echinoderm, except shells, and salted, cured, canned, or smoked

seafood."

2 With respect to Petitioner's collection of "live sand" in

federal waters outside the boundaries of the Florida Keys

National Marine Sanctuary, Petitioner received the following

correspondence, dated May 9, 1997, from the United States Army

Corps of Engineers:

Reference is made to your inquiry on 3 May

1997, concerning the collection of sand which

is located in various depths of water beyond

the three mile limit outside the boundaries

of the Florida Keys National Marine

Sanctuary. The sand is collected underwater

by hand and placed in five gallon buckets and

then winced to the surface. The amount

collected is normally four or five buckets

(each bucket weighs approximately 50 pounds)

three times a month. The sand is collected

from unvegetated areas, which are also devoid

of marine communities such as hard or soft

corals, offshore of Monroe County, Florida.

The project as proposed is considered de

minimis activity and is not currently

regulated under Section 10 of the Rivers and

Harbors Act of 1899. Furthermore, a permit

will not be required in accordance with

Section 404 of the Clean Water Act as it will

not involve the discharge of dredged or fill

material into waters of the United States.

This letter does not obviate the requirement

to obtain any other Federal, State, or local

permits which may be necessary for your

project.

Thank you for your cooperation with our

permit program.

3 NOAA's regulations governing the Florida Keys National Marine

Sanctuary are found, among other places in 15 CFR Part 922,

Section 922.163(a)(3) of which provides, in pertinent part, as

follows:

§ 922.163 Prohibited activities--Sanctuary-

wide.

[T]he following activities are prohibited and

thus are unlawful for any person to conduct

or to cause to be conducted:

(3) Alteration of, or construction on, the

seabed. Drilling into, dredging, or

otherwise altering the seabed of the

Sanctuary, or engaging in prop-dredging; or

constructing, placing or abandoning any

structure, material, or other matter on the

seabed of the Sanctuary, except as an

incidental result of: . . .

(ii) Traditional fishing activities not

otherwise prohibited by this part; . . .

4 "Dredging," as used in Part IV (Sections 373.403 through

373.461) of Chapter 373, Florida Statutes, is defined in Section

373.403(13), Florida Statutes, as follows:

"Dredging" means excavation, by any means, in

surface waters or wetlands, as delineated in

s. 373.421(1). It also means the excavation,

or creation, of a water body which is, or is

to be, connected to surface waters or

wetlands, as delineated in s. 373.421(1),

directly or via an excavated water body or

series of water bodies.

"Dredging" in state waters is an activity regulated by Chapter

373, Part IV, Florida Statutes, for which an environmental

resource permit must be obtained unless the activity is exempt

from such permitting requirements pursuant to Section 373.406,

Florida Statutes, which provides as follows:

373.406 Exemptions.–

The following exemptions shall apply:

(1) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to affect the right of any

natural person to capture, discharge, and use

water for purposes permitted by law.

(2) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to affect the right of any

person engaged in the occupation of

agriculture, silviculture, floriculture, or

horticulture to alter the topography of any

tract of land for purposes consistent with

the practice of such occupation. However,

such alteration may not be for the sole or

predominant purpose of impounding or

obstructing surface waters.

(3) Nothing herein, or in any rule,

regulation, or order adopted pursuant hereto,

shall be construed to be applicable to

construction, operation, or maintenance of

any agricultural closed system. However,

part II of this chapter shall be applicable

as to the taking and discharging of water for

filling, replenishing, and maintaining the

water level in any such agricultural closed

system. This subsection shall not be

construed to eliminate the necessity to meet

generally accepted engineering practices for

construction, operation, and maintenance of

dams, dikes, or levees.

(4) All rights and restrictions set forth in

this section shall be enforced by the

governing board or the Department of

Environmental Protection or its successor

agency, and nothing contained herein shall be

construed to establish a basis for a cause of

action for private litigants.

(5) The department or the governing board

may by rule establish general permits for

stormwater management systems which have,

either singularly or cumulatively, minimal

environmental impact. The department or the

governing board also may establish by rule

exemptions or general permits that implement

interagency agreements entered into pursuant

to s. 373.046, s. 378.202, s. 378.205, or s.

378.402.

(6) Any district or the department may

exempt from regulation under this part those

activities that the district or department

determines will have only minimal or

insignificant individual or cumulative

adverse impacts on the water resources of the

district. The district and the department

are authorized to determine, on a case-by-

case basis, whether a specific activity comes

within this exemption. Requests to qualify

for this exemption shall be submitted in

writing to the district or department, and

such activities shall not be commenced

without a written determination from the

district or department confirming that the

activity qualifies for the exemption.

(7) Nothing in this part, or in any rule or

order adopted under this part, may be

construed to require a permit for mining

activities for which an operator receives a

life-of-the-mine permit under s. 378.901.

Petitioner maintains that he is not required to obtain an

environmental resource permit from the Department to collect

"live sand" from state waters in the Florida Keys National Marine

Sanctuary because he has already been issued a saltwater products

license that authorizes him to collect Halimeda . The argument is

without merit. Halimeda is a restricted "tropical ornamental

marine plant" that Petitioner, by virtue of having obtained his

saltwater products license, is permitted to harvest alive . See

Rules 46-42.001(4)(b), 46-42.002(14), and 46-42.0035, Florida

Administrative Code. His saltwater products license, however,

does not authorize him to engage in the dredging activity

involved in the collection of "live sand" (which contains the

remains of dead Halimeda plants) from state waters. Such

dredging activity is subject to the permitting requirements of

Chapter 373, Part IV, Florida Statutes. Had the Legislature

intended to exempt the excavation of bottom material by those

possessing a saltwater products license from these requirements

it would provided for such an exemption in Section 373.406,

Florida Statutes. Its failure to have done so is compelling

evidence that no such exemption was intended. See Department of

Health and Rehabilitative Services v. Hartsfield , 443 So. 2d 322,

324-25 (Fla. 1st DCA 1983); Florida Legal Services v. Department

of Labor and Employment Security , 381 So. 2d 1120, 1122 (Fla. 1st

DCA 1979)("Therefore the rule ' expressio unius est exclusio

alterius," seems to apply. Where the legislature creates

specific exceptions to the language in a statute, we may apply

the rule to infer that 'had the legislature intended to establish

other exceptions it would have done so clearly and

unequivocally.'"). Petitioner also argues, in the alternative,

that he should be issued "a letter of de minimis " pursuant to

subsection (6) of Section 373.406, Florida Statutes. Petitioner

had the burden of proving his entitlement to this exemption by

showing that his "activities . . . will have minimal or

insignificant individual or cumulative adverse impacts on . . .

water resources." Cf . Green v. Pederson , 99 So. 2d 292, 296

(Fla. 1957)("It is well settled that he who would shelter himself

under an exemption clause in a tax statute must show clearly he

is entitled under the law to [the] exemption."). A review of the

evidentiary record in the instant case reveals that Petitioner

failed to make such a showing.

5 Section 373.4275, Florida Statutes, provides, in pertinent

part, as follows:

(a) The final order issued under this

section shall contain separate findings of

fact and conclusions of law, and a ruling

that individually addresses each

authorization, permit, . . and approval that

was the subject of the review.

(b) If a consolidated order includes

proprietary authorization under chapter 253 .

. . . to use submerged lands owned by the

Board of Trustees of the Internal Improvement

Trust Fund for an activity for which the

authority has been delegated to take final

agency action without action of the [B] oard.

. . ., the following additional provisions

and exceptions to s. 373.114(1) apply:

1. The Governor and Cabinet shall sit

concurrently as the Land and Water

Adjudicatory Commission and the Board of

Trustees of the Internal Improvement Trust

Fund in exercising the exclusive authority to

review the order;

2. The review may also be initiated by the

Governor or any member of the Cabinet within

20 days after the rendering of the order in

which case the other provisions of s.

373.114(1)(a) regarding acceptance of a

request for review do not apply; and

3. If the Governor and Cabinet find that an

authorization to use submerged lands is not

consistent with chapter 253 . . ., any

authorization, permit, . . . or approval

authorized or granted by the consolidated

order must be rescinded or modified or the

proceeding must be remanded for further

action consistent with the order issued under

this section. . . .

6 Rule 62-4.242(2), Florida Administrative Code, prescribes

"state water quality standards" applicable to Outstanding Florida

Waters. It provides, in pertinent part, as follows:

(2) Standards Applying to Outstanding

Florida Waters

(a) No Department permit or water quality

certification shall be issued for any

proposed activity or discharge within an

Outstanding Florida Waters, or which

significantly degrades, either alone or in

combination with other stationary

installations, any Outstanding Florida

Waters, unless the applicant affirmatively

demonstrates that: . . .

2. The proposed activity of discharge is

clearly in the public interest,

and . . . .

b. The existing ambient water quality within

Outstanding Florida Waters will not be

lowered as a result of the proposed activity

or discharge, except on a temporary basis

during construction for a period not to

exceed thirty days . . . .

7 "If the proposed project will have an adverse effect on the

endangered species or its habitat, then the standard [described

in subsection (1)(a)2 of Section 373.414, Florida Statutes] is

violated. This is so even if the adverse effect is not so great

as to jeopardize the continued existence of the species."

Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d 644,

650 (Fla. 3d DCA 1992).