98-003879 John D. Rood And Jamie A. Rood vs. Larry Hecht And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, March 10, 1999.

Summary: Applicant is entitled to construct a dock subject to certain design changes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN D. ROOD and JAMIE A. ROOD, )

)

Petitioners, )

)

vs. ) Case No. 98-3879

) OGC No. 98-1743

LARRY HECHT and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

)

KENNETH M. SEKINE, M.D. )

and SHERYL A. SEKINE, )

)

Petitioners, )

)

vs. ) Case No. 98-3880

) OGC No. 98-1789

LARRY HECHT and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was provided and on December 15 and 16, 1998, a

formal hearing was held in this case in the Screening Room, 7th

Floor, Planning and Development Department, Florida Theatre

Building, 128 East Forsyth Street, Jacksonville, Florida. The

authority for conducting the hearing is set forth in Sections

120.569 and 120.57, Florida Statutes. The hearing was conducted

by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioners Rood:

Thomas M. Jenks, Esquire

PAPPAS, METCALF, JENKS, MILLER,

and REINSCH, P.A.

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

For Petitioners Sekine:

Ross Bilbrey, Esquire

BRANT, MOORE, MACDONALD

and W ELLS, P.A.

50 North Laura Street, Suite 3100

Jacksonville, Florida 32202

For Respondent Hecht:

William Graessle, Esquire

WINEGEART & GRAESSLE, P.A.

219 Newnan Street, 4th Floor

Jacksonville, Florida 32202

For Respondent Department of Environmental Protection:

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Is the applicant, Larry Hecht (Hecht), entitled to issuance

of an environmental resource permit and consent to use sovereign

submerged land from the Department of Environmental Protection

(DEP), allowing the construction of a dock?

PRELIMINARY STATEMENT

DEP noticed the intent to issue an environmental resource

permit (the environmental permit) and consent to use sovereign

submerged land (consent to use). Following the notice, by

separate petitions, John D. Rood and Jamie A. Rood (the Roods),

and Kenneth M. Sekine, M.D., and Sheryl A. Sekine (the Sekines),

petitioned in opposition to the grant of the environmental permit

and consent to use. Those cases before DEP were forwarded to the

Division of Administrative Hearings with a request that an

administrative law judge be assigned to conduct a hearing to

resolve disputes of material fact in accordance with Section

120.57(1), Florida Statutes. Following assignment, the cases

were noticed for a consolidated hearing that was conducted on the

aforementioned dates.

At hearing, the testimony of Larry Hecht; J. Ronald Henley;

Lake G. Ray, Jr.; Kenneth Sekine, M.D.; Jeremy Tyler; Captain

Donald Stratmann, Jr.; John D. Rood; and Roger Bennett was

adduced. Rood Exhibits 1-7 were admitted, Hecht Exhibits 1-9

were admitted, and DEP Exhibits 1-4 and 6 and 7 were admitted.

DEP Exhibit 5 was denied admission.

DEP filed a Motion in Limine to limit consideration of the

establishment of the riparian rights line between the Rood and

Hecht properties and Petitioners' overall riparian rights in

recognition of the requirements set forth in Rule 18-21.004,

Florida Administrative Code, and the limitations upon an

executive branch agency in considering riparian rights. An order

was entered on December 9, 1998, reminding the parties that an

instruction would be given to the parties at the commencement of

the final hearing concerning the application of the rule to the

administrative proceeding, without deciding as a matter of law

disputes over riparian boundaries and rights, matters which could

only be resolved in a court of competent jurisdiction.

Consistent with that order the limits on proof concerning

riparian boundaries and rights was announced at the commencement

of the hearing as reported and transcribed. The ruling

concerning the limits of consideration of the riparian boundaries

and rights is found on pages 9, 34 through 40, 46 through 54, and

59 in the hearing transcript. These decisions were made in

response to issues framed by the petitions addressing riparian

boundaries and rights.

DEP had moved for official recognition of Chapters 120, 253,

and 373, Florida Statutes, in part and recognition of Rules 18-

21.004 and .005, Florida Administrative Code, together with the

decision of Hageman v. Department of Environmental Protection and

Carter , 17 F.A.L.R. 3684 (DEP 1995). Official recognition was

given as announced at pages 74 through 76 of the hearing

transcript.

Prior to hearing the Roods had moved for a view of the

properties associated with this case. That motion was denied.

Fact stipulations by the parties announced on pages 71

through 73 and 345 through 353 in the hearing transcript were

accepted.

A hearing transcript was filed on January 26, 1999.

All parties timely submitted proposed recommended orders on

February 16, 1999. Those submissions have been considered in the

preparation of the recommended order.

FINDINGS OF FACT

The Parties

1. DEP in the interest of the Board of Trustees of the

Internal Improvement Trust Fund is responsible for reviewing

requests for the use of sovereign lands, to include sovereign

submerged lands. In addition DEP is responsible for decisions

involving applications for environmental permits. In considering

Hecht's request for permission to construct a dock DEP is

exercising the legal authority that has been described.

2. Hecht owns property at 2646 Beauclerc Road in Duval

County, Florida, which fronts Plummers Cove, a part of the

St. Johns River, a class III waterbody. Hecht has applied for

the necessary permits and consent to construct and use a dock

adjacent to his property. Hecht intends to use the dock for

boating access and other forms of recreation.

3. The Sekines live at 2648 Beauclerc Road, immediately

adjacent to the Hecht property. The Sekines property is in Duval

County, Florida.

4. The Sekines have a preexisting dock which has been used

for boating purposes and other forms of recreation.

5. The Roods live at 2635 Forest Circle, Duval County,

Florida. Their property is immediately adjacent to the Hecht

property on the opposite side from the Sekines. The Roods also

have a dock granting access to boating activities and other forms

of recreation.

6. The Sekines and the Rood properties are on Plummers

Cove.

7. On May 18, 1998, DEP gave notice of its intent to issue

necessary permits and consent for Hecht to construct a dock with

conditions.

8. The Roods and Sekines opposed the grant of necessary

permits and consent to use by filing petitions in opposition with

DEP on June 4 and 9, 1998, respectively. Both sets of

Petitioners had similar concerns in opposing the grant of

permission to the extent that the Hecht application for

permission to construct the dock allegedly interfered with

Petitioners' riparian rights, would exceed the minimum length and

size necessary to provide reasonable access to navigable water

and would impede navigation.

The Application

9. In applying for the environmental permits and consent to

use, Hecht relied upon a survey of the applicant's riparian

rights lines performed by Harbor Engineering Company through Lake

Ray, Jr., a civil engineer and land surveyor. Having in mind the

results of that survey, the initial configuration and placement

of the proposed dock has been modified because of problems in

meeting the minimum set back requirement of 25 feet from the

applicant's riparian rights line with the Roods, and in the

absence of a sworn affidavit of no objection from the Roods, the

affected adjacent upland riparian owner. The present alignment

closely conforms to the setback requirement. The design and

placement of the proposed dock in its original placement and

configuration, and as revised, was by J. Ronald Henley, of C & H

Marine Construction, a dock builder.

10. John Rood has also had a riparian rights line survey

performed which depicts the common line between the Rood's

property and the property of Hecht. This survey was performed by

Atlantic Gulf Surveying Co., Inc., a land and engineering survey

firm.

11. The two riparian rights line surveys did not coincide

when addressing the common riparian rights line between the

Roods' property and that of Hecht.

12. Both the Harbor Engineering Survey and Atlantic Gulf

Survey depict the Sekines' dock as crossing the riparian rights

line between the Hecht and Sekines properties.

13. The DEP notice of intent to grant necessary permission

was in relation to the revised application and coincides with the

Harbor Engineering riparian rights line survey.

14. The proposed dock is 400 feet in length. It approaches

the terminus of the existing Sekines' dock within 5 feet 10

inches. To maintain the proposed length and not violate the 25

foot setback line established according to the Harbor Engineering

Survey, it must come that close to the Sekines' dock.

15. The proposed dock design has a boat slip and a slip for

two small water craft, jet skis, within a boat house that totals

38 feet in length on the Sekines side of the proposed dock.

There is an adjacent mooring with pilings spanning 40 feet next

to the location of the boat slips. The proposed dock extends

another 43 feet beyond the boat facilities, to include an area

that is 10 feet long and 20 feet wide at the terminus.

16. From the shoreline in the cove, the Hecht proposed dock

is slightly longer than the existing Roods' dock.

17. The proposed dock and the Roods' dock extend roughly

perpendicular from the shore. The Sekines' dock extends from the

shore on a bias, bringing the existing Sekines' dock in close

proximity with the proposed dock.

DEP Riparian Rights

Evaluation

18. DEP has a rule concerning riparian rights in the

environmental context. That is Rule 18-21.004(3), Florida

Administrative Code. In this case, where riparian rights between

the Hechts, the Roods and the Sekines are unresolved, DEP has

ultimately pursued a policy of permit review and consent to use

on the basis that the two surveys are sufficiently comparable to

allow the application to be examined for its substance,

notwithstanding the dispute over the location of the riparian

lines.

19. Beyond the review of the application, consistent with

prior practices, DEP has imposed a condition upon the grant of

its permission to address future disputes between the land owners

over riparian rights lines. Under its traditional general

consent conditions for use of sovereign submerged lands, at

paragraph 12, DEP has imposed the following on the Hecht permit:

In the event that any part of the

structure(s) consented to herein is

determined by a final adjudication issued by

a court of competent jurisdiction to encroach

on or interfere with adjacent riparian

rights, GRANTEE agrees to either obtain

written consent for the offending structure

from the affected riparian owner or to remove

the interference or encroachment within 60

days from the adjudication. Failure to

comply shall constitute a material breech of

this consent and shall be grounds for its

immediate termination.

20. Jeremy Anthony Tyler, Environmental Administrator for

the Northeast District provided testimony concerning the policy

position of his agency in relation to riparian rights, as well

as, access to navigable water, and navigation.

Minimum Length and Size Necessary to

Provide Reasonable Access to Navigable Water

21. DEP Rule 18-21.005(1)(a)1, Florida Administrative Code,

was used by DEP in considering whether to grant a consent of use

of sovereign submerged land by affording Hecht reasonable access

to navigable water, through the proposed dock, which DEP

considers to be of the minimum length and size necessary to

provide access.

22. Consistent with the rule, in determining the issue of

consent of use, DEP expressed the position at hearing that the

depth of water necessary to grant reasonable access is 4 to 5

feet mean low water, taking into account the alignment of the

proposed dock that is consistent with docks in the area. In

calculating access, the beginning point starts in deeper water

and then moves toward the shore. A further consideration here

was the problem of conformance with riparian rights lines when

identifying access to navigable water. The DEP policy in

establishing reasonable access took into account the intention by

Hecht to moor a boat of 40 plus feet in length, together with

docking a boat of approximately 25 feet in length and two jet

skis.

23. Additionally, consistent with past practices, DEP would

normally approve consent of use for a single-family dock, such as

the proposed dock, which conformed to a written non-rule policy

of the DEP Northeast District related to minimum length and size

criteria. In this instance the proposed application offends the

policy in two respects. First, the proposal has more than two

covered boat slips or two open moorings with adjacent mooring

pilings or a combination of one each. Second, the proposed

application has a mooring area and boat shelter that are 43 feet

from the terminus of the proposed dock. Nonetheless, this policy

on the minimum length and size criteria would allow the applicant

to redesign the dock to meet the criteria that were not

satisfactorily addressed. Thus far, no redesign had been

proposed as an alternative.

24. At hearing DEP, through its witness, conceded that it

had not considered the failure to comply with the number of boat

slips or moorings allowed by the written policy when considering

the application.

25. When C & H Marine Construction redesigned the boat dock

in the interest of providing Hecht access to navigable water for

his water craft, the dock builder also took into account the need

for persons to access the terminus of the Sekines' dock, at least

on one side of that terminus, without the boat traffic to and

from the respective docks creating an unreasonable interference

for use of the adjacent dock. The dock builder in designing the

proposed dock intended to allow sufficient separation between the

boating activities for the proposed dock and those at the

terminus of the Sekines' dock. The Sekines have visitors to

their dock who secure their boats at the terminus of the Sekines'

dock. Nonetheless, the dock builder recognizes the close

proximity between the terminus of the Sekines' dock and the

proposed dock creates problems for the Sekines in the use of

their dock. The engineer who performed the riparian rights line

survey for the applicant recognized this same difficulty.

26. Literally, 4 feet of navigable water at mean low water

can be reached at approximately the 182-foot mark on the proposed

dock, with the five-foot depth mean low water at approximately

211 feet of the proposed dock, but these locations for gaining

access present problems in relation to honoring the 25-foot

setback on the side of the Hecht property near the Roods'

property. The problems are in relation to the riparian rights

line in that there would be insufficient room to install the

proposed boat slips and mooring area and allow for maneuvering in

and out of the boat slips and mooring area without violating the

set back line if those facilities were placed on the side of the

dock adjacent to the Roods' property. Placement of those

facilities on the other side of the dock at those distances at

which the 4 foot and 5 foot depth mean low water would be

obtained would not allow reasonable access when considering the

5'10" opening between the proposed dock and existing dock, in

proximity of the Sekines' dock terminus. Therefore, the present

dock design concerning placement of the slips and mooring is the

better choice.

27. Captain Don Stratmann, Jr., Division of Law

Enforcement, Florida Marine Patrol, which is part of the DEP,

testified concerning access to navigable water by the applicant,

by examining a nautical chart showing the 6-foot curved contour

in the vicinity of the proposed dock, together with the length of

the existing docks in the vicinity and some shallow soundings in

the vicinity. He offered the opinion that the proposed dock was

not unduly lengthy when considering reasonable access to

navigable water, recognizing that the proposed dock is longer

than docks immediately adjacent to it. Captain Stratmann had the

opportunity to view the vicinity of the proposed dock in person.

He had access to a quadrangle map supplied with the application

in arriving at his opinion on reasonable access. In making his

assessment of reasonable access to navigable water, he noted that

some portion of the length of the dock may be attributable to the

contours on the shoreline which are uneven.

28. By contrast, Roger Bennett who is a former Florida

Marine Patrol Officer and a Captain in command of the same

district where Captain Stratmann now commands, expressed the

opinion that the proposed dock exceeds the minimum length and

size necessary to provide reasonable access to navigable water.

He arrived at his opinion by checking the depths of water at the

ends of docks in the vicinity of the proposed dock and observing

the kinds of boats that were found at those docks, whether in a

boat house or moored on pilings. The boat docks tended to be

located in a well-defined line when compared to the shoreline,

following the contour of the shoreline.

29. Neither of the opinions expressed by the present and

former Marine Patrol commanders tended to address the special

circumstances created by the close proximity of the riparian

rights lines of the three property owners and the unusual

placement of the Sekines' dock.

30. Mr. Ray expressed the opinion that the depth of mean

low water for the minimum length for access should be 4 to 5 feet

in elevation. Mr. Ray also expressed the opinion that the

proposed dock would be longer than the Roods' dock because of the

contour of the shoreline.

31. Mr. Henley expressed an opinion concerning the

proximity of the pre-existing docks to the proposed dock as the

reason to extend the proposed dock. Part of his reasoning was in

relation to placement of the proposed dock too close to the

shoreline as not allowing boat operation while maintaining safety

between the proposed dock and the Sekines' dock. He also had

concern for interference with sea grass if placed too close to

shore.

Adverse Affect on Navigation

32. In examining whether the proposed dock constituted an

adverse affect upon navigation, Mr. Tyler spoke of the concept in

terms of a hazard to navigation which he considered to be a dock

sticking out into a marked channel or close to a marked channel,

regularly used as a pathway for boats. He did not find that the

proposed dock would extend into a marked channel in the main part

of the St. Johns River. Moreover, he found that the proposed

dock was fairly consistent with the configuration of existing

docks in the area. Mr. Tyler did not express the opinion that

problems of maneuvering water craft around docks was contemplated

in describing the possible hazard to navigation. He considered

maneuvering around docks to be a riparian rights issue.

33. Captain Stratmann in describing the DEP response to

adverse effects on navigation deferred to 33 C.F.R. 245.20, in

relation to the Corps of Engineers, Department of the Army, and

33 C.F.R. 64.31, in relation to the Coast Guard, Department of

Transportation. Those references have not been incorporated by

DEP into the Florida Administrative Code. Nonetheless, they form

the basis for Captain Stratmann to consider navigational issues

in this instance and in similar past circumstances. He

acknowledged that the references in the federal system are in

relation to determination of hazards to navigation and do not

specifically address adverse affects on navigation contemplated

by Section 374.414(1)(a), Florida Statutes, a lesser problem.

When taking into account the implications of the proposed dock

Captain Stratmann did not feel that any of the criteria that he

employs in relation to Title 33 C.F.R. had been violated. But

his principal emphasis was in relation to navigation in the

navigable channel in the river, similar to Mr. Tyler's opinion.

As with Mr. Tyler, Captain Stratmann did not consider that

boating activities in Plummers Cove constitute that form of

navigation.

34. John Rood pointed out that boating takes place in

Plummers Cove in and around the docks, specifically by persons

water skiing in the Cove, which is calmer than would be the

experience in the river channel away from the Cove. He and other

witnesses acknowledged a sandbar near his dock that influences

boat operations.

35. Mr. Bennett in describing his opinion concerning the

affect on navigation promoted by the proposed dock, noted that

the proposed dock sticks out further in the river than the dock

owned by the Roods, thereby forming an unacceptable hazard to

navigation. Given the frequency of traffic in and out of docks

in the vicinity of the proposed project, Mr. Bennett considers

this traffic to form a potential navigational problem, to include

the proximity of the Hecht proposed dock and the Sekines'

existing dock.

36. Mr. Ray does not consider that the proposed dock forms

a navigational safety hazard, especially when considering the

length of the proposed dock.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in

accordance with Sections 120.569 and 120.57(1), Florida Statutes.

38. Here, the applicant has sought an environmental

resource permit under authority set forth in Part IV of Chapter

373, Florida Statutes, and a consent of use of sovereign

submerged lands in Class III waters, by constructing the proposed

dock. Hecht must prove by a preponderance of the evidence,

giving reasonable assurance, that the activities associated with

the construction of the proposed dock on and over surface waters

of the State is not contrary to the public interest. See

Sections 120.57(1)(h), and 373.414(1), Florida Statutes.

39. Further, in determining whether the activity on and

over the surface waters of the State is not contrary to the

public interest, DEP shall consider whether the activity will

adversely affect navigation, an issue promoted by the Petitioners

in their opposition to the grant of the proposed permit. See

Section 373.414(1)(a)3, Florida Statutes. In consideration of

the statute and DEP policy in furtherance of that section, which

places emphasis on navigation in or near a navigable channel, DEP

has not enlarged, modified, or contravened the statute. The DEP

policy is not vague. The DEP policy establishes adequate

standards for agency decisions. It does not vest unbridled

discretion in the agency. The policy is not arbitrary or

capricious. The policy has been applied to the substantially

affected party, the applicant, with due notice. The policy is

supported by competent and substantial evidence. It does not

impose excessive regulatory costs on the regulated applicant.

These determinations are made based upon the presentation of the

policy concerning adverse affects on navigation and the challenge

to that policy in the hearing de novo . See Section 120.57(1)(e),

Florida Statutes.

40. In summary, Hecht has shown by a preponderance of the

evidence, giving reasonable assurance, that the construction of

the boat dock is not contrary to the public interest, when

considering whether the activity will adversely affect

navigation, consistent with the policy imposed by DEP to examine

that issue.

41. In consideration of the intent to use sovereign

submerged lands, DEP has promulgated Rule 18-21.004(3), Florida

Administrative Code, describing riparian rights, wherein it is

stated:

(a) None of the provisions of this rule

shall be implemented in a manner that would

unreasonably infringe upon the traditional,

common law riparian rights of upland property

owners adjacent to sovereignty lands.

(b) Applications for activities on

sovereignty lands riparian to uplands can

only be made by and approved for the upland

riparian owner, their legally authorized

agent, or persons with sufficient title

interest in uplands for the intended purpose.

(c) All structures and other activities must

be within the riparian rights area of the

applicant and must be designed in a manner

that will not restrict or otherwise infringe

upon the riparian rights of adjacent upland

riparian owners.

(d) All structures and other activities must

be set back a minimum of 25 feet from the

applicant's riparian rights line. Marginal

docks may be set back only 10 feet. There

shall be no exceptions to the setbacks unless

the applicant's shoreline frontage is less

than 65 feet or a sworn affidavit of no

objection is obtained from the affected

adjacent upland riparian owner, or the

proposed structure is a subaqueous utility

line.

In carrying forward this provision, DEP has indicated its intent

on this occasion, given a knowledge of the competing surveys that

have been mentioned in the facts, to proceed with the substantive

assessment of the application, with the imposition of condition

12 in relation to the general consent for use of sovereign

submerged lands. To the extent that this decision by the agency

is seen as an extension of the provisions of law set forth in

Rule 18-21.004(3), Florida Administrative Code, DEP has complied

with the criteria that are set forth in Section 120.57(1)(e),

Florida Statutes, in demonstrating the acceptability of the

unadopted rule. In this context, the applicant has shown

compliance with both Rule 18-21.004(3), Florida Administrative

Code, and the policy by a preponderance of the evidence.

42. In considering the question of the grant of the

requested consent of use to use sovereign submerged lands over

which the dock would be placed, reference is made to Rule 18-

21.005(1)(a)1, Florida Administrative Code, to determine the

question of approval. That provision states that Hecht would be

entitled to:

A . . . single dock . . . which is no more

than the minimum length and size necessary to

provide reasonable access to navigable water.

This requirement is further explained by a preexisting policy

described in the fact finding and the specific treatment of the

issue of reasonable access to navigable water unique to the

present case. In relation to those policies associated with the

question of reasonable access to navigable water, DEP has

demonstrated that the unadopted rule meets the criteria set forth

in Section 120.57(1)(e), Florida Statutes. Moreover, to the

extent that the policy under consideration is other than an

unadopted rule, that is a policy designed specifically for this

permit review, that unique policy does not violate preexisting

law or unreasonably depart from preexisting policy. In this

context Hecht has proven by a preponderance of evidence, that the

proposed dock does not violate the minimum length and size

necessary to provide reasonable access to navigable water, with

the exception that the proposed dock has too many boat slips or

an unallowed mooring and the mooring area and boat shelter is

located other than at the terminus of the proposed dock. For

these reasons, the applicant must redesign the proposed dock by

deleting the mooring or a boat slip and must place these features

at the terminus of the proposed dock, which in this instance

would cause the dock to be shortened by 43 feet before being

allowed to proceed with the project.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered that grants the environmental

resource permit and consent of use subject to the conditions

contained in the intent to grant, and subject to a redesign

deleting the mooring area or a boat slip and 43 feet of dock

extending from the location of the mooring and boat slips.

DONE AND ENTERED this 10th day of March, 1999, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing (8 50) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of March, 1999.

COPIES FURNISHED:

Thomas J. Jenks, Esquire

PAPPAS METCALF JENKS MILLER

AND REINSCH, P.A.

200 West Forsyth Street, Suite 1400

Jacksonville, Florida 32202

William Graessle, Esquire

Winegeart & Graessle, P.A.

219 Newnan Street, 4th Floor

Jacksonville, Florida 32202

Ross Bilbrey, Esquire

Brant, Moore, MacDonald & Wells, P.A.

50 North Laura Street, Suite 3100

Jacksonville, Florida 32202

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

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

this recommended order should be filed with the agency that will

issue the final order in this case.