99-002234 Brenda B. Sheridan vs. Deep Lagoon Marina, A/K/A Deep Lagoon Boat Club, Ltd., And Department Of Environmental Protection Status: Closed Recommended Order on Friday, January 21, 2000.

Summary: Application to modify marina permit to relocate travel boat lift and substitute culverts for flushing channel. Recommended Order: impacts on water quality and manatees de minimis; grant application with additional conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRENDA B. SHERIDAN, )

)

Petitioner, )

)

and )

)

SAVE THE MANATEE CLUB, )

)

Intervenor, )

)

vs. ) Case No. 99-2234

)

DEEP LAGOON BOAT CLUB, LTD., )

d/b/a/ DEEP LAGOON MARINA and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

On September 29-30, 1999, a formal administrative hearing

was held in this case in Fort Myers, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: T. Elaine Holmes, Esquire

14502 North Dale Mabry, Suite 200

Tampa, Florida 33618

For Intervenor: David Gluckman, Esquire

Gluckman and Gluckman

541 Old Magnolia Road

Crawfordville, Florida 32327

For Respondent Deep Lagoon Boat Club, Ltd.:

Matthew D. Uhle, Esquire

Humphrey & Knott, P.A.

1625 Hendry Street

Fort Myers, Florida 33901

For Respondent Depar tment of Environmental Protection:

Francine M. Ffolkes

Senior Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are whether the Department of

Environmental Protection (DEP) should modify the conditions of

permits held by the Deep Lagoon Boat Club, Ltd., d/b/a Deep

Lagoon Marina (Applicant), to allow Applicant to construct and

operate a boat travel lift in a new location at the marina and to

substitute a 60-foot wide flushing channel required by the prior

permits with two-48 inches box culverts.

PRELIMINARY STATEMENT

On March 26, 1999, while formal administrative proceedings

were pending in two related cases in DOAH Case Nos. 98-3901 and

98-5409 (respectively), a proceeding on an application for a

permit for a surface water management system at the marina and a

challenge to an exemption for maintenance dredging at the

marina), DEP issued notice of intent to further modify the

conditions of Applicant's permits for the travel lift and

flushing culverts. Brenda B. Sheridan petitioned for a formal

administrative proceeding, and the matter was referred to DOAH

and scheduled for final hearing. Save the Manatee Club ( STMC)

was permitted to intervene on August 3, 1999.

At final hearing, the parties had Joint Exhibits 1-27

admitted in evidence. Applicant called three witnesses and had

Deep Lagoon Exhibits 1-4 admitted in evidence. DEP called two

witnesses and had DEP Exhibits 1-2 admitted in evidence.

Petitioner called one witness and had Petitioner's Exhibits 1 (a-

f and k-r), 5, 6, and 11 admitted in evidence. STMC called one

witness and had STMC Exhibits 1-4 admitted in evidence.

DEP requested a transcript of the final hearing, and the

parties were given ten days from the filing of the transcript in

which to file proposed recommended orders. The Transcript was

filed on October 27, 1999, and all Proposed Recommended Orders

were filed by November 8, 1999 . On December 1, 1999, Petitioner

and STMC filed a copy of the Recommended Order issued in related

DOAH Case Nos. 98-3901 and 98-5409.

FINDINGS OF FACT

1. Applicant owns and operates Deep Lagoon Marina (the

Marina). The Marina comprises uplands and three canals adjoining

MacGregor Boulevard south of downtown Fort Myers. The Marina

presently consists of 61 wet slips, 200 dry slips, and other

marina-related buildings. The Marina is on Deep Lagoon, a Class

III surface water body less than one-half mile from the

Caloosahatchee River. Deep Lagoon is a short, largely mangrove-

lined waterway that runs north into the Caloosahatchee River.

The Caloosahatchee River runs west from Lake Okeechobee past Fort

Myers to the Gulf of Mexico.

2. One of Applicant's predecessors in interest dredged the

three canals in the 1950s or 1960s, and a marina has existed at

this location since that time. As a result of a purchase in

1997, Applicant owns at least the uplands and claims ownership of

the submerged bottoms of the canals. The parties have stipulated

that ownership of the submerged bottoms of the canals is not

being litigated or decided in this proceeding and that, subject

to the issue's being decided adverse to the Applicant in other

proceedings, sufficient ownership is presumed for purposes of

this proceeding.

3. From north to south, the Marina comprises the north

canal, which is about 1200 feet long and bounded on the north by

a red mangrove fringe 10-20 feet wide; a peninsula; the central

canal, which is also known as the central or main basin and is

roughly the same length as the north canal; a shorter peninsula;

and the south canal, which is about half the length of the

central canal and turns to the southeast at a 45-degree angle

from the midway point of the central canal. The three canals are

dead-end canals, terminating at their eastern ends a short

distance from MacGregor Boulevard.

4. Petitioner, Brenda Sheridan, resides at 842 Cal Cove

Drive, Fort Myers, Florida, which is on the shores of the

Caloosahatchee River at Deep Lagoon, just across the south canal

from the Marina.

5. Intervenor, Save the Manatee Club ( STMC), is a non-

profit Florida corporation with approximately 40,000 members.

The organization's stated purpose includes protecting the manatee

and its habitat through public awareness efforts, research

support and advocacy, which activities benefit manatees, STMC,

and its members.

6. The Florida Legislature has recognized STMC's

substantial interest in manatee protection by designating it a

member of the manatee protection committee provided by the

Florida Manatee Sanctuary Act at paragraph 370.12(2)(p), Florida

Statutes, and by requiring the state to solicit recommendations

from STMC regarding the use of Save the Manatee Trust Fund

monies, at Section 370.12(5)(a), Florida Statutes.

7. Numerous members of STMC reside within Lee County, where

they observe, study, photograph, and actively attempt to protect

manatees from collisions with watercraft. These efforts benefit

manatees and provide STMC's members with educational and

recreational benefits in the waters of Lee County that would be

affected by the proposed activity.

8. STMC has expended substantial resources in advocating

increased legal protection of manatees in Lee County, including

additional boat speed regulations on the Caloosahatchee River.

STMC has also constributed funds for the rescue and

rehabilitation of manatees exposed to red tide in Lee County

waters.

9. Injury, mortality, and loss of important habitat would

produce significant, adverse impacts to the manatee, thereby

diminishing the ability of STMC's members to observe, study, and

enjoy manatees in waters that would be affected by the proposed

activity and frustrating STMC's efforts to preserve and protect

manatees in Lee County.

A. Permit History

10. On December 9, 1986,, Applicant's predecessor in title

applied to DEP's predecessor agency, the Department of

Environmental Regulation (DER), for a dredge and fill permit to

rehabilitate the 61 existing wet slips at the Marina and add 113

new wet slips. Because Deep Lagoon violated Class III water

quality standards, and there was concern for the West Indian

manatee, a listed endangered species which uses the waters in and

around Deep Lagoon, DER placed conditions on the permit and gave

notice of intent to grant the permit, with conditions, on

July 26, 1988.

11. Petitioner and others challenged the issuance of the

permit, and formal administrative proceedings were conducted,

culminating in a final order on August 24, 1989, approving the

permit, with additional conditions, and certifying under the

federal Clean Water Act that state water quality standards were

met because there would be a net improvement in water quality of

the poorly-flushed canals. Sheridan, et al. v. Deep Lagoon

Marina and Dept. of Environmental Reg. , 11 F.A.L.R. 4710 (DER

1989). Wetland Resource Permit 361279929, incorporating all of

the conditions, was issued on September 22, 1989, for

construction and operation of the project for five years (the

1989 Permit).

12. Petitioner and the others appealed the final order. In

Sheridan v. Deep Lagoon Marina , 576 So. 2d 771, 772 (Fla. 1st DCA

1991), the court, relying on the 1987 water quality data, noted

the "very poor water quality" of Deep Lagoon, as reflected in

part by the presence of oil and grease 20 times the Class III

standard, copper 13 times the standard, lead 20 times the

standard, mercury 1000 times the standard, and coliform bacteria

"too numerous to count." However, the court affirmed the

issuance of the 1989 Permit under the statutory authorization of

a permit where ambient water quality does not meet applicable

standards, but the activity will provide a net improvement to the

waters. On the certification issue, though, the court reversed

and remanded. The court held that the hearing officer

erroneously excluded evidence on DER's certification of the

activity as in compliance the federal Clean Water Act.

13. Following proceedings on remand, DER entered Final

Order on Remand on April 10, 1992 , which revoked the earlier

certification of compliance and, citing 33 United States Code

Section 1341, as authority, waived certification as a

precondition to federal permitting. Sheridan, et al. v. Deep

Lagoon Marina and Dept. of Environmental Reg. , 14 F.A.L.R. 2187

(DER 1992).

14. The 1989 Permit expired on September 22, 1994, but

Environmental Resource Permit 362504599 was issued on October 9,

1995, essentially extending the 1989 Permit conditions for ten

years, to October 9, 2005. Minor modificati ons were approved on

November 17, 1995, March 26, 1997, and April 15, 1997.

Environmental Resource Permit 362504599, with all conditions and

subsequent modifications, is referred to as the 1995 Permit.

B. Permit Conditions

15. In general, the 1995 Permit authorizes the owner of the

Marina:

to renovate and expand an existing marina

from 61 wet slips to 174 wet slips by:

excavating 0.358 ac of uplands to create a

flushing canal, installing 375 linear feet of

seawall along the sides of the flushing

canal, excavating 2.43 ac of submerged bottom

to remove contaminated sediments, backfilling

2.41 acres of the dredged area (the main

basin and south canal to -7 ft. MLW and the

north canal to -6 ft. MLW) with clean sand,

renovating the existing 61 slips, and

constructing an additional 14,440 square feet

of overwater decking for 113 new slips,

providing after-the-fact authorization for

construction of 2 finger piers, creating a

400 sq. ft. mangrove fringe, constructing 180

linear feet of seawall in the vicinity of the

mangrove fringe, and relocating and upgrading

fueling facilities.

16. The 1995 Permit authorized activities to proceed in

three phases:

First, the majority of the water quality

improvement measures will be implemented as

required in Specific Condition 5. Second,

the over water docking structures will be

constructed and the fueling facilities will

be upgraded and relocated as required in

Specific Conditions 6 and 7. Third, the new

slips will be occupied in accordance with the

phasing plan in Specific Condition 9.

17. Specific Condition 5 imposed several requirements

designed "to ensure a net improvement in water quality." Among

them, Specific Condition 5 stated in pertinent part:

In order to ensure a net improvement to water

quality within the basin, the construction of

any new docking structures or installation of

any new pilings shall not occur until the

below-listed conditions (A-K) have been

met. . . .

A. A baseline water quality study . . ..

B. A stormwater treatment system providing

treatment meeting the specifications of

Florida Administrative Code 40E-4 for all

discharges into the basins from the project

site shall be constructed. . . .

C. The boat wash area shall be re-designed

and constructed as shown on Sheets 23 and

23A. All water in the washdown area shall

drain into the catch basin of the wastewater

treatment system shown on Sheet 23. The

water passing through the wastewater

treatment system shall drain to the

stormwater management system which was

previously approved by the South Florida

Water Management District. The filters of

the wastewater treatment system shall be

maintained in functional condition. Material

cleaned from the filter shall be disposed of

in receptacles maintained specifically for

that purpose and taken to a sanitary

landfill. This system shall be maintained in

functional condition for the life of the

facility.

D. Contaminated sediments shall be dredged

from the areas shown on Sheets 5 and 7 of 23.

A closed-bucket clam shell dredge shall be

used. The north canal shall be dredged to at

least -9.9 feet MLW and backfilled with clean

sand to -6 feet MLW. The [main] basin shall

be dredged to at least -7.3 feet MLW and

backfilled with clean sand to -7 feet MLW.

The south canal shall be dredged to at least

-10.5 feet MLW and backfilled with clean sand

to at least -7.0 feet MLW. Backfilling shall

be completed within 120 days of completion of

dredging. . . . The sediments shall be

placed directly in sealed trucks, and removed

to a self-contained upland disposal site

which does not have a point of discharge to

waters of the state.

E. A channel, 260 ft. long, 60 ft. wide,

with a bottom elevation of -4.5 ft. MLW shall

be excavated between the north canal and the

main basin to improve flushing.

* * *

K. Upon completion [of] conditions A-J

above, renovation of the existing 61 wet

slips and construction of the 113 additional

wet slips may proceed with the understanding

that construction of all 113 additional slips

is at the risk of the permittee and that if

the success criteria in the monitoring and

occupancy program are not met, removal of all

or part of the additional slips may be

required by the Department.

18. Specific Condition 8 addressed the phasing of occupancy

of the wet slips. Specific Condition 8 provided in pertinent

part:

Occupancy of the additional 113 wet slips

shall occur in two phases, described below.

Permanent occupancy of the slips shall

require [DEP] approval, contingent upon the

water quality monitoring program

demonstrating a statistically significant

(Specific Condition 9) net improvement for

those parameters which did not meet State

Water Quality Standards in the baseline

study. The permittee agrees that if [DEP]

determines that net improvement has not

occurred, or if violations of other standards

occur, and if the corrective measures

described in Specific Condition 10 are not

successful, all of the additional slips

occupied at that time shall be

removed. . . .

Phase I --Upon completion of the baseline

water quality study and the work specified in

Specific Condition No. 5, the existing 61

slips and an additional 56 slips, totalling

117 slips, may be occupied. . . . If at the

end of one year of monitoring, the data

generated from the water quality monitoring

program shows a statistically significant

improvement over baseline conditions, for

those parameters in violation of State Water

Quality Standards, and no violations of

additional parameters, . . . the new 56 slips

which were occupied shall be considered

permanent.

Phase II --Upon written notification from

[DEP] that Phase I was successful, the

remaining 57 additional slips may be

occupied. Water and sediment quality

monitoring shall continue for two years after

the occupancy of 140 of the 174 slips. If a

statistically significant net improvement to

water quality over baseline conditions for

those parameters in violation of State Water

Quality Standards [sic] and no violation of

additional parameters is shown by the

monitoring data, and confirmed by [DEP] in

writing, the additional slips shall be

considered permanent.

19. Specific Condition 11 added:

Implementation of the slip phasing plan

described in Specific Condition 8 shall be

contingent on compliance of boaters with

existing speed zones in the Caloosahatchee

River and trends in manatee and [sic]

mortality. . . . Approval of additional

slips will depend upon manatee mortality

trends and boater compliance with speed zones

in the Caloosahatchee River and additional

slips may not be recommended. . . . Based on

the results of the evaluations of Phases I

and II, [DEP] may require that slips be

removed to adequately protect manatees.

20. Specific Condition 12 required the construction of a

400 square-foot intertidal area for the planting of mangroves to

replace the mangroves lost in the construction of the flushing

channel. Specific Condition 14 prohibited live- aboards at the

marina. Specific Condition 15 added various manatee-protection

provisions.

C. Applicant's DOAH Case Nos. 98-3901 and 98-5409

21. Seeking to satisfy certain of the requirements of

Specific Condition 5 of the 1995 Permit, Applicant filed with

DEP, on December 10, 1997, an application for an Environmental

Resource Permit ( ERP) and water quality certification to

construct a surface water management system to serve 15.4 acres

of its 24-acre marina.

22. On March 3, 1998, Applicant's engineering consultant

submitted drawings to DEP with notification that Applicant

intended to "maintenance dredge the internal canals of Deep

Lagoon Marina," in conformity with Rule 62-312.050(e), Florida

Administrative Code. The letter described the proposed dredging

as mechanical "with no discharge back into Waters of the State."

The letter assured that Applicant's contractor would use

turbidity curtains "around the dredging and spoil unloading

operation" and advised that the contractor would unload the spoil

"to the north peninsula upland area." The letter stated that the

dredging would "be to the design depth/existing canal center line

depth of -7 NGVD," which was established by the 1995 Permit, and

would be "done in conjunction with the required dredging under

[1995 Permit] Condition 5(D)."

23. The consultant attached to the March 3 letter several

drawings showing the dredging of all three canals. For each

canal, the drawings divided the dredging into two areas. (For

1.82 acres, the contractor would dredge contaminated materials

from the dead-ends of the three canals and then replace these

materials with clean backfill material, as already authorized in

the 1995 Permit.) For 4.84 acres, which ran through the

remainder of the three canals, the contractor would maintenance

dredge in accordance with the cross-sections provided with the

letter.

24. By letter dated March 13, 1998, DEP stated its

determination that, pursuant to Rule 40E-4.051(2)(a), Florida

Administrative Code, the proposed activity was exempt from the

requirement to obtain an ERP. The letter warned that, pursuant

to Chapter 62-302, Florida Administrative Code, the construction

and operation of the project must not cause water quality

violations. The letter added that DEP could revoke its

determination of exemption if the "basis for the exemption is

determined to be materially incorrect, or if the installation

results in water quality violations." The letter provided a

point of entry for persons whose substantial interests are

affected by DEP's determination.

25. Petitioner challenged the exempt status of the

maintenance dredging, and STMC intervened in support of the

challenge, which was referred to DOAH and given DOAH Case

No. 98-3901. But Applicant's contractor proceeded during the

pendency of the challenges and completed the maintenance dredging

in the three canals. (Applicant's contractor also performed the

contaminant dredging and clean backfilling authorized by the 1995

Permit.)

26. On November 5, 1998, DEP gave notice of intent to issue

the ERP for the surface water management system and certify

compliance with state water quality standards, pursuant to

Section 401 of the Clean Water Act, 33 United States Code,

Section 1341. Petitioner filed a challenge on December 8, 1998,

and the matter was referred to DOAH, where it was given DOAH Case

No. 98-5409. On February 6, 1999, DEP revised the notice of

intent by withdrawing its certification of state water quality

compliance. As it did with the 1989 Permit, DEP again waived

state water quality certification, consistent with a letter dated

February 2, 1998, in which then-DEP Secretary Virginia Wetherell

announced that DEP would waive state water quality certification

for all activities in which the agency issues an ERP based on the

"net improvement" provisions of Section 373.414(1)(b), Florida

Statutes.

27. DOAH Case Nos. 98-3901 and 98-5409 were pending when

Applicant sought the modifications to the conditions of the 1995

Permit which are the subject of this case (DOAH Case No. 99-

2234).

28. DOAH Case Nos. 98-3901 and 98-5409 were consolidated

and heard by Administrative Law Judge (ALJ) Robert E. Meale on

February 11 and May 3-4, 1999. On November 24, 1999, ALJ Meale

entered a Recommended Order recommending a final order revoking

DEP's determination of an exemption for maintenance dredging in

DOAH Case No. 98-3901 and denying the ERP in DOAH Case No. 98-

5409. The recommendation to deny the ERP in DOAH Case No. 98-

5409 was based on findings and conclusions: (1) that Applicant

had not provided reasonable assurances that the construction and

operation of the proposed surface water management system would

result in a "net improvement" in water quality; and (2) that the

direct and secondary impacts of the construction and operation of

the system would adversely affect the West Indian manatee.

D. Water Quality

29. As indicated in relating the permitting history of this

site, water quality in the waters of the Marina has been poor.

See Findings 10 and 12, supra .

30. ALJ Meale recently found in his Recommended Order on

Case Nos. 98-3901 and 98-5409 as follows:

15. The Caloosahatchee River is laden with

sediments, partly due to intermittent

discharges from Lake Okeechobee. Seagrass in

the riverbottom cannot grow in water much

deeper than four feet. Some seagrass grows

at the mouth of Deep Lagoon, but little

seagrass extends into the lagoon itself.

16. The water quality in the canals is

very poor for dissolved oxygen and copper.

Applicant stipulated that the water quality

in Deep Lagoon violates state standards for

dissolved oxygen, copper, and coliform

bacteria.

17. In 1997, the canals violated water

quality standards for dissolved oxygen nearly

each time sampled during the wet season and

one-third of the times sampled during the dry

season. The dissolved oxygen levels violated

even the lower standards for Class IV

agricultural waters two-thirds of the times

sampled during the wet season.

18. In 1997, the canals violated water

quality standards for copper in the water

column each time sampled during the wet

season and two-thirds of the times sampled

during the dry season. During three of the

dry season samplings, copper levels were 20

to 30 times lawful limits. The three lowest

wet season copper levels were double lawful

limits.

19. Copper is a heavy metal that is toxic

to a wide range of marine organisms. Copper

is applied to boat hulls to prevent marine

life from attaching to the hulls.

20. In 1997, the canals violated water

quality standards for total coliform bacteria

(for any single reading) three of the 60

times sampled during the dry season and one

of the 56 times sampled during the wet

season. The canals violated the more

relaxed, 20-percent standard (which is

violated only if 20 percent of the readings

exceed it) during the wet season, but not

during the dry season.

21. In 1997, the canals violated water

quality standards for lead in the water

column in one sample (by 25 percent) out of

36, but did not violate water quality

standards for oil and grease or fecal

coliform bacteria. Results of testing for

mercury in the water column (as opposed to

sediments) are not contained in the record.

22. As compared to 1987, the water quality

in the canals has improved in all but one

important respect. In 1987, the water column

readings for copper were five to six times

higher than the highest 1997 reading. In

1987, the total coliform bacteria were too

numerous to count because the colonies had

grown together in the sample.

23. However, comparing the April 1987 data

with the May 1997 data for the same

approximate times of day and the same

locations, the dissolved oxygen levels in the

three canals have declined dramatically in

the last 10 years. Ten years ago, in a one-

day sampling period, there were no reported

violations; ten years later, in a one-day

sampling period, there were four violations.

Even worse, the amount of dissolved oxygen in

the water during daylight hours has been

halved in the last 10 years with a smaller

decrease during nighttime hours.

31. In this case, the parties stipulated that the waters of

Deep Lagoon and the Marina are Class III marine waters that do

not meet Florida water quality standards for dissolved oxygen,

copper, and total coliform bacteria. They also stipulated that

there were violations in 1987 for oil and greases (20 times

standard), fecal coliform (too numerous to count), lead (20 times

standard), cadmium (ten times standard), mercury (1,000 times

standard), biological diversity, and tributytin (150 times

standard) (although DEP and Applicant do not think the 1987 data

are relevant).

32. Data collected in 1987 showed average flushing time in

the north canal to be 183 hours (tidal prism method), 90.5 hours

(current velocity), and 50 hours (dye concentration reduction

method). Data collected in 1987 showed average flushing time in

the main basin to be 208 hours (tidal prism method), 48 hours

(current velocity), and 154 hours (dye concentration reduction

method).

E. Manatees

33. The parties stipulated that Lee County is a heavy use

area for the West Indian Manatee and that manatees use the water

south of Deep Lagoon and the Caloosahatchee River on a year-round

basis.

34. ALJ Meale recently found in his Recommended Order on

Case Nos. 98-3901 and 98-5409 as follows:

11. The Caloosahatchee River is critical

habitat for the endangered West Indian

manatee. Up to 500 manatees use the river

during the winter. When, during the winter,

the water cools, the animals congregate in

waters warmed by the thermal discharge from a

power plant about 13 miles upstream of Deep

Lagoon. When, during the winter, the water

warms, the manatees swim downstream, past and

into Deep Lagoon searching for food.

12. Manatees frequently visit Deep Lagoon.

It is one of the few places between the power

plant and the Gulf where manatees can find a

quiet place, relatively free of human

disturbance, to rest and feed.

13. Within Deep Lagoon, the Iona Drainage

District ditch runs parallel to the north

canal, separated from the canal by the

previously described mangrove fringe. The

Iona Drainage District ditch empties into

Deep Lagoon just north of the mouth of the

north canal. Manatees frequently visit the

ditch because it is a seasonal source of

freshwater, which the manatees drink.

Manatees visit the north canal due to its

moderate depths and proximity to the

freshwater outfalls of the Iona Drainage

District ditch.

14. Manatee mortality from watercraft is

extremely high in the immediate vicinity of

Deep Lagoon, and the mortality rate has

increased in recent years. The rate of

manatee deaths from collisions with

watercraft has increased with the popularity

of motorboating. Boat registrations in Lee

County rose from 13,000 in 1974 to 36,000 in

1997. The potential for mitigation offered

by the enactment of speed zones has been

undermined by the fact that nearly half of

the boaters fail to comply with the speed

limits.

35. It is clear that manatees frequent Deep Lagoon near the

mouth of the north canal. There are seagrass beds there to serve

as a food source, and freshwater from the Iona Drainage District

ditch discharges in that area. The evidence in this case

includes testimony and numerous photographs of manatees not only

in that vicinity but up to 200 feet into the north canal. While

there are no seagrass beds in the north canal itself, freshwater

from the Iona Drainage District ditch discharges into the north

canal all along the length of mangrove fringe on the north shore

of the canal. It is not clear how much further up the north

canal manatees go, but they probably frequently continue further

into the north canal since one primary attraction of the north

canal for manatees at this time is its relative quiet and

peacefulness.

36. Manatees also make some use of the central and south

canals of the Marina, but they seem to prefer the north canal for

its peacefulness and for the fresh water supply from the Iona

Drainage District ditch. The Florida Department of

Transportation recently has constructed a retention pond for

MacGregor Boulevard in the vicinity of the Marina which will

discharge fresh water into the main basin of the central canal.

This may make the central canal more attractive to manatees than

it is at this time, notwithstanding the relatively high level of

boating-related activity there.

F. New Boat Travel Lift

37. The Marina's existing boat travel lift is located in

the main basin of the central canal. There also are the remnants

of an older travel lift operation at the western end of the

central peninsula extending into Deep Lagoon. Applicant proposes

to construct and use a new boat travel lift at the eastern

terminus of the north canal. The proposed location of the new

travel lift will be closer to the approved location of a new

service center building.

38. A travel lift essentially consists of a heavy-duty,

U-shaped frame which is built on wheels and motorized for

mobility. Heavy-duty straps are suspended from the frame using

pulley systems. The travel lift is driven out over water on

specially-built tracks so the straps can be placed underneath

large vessels (over 40 feet) and tightened using the pulleys to

secure the vessels; the travel lift is then driven off the

tracks, and the vessels are transported to a dry storage or

repair location, where the vessels are lowered, and the straps

are removed. The process essentially is reversed to return

vessels to the water.

39. The direct impact of construction of the new boat

travel lift involves removal of some mangroves existing at the

terminus of the north canal and sinking pilings to support the

tracks extending into the water on which the travel lift

operates. Applicant proposes to mitigate the mangrove impacts by

filling areas on either side of the proposed travel lift to just

above the mean-high waterline and planting the areas with

mangroves. Not only will this be a net increase the amount of

mangrove fringe, the decrease in water depth at the east end of

the north canal also will improve flushing of the canal to some

extent. Applicant also proposes to remove exotic plants all

along the shoreline of the Marina's canals for the life of the

Marina.

40. It is the Marina's intent to use the travel lift only

for vessels too large to be lifted by forklifts operated at the

main basin of the central canal. The Marina is purchasing new,

larger (37,000 pound) forklifts (compared to the 10,000 pound

forklifts currently in use), which can lift vessels up to

approximately 42 feet long. Use of the larger forklifts will

reduce the use of the travel lift.

41. At this time, there is no proposed specific condition

to limit use to the travel lift to vessels too large to be lifted

by the new forklifts.

42. New Specific Condition 33 in the proposed permit

modifications provides: "Launching of vessels from the dry

storage facilities shall be prohibited in the north canal at the

site." New Specific Condition 34 in the proposed permit

modifications provides in part: "Launching and retrieval of

vessels in the north canal shall be restricted to vessels

stored/moored at the marina facility that require boat repair."

New Specific Condition 34 also would require Applicant to

maintain logs for the travel lift and boat repairs to allow DEP

to verify compliance by comparing the two logs.

43. There was some disagreement as to the intent of the

quoted proposed new specific conditions. A DEP witness thought

it meant that the Marina only could use the travel lift for

repair of vessels permanently moored at the Marina, but the

Marina's representative did not think the language would prohibit

the repair of other vessels as well.

44. Assuming that vessels not permanently moored at the

Marina will be accepted for repairs, and that only vessels too

large for the new forklifts will use the new travel lift, it can

be anticipated that an average of 6-10 vessels a week will use

the travel lift for retrieval from the water and discharge back

to the water. To some extent, use of the travel lift is limited

by the average time it takes to use the lift. But considering

only those limitations, it is possible use the lift as many as 19

times in a day in an emergency-- e.g. , when a hurricane is

approaching, and the Marina is trying to get as many boats out of

the water as possible. On average, use of the travel lift also

will be limited by market conditions and the capacity of the new

service center to store and repair large vessels. More than half

of the average use of 6-10 vessels a week probably will occur on

Fridays (for repairs before peak weekend boating) and Mondays

(for repairs after the weekend peak).

45. At this time, there is no proposed specific condition

to limit use of the new travel lift. But at final hearing, the

Marina expressed its willingness to accept a limit of an average

of ten vessels a week. (Counting retrieval from the water and

discharge back to the water for each vessel, the agreed limit

would be an average of 20 uses of the travel lift a week). The

Marina was not willing to accept a daily limit.

46. Secondary impacts from such a limited use of the

proposed new travel lift on water quality and manatees are

difficult to assess precisely. The travel lift itself uses some

form of lubrication, but only the straps enter the water during

operation. Historically, vessels have been pressure-washed and

had their bilges and engines flushed while on the existing travel

lift in the main basin of the central canal at the Marina, and

wash-water from these operations has entered the main basin at

that location. Wash-water from such operations at the proposed

new travel lift location would enter the north canal, subject to

the construction and operation of an adequate surface water

management system, as required by Specific Condition 5.C. of the

1995 Permit. Cf. DOAH Case No. 98-5409, supra .

47. It is possible that vessels in need of repair entering

the north canal and proceeding to the proposed new travel lift

location (whether under power or being towed) could leak oil or

gasoline. Both contaminants would rise to the surface. Leaked

gasoline and the more volatile components of oil could be

expected to evaporate relatively quickly; the residue of oil

contamination would be persistent. Such spills would affect

water quality and could affect manatees drinking fresher water

from the surface of the north canal. There was no evidence from

which to predict or quantify such impacts.

48. It would be possible for manatees to be injured by

vessels using the proposed new travel lift. Although such

vessels would be traveling at low speed (1-2 mile per hour),

maneuvering such large vessels in close quarters like the north

canal sometimes is accomplished by intermittent bursts of high

engine and propeller speeds, both in forward and reverse gears.

Such operations could cause a vessel to lurch in the direction of

a manatee; if done in reverse gear, a manatee could be sucked

into the speeding propellers. It also is possible for a manatee

to be crushed against the bottom or against a structure of the

Marina facility during such operations.

49. Despite the possibility of injury to manatees from use

of the new proposed travel lift, it is clear that most manatee

injuries and deaths from boat collisions occur as a result of

propeller injuries from boats being operated at high-speed.

Manatees are known to frequent and safely use marinas where large

vessels operate at low speed. The risk of danger to manatees

from use of the proposed new travel lift can be characterized as

being minimal if not speculative, especially in view of the

manatee protections in Specific Condition 15 of the 1995 Permit.

50. Initially, DEP misunderstood the nature of the proposed

new travel lift, thinking it would greatly increase boat traffic

in the north canal. When the minor impact of the project was

explained, DEP's concerns were allayed. Greater risk of danger

to manatees would occur from the addition of wet slips in the

north canal, but those impacts are not secondary to the travel

lift proposal; they are completely separate impacts that are

governed by the pre-existing 1995 Permit.

51. Petitioner and Intervenor were critical of the absence

of a specific condition for the daily logs to be presented to DEP

for inspection on a regular basis. See Finding 42, supra . They

contended that absence of such a requirement would compromise

compliance enforcement. But DEP inspection of the logs at times

of its own choosing could be just as effective. The key to

enforcement is having an enforceable specific condition limiting

use of the travel lift.

52. Petitioner and Intervenor also were critical of using a

simple weekly average to limit use of the new travel lift. They

correctly argue that the time over which the weekly average would

be computed must be designated for such a use limitation to be

enforceable. They also contend that there should be a daily

limit. Assuming a weekly average limitation of ten, a daily

limit of ten would not be unreasonable if it allowed leeway to

exceed the daily limit in cases of emergencies such as

approaching hurricanes.

G. Replacing Flushing Channel with Culverts

53. Applicant's proposal to replace the 60 foot by 4.5

foot-deep flushing channel with two 48-inch culverts is motivated

by practical considerations. Applicant essentially wishes to

avoid the expense of constructing the channel required under the

1995 Permit and having to bridge the channel to make use of the

peninsula between the central and north canals.

54. Part of the Marina's initial motivation for the channel

was to expand operations and allow access to the north canal from

the main basin. Part of the channel was to have been used by the

Marina as a new forklift area with access to boat storage areas

on both sides of the channel.

55. In the 1989 Permit, it was stated that the channel was

"to act as a sediment sump." It was not until the 1995 Permit

that the channel was said to serve to "improve flushing."

56. Most of the "net improvement" of water quality at the

Marina was to come from proposed contamination dredging of the

canals (and backfilling with clean sand), removal of contaminated

soil from Marina uplands, installation of a redesigned boat-wash

area, and installation of an adequate surface water management

system. Most flushing benefits were anticipated to come from

making the canals shallower by back-filling after dredging.

Flushing from the channel was presented as "frosting" on the "net

improvement cake."

57. The hydrographic evidence was that the channel, in

conjunction with back-filling the Marina's canals, would indeed

increase flushing of the Marina's canals to some extent. Looking

at the main basin only, the channel would improve flushing by up

to 27 percent. But looking at the Marina's canals overall, the

channel would only increase flushing by up to 0.6 percent.

58. By comparison, the hydrographic evidence was that the

proposed flushing culverts also would contribute to increased

flushing but by a smaller amount. Looking at the main basin

only, the proposed flushing culverts would improve flushing by up

to 4 percent. Looking at the Marina's canals overall, the

proposed flushing canal would only increase flushing by up to 0.2

percent.

59. Petitioner and Intervenor question the reliability of

Applicant's calculations of flushing times without more up-to-

date data on the depths of the canals after contamination and

maintenance dredging. But the evidence was that differences in

the starting depths would not have a significant effect on the

relative changes in flushing times from the channel versus the

culverts; the differences would be approximately proportional

regardless of the starting depths. In addition, the depths

assumed in Applicant's calculations are based on the 1987 data

and the requirements of the 1995 Permit. Compliance with the

requirements of maintenance dredging and the 1995 Permit can be

enforced, if necessary, in other proceedings. See , e.g. , DOAH

Case No. 98-3901, as to maintenance dredging.

60. Applicant's calculations on flushing times do not

account for the possibility of an additional benefit from the

proposed flushing culverts. Applicant proposes to locate the

culvert inverts at a depth of 6 feet. If a greater salinity

gradient exists at that depth, the culverts would have a relative

advantage over a 4.5 foot-deep channel in terms of flushing and

the exchange of more oxygenated water between the north canal and

the main basin.

61. The existence of such a salinity gradient is suggested

by data collected in 1997. But salinity gradients are not

constant, and water samples were collected only during one 24-

hour period in May 1997 and another 24-hour period in

September 1997. In addition, no data has been collected after

the maintenance and contamination dredging. The sampling in this

case was too limited to give reasonable assurance that the

proposed flushing culverts would have advantages over the

required channel in promoting of flushing.

62. Petitioner and Intervenor contend that changing the

open channel to closed culverts would decrease the benefit of

oxygen exchange in an open-channel system. It is true that,

generally, more oxygen would be introduced in an open system.

But the evidence was that none of the "net improvement" to water

quality from the specific conditions to the 1995 Permit was

anticipated to derive from increases in dissolved oxygen from

oxygen exchange in the channel.

63. Conversely, Applicant contended that the proposed

culverts would decrease the chances of contamination from the

uplands, as compared to an open channel. But there was no

specific evidence to support or quantify this speculative

benefit. In addition, required improvements in surface water

management at the Marina would reduce any such benefits from the

culverts. See , Specific Condition 5.B. and DOAH Case

No. 98-5409.

64. Approximately 60 feet of mangrove fringe would have to

be removed from the north canal to accommodate a flushing

channel. In contrast, only approximately 8 feet of mangrove

fringe would have to be removed to accommodate the proposed

culverts. But there was no evidence as to how removing less of

the mangrove fringe would improve flushing or water quality. In

addition, Specific Condition 12 of the 1995 Permit required

replacement of the mangroves lost in the construction of the

flushing channel.

65. There was no evidence that installation of flushing

culverts instead of the flushing channel required under the 1995

Permit would have any impact on manatees.

CONCLUSIONS OF LAW

66. There is no real dispute as to the standing of

Petitioner or Intervenor based on the stipulated facts. Cf.

Recommended Order , DOAH Case Nos. 98-3901 and 98-5409.

67. Florida Administrative Code Rule 62-4.080(2) states:

"A permittee may request a modification of a permit by applying

to the Department."

68. Florida Administrative Code Rule 62-312.100, governing

"Modification of Permits," provides in pertinent part:

In accordance with Rule 62-4.080(2),

modifications to an existing, currently valid

permit may be requested by the permittee.

The Department will determine whether the

requested modification is minor or major

based on the magnitude and nature of the

proposed change and the potential for

environmental effects different from those

previously determined for the project. Minor

modifications shall be requested by letter,

with revised drawings attached as

appropriate. Minor modifications may include

time extensions where the total time of the

original permit plus the extension remains

within the range of time allowed for the fee

established in Rule 62-4.050, F.A.C., for the

original permit issued. Requests for time

extensions which would cause the total time

of the original permit plus the extension to

exceed the appropriate range of time shall be

considered major modifications. Major

modifications shall be requested by submittal

of a completed application form and the

appropriate fee and shall be processed by the

Department according to Rules 62-312.060 and

62-312.070, F.A.C.

69. Florida Administrative Code Rule 62-312.060, governing

"Procedures to Obtain a Permit," provides in pertinent part:

(1) Unless specifically exempt, permits

shall be required for dredging or filling,

including but not limited to construction of:

. . . boat ramps, lifts or similar lau nching

facilities; . . . canals, canal locks,

bridges or similar crossing structures; as

well as dredging or excavating by any means

and filling or placing of material in, on or

over waters of the state listed in Rule

62-312.030, F.A.C.

(2) . . . Any application for a permit to

dredge or fill shall constitute an

application for certification of compliance

with state water quality standards where

necessary. Similarly, an application for

certification shall constitute an application

for permit.

* * *

(10) During the processing of the permit

application, the Department shall determine

whether or not the application, as submitted,

meets the criteria contained in Sections

403.918(1) and (2)(a)1.-7. and 403.919, F.S.

If the project, as designed, fails to meet

the permitting criteria, the Department shall

discuss with the applicant any modifications

to the project that may bring the project

into compliance with the permitting criteria.

The applicant shall respond to the

Department, in writing, as to whether or not

the identified modification to the proposed

project is practicable and whether the

applicant will make the identified

modification. The term 'modification' shall

not be construed as including the alternative

of not implementing the project in some form.

When the Department determines that the

project, as submitted or modified, fails to

meet the criteria contained in Sections

403.918(1) and (2)(a)1.-7. and 403.919, F.S.,

the applicant may propose mitigation measures

to the Department as provided in Chapter 62-

312, Part III, F.A.C. Nothing herein shall

imply that the Department may not deny an

application for a permit, as submitted or

modified, if it fails to meet the criteria in

Section 403.918(2)(a), F.S., or that

mitigation must be accepted by the

Department.

70. Florida Administrative Code Rule 62-312.070, governing

"Standards for Issuing or Denying Permits; Issuance; Denial,"

provides in pertinent part:

(1) In accordance with Section 403.918(1),

F.S., no permit shall be issued unless the

applicant has provided the Department with

reasonable assurance based on plans, test

results or other information that the

proposed dredging or filling will not violate

water quality standards.

(2) No permit shall be issued unless the

applicant provides the Department with

reasonable assurance based on plans, test

results or other information that the project

is not contrary to the public interest in

accordance with Section 403.918(2), F.S.

* * *

(4) A permit may contain specific

conditions reasonably necessary to assure

compliance with Section 403.918(2), F.S.,

. . . .

* * *

71. Section 403.918, Florida Statutes, was repealed in 1993

and replaced by Section 373.414, Florida Statutes, which sets out

"Additional criteria for activities in surface waters and

wetlands":

(1) As part of an applicant's

demonstration that an activity regulated

under this part will not be harmful to the

water resources or will not be inconsistent

with the overall objectives of the district,

the governing board or the department shall

require the applicant to provide reasonable

assurance that state water quality standards

applicable to waters as defined in s.

403.031(13) will 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. . . .

(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 . . . , the governing

board or the department 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,

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 governing board or the

department, 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.

* * *

3. If the applicant is unable to meet water

quality standards because existing ambient

water quality does not meet standards, the

governing board or the department shall

consider mitigation measures proposed by or

acceptable to the applicant that cause net

improvement of the water quality in the

receiving body of water for those parameters

which do not meet standards.

72. As a major modification of the 1995 Permit, the

Marina's proposal is treated as a new application. Since the

waters of Deep Lagoon and the Marina's canals do not meet

standards, the application ordinarily can be granted only if

mitigation measures in the application "cause net improvement of

the water quality in the receiving body of water for those

parameters which do not meet standards."

73. With respect to the new travel lift, mitigation

includes a net increase in mangrove fringe, improved flushing

from a decrease in water depth at the east end of the north

canal, and removal of exotic plants all along the shoreline of

the Marina's canals. But the evidence was not sufficient to

support a conclusion that those measures would "cause net

improvement of the water quality . . . for those parameters which

do not meet standards." Similarly, with respect to the flushing

culverts, the evidence did not provide reasonable assurance that

substituting the culverts for the flushing channel required by

the 1995 Permit would "cause net improvement of the water quality

. . . for those parameters which do not meet standards."

74. There was some indication in the record that DEP

considered the "net improvement" issue in this case to be a

question of whether the specific conditions in the 1995 Permit,

if modified as proposed in this application, still would result

in a net improvement in water quality as compared to conditions

existing before the 1995 Permit was issued. But such an

interpretation would be contrary to the plain language of DEP's

rules, and there was no evidence explicating why the rules should

be construed in such a manner.

75. While Applicant did not provide reasonable assurance of

a "net improvement of the water quality," the evidence proved

that the environmental impact of the proposed modifications,

together with some additional modifications, would be negligible.

The direct impact of the proposed new travel lift is minimal, and

secondary impacts are minor if not speculative. Likewise, as

compared to the alternative of a flushing channel, the impacts of

the proposed flushing culverts also are minimal. It is

appropriate to grant a dredge and fill permit where environmental

impacts are de minimis . See Friends of the Everglades, Inc. v.

Dept. of Environmental Reg. , 496 So. 2d 181, 183-184 (Fla. 1st

DCA 1986); Caloosa Property Owners' Ass'n, Inc. v. Dept. of

Environmental Reg. , 462 So. 2d 523, 526 (Fla. 1st DCA 1985)( DER's

interpretation of the dredge and fill statutes and rules "as

granting it authority to allow additional discharges of

pollutants into water bodies where the effect on water quality is

found to be negligible, is a permissible one.") See also Florida

Power Corp. v. Dept. of Environmental Reg. , 638 So. 2d 545, 559

(Fla. 1st DCA 1994)(agency properly rejected hearing officer's

conclusion that destruction of six acres of forested wetlands was

de minimis , particularly when used as part of cumulative impact

analysis); 1800 Atlantic Developers v. Department of

Environmental Regulation , 552 So. 2d 946, 951-952 (Fla. 1st DCA

1989), rev. den. , 562 So. 2d 345 (Fla. 1990)(recognizing the de

minimis exception).

76. Turning to the "public interest" test under Section

373.414(1)(b), Florida Statutes, the determination of whether

Applicant has provided reasonable assurances that the proposed

modifications are not contrary to the public interest requires a

balancing of the public interest criteria. Applicant's burden

with regard to the public interest test is "one of reasonable

assurances, not absolute guarantees." Manasota-88, Inc. v.

Agrico Chemical , 12 FALR 1319, 1325 (DER 1990). Applicant's

reasonable assurances must take into account objections of

opponents and deal with reasonably foreseeable contingencies.

Opponents must do more than simply raise "concerns" or

speculation about what "might" occur. See Chipola Basin

Protective Group, Inc. v. Dept. of Environmental Reg. , 11 FALR

467, 480-81 (DER 1988). Whether reasonable assurances under the

public interest test have been provided is a conclusion of law

based on the findings of fact. See Collier Development Corp. v.

Dept. of Environmental Reg. , 592 So. 2d 1107, 1109 (Fla. 2d DCA

1991); 1800 Atlantic Developers v. Dept. of Environmental Reg. ,

supra . See also Save Anna Maria, Inc. v. Dept. of Transp. , 700

So. 2d 113, 116 (Fla. 2d DCA 1997).

77. In this case, the conflict over whether reasonable

assurances have been given that the proposed modifications will

not be contrary to the public interest centers on the impact on

manatees. As found, especially with some additional

modifications, the impact of the proposed new travel lift on

manatees would be minimal if not entirely speculative. This is

not a case, as in Metropolitan Dade County v. Coscan Florida,

Inc. , 609 So. 2d 644, 648-649 (Fla. 3d DCA 1992), where marina

expansion would significantly increase high-speed motorboat

traffic in critical manatee habitat. Those kinds of impacts are

more closely related to the addition of wet slips in the north

canal, which is not secondary to the travel lift proposal but

completely separate impacts that are governed by the pre-existing

1995 Permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order:

(1) granting Applicant's proposed modifications to the 1995

Permit, with the following additional modifications:

1. No use of the new travel lift for boats

less than 40 foot in length except in

emergencies, e.g. , approaching hurricane.

2. Limitation on use of travel lift to a 28-

day rolling average of ten vessels a week,

except in emergencies, e.g. , approaching

hurricane.

3. Prohibition against pressure-washing and

flushing bilges and engines of vessels on the

new travel lift except in the boat wash area

to be constructed and operated in accordance

with Specific Condition 15 of the 1995

Permit.

4. A requirement to report and promptly

clean-up any spills of oil or gasoline in the

north canal related to operation of the new

travel lift.

(2) waiving certification as a precondition to federal

permitting under 33 United States Code, Section 1341.

DONE AND ENTERED this 21st day of January, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

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 21st day of January, 2000.

COPIES FURNISHED:

T. Elaine Holmes, Esquire

14502 North Dale Mabry, Suite 200

Tampa, Florida 33618

David Gluckman, Esquire

Gluckman and Gluckman

541 Old Magnolia Road

Crawfordville, Florida 32327

Matthew D. Uhle, Esquire

Humphrey & Knott, P.A.

1625 Hendry Street

Fort Myers, Florida 33901

Francine M. Ffolkes

Senior Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel

Department of Environmental Protection

Douglas Building, 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.