STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ZELLWOOD DRAINAGE AND WATER ) CONTROL DISTRICT, )
)
Petitioner, )
)
vs. ) CASE NO. 94-6578RP
)
ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT, )
)
Respondent, )
and )
) FRIENDS OF LAKE APOPKA, INC., )
)
Intervenor. )
)
FINAL ORDER
Notice was provided and on January 23 through 27, 1995, a hearing was conducted to consider the challenge to proposed rule 40C-61, proposed by the St. Johns River Water Management District. Authority for conducting the hearing is set forth in Section 120.54(4), Florida Statutes. The hearing was held in the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams was the hearing officer.
APPEARANCES
For Petitioner, Zellwood Steve Lewis, Esquire Drainage and Water Control John W. Forehand, Esquire
District (Zellwood): Lewis, Longman and Walker, P.A.
Post Office Box 10788 Tallahassee, Florida 32302
For Respondent, St. Johns Wayne E. Flowers, Esquire River Water Management Eric T. Olsen, Esquire District (St. Johns): St. Johns River Water
Management District Post Office Box 1429
Palatka, Florida 32078-1429
For Intervenor, Friends James Hawley, Board Member of Lake Apopka, Inc. Jack Amonn, President (Friends): Friends of Lake Apopka, Inc.
c/o Thomas K. Maurer, Esquire
111 North Orange Avenue Suite 1800
Orlando, Florida 32801
STATEMENT OF ISSUES
Appendix "A" to the final order describes the issues of fact and law which must be resolved.
PRELIMINARY STATEMENT
Several petitions were filed with the Division of Administrative Hearings challenging St. Johns' proposed rule 40C-61. The Director of the Division of Administrative Hearings having determined that the petitions were facially sufficient, the cases were assigned to hearing officer P. Michael Ruff to conduct the final hearing addressing those challenges. In turn hearing officer Ruff consolidated the present case with A. Duda and Sons, Inc. v. St. Johns River Water Management District, DOAH Case No. 94-6580RP and Zellwood Farms Corporation, et al. v. St. Johns River Water Management District, DOAH Case No. 94-6579RP.
The petition by Friends to intervene in this case was granted. Its representative attended the hearing and read a statement into the record supporting proposed rule 40C-61. Otherwise Friends did not participate in the hearing.
Prior to hearing the Petitioners in DOAH Case No. 94-6580RP and DOAH Case No. 94-6579RP voluntarily withdrew their petitions.
St. Johns moved to dismiss or strike portions of the petition filed by Zellwood. Following a response by Zellwood, hearing officer Ruff entered an order on January 18, 1995, granting the motion in part and denying the motion in part. The order granted leave for Zellwood to amend its petition. An amended petition was filed on January 20, 1995. As described, the issues in the case were ultimately pled in the prehearing stipulation between the parties.
Hearing officer Ruff was unable to conclude the final hearing in Department of Agriculture and Consumer Services v. E.I. Dupont De Nemours and Company, DOAH Case No. 94-2850 before the final hearing commenced in the present case.
Therefore hearing officer Charles C. Adams substituted for hearing officer Ruff and conducted the hearing in the present proceeding.
Appendix B to the final order is a prehearing stipulation concerning the witnesses to be called by the parties and their respective expertise.
Zellwood called as witnesses Giles Van Duyne, Sanford Young, Dr. Patrick Brezonik and Dr. Curtis Pollman. Zellwood's exhibits 1 through 9, 12 through 16 and 19 through 22 were admitted as evidence.
St. Johns called as witnesses Dr. David Toth, Dr. Edgar F. Lowe, Dr.
Lawrence Battoe, Dr. David Stites, Dr. Michael Coveney, Carol Fall, and Jeff Elledge. The testimony by Daniel Thompson, Esquire, was not accepted; however, that testimony was proffered for the record. The testimony of Dr. K. Ramesh Reddy was presented by deposition, St. John's Exhibit No. 5. St. John's Exhibits 1 through 21, 23 through 26, 29 through 34, 37 through 53 and 58 through 71 were admitted as direct proof. St. John's Exhibits 43, 54 and 55 were denied admission. St. John's Exhibits 65 and 66 were admitted for purposes of impeachment. St. John's Exhibit 61 was withdrawn and made a part of St.
John's Exhibit 2.
A hearing transcript was prepared and filed. The parties requested and were granted more than ten days to submit their proposed final orders.
Therefore, the requirement for entering a final order within 30 days from the transcript filing date was waived. See Rule 60Q-2.031, Florida Administrative Code. The fact finding proposed by the parties is discussed in Appendix "C" to the final order.
FINDINGS OF FACT FACTS STIPULATED BY THE PARTIES
This proceeding is a Subsection 120.54(4), Florida Statutes, rule challenge to proposed Rule 40C-61 proposed by St. Johns and published in Volume 20, Number 44, on pages 8142 through 8151, of the November 4, 1994, issue of the Florida Administrative Weekly (FAW), as subsequently modified by St. Johns' Governing Board on December 14, 1994, and January 11, 1995.
The proposed rule adopts Lake Apopka; the Lulu Creek, Teacup Springs, and Fullers Cross tributaries; the Lake Level, and Apopka-Beauclair canals, and the McDonald canal west of the Zellwood Drainage and Water Control District exterior levee; as "works of the District," and collectively refers to them as the "Lake Apopka works of the District." With certain exceptions not relevant to this proceeding, the proposed rule requires persons who discharge water into any of the Lake Apopka works of the District to obtain a works of the District permit.
The proposed rule then establishes a maximum number of pounds of phosphorus per year which may be discharged into these Lake Apopka works of the District from controllable sources (the "nutrient limitation"). The nutrient limitation is divided into several source categories one of which is any agricultural operation existing on January 1, 1995, which discharges water to any of the Lake Apopka works of the District by incorporating a pumped discharge from stationary or portable facilities ("pumped agriculture"). The pumped agriculture source category is collectively limited to 10,351 pounds of phosphorus annually.
Zellwood is a legislatively created water control district authorized, among other things, to provide for drainage works and water supply for the lands located within its geographical boundaries.
Zellwood covers approximately 8,700 acres which are primarily devoted to the growing of vegetables.
The landowners own and farm the land within Zellwood. Zellwood also owns land within its boundaries.
In connection with the agricultural operations conducted by landowners, and in connection with the functions Zellwood carries out in order to meet its responsibilities to landowners, Zellwood periodically discharges water containing phosphorus to the Lake Level Canal and Lake Apopka through a pump system which it operates for the benefit of the landowners.
The landowners will be required to obtain an individual works of the District permit under the proposed rule because the landowners are agricultural operations existing on January 1, 1995, which discharge water, directly or indirectly, to Lake Apopka and Lake Level Canal by incorporating a pumped discharge from stationary or portable facilities. The proposed rule allows
persons required to obtain individual permits to submit a collective application for an individual permit based upon a management plan for a defined geographic area. Zellwood will submit a collective application for an individual permit for the landowners.
Under a collective application, to obtain an individual permit and comply with the proposed rule, Zellwood will have to reduce the 40,675 pounds of phosphorus per year which Zellwood is currently allowed to discharge to Lake Level Canal and Lake Apopka under a Consent Order between Zellwood and St. Johns, to 6,873 pounds of phosphorus per year.
Zellwood is substantially affected by the proposed rule.
Lake Apopka is designated by the Department of Environmental Protection (DEP) as a Class III water body. (Rule 17-302.600(1), Florida Administrative Code)
The designated uses for Class III water bodies are" "[r]ecreation, propagation and maintenance of a healthy, well balanced population of fish and wildlife." (Rules 17.302.400(1) and 17.302.600(1), Florida Administrative Code)
For water quality standard purposes, phosphorus is categorized as a nutrient. The nutrient standard for Class III water bodies is: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna." (Rule 17.302.530 (48)(b), Florida Administrative Code). Florida law provides no generally applicable numeric standard for Class III water bodies for phosphorus.
The transparency water quality standard for Class III water bodies is "[d]epth of compensation point for photosynthetic activity shall not be reduced by more than 10 percent as compared to natural background value." (Rule 17- 302.530(68), Florida Administrative Code)
The "[c]ompensation point for photosynthetic activity" is defined as "the depth at which one percent of the light intensity at the surface remains unabsorbed." (Rule 17-302.200(5), Florida Administrative Code)
Rule 17-302.200(13), Florida Administrative Code, defines "[n]atural background" as "the condition of water in the absence of man-induced alterations based on the best scientific information available to the Department." The rule further provides that: "[t]he establishment of a natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data."
Lake Apopka is a hyper-eutrophic lake enriched with nutrient levels that exceed the Class III standard for nutrients. Lake Apopka also does not currently meet the Class III water quality standard for transparency.
In order to determine, for purposes of the proposed rule, the maximum number of pounds of phosphorus per year from all sources which could be discharged into Lake Apopka to cause the lake to meet the Class III water quality standard for the nutrient phosphorus and the Class III standard for transparency, St. Johns staff conducted analyses intended to determine the historic water chemistry conditions in Lake Apopka to establish values for the natural background condition of the lake. St. Johns used this information to determine goals for the major indicators of trophic state (total phosphorus,
chlorophyll a, and secchi depth) which, if attained, would cause the lake to once again meet Class III standards.
The St. Johns' analyses to determine the historic water chemistry of Lake Apopka and the goals for the major indicators of trophic state consisted of: (a) an analysis of reference lakes which are not as severely impacted by human activities as Lake Apopka which St. Johns believed to be comparable to what Lake Apopka would be; (b) an analysis of using an empirical model that related phosphorus concentrations to other water quality constituents to estimate pre-impact conditions and the minimum quality allowed by Class III standards; and (c) an input-output model. Zellwood does not dispute the analysis which was used in the empirical model or the input-output model analysis.
St. Johns then used the steady-state formulation of Volenweider's 1969 input-output model to predict the equilibrium phosphorus concentration in Lake Apopka under various phosphorus loading scenarios.
A variable which is used by this Volenweider model is a sedimentation coefficient. St. Johns defined the sedimentation coefficient as the mean annual net deposition of phosphorus to the sediments divided by the mean lake water mass of phosphorus.
The sedimentation coefficient value St. Johns used in the model was developed from data obtained from two sets of lake sediment samples taken 19 years apart.
Using this sedimentation coefficient in the Volenweider model, St. Johns determined the equilibrium concentration of phosphorus in Lake Apopka that would be predicted to result from various levels of phosphorus loading.
St. Johns also developed an external nutrient budget for Lake Apopka by measuring phosphorus inputs and outputs to the lake over a four year period. Sedimentation coefficients were also developed from this nutrient budget.
Using information from the nutrient budget, St. Johns categorized phosphorus contributions into Lake Apopka into uncontrollable and controllable sources. Using information obtained from the Volenweider modeling effort, St. Johns determined the maximum amount of phosphorus from all sources which it believed could be put into Lake Apopka to allow the lake to achieve Class III water quality standards. St. Johns then subtracted the annual pounds of phosphorus contributed to Lake Apopka from uncontrollable sources to determine the maximum amount of phosphorus that St. Johns believes can be contributed to Lake Apopka from controllable sources to allow the lake to achieve Class III water quality standards. The maximum amount of phosphorus which St. Johns believes can be contributed to Lake Apopka from controllable sources to allow the lake to achieve Class III water quality standards became the nutrient limitation set forth in the proposed rule.
The proposed rule contains a methodology for calculating adjustments to the nutrient discharge limitation in response to rainfall events. In paragraph 11.B.2. of its petition, Zellwood alleged that this rainfall adjustment methodology is arbitrary and capricious. Zellwood now withdraws this count of the petition, and does not dispute the rainfall adjustment methodology contained in the proposed rule.
The water level in Lake Apopka is controlled by a structure known as the "Apopka Lock and Dam," which is operated by St. Johns.
St. Johns establishes and controls the water levels in Lake Apopka through its operation of the Apopka Lock and Dam.
Lake Level Canal has a free connection with Lake Apopka, and the water level in Lake Level Canal rises and falls in relation to the rise and fall of the water level in Lake Apopka. St. Johns establishes and controls the water levels in Lake Level Canal by establishing and controlling the water levels in Lake Apopka.
ZELLWOOD'S SERVICES TO LAND OWNERS AND OPERATIONS
Zellwood is a special drainage and water control district in Orange County, Florida. It was created in 1941 under Chapter 20715, Laws of Florida.
The landowners own and farm the majority of the land within Zellwood's boundaries. Zellwood owns a small portion of the land within its boundaries, including portions of the Lake Level Canal.
Zellwood discharges stormwater directly to Lake Apopka. It also discharges stormwater into canals that flow into Lake Apopka. These discharges principally occur during periods when the stormwater cannot be used for irrigation and must be pumped from the land surfaces into the receiving waters. It is not the annual amount of rainfall that promotes the discharge, it is the frequency, intensity and distribution of the rainfall that promotes the discharge.
Zellwood receives approximately 51 inches of rainfall annually. That amounts to 12 billion gallons of stormwater. In an average year Zellwood would also take from 1 to 2 billion gallons from Lake Apopka for irrigating crops or flooding the land to control nematodes.
The 51 inches of rainfall received by Zellwood contains approximately 6,100 pounds of phosphorous. The lake water pumped onto the Zellwood properties contains as much as 2,800 pounds of phosphorous.
Zellwood pumps approximately 4 to 5 billion gallons of water to Lake Apopka or the Lake Level Canal per year, constituted of rainwater and the lake water which it uses for irrigation and flooding. The rainfall which is discharged constitutes 30 or 40 percent of the rainfall received by Zellwood.
To satisfy the budget requirements for phosphorous called for by the proposed rule in its allocation, Zellwood would need to construct a settling pond of at least 800 to 1200 acres to control phosphorous discharge above the amount allocated by the proposed rule.
According to the proposed rule, pumped agriculture, such as the Zellwood properties may only discharge .79 pounds of phosphorous per acre per year.
Zellwood owns interest in the Lake Level Canal from the bank on the canal that is associated with its property to the centerline of the canal itself.
WORKS OF THE DISTRICT
Historically St. Johns has declared naturally existing water bodies to be works of the District for its regulatory purposes.
LAKE APOPKA: PRESENT AND IMMEDIATE PAST HISTORY
Lake Apopka is a naturally existing water body.
Lake Apopka is a large shallow lake in central Florida. Its surface area covers approximately 30,000 acres. Its average depth is approximately 6 feet.
In its recent history Lake Apopka has been severely impacted by natural and artificial events.
A hurricane uprooted the majority of native aquatic plants in Lake Apopka in 1947. At that time Lake Apopka was dominated by aquatic macrophytes, large aquatic plants. Following the hurricane event the large aquatic plants have never been reestablished in the lake.
At present the lake is dominated by a phytoplankton-based community (algae).
When the Apopka-Beauclair Canal was opened to connect Lake Apopka to a down stream chain of lakes, Lake Apopka was lowered approximately three feet. The lowering of the water depth in Lake Apopka to make this connection had an impact on the lake.
In its recent history Lake Apopka has been impacted by sewage effluent discharge from the City of Winter Garden, Florida, discharges from adjacent citrus processing facilities and discharges of excess stormwater from adjacent vegetable farms, all contributing to the nutrient loading in the lake.
Lake Apopka was further impacted by attempts to control water hyacinth in the lake by spraying those plants with herbicides and leaving them to decompose.
In the late 1950s, 20 million pounds of gizzard and threadfin schad were killed and left to decompose in the lake.
The spraying of hyacinth and the fish kills adversely impacted Lake Apopka.
All the events described contributed to the lake being dominated by phytoplankton and exceeding Class III water quality standards that have been previously discussed.
The events described have had an influence on the material deposited at the lake bottom.
Adjacent to the water column in the lake is a significant deposit of unconsolidated flocculent material. Beneath that layer is a layer of consolidated flocculent material. The overall flocculent material contains large amounts of phosphorous.
The flocculent material hinders the attachment of aquatic macrophytes and the ability for gamefish to successfully inhabit the lake.
The unconsolidated and consolidated layers are distinguished in appearance and consistency. The consolidated layer contains the remains from aquatic macrophytes and remains of snails that lived on those plants. The unconsolidated layer does not contain those materials. Both layers contain deposits of algal cells and allochthonous particulate organic material.
STATUTES AND RULES
St. Johns cites to Sections 373.044 and 373.113, Florida Statutes, for its specific authority to adopt the proposed rule. It cites as laws implemented by the proposed rules, Section 373.085, 373.086 and 373.103, Florida Statutes.
Chapter 85-148, Laws of Florida, directs St. Johns to engage in a pilot project to determine a technically and economically feasible method of restoring Lake Apopka to Class III water quality standards.
The State Water Policy found in Chapter 17-40, Florida Administrative Code, also reminds St. Johns to reduce pollutant loadings from older stormwater management systems, as necessary, and to restore or maintain the beneficial uses of waters through implementation of basin specific rules. The basin in question here is the Lake Apopka drainage basin which includes works of the District adopted by proposed rule 40C-61.
TECHNICAL AREAS FOR RULE DEVELOPMENT
Here the major technical areas for rule development included:
The establishment of target phosphorous concentration for a restored Lake Apopka;
Use of the Volenweider model to determine the amount of external loading that would permit the lake to reach the target phosphorous concentration; and
Development of an external phosphorous budget based upon external sources of phosphorous introduced to the lake as a means to allocate allowable discharges of phosphorous among the external sources.
HISTORIC WATER CHEMISTRY AS A MEANS TO ESTABLISH VALUES FOR NATURAL BACKGROUND CONDITIONS IN THE LAKE AND TO SET GOALS FOR THE MAJOR INDICATORS OF TROPHIC STATE (TOTAL PHOSPHOROUS, CHLOROPHYLL a AND SECCHI DEPTH), AS EQUATED TO PHOSPHOROUS CONCENTRATION FOR A RESTORED LAKE APOPKA
DEP Class III water quality standards contemplate establishment of "natural" or "natural background" conditions. In the proposed rule, to approximate the natural condition in Class III waters St. Johns was interested in determining the maximum number of pounds of the nutrient phosphorous that could be discharged per year from all sources into Lake Apopka and adequately address Class III water quality standards as described and interpreted by St. Johns in developing the proposed rule.
In associated topics for Class III water quality considerations examined in the proposed rule, secchi-depth is a measurement related to water transparency. Chlorophyll a information indicates the number of particles or
standing stock of algae that would affect transparency. Total phosphorous is involved with the issue of transparency in that it influences chlorophyll a.
Through its analyses St. Johns attempted to establish a target concentration for phosphorous in Lake Apopka which would reflect the pre- impacted condition in Lake Apopka. Without establishing that target concentration St. Johns was persuaded that the lake could not be restored to natural conditions/Class III standards as St. Johns perceived those standards in the rule development.
To achieve its end St. Johns made analyses which were intended to determine the historic water chemistry conditions in Lake Apopka that were equivalent to the natural condition of the lake. In carrying out its task St. Johns was unable to resort to an analysis of water chemistry samples taken from Lake Apopka in its pre-impacted condition because such samples did not exist.
In particular St. Johns analyses of the historic water chemistry (natural conditions) consisted of:
An analysis of reference lakes which were not believed to be as severely impacted by human activities as Lake Apopka;
An analysis using an empirical model that related phosphorous concentrations to other water quality constitutes to estimate pre-impact conditions; and
An input/output model. As described before Zellwood does not dispute the use of the empirical model or the input/output model, other than whether St. Johns used the mean or median from the range of data derived from those analyses, and if it did, whether that depiction of the results from the analyses was an arbitrary or capricious choice.
St. Johns did not use a mean or median value to depict the data derived from the input/output model or the empirical model. St. Johns did perform a sensitivity analysis associated with the empirical model to determine the effect on the results by modifying input levels.
There were two parts to the reference lake analysis. In the first part St. Johns examined geologic and physiographic maps of Florida as a means to select lakes for the analysis that were fairly large in surface area and were in similar geologic strata compared to Lake Apopka. In this part St. Johns also examined whether there were large wetlands in the watershed for the lakes under consideration and whether those lakes had a large river flowing through them. Those were matters of concern because they tend to affect the water quality of a lake.
Because the results of the selection process in the first part were criticized, St. Johns performed a second part to the analysis and used those results.
In the second part of the referenced lake study St. Johns started with a data set of 134 Florida lakes. These lakes were then screened through four filters which were designed to exclude those lakes that did not have physical characteristics similar to Lake Apopka. St. Johns proceeded on the basis that these physical characteristics would affect a lake's water quality.
Beyond the use of filters to eliminate certain lakes, St. Johns also removed lakes which were saline or esturaine in nature, and those known to be in an impaired condition and for which there did not exist water quality information concerning their pre-impaired condition. This process also required removing Lake Apopka from the analysis for purposes of using data about the lake in the analysis.
Those lakes that remained after the screening process in the second part of the referenced lake study were lakes which basically met Class III water quality standards or had pre-impairment data available for comparison.
The level of phosphorous concentrations in those nine lakes represented a broad range of trophic states.
To check the appropriateness of the filters used in the second part to the referenced lake study, St. Johns performed a sensitivity analysis by passing data about the 134 lakes through the same four filters in a process which reduced the most restrictive filter and increased the least restrictive filter in their numeric values. When the more restrictive filter was reduced, only Lake Apopka remained in the analysis. This indicated that the use of a more restrictive value was not appropriate because only Lake Apopka would be left.
By increasing the numeric value in the least restrictive filter, this left more than nine lakes with a median phosphorous concentration of 48 parts per billion (ppb). This compared with a mean phosphorous concentration for the nine lakes from the initial part of the study of 46 ppb. This comparison indicated that increasing the least restrictive filter to include more lakes in the study did not substantially change the median value for phosphorous.
Phosphorous concentrations in the nine lakes resulting in the second part to the referenced lake analyses, before the sensitivities check was made, ranged from 11 to 76 ppb. Those ranges fell in a bell-shaped distribution.
The frequency distribution for the values in the nine lakes studied in the second part to the referenced lake analysis were similar to the distribution for the underlying data set related to those lakes.
To arrive at the most representative value for phosphorous for the distribution of the underlying data one would select from the center of the distribution, not from the extreme ends.
Given the similarity between the frequency of phosphorous concentrations in the nine lakes and the distribution of the underlying data set, St. Johns selected the median value of 46 ppb as the most representative phosphorous concentration in the nine lakes.
St. Johns ran three statistical tests in the range of 11 to 76 ppb for phosphorous in the nine lakes in the second part to the study. The purpose of those statistical tests was to identify outliers or extreme values. St. Johns did not consider any of the values to be outliers from a statistical point of view.
Given that the levels of phosphorous concentration in the 134 Florida lakes, which constituted the starting point for the analysis in the second part, carried values from 3 to 4,000 ppb for phosphorous in those lakes, the screening process dramatically decreased the range of values for phosphorous to a distribution between 11 and 76 ppb.
In performing the reference lake analyses St. Johns did not attempt to identify trophic state for each lake. It attempted to derive a range of phosphorous concentrations and select from that range the most probable phosphorous concentration value to depict the natural conditions or historic water chemistry in Lake Apopka. In this process St. Johns did not try to find pristine lakes in Florida to establish the value for phosphorous in Lake Apopka, rather St. Johns attempted to find lakes that would represent water quality in Lake Apopka had it not been subjected to the events that caused adverse impacts through phosphorous loading.
As another check on the results reached in the second part to the reference lake study, in which the median phosphorous concentration was 46 ppb, St. Johns referred to the median in a larger data set of Florida lakes in a publication by Huber et al. In the Huber publication the median value was 40 ppb.
In combination the information from the reference lake study, the empirical analysis and the input/output model was used by St. Johns to establish the most probable values of total phosphorous, chlorophyll a and secchi depth that would represent the pre-impacted natural background conditions in Lake Apopka. In examining these parameters St. Johns attempted to establish the most probable ranges for natural background in the trophic state variables.
St. Johns took these results concerning the three parameters and applied the 10 percent degradation component allowed by DEP Class III water quality standards for transparency. See Rule 17-302.530, Florida Administrative Code.
Concerning the trophic state variable phosphorous, St. Johns did not attempt to and did not believe it could pinpoint with scientific certainty what the precise phosphorous concentration for Lake Apopka would be above which one could not achieve Class III water quality standards as it identified those standards. What St. Johns attempted was to set the most probable range for Class III water quality standards for phosphorous concentrations in Lake Apopka to create the probability of a mesa-trophic state in a warm water tropical lake. Lake Apopka is a warm water tropical lake. St. Johns wanted to avoid phosphorous concentrations in a range that was higher than that which would support Lake Apopka in a mesa-trophic state for fear that increased concentrations above that range would dramatically increase the possibility that its perception of Class III water quality standards would not be achieved.
St. Johns through its staff took into account the public concern for achieving the desired trophic condition in Lake Apopka that was consistent with those Class III water quality standards and the ability for Zellwood and others similarly situated to install and operate treatment facilities sufficient to meet the requirements in the proposed rule. That is to say, the limitations on discharge found in the proposed rule.
Through the exercise in employing the reference lake study, the empirical model analysis and the input/output model analysis St. Johns concluded that the most probable phosphorous concentration range to meet Class III water quality standards in Lake Apopka was 38 to 55 ppb. By comparison the proposed rule contemplates achieving load limitations which would result in a future steady state phosphorous concentration in the lake of 56 ppb.
The means employed by St. Johns to establish the steady state total phosphorous concentration of 56 ppb in a restored Lake Apopka which would meet its perception of Class III water quality standards for phosphorous were scientifically valid. Assuming its authority to employ a phosphorous water quality standard similar to the water quality standard for nutrients used by DEP or to utilize the DEP standard in developing the proposed rule, the means were not arbitrary and capricious.
VOLENWEIDER MODEL
Having determined that the target phosphorous concentration to meet Class III water quality standards for phosphorous was 56 ppb, St. Johns used that number in a water quality model to back calculate the amount of phosphorous that could be discharged into Lake Apopka from external sources and still maintain the phosphorous concentration level. The model employed was a Volenweider model.
This Volenweider model is a basic input/output model which seeks to predict long-term steady state phosphorous concentrations based upon external loading of phosphorous.
The formula in the model is expressed as: P = W/ (Q+ Sigma V). P represents the steady-state phosphorous concentration. W represents the annual loading of phosphorous from all external sources. Q represents the annual inflow of water. Sigma represents the net sedimentation coefficient. V represents the lake volume.
To exercise the Volenweider model that determines the steady-state phosphorous concentration St. Johns considered various levels of phosphorous loading from external sources.
In using the Volenweider model St. Johns had in mind the long view when Lake Apopka would reach an equilibrium which met its interpretation of Class III water quality standards for phosphorous. The model they selected met that goal because it is not time dependent. Nor was St. Johns attempting to predict year-to-year variability in phosphorous concentrations that might occur in Lake Apopka. Neither was the intent to predict transient responses that might result from reduction in external phosphorous loading. In choosing the long-term steady-state approach, St. Johns recognized that phosphorous concentrations reached at the equilibrium for the changed Lake Apopka would vary. Finally, consistent with St. Johns' intent, this Volenweider model is not designed to predict how long it would take Lake Apopka to reach a new equilibrium steady-state.
The Volenweider model is an acceptable model for predicting steady state phosphorous concentration in Lake Apopka over the long term.
The Volenweider model does account for mixing in the lake volume.
It accounts for loss of phosphorous through net sedimentation to the bottom sediments and for loss of phosphorous through outflow.
In the model, the net phosphorous sedimentation coefficient refers to the mean annual net deposition of phosphorous to the sediments divided by the mean lake water mass of phosphorous. Net phosphorous sedimentation considers the process of gross sedimentation which is the total amount of phosphorous settling out of the water column to the sediments over a span of time, as well
as the release of phosphorous from the sediments. Net sedimentation is the product of the gross sedimentation minus the release of phosphorous from the sediments.
The historical experience which St. Johns has had in monitoring gross sedimentation of phosphorous and the release of phosphorous from the bottom sediments has never revealed a net release of phosphorous from the sediments as opposed to a net sedimentation of phosphorous to the sediments.
In determining sigma, the net sedimentation coefficient, St. Johns considered a study performed by Schneider and Little in 1968 in which the sediments in Lake Apopka were examined. The results in that study were then compared with a study conducted by Reddy and Gretz in 1987, involving an examination of the Lake Apopka sediments. In particular St. Johns was interested in measuring increases in sediment depth in the top layers of sediments between 1968 and 1987 for phosphorous.
The Schneider report describes the top layer of core samples taken as "floc." The next layer is "muck." Under the muck layer in some samples there is a report of finding shell. Under the muck in other samples there is a report of peat. In some core samples sand was underlying the muck. In one sample sand, then peat was underlying the muck. In some samples clay was underlying the muck. In one sample only peat was found. In some instances the muck layer was described as a combination of muck and shell. In one instance the muck layer was described as muck, shell and vegetative detritus. In one instance the muck layer was described as vegetative detritus only. In some samples muck was not found. In some instances the lake bottom was not penetrated when samples were taken.
In gross terms the Schneider report refers to the bottom sediments as muds, and it comments that those muds for the most part are unconsolidated. Top sediments are referred to as surficial sediments said to be approximately 99 percent water. The ooze beneath those top sediments is at a depth of one meter and is slightly more dense being constituted of 90 percent water. The Schneider report found that soft deposits covered more than 90 percent of the bottom of the lake. In some instances the unconsolidated deposition was found to be 40 feet thick with an average thickness throughout the lake of approximately five feet.
In the Schneider study ninety sites throughout the lake were sampled by coring.
In 1987, Reddy took sediment core samples on the same sampling grids that were used by Schneider, but not in the exact location. The same number of samples were extracted. The Reddy report describes the sediment cores from top to bottom as horizons in which there is unconsolidated floc (UCF) overlaying consolidated floc (CF), which overlays peat, sand, clay and marl.
The Reddy report describes the UCF layer as consisting primarily of deposits of algal cells and allochthonous particulate organic matter. Moreover, the Reddy report refers to this layer as being actively involved in re- suspension of nutrients during wave events. The report indicates that this layer was found in 86 sampling sites.
The Reddy report refers to the CF layer as consisting of settled algal cells, detritius from aquatic macrophytes and allochthonous particulate organic matter. The report shows that this layer was found in 81 sample sites.
The report reminds the reader that the maximum core depth retrieved from the lake horizon differentiation was 200 cm and that certain locations were measured at a total sediment depth of greater than 600 cm using metal tubing unrelated to core extraction.
St. Johns in employing the findings in the Schneider and Reddy reports equated the floc layer in the Schneider report with the UCF layer in the Reddy report and the muck layer in the Schneider report with the CF layer in the Reddy report.
From its review of those reports, associated data in the Reddy report and conversations about the Reddy report, it determined to use the increased depth between the floc layer in the Schneider report and the UCF layer in the Reddy report to establish a net sedimentation coefficient for use in the Volenweider model. Additional information about the Reddy report which St. Johns took into account in comparing the sediment studies with those in the Schneider report, was related to electronic data files on the Reddy sediment samples and consultation with Dr. Reddy and Matt Fisher, co-authors in the Reddy report.
St. Johns used the accrual in the top layer at each of the sampling sites that occurred in the 19 year period. It then multiplied that accrual in sediment by the dry weight density of the sediment, also referred to as bulk density, and the phosphorous content to calculate the accrual of phosphorous in the 19 year period.
The comparison of the top layer sediments in the Schneider and Reddy reports involved a paired analysis of most of the 90 sites involved with the individual studies.
St. Johns then used an averaging technique to calculate the amount of phosphorous deposited over the entire lake. The first step in that process was to average the four corners of each of the square areas on the grid to arrive at an average phosphorous accrual in each of the squares. It took this information to do an areal weighting in view of the fact that each average square area does not represent equal areas of the lake when taking into account those areas around the margin of the lake. St. Johns weighted each average square area by its representative area then derived a weighted average phosphorous deposition for the top layer over the 19 year period.
In its averaging approach St. Johns attempted to account for the fact that the core sampling in the Schneider studies and Reddy studies were not taken from the exact same spots. St. Johns assumed that the Reddy study had not systematically found areas that were greater or lesser in the accumulation of the top layer sediments when addressing possible sampling sites. Under the circumstances, variability in the top layer accumulation is random and the random error caused by variability sums to zero and is eliminated by the use of averaging.
The difference between the paired analysis in the top layer, and the lake wide averaging for the top layer, concerning the accrual of phosphorous, was an additional three percent for the lake wide averaging. In its final depiction of the sedimentation coefficient for phosphorous St. Johns employed the paired analysis in exercising the model.
St. Johns was not convinced that what Schneider refers to as the muck layer and Reddy refers to as the CF layer had increased in the 19 years between
the studies. It premised its belief on the notion that the second layer is qualitatively different from the top layer. In a comparison of sample sites in the Schneider and Reddy studies where the second layer had been completely measured it was persuaded that there had not been a statistically significant increase in the sediments.
St. Johns was aware through direct knowledge of some sampling done in the Reddy study that the top of the core was characterized by a lighter color. That layer was kind of bumpy and almost airy in appearance. It began to consolidate the further down you proceeded in the top layer. Down the core sample there was a sharp interface and below the interface the color was darker. Below the interface in the core sample had shell material in it. When the core material in that sample was extruded it was observed as being geletinous at the top in the unconsolidated material. In the area where the material was consolidated the core broke off pretty cleanly. Below the interface was what the observer referred to as hydrobiidae snails, detritus from aquatic macrophytes and planordidae that live on plants. The material where the snails were found was sticky and thick and once extruded from the sample would stand up.
The upper layer was more uniform in its consistency and by its appearance came from a phytoplankton-based community. The upper layer was very fine and did not contain large animal remains. The plant material in the lower layer was suggestive of larger submerged plants, macrophytes.
The person who made the observations of the core sample taken in the Reddy study was Dr. David Stites, a St. Johns employee. These observations were in contrast to Dr. Reddy's overall findings in the study which found evidence not only of an aquatic macrophyte community but algal cells and allochthonous perticulate organic matter in the CF.
Nonetheless, St. Johns proceeded on the basis that the UCF layer in the Reddy study was a phytoplankton-based community and that the CF was laid down in a different lake community than the UCF. St. Johns believed that the CF layer community was one related to large aquatic plants only. Moreover, St. Johns was persuaded that the two types of sediments in the UCF and CF layers resulted from the 1947 hurricane that dislodged large aquatic plants, creating the opportunity for phytoplankton bloom that persists to the present, and by that activity blocks the light which would have allowed the submerged plants to reestablish.
In its quantitative comparison of the second layer in the two studies, St. Johns censored the sediment core data contained in the appendix to the Schneider report and utilized only those cores which showed a third sediment layer of sand, clay or peat beneath the muck layer for comparing the muck layer in the Schneider report to the CF layer in the Reddy report.
St. Johns censored the sediment core data contained in the Reddy report to those instances in which their was evidence that the sediment core samples had reached levels of sand, clay, marl or peat. Included in this censoring activity was review of the raw electronic data files for the sediment samples in the Reddy report and conversations with Dr. Reddy and Mr. Fisher in the attempt to determine which core samples penetrated through to the sand, clay, marl or peat interface.
Given that the Reddy report indicated that the sampling probe used was 200 cm in length and some places in the lake had sediments 600 cm in length, this served as additional evidence that not all sample sites captured the entire CF fraction in the core.
St. Johns limited a comparison between the muck layer in the Schneider report and the CF layer in the Reddy report to those sites that they were convinced fully collected those fractions in the core sample. By comparing the limited number of sites St. Johns found that the difference between the muck layer and the CF layer was a negative number but was not statistically different from zero. Therefore St. Johns concluded that the thickness in the CF layer had not increased over the 19 year period between the two reports. In arriving at this conclusion St. Johns paired a limited number of muck and CF sample sites and examined the censored data from the muck samples and the CF samples independently to support the conclusion that there was no increase in the material in the second layer in the intervening 19 years.
In performing the muck/CF analysis St. Johns looked at 26 sites from the 1968 study and 28 sites from the 1987 study. They rejected the remaining sites as being sites where the second layer was not completely penetrated and under-represented the amount of muck/CF that may have existed. In its analysis of muck/CF, 17 sites were compared from the two studies as a means determine whether the muck/CF layer had increased in the 19 years. By that analysis the CF layer was shown to have decreased by 11.1 cm. In a second analysis in the muck/CF layer the 26 sites in the 1968 study and 28 sites in the 1987 study were averaged separately to determine any increase in the muck/CF layer over the entire lake. The second analysis using averaging showed a decrease of around
8.1 cm.
By using only the accumulation in the floc/UCF layer that occurred during the 19 years St. Johns determined that the phosphorous sedimentation coefficient for use in the Volenweider model was .974 per year.
The technique that St. Johns employed to measure the increase in thickness in the floc/UCF layer was scientifically valid.
St. Johns' assertion that the floc/UCF layer and the muck/CF layer were constituted of different communities, phytoplankton-based community in the top layer and a macrophyte community in the second layer is not accepted. As the Reddy report established, the CF layer included algal cells which are indicative of a phytoplankton-based community. Consequently, the qualitative analysis which St. Johns made concerning the UCF and CF layers in the Reddy report is rejected to the extent that St. Johns contends that a differentiation exists based upon lake communities in the two fractions in the core samples.
The other reasons for asserting that there is a clear demarcation between CF and UCF in the Reddy study and for claiming the description of floc and muck in the Schneider report as being comparable to CF and UCF in the Reddy report are accepted.
It was not scientifically correct to defer to the 17 pairings and the averaging for the 26 and 28 sites, respectively, to determine possible increases in the second layer in the intervening 19 years.
In measuring muck/CF, the two studies did not penetrate the bottom sediments at all sample sites. Nonetheless, there was an increase in the muck/CF layer at considerably more stations than were used by St. Johns in deciding that the change in the intervening period was a minus value. It was
arbitrary and capricious for St. Johns not to take into account all sample sites which showed values for the muck/CF layer when ascertaining whether an increase had occurred in that layer between 1968 and 1987.
Moreover, as Dr. Curtis D. Pollman established, a significant number of remaining sites which were compared and averaged came from the northern area in Lake Apopka. That area is an erosional zone, characterized by high water velocities. Those velocities scour the sediment-water interface and entrain sediment particles and move those particles away from the shore into deeper regions which are more flaccid. According to Dr. Pollman, information taken from the sites in that northern area would tend to underestimate the amount of muck/CF deposition in the overall lake when extrapolating the information found in the limited sample sites as a means to depict the change in the second layer deposition in the intervening 19 years between the two reports. Some correction would need to be made to the representative sampling to allow the extrapolation to properly estimate the overall second layer deposition in the lake. This is taken to mean an upward correction in the values. To support his conclusions, Dr. Pollman relied upon his own experiences at Lake Apopka in which he has noted the erosional circumstances in the northern lake area. In addition, Dr. Pollman gained support for his opinion from the Schneider report which suggests that there is an erosional zone in the northern area. His opinions are accepted.
Consequently, St. Johns has not properly portrayed the circumstance in the second layer which would cause an under estimation of the sedimentation coefficient per year.
It was appropriate for St. Johns to attempt to portray a constant sedimentation coefficient for phosphorous in the existing Lake Apopka, in contrast to the steady state coefficient for phosphorous in a restored Lake Apopka. It is necessary to address the current condition which is algae- dominated to improve the condition to one of increased water clarity and increased growth of submerged and emergent plants that is desired for the restored Lake Apopka.
EXTERNAL LOADING: UNCONTROLLABLE SOURCES
By exercising the Volenweider model, St. Johns determined the maximum discharge of phosphorous to Lake Apopka from external sources that it believed would allow the lake to meet its target goal for phosphorous concentration. The total phosphorous in the steady state concentration has two components. The first component is from controllable sources. The second component is from uncontrollable sources. The uncontrollable sources were subtracted from the total phosphorous concentration to determine maximum discharge for controllable sources. This forms the basis for the nutrient budget for phosphorous in the proposed rule 40C-61.
In considering total phosphorous concentration from external sources St. Johns developed an external nutrient budget for Lake Apopka by measuring phosphorous inputs and outputs in a four year review.
The parties do not dispute the phosphorous concentration from controllable sources. There is a dispute concerning uncontrollable sources: atmospheric deposition, rainfall and dryfall, and from Apopka Spring also known as Gord Neck Spring.
Rainfall is referred to as wet deposition. Dryfall is also referred to as dry deposition. Dryfall is dust.
When atmospheric deposition from rainfall and dryfall enters the lake it directly contributes to the total phosphorous concentration.
In the four year review the data collection for wet and dry deposition was conducted in two separate phases. In the years 1989 and 1990 samples were collected from a station in the center of Lake Apopka. In the years 1991 and 1992 a land-based station at the northwest corner of Lake Apopka was used.
In collecting data from the lake site in 1989 and 1990, St. Johns measured wet and dry deposition through a bulk deposition collector located on a platform. That collector had two funnels connected to a reservoir through which dry fall was collected during dry periods and the dryfall then was washed into a reservoir by rainfall which was also collected.
When the samples were removed from the collector they were taken to a laboratory for analysis. The purpose of the analysis was to determine the total phosphorous concentration in the sample. The total phosphorous concentration in each sample was multiplied by a total volume of rain calculated to have entered the collector during the period of collection. This calculation was then adjusted to reflect the deposition over the total lake area. In turn an apportionment was made to reflect the number of days that transpired between this sample collection and the previous sample collection in order to depict the daily estimates for deposition that were collected between the two sample dates. Those daily loads were then summed to reflect the collection for each month in the review.
There were problems with this method of collection at the lake center. The samples that were collected were subject to contamination from bird droppings, insects entering the sample device and human activity. Many attempts were made by St. Johns to avoid this contamination during the two years.
In recognition of the problems with contamination, the St. Johns' staff that collected the samples were told to discard samples that were contaminated as evidenced by visual observation. Those instructions were carried out. The samples that remained after discarding some samples based upon their appearance were subject to further censoring in an attempt to eliminate extreme values of phosphorous concentration in the laboratory analysis process. Those extreme values indicated contamination.
In the censoring process based upon extreme values four samples were eliminated as being significantly higher than the others. Those four samples were more than three standard deviations from the overall sample mean, indicating problems with contamination. As further evidence that the samples were contaminated, they had high nitrogen concentrations, indicative of contamination from bird droppings.
The samples then underwent a further censoring process. This involved establishing a mean phosphorous concentration and a standard deviation for the remaining samples. That standard deviation was one standard above the mean value. Again this censoring process was designed to remove contaminated samples. Samples more than one standard deviation above the mean were discarded. By this process an additional five samples were eliminated.
Following the censoring activities 39 samples remained. Those samples formed the basis for determining atmospheric deposition in 1989 and 1990.
The process for data collection and censoring contaminated samples were proper steps and scientifically valid.
In 1991 St. Johns obtained a wet-dry collector. This is another type of instrument used for measuring atmospheric deposition. This collector consists of two buckets. One bucket collects rainfall and the other bucket collects dryfall. This device automatically covers and uncovers the two buckets in response to whether it is raining or not.
St. Johns determined to use the wet-day collector at its land-based collection site for several reasons. First, there was the concern about contamination in the samples that could not be overcome. There was concern that St. Johns did not have sufficient resources and manpower to continue to maintain data collection at a station that was 4 or 5 miles out in the middle of Lake Apopka. In that connection the wet-dry collector that they intended to use in the future had an electrical power source which could not be supplied at the lake center. Therefore, St. Johns abandoned the use of the data collected at the lake center site in favor of the land based collection point.
In the 1991 and 1992 years that samples were taken from the land based site, dry deposition was used to determine the total mass of phosphorous in each sample. That number was divided by the total number of days since the last collection had been made to establish the daily load for the period. Monthly totals were summed from the daily values.
In setting up the wet-dry collector St. Johns deferred to the NADP/MTN Deposition Monitoring Quality Assurance Plan (1990), to the extent that it felt that the plan was applicable to its collection activities.
In setting up the wet-dry collector, St. Johns did not place the collector on a tower 48 to 50 feet high as is currently done in the state-of- the-art methods for use of land-based dryfall collectors. Sometime in 1992 persons who were collecting dryfall began to install the collection device on the towers. Notwithstanding that St. Johns did not use a tower for the wet-dry collection, its method for collection was scientifically acceptable.
To get the annual value for atmospheric deposition for the four year period 1989 through 1992 St. Johns added the annual volumes calculated in the 1989 and 1990 data from the lake based station to the annual volumes calculated for the 1991-1992 data collected from the land based station and divided that number by four. This resulted in an annual figure of 7,951 kilograms of phosphorous.
The budget for atmospheric deposition of phosphorous in Lake Apopka is reasonable in that the means for establishing that budget is reasonable.
Apopka Spring provides phosphorous to Lake Apopka. The spring is connected to the Floridian aquifer. The spring is located in the southwestern portion of Lake Apopka which is known as Gord Neck.
To determine the contribution of phosphorous from Apopka Spring, St. Johns looked at the annual average volume of flow from the spring and the annual average of concentration of total phosphorous in that water.
In calculating the spring flow volume, St. Johns used United States Geological Survey information obtained by a diver who went into the throat of the spring to measure that flow. The measurements were taken on five occasions. The information on flow was used to develop a model that correlates spring flow, lake stage and Floridian aquifer stage as a means to determine the annual average flow from the spring for the years 1989 through 1992.
The diver also took a water quality sample from the throat of the spring on one occasion at the point where the spring immerges from a rock. That sample was analyzed in a laboratory. It showed a total phosphorous concentration of 32 micrograms per liter.
The water quality in the Floridian Aquifer can vary significantly over time at the same discharge point from the aquifer. Those changes in the water quality are more noticeable in the instance where the discharge point is close to the aquifer recharge area. That has significance based upon the short period of time in transit from the aquifer recharge area to the discharge point. Among the water quality parameters that are affected by this phenomena, would be the total phosphorous concentration.
In the case of Lake Apopka the highest recharge areas in the vicinity are located immediately to the west of Apopka Spring. The direction of groundwater flow in the Floridian Aquifer in that area is from the recharge area to Apopka Spring. Consequently phosphorous concentrations in water discharged from Apopka Spring would be expected to vary significantly over time.
This variability in phosphorous concentrations over time makes it inappropriate to rely upon a single sample when attempting to establish a long term budget for total phosphorous contributed from Apopka Spring.
Having in mind the need to have more than one sample for establishing the phosphorous concentration from Apopka Spring, St. Johns used water quality data from other springs in the vicinity of Apopka Spring. To complete the data set they used three springs which had recorded values for total phosphorous, chloride concentrations and total dissolved solids that were similar to those in Apopka Springs. This gave St. Johns an additional six samples for total phosphorous to be added to the single value from Apopka Springs to arrive at an average. When the seven values were averaged they yielded a concentration of 75 milligrams per liter. That is the value that St. Johns used in calculating the contribution of Apopka Springs to the lake phosphorous budget.
Had St. Johns obtained multiple samples from Apopka Springs over a long period of time this would have optimized its understanding of the long term phosphorous concentration for water discharging from the spring. However, it was not unreasonable for St. Johns to perform the calculations which it did in establishing the phosphorous concentration from Apopka Springs.
INTERNAL PHOSPHOROUS LOADING
The rule in question does not attempt to remediate the influence which phosphorous loading from internal sources contributes. Rather the rule, without regard for the time line for achieving St. Johns' perception of the Class III water quality standard related to phosphorous, attempts to control external loading in arriving at its anticipated standard. Zellwood asserts that the failure to address internal phosphorous loading was an arbitrary and capricious act.
While actions taken to minimize the effects on the water quality caused by internal loading would improve the time course for achieving the steady state equilibrium in Lake Apopka that would achieve its Class III water quality standard for phosphorous, it is not necessary to change the circumstance of internal loading for the improvements to external loading to promote the desired outcome at an undetermined point in the future.
By contrast Lake Apopka would not reach the desired Class III water quality standard without reducing external phosphorous loading. That makes the attempt at that reduction a proper beginning for restoring Lake Apopka to Class III water quality standards. Again this assumes the authority to employ a Class III water quality standard similar to the DEP standard or to utilize the DEP standard in developing the proposed rule.
St. Johns' governing board has in mind projects for the future to re- vegetate behind moveable barriers, to increase the range of lake fluctuation, to remove rough fish and to construct a marsh flow-way to remove phosphorous.
These projects would reduce the time required for the lake to achieve the Class III water quality standard for phosphorous. These projects are not essential to the success of using controls on external loading in restoring the lake to the Class III water quality standard for phosphorous. By contrast, without addressing external loading the other projects would not be feasible.
The consequence of not adopting a rule which deals with external loading and waiting for the other proposed projects described to become available before the time that the external loading is addressed, would create a circumstance in which greater amounts of phosphorous have been stored in the sediments and must be dealt with before the lake water quality improves.
Although the anticipated restoration by improving external loading is not time dependent, St. Johns has the proper confidence that the recovery will be within a reasonable time.
Evidence to support this belief comes from studies of European lakes in which external phosphorous loading was reduced and the phosphorous concentration in the water column improved rather rapidly.
Further, a study of Lake Tohopekaliga, a large shallow Florida lake, similar in its depth to Lake Apopka, showed that an 83 percent reduction in phosphorous load led to an 83 percent reduction in total phosphorous. Scraping soils around the edge of Lake Tohopekaliga did not significantly contribute to the decline in phosphorous.
Studies in Lake Tohopekaliga also indicated that when the phosphorous load was reduced the sedimentation coefficient showed a year to year variability. That variability did not establish a trend indicating a change in the long-term sedimentation coefficient mean. The studies of that lake tended to support the idea that the sedimentation coefficient measured under current conditions at Lake Apopka is a reasonable value to use in predicting the effects of reducing phosphorous loading.
Studies of other lakes such as Lake Thonotosassa, a Florida lake and Lake Shaqawa in Minnesota, showed a marked decline in phosphorous concentration in the water column when external phosphorous loading was reduced.
At present Lake Apopka sediments contain available and unavailable phosphorous. Available phosphorous can potentially be used by aquatic organisms such as algae and microbes. It is released from the sediments to the water column. Unavailable phosphorous is more stable and is relatively resistant to transformation for use by organisms. It has poor availability for biological activity.
In particular available phosphorous comes from the top sediment layer, the top five to ten centimeters in that layer, that becomes suspended in the water column by a wind event. Phosphorous in the second layer moves up that layer by a process referred to as diffusion. That process is slow. Available phosphorous in the second layer does not enter the water column.
Approximately 30 percent of the total phosphorous that is in the lake sediments is in the available category. The remaining 70 percent becomes unavailable based upon formation of resistant organic compounds and in phosphate mineralization.
By reducing the external load of phosphorous, as proposed by the rule, this diminishes a source of phosphorous for algae production in the lake. The algae then would become more dependent on uncontrollable external sources and sources released from the top layer.
In summary, in this regime, biological activity would convert available phosphorous to unavailable phosphorous by forming resistant organic compounds, and chemical processes will convert phosphorous to minerals such as calcium phosphate which are unavailable. Phosphorous will become unavailable as it is buried deeper in the sediment. Moreover, phosphorous will continue to be flushed from the lake in the instances where the water is released into the Apopka Beauclair Canal.
St. Johns was sufficiently conversant with the internal mechanisms for phosphorous production to proceed with the rule promulgation.
ECONOMIC FEASIBILITY
In preparing the rule St. Johns considered economic feasibility. Most costs associated with complying with the rule are borne by those individuals and entities who would be controlled by the nutrient budget for phosphorous in the various categories of permittees, to include pumped agricultural. There was no showing that the cost associated with administering the permit program called for in the rule would make the program economically
infeasible. Under this subject, in developing its rule St. Johns did not act in a manner which is arbitrary or capricious.
TAKING
It was established that Zellwood has an interest in the Lake Level Canal from the bank on its property to the centerline in the canal. The proposed rule would declare the Lake Level Canal to be a work of the District.
In declaring Lake Level Canal a work of the District St. Johns took into account that Zellwood is currently using the canal as a conveyance system for stormwater discharge and intake of water from the lake. By declaring the Lake Level Canal a work of the District consistent with the proposed rule St. Johns recognizes that the beneficial uses of the canal which Zellwood presently enjoys would not be denied. No other proof was presented which would tend to
identify any restrictions which would be placed upon Zellwood in using the Lake Level Canal if the rule becomes law and the amount of compensation that Zellwood would be entitled to in return for those restrictions.
Consequently, St. Johns has not acted arbitrarily or capriciously in declaring the Lake Level Canal a work of the District through the proposed rule as such activity would be perceived as an unreasonable interference with Zellwood's use of the canal.
EQUITABLE ABATEMENT
In its permitting function DEP has a procedure which is referred to as the "equitable abatement procedure". See Rule 17-4.242, Florida Administrative Code. In particular, that process applies to permits issued for stationary point source discharges.
The Zellwood operation is not a stationary point source that must comply with Rule 17-4.242, Florida Administra-tive Code.
There was no showing that St. Johns acted arbitrarily and capriciously by developing the proposed rule without regard for the independent jurisdiction exercised by the DEP through its equitable abatement procedures set forth in Rule 17-4.242, Florida Administrative Code.
CONSENT ORDER
When developing the proposed rule, St. Johns took into account the existing consent order between St. Johns and Zellwood. The proposed rule recognizes the obligations which Zellwood has under the terms of the consent order. The proposed rule does not impose greater requirements on Zellwood during the time in which the consent order is effective than the consent order establishes.
CONCLUSIONS OF LAW
In accordance with Sections 120.54 and 120.57, Florida Statutes, the Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding.
The authority for Zellwood to challenge the proposed rule adoption is found in Section 120.54(4)(a), Florida Statutes, by which the proposed rule may be invalidated if it constitutes "an invalid exercise of delegated legislative authority."
The term "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, which states:
Action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
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The agency has exceeded it grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of
law implemented, citation to which is required by s. 120.54(7);
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e. The rule is arbitrary or capricious.
Zellwood has standing to bring the rules challenge. Friends has standing to participate as an Intervenor.
Basically, the scope of review of St. Johns' authority to adopt the rule is limited to an examination of the rulemaking authority and the law implemented as cited by the agency. This statutory review is contemplated by Section 120.52(8)(b) and (c), Florida Statutes. See, e.g. Dept. of Environ. Reg. v. Manasota-88, 584 So.2d 133, (Fla. 1st DCA 1991). However, other related provisions of the statute which provides the authority may be examined to determine the extent of the statutory authority granted to St. Johns. See Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991).
As challenger Zellwood bears the burden to establish by a preponderance of the evidence that the proposed rule constitutes an invalid exercise of delegated legislative authority for the reasons alleged. See Agrico Chemical, Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).
According to Sections 373.616 and 373.6161, Florida Statutes, this chapter on water resources is to be liberally construed to effectuate its purposes.
St. Johns cites Sections 373.044 and 373.113, Florida Statutes, as authority for adopting the proposed rule. Section 373.044, states:
Rules and regulations; enforcement; availability
of personnel rules.--In administering this chapter, the governing board of the district is authorized to make and adopt reasonable rules, regulations, and order which are consistent with law; and such rules, regulations, and orders may be enforced by mandatory injunction or other appropriate action
in the courts of the state. Rules relating to personnel matters shall be made available to the public and affected persons at no more than cost but need not be published in the Florida Admini- strative Code or the Florida Administrative Weekly.
Where it is stated that the proposed rule must be
". . . consistent with law . . . ", this is inter- preted to mean provisions of law which have a
related purpose to that intended by the proposed rule.
Section 373.113, Florida Statutes, states:
Adoption of regulations by the governing board.-- In administering the provisions of this chapter the governing board shall adopt, promulgate, and
enforce such regulations as may be reasonably necessary to effectuate its powers, duties, and functions pursuant to the provisions of chapter 120.
Concerning the waters which are subject to regulation under Chapter 373, Section 373.023(1), Florida Statutes, states:
All waters in the state are subject to regulation under the provisions of this chapter unless specifically exempted by general or special law.
The laws which St. Johns intends to implement are set forth in Sections 373.085, 373.086 and 373.103, Florida Statutes.
Section 373.085, Florida Statutes, addresses St. Johns's governing board's authority to prescribe in what manner local works provided by other districts or private persons can connect with and make use of works or land of St. Johns, to include the issuance of permits and their cancellation.
Section 373.086, Florida Statutes, in pertinent part states:
In order to carry out the works for
the district, and for effectuating the purposes
of this chapter, the governing board is authorized to clean out, straighten, enlarge, or change the course of any waterway, natural or artificial, within or without the district; to provide such canals, levees, dikes, dams, sluiceways, reservoirs,
holding basins, floodways, pumping stations, bridges, highways, and other works and facilities which the board may deem necessary; to establish, maintain,
and regulate water levels in all canals, lakes, rivers, channels, reservoirs, streams, or other bodies of water owned or maintained by the district; to cross any highway or railway with works of the district and to hold, control, and acquire by donation, lease, or purchase, or to condemn any land, public or private, needed for rights-of-way
or other purposes, and may remove any building or other obstruction necessary for the construction, maintenance, and operation of the works; and to
hold an have full control over the works and rights- of-way of the district.
The works of the district shall be those adopted by the governing board of the district.
The district may require or take over for operation and maintenance such works of other districts as the governing board may deem advisable under agree- ment with such districts.
Of particular relevance, this section allows St. Johns to purchase private land for legitimate purposes associated with its regulatory function.
In pertinent part Section 373.103, Florida Statutes, states:
373.103 Powers which may be vested in the governing board at the department's discretion.--In addition
to the other powers and duties allowed it by law, the governing board of a water management district may be specifically authorized by the department to:
Administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of this chapter, consistent with state water policy.
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(3) Plan, construct, operate, and maintain works of the district as defined in this chapter.
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(6) Exercise such additional power and authority compatible with this chapter and other statutes and federal laws affecting the district as may be necessary to perform such duties and acts and to decide such matters and dispose of the same as are not specifically defined in or covered by statute.
In adopting this rule St. Johns must be mindful that it not act inconsistently with State Water Policy set forth in DEP rules. See Section 373.114(2), Florida Statutes.
The focus in the proposed rule is not associated with Chapter 373, Part IV related to management and storage of surface waters (Section 373.403 through 373.4596).
The Surface Water Improvement In Management (SWIM) plan for Lake Apopka as it influences St. Johns' actions sets as a project objective the development and adoption of more stringent permitting criteria, if necessary, to protect water resources in the Lake Apopka basin that would include under scope of work:
SCOPE OF WORK: Incorporate information from other projects including external and internal nutrient budgets, phytoplankton-nutrient interactions, and simulation modelling to recommend final Pollutant Load Reduction Goals (PLRGs) and performance criteria for Lake Apopka. Draft special basin criteria that will comply with mandates of
17-40.420 F.A.C. Evaluate a number of more stringent review criteria such as: smaller size threshold for projects requiring permits; treatment of larger volumes of stormwater to protect receiving water quality; identification and protection of natural habitats; establishment of a buffer for the lake from future development pressures. Hold rule workshops to promote public input before final rule adoption by the Governing Board.
Chapter 85-148, Laws of Florida, directs St. Johns, together with other agencies, to establish a "pilot project" to form the basis for restoring Lake Apopka. Those activities are not associated with the proposed rule. In pertinent part Chapter 85-148, states:
Section 1. The Legislature hereby directs the St. Johns River Water Management District, in conjunction with the Department of Environmental
Regulation, Game and Fresh Water Fish Commission, Lake and Orange Counties, and the Lake Apopka Restoration Council to initiate a pilot project for Lake Apopka. The purpose of the project is
to identify an environmentally sound, economically feasible method for restoring Lake Apopka to a Class III water body.
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Section 3. The Lake Apopka Restoration Council shall have the powers and duties to:
Review studies and data specifically related to lake restoration techniques and advise the district governing board of approaches to be considered for restoration of Lake Apopka.
Make a recommendation to the district
governing board for a Lake Apopka restoration program.
Report directly to the Legislature before November 25 of each year with a Lake Apopka restoration progress report and any recommen- dations for the forthcoming fiscal year.
* * *
Section 5. The St. Johns River Water Management District governing board shall specify tasks which are to be undertaken by the district, the Department of Environmental Regulation, pertinent local governments, and the Game and Fresh Water Fish Commission in order to initiate the pilot
project for Lake Apopka. The governing board shall:
Conduct extensive water sampling of the lake and its associated tributaries to determine the existing water quality and to determine the long term effects of nutrient loading from agricultural activities.
Evaluate the restoration of a portion of floodplain marsh between Lake Apopka and the Apopka-Beauclair Lock by allowing sheet-flow of waters prior to their entrance to the Apopka- Beauclair Canal.
Develop a nutrient budget for the lake to ensure that appropriate regulatory efforts are instituted with respect to nutrient loading.
Examine techniques which may be used to modify the existing physical and biological characteristics of the lake.
Conduct a feasibility study to determine the effects of diking-off and restoring the littoral zone of the lake to enhance sportfish production.
Implement and evaluate a program to demonstrate the feasibility of utilizing water hyacinths to extract excessive nitrogen and phosphorus from the sediment and water columns of the lake.
Implement and evaluate a program to demonstrate the feasibility of recreating a marsh along the lake shoreline using muck dredged from the lake bottom, and
From funds appropriated by this act, expend up to $100,000 to contract for a feasibility study on the recycling of muck from Lake Apopka.
The St. Johns River Water Management District shall provide the staff for the Lake Apopka Restoration Council while engaged in carrying out the provisions of this act.
In its proposed rule 40C-61.001, policy and purpose, St. Johns, refers to the attempt to establish criteria through the rule to insure that the discharge of water to works of the district is a compatible practice within the context that St. Johns is expected to carry out directives within the State Water Policy found at Chapter 17-40, Florida Administrative Code. Specifically this speaks to directives found within the water policy related to reduction of pollutant loadings from older stormwater management systems, as needed, to restore or maintain beneficial uses of waters by implementing basin-specific rules.
In proposed rule 40C-61.020 St. Johns identifies the drainage basin to which the rule would pertain as the Lake Apopka drainage basin. Lake Apopka, Apopka Springs and the Lake Level Canal are within those boundaries.
WATER QUALITY
Considering the purposes of the proposed rule and the means of its development, nothing in the legal provisions that have been discussed or other legal authority found creates the opportunity or mandates that St. Johns shall establish water quality criteria in narrative form or by numerical values for phosphorous or any other constituents in regulated waters to assist in formulation of nutrient budgets for phosphorous.
Contrary to law, St. Johns has either independently established a basin wide water quality standard or it has attempted to utilize the DEP water quality standard for nutrient concentrations related to phosphorous through development of the proposed rule in order to set the nutrient budgets in the proposed rule. These things it cannot do through the rule adoption or in any other manner.
The circumstance in this case is unlike that found in the Everglades Forever Act, Chapter 94-365, Laws of Florida. In that act at Section 373.4592(4)(e)2, Florida Statutes, the DEP is required to establish a phosphorous criterion in the Everglades Protection Area. The phrase "phosphorous criterion" is defined as "a numeric interpretation for phosphorous class III water quality standards". Section 373.4592(2)(j), Florida Statutes. In Section 373.4592(4)(e), a default numeric interpretation for phosphorous of
10 ppb is set in the event that the DEP fails to meet the deadline for establishing the "phosphorous criterion." In accordance with Section 373.4592(4)(e)3, the South Florida Water Management District or DEP is directed to establish discharge limits for discharges into the Everglades Protection Area. This is expected to prevent an imbalance in the natural populations of aquatic flora and fauna in the Everglades Protection Area. These discharge limits are related back to the "phosphorous criterion." Section 373.4592(4)(e)3, Florida Statutes.
As St. Johns concedes it has essentially acted in a similar manner to what is contemplated in the Everglades Forever Act, but is without authority to do so.
In proposing to adopt a rule which sets discharge limits for phosphorous St. Johns has exceeded its grant of rule making authority and has modified and enlarged the specific provisions of the laws implemented by the proposed rule. This action violates Section 120.52(8)(b) and (c), Florida Statutes.
CHAPTER 85-148, LAWS OF FLORIDA: ECONOMIC FEASIBILITY
The attempts to restore Lake Apopka through the proposed rule is an activity that is comparable to the requirements in Chapter 85-148, Laws of Florida. However, Chapter 85-148, Laws of Florida, in its mandate to initiate its "pilot project" to identify an environmentally sound and economically feasible method for restoring the Lake to Class III standards has a somewhat different emphasis. That difference can be seen in comparing the activities in the rule adoption process to the language in Chapter 85-148, Laws of Florida. The statute contemplates that St. Johns will be mindful of economies in preparing for the lake restoration through the pilot project. Those economies are associated with public expenditures, not costs to persons and entities affected by the restoration effort. To the extent that the activities contemplated by the proposed rule could influence the St. Johns obligations pursuant to Chapter 85-148, Laws of Florida, it should be cost conscious. Phosphorous removal as set forth in the proposed rule could be anticipated to improve the possible success in the pilot project and subsequent restoration. In preparing the proposed rule St. Johns has proceeded in an economical manner. If the proposed rule were enacted the further cost to St. Johns would appear to be economically feasible. Therefore, St. Johns has responded in an adequate manner to the relationship in Chapter 85-148, Laws of Florida, and the proposed rule adoption on the topic of economic feasibility and its actions were not arbitrary and capricious, had the rule been found valid in substance.
LAKE APOPKA AND LAKE LEVEL CANAL: WORKS OF THE DISTRICT
Lake Level Canal is an "other watercourse" as defined in Section 373.019, Florida Statutes. As such it is subject to becoming a "work of the district." The categories of works of the district are defined in Section 373.019(15), Florida Statutes, which states:
(15) "Works of the district" means those projects and works, including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board of the district as works of the district.
Section 373.086, Florida Statutes, describes the activities associated with works of the district and the manner in which the St. Johns governing board may adopt works of the district.
In pertinent part Section 373.103(4), Florida Statutes, describes St. Johns's possible uses for Lake Level Canal where it states:
. . . and to regulate the discharge into, or withdrawal from, the canals, lakes, rivers, channels, reservoirs, streams or other bodies of water controlled by the district or which are a work of the district, including review of small watershed projects.
Nothing in these provisions grants authority to St. Johns to adopt Lake Level Canal as a work of the district for purposes envisioned without responding to the Zellwood ownership interests. To do so would constitute an arbitrary and capricious act. This would constitute an act which is not inconsistent with law. See Section 373.044, Florida Statutes. Before St. Johns could make Lake Level Canal a work of the district it would have to make provision with Zellwood to settle the Zellwood ownership interest. To declare Lake Level Canal a work of the district without addressing the ownership interest by Zellwood, as contemplated by the proposed rule, is an act which enlarges and modifies the provisions in Chapter 373, Florida Statutes, which St. Johns has relied upon in drafting its proposed rule. Nothing in Section 373.084, Florida Statutes, dealing with the arrangement in which district works may be operated by other governmental agencies and Section 373.087, Florida Statutes, which allows the St. Johns's governing board to introduce and draw water from the underlying aquifer for storage and supply through works of the district, grants authority to St. Johns to declare Lake Level Canal work of the district without addressing the Zellwood ownership interest.
By contrast St. Johns is entitled to adopt Lake Apopka as a work of the district by action taken through its governing board. Lake Apopka is an "impoundment" as defined in Section 373.019(14), Florida Statutes. In that provision lakes are considered to be impoundments. As such it is subject to being declared a work of the district within the definition set forth at Section 373.019(15), Florida Statutes.
Lake Apopka at present is a damned water body whose water levels are controlled by St. Johns through the Apopka Lock and Dam. Assuming that the rule were otherwise a valid exercise of delegated legislative authority, it would not be impermissible for St. Johns to declare Lake Apopka a work of the district to compliment existing regulatory purposes. Subject to the conditions discussed, the same opportunity would be present for use of the Lake Level Canal. Given that the a rule is invalid no legitimate purpose is served by declaring the water bodies works of the District.
EQUITABLE ABATEMENT
The DEP is an independent environmental regulatory agency which has established the process known as "equitable abatement" in its permit procedures. The process is set forth in Rule 17-4.242, Florida Administrative Code. St. Johns also has independent regulatory authority. At times that regulatory authority could be expected to run concurrently with those functions performed by DEP. The existence of Rule 17-4.242, Florida Administrative Code, need not be accounted for in St. Johns' rule adoption practices. Should conflicts arise between the requirements set forth by the two regulators, they would be subject to resolution through due process opportunities. If a person or entity has acted in accordance with Rule 17-4.242, Florida Administrative Code, and hypothetically were expected to comply with the terms in the proposed rule at a later date, the due process opportunity for resolving permit issues would be available. Finally, if the proposed rule was otherwise valid, by its terms, the proposed rule establishes similar procedures to those set forth in Rule 17-
4.242, Florida Administrative Code, which would make compliance with the proposed rule and Rule 17-4.242, Florida Administrative Code, more convenient. Had the proposed rule been valid in other respects, the failure by St. Johns to specifically address Rule 17-4.242, Florida Administrative Code, in the enactment is not an arbitrary or capricious act.
ARBITRARY AND CAPRICIOUS
An arbitrary decision is one that is not supported by facts or logic or that is despotic. A capricious action is one taken without thought or reason or which is taken irrationally. See St. Joseph Land & Dev. v. Dept of Nat. Res., 596 So. 2d 137 (Fla. 1st DCA 1992).
To prevail on this issue Zellwood must prove that the rule has no reasonable basis for support. It does not suffice that there are better ways to achieve the objective set forth in the rule, or less burdensome methods to achieve those results or any other means to achieve the intended result. See Fla. League of Cities v. Dept. of Environ. Reg., 603 So. 2d 1362 (Fla. 1st DCA 1992)
Moreover, latitude is afforded an agency in its attempt to establish new or innovative scientific methodology in rule development. See Island Harbor
v. Dept. of Nat. Res., 495 So. 2d 209 (Fla. 1st DCA 1986).
Zellwood has met its burden to show arbitrary and capricious action in the rule enactment based upon the failure by St. Johns to adequately address increases in the muck/CF layer as that would influence the rule outcome as well as previous provisions within the proposed rule that have been discussed.
CONSENT ORDER
Nothing in the proposed rule works contrary to the existing consent order between the parties. Therefore, had the proposed rule not been otherwise invalid St. Johns has acted appropriately concerning the need to conform to the terms in the consent order when offering the proposed rule for adoption. In this respect, its action was not arbitrary or capricious.
Based upon the findings of fact and conclusions of law reached, it is ORDERED:
That proposed rule 40C-61 is declared an invalid exercise of delegated legislative authority in its entirety.
DONE and ENTERED this 15th day of August, 1995, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1995.
APPENDIX "A"
ISSUES OF LAW WHICH ARE IN DISPUTE
Whether St. Johns has exceeded its grant of rulemaking authority under Sections 373.044 and 373.113, Florida Statutes, or enlarged, modified, or contravened Sections 373.085, 373.086, 373-103, Florida Statutes, by declaring Lake Apopka a "work of the District" as defined in Section 373.109(15), Florida Statutes, for the purposes of the proposed rule, solely because: (a) Lake Apopka is not a "work" as defined in Section 373.403(5), Florida Statutes and a project, and (b) the bottom land under Lake Apopka is owned by the Board of Trustees of the Internal Improvement Trust Fund and not St. Johns.
Whether St. Johns has exceeded its grant of rulemaking authority under Sections 373.044 and 373.113, Florida Statutes, or enlarged, modified, or contravened Sections 373.085, 373.086, and 373.103, Florida Statutes, by declaring Lake Level Canal a "work of the District," for the purposes of the proposed rule, solely because Lake Level Canal is not owned by St. Johns.
Whether the proposed rule is arbitrary and capricious for the reasons set forth in paragraphs 42 through 45 of the Issues of Fact Which Are in Dispute.
Whether St. Johns was required, pursuant to Chapter 85-148, Laws of Florida, to consider "economic feasibility," as contemplated by that chapter, prior to publishing the proposed rule in the FAW, and if St. Johns did not consider "economic feasibility" as so described, whether the proposed rule is arbitrary and capricious.
Whether St. Johns was required pursuant to Section 373.044, Florida Statutes, to consider, prior to publishing the proposed rule in the FAW, the possibility that it would "take" Lake Level Canal without just compensation by adopting Lake Level Canal as a "work of the District," for the purposes of the proposed rule, and, if St. Johns failed to make such consideration, whether the proposed rule is arbitrary and capricious.
Whether St. Johns was required pursuant to Section 373.044, Florida Statutes, to follow the equitable abatement procedures set forth in Rule 17- 4.242, Florida Administrative Code, prior to publishing the proposed rule in the FAW, and, if St. Johns' failure to follow these equitable abatement procedures makes the proposed rule arbitrary and capricious.
Whether St. Johns was required pursuant to Section 373.044, Florida Statutes, to consider, prior to publishing the proposed rule in the FAW, the relationship between the proposed rule and the current Consent Order between St. Johns and Zellwood and, if St. Johns failed to make such consideration, whether the proposed rule is arbitrary and capricious.
Whether St. Johns has established a water quality standard for Lake Apopka in the proposed rule, and, if so, whether it has exceeded its grant of rulemaking authority under Sections 373.044 and 373.113, Florida Statutes, or enlarged, modified, or contravened Sections 373.085, 373.086, and 373.103, Florida Statutes.
ISSUES OF FACT WHICH ARE IN DISPUTE
Historic Water Chemistry and Goals for the Major Indicators of Trophic State. The only disputed issues of fact regarding the data and methodologies St. Johns used to determine the historic water chemistry and goals for the major indicators of trophic state are:
Whether St. Johns only used lakes sufficiently comparable to Lake Apopka, and, if it did not, whether it acted arbitrarily and capriciously.
Whether St. Johns used the mean or median from the range of data derived from the three different methods it employed, and if it did, whether it acted arbitrarily and capriciously.
Volenweider Model. The only disputed issues of fact regarding St. Johns' use of the Volenweider model is whether St. Johns' use of the model is arbitrary and capricious based on the following issues:
Whether St. Johns acted arbitrarily and capriciously by using a model which cannot predict time of recovery.
Whether St. Johns acted arbitrarily and capriciously in using a constant sedimentation coefficient as opposed to using a variable sedimentation coefficient.
Whether St. Johns acted arbitrarily and capriciously in the manner it developed the sedimentation coefficient derived from data obtained from two sets of lake sediment samples taken 19 years apart.
E. Whether, in using the Volenweider model, St. Johns assumed that movement of phosphorus between the lake water and the sediments would occur only in one direction (i.e.: loss to the sediment), and, if so, whether such assumption was arbitrary and capricious.
Internal Phosphorus Loading. The only disputed issue regarding internal phosphorus loading is whether St. Johns acted arbitrarily and capriciously by proposing to adopt the proposed rule given St. Johns' current and proposed methods for dealing with internal phosphorus loading.
Phosphorus Loading from Uncontrollable Sources. The only disputed issues regarding the data and methodology St. Johns used to calculate the phosphorus loading rate to Lake Apopka from the "uncontrollable sources" are:
Whether St. Johns acted arbitrarily and capriciously in collecting and analyzing data regarding phosphorus contributed to Lake Apopka by direct rainfall.
Whether St. Johns acted arbitrarily and capriciously in calculating the contributions of phosphorus to Lake Apopka from Gourd Neck Spring (also known as Apopka Spring).
If St. Johns acted arbitrarily and capriciously regarding the data and methodologies described in paragraphs 39(A) and 39(B), whether the net effect of such action resulted in a calculation by St. Johns of higher phosphorus loading from "uncontrollable sources" that was arbitrary and capricious.
If St. Johns was required, pursuant to Chapter 85-148, Laws of Florida, to consider "economic feasibility," as contemplated by that chapter, before publishing the proposed rule in the FAW, whether St. Johns failed to make such consideration to such an extent that the proposed rule is arbitrary and capricious.
If St. Johns was required pursuant to Section 373.044, Florida Statutes, to consider, prior to publishing the proposed rule in the FAW, the possibility that it would "take" Lake Level Canal without just compensation by adopting Lake Level Canal as a "work of the District," for the purposes of the proposed rule, whether St. Johns failed to make such consideration to such an extent that the proposed rule is arbitrary and capricious.
If St. Johns was required pursuant to Section 373.044, Florida Statutes, to consider, prior to publishing the proposed rule in the FAW, the relationship between the proposed rule and the current Consent Order between St. Johns and Zellwood, whether St. Johns failed to make such consideration to such an extent that the proposed rule is arbitrary and capricious.
APPENDIX "B" PREHEARING STIPULATION
The parties hereto, ZELLWOOD DRAINAGE AND WATER CONTROL DISTRICT and ST.
JOHNS RIVER WATER MANAGEMENT DISTRICT, by and through their undersigned counsel, enter into this Prehearing Stipulation and hereby stipulate to the following:
Respondent's expert witnesses are qualified to testify in the following fields:
Dr. Michael F. Coveney - biology and limnology.
Dr. David L. Stites - biology, aquatic ecology and limnology.
Dr. Edgar F. Lowe - biology, zoology and limnology.
Dr. Lawrence E. Battoe - biology, zoology, plant ecology, aquatic ecology and limnology.
Carol Fall - water quality, treatment efficiencies of stormwater management systems and stormwater management systems monitoring.
Jeff Elledge - civil engineering and water resources engineering.
Professor K. Ramesh Reddy - sediment chemistry.
Dr. David Toth - ground water hydrology and geology.
Petitioners expert witnesses are qualified to testify in the following fields:
Pat L. Brezonik - limnology, aquatic ecology, lakes and wetlands, water and sediment chemistry, biogeochemical cycles of nutrient elements, water quality and restoration of aquatic ecosystems.
Sanford Young - limnology, aquatic ecology, environmental engineering, civil engineering, biology and water quality.
Giles Van Duyne - agricultural engineering.
Curtis D. Pollman - limnology, aquatic ecology, water and sediment chemistry and water quality modeling.
APPENDIX "C"
The following discussion is given concerning fact proposals by the parties: ZELLWOOD
Paragraphs A through S are subordinate to facts found. Paragraphs 1 through 4 are subordinate to facts found.
Paragraph 5 is subordinate to facts found with the exception to the term "primarily".
Paragraph 6 is contrary to facts found.
Paragraphs 7 through 21 are subordinate to facts found.
Paragraphs 22 and 23 are rejected in the suggestion that a difference target concentration should be used.
Paragraphs 24 and 25 are subordinate to facts found. Paragraph 26 is contrary to facts found.
Paragraph 27 is rejected as being the view held by St. Johns. It is also rejected in the suggestion that St. Johns determined not to consider internal loading based upon this information.
Paragraph 28 - see discussion of Paragraph 27.
Paragraphs 29 through 34 are rejected in the attempt to establish the need to consider internal loading before meaningful progress can be made in restoring the lake.
Paragraph 35, it is not necessary to consider the viability of those other project in determining the propriety of the proposed rule.
Paragraphs 36 and 37 are rejected as an attempt to substitute other methods for lake restoration.
Paragraphs 38 and 39 are subordinate to facts found.
Paragraph 40 is subordinate to facts found with the exception of the suggestion that the comparison of the two studies was compromised by differences in navigational techniques. That suggestion is rejected.
Paragraph 41 and 42 are subordinate to facts found with the exceptions that the last sentence in Paragraph 42 is rejected in that a determination of whether the core penetrated was not limited to the appendices in the two reports.
Paragraphs 43 through the first phrase in the first sentence to Paragraph
46 are subordinate to facts found. The remaining language in Paragraph 46 is rejected in the attempt to substitute other methods for those employed by St. Johns in developing the rule. However, all sites should have been accounted for.
Concerning Paragraphs 47 and 48 see discussion related to the latter portion of Paragraph 46.
Paragraphs 49 and 50 are subordinate to facts found with the exception that the latter sentence in Paragraph 50 is rejected in its suggestion that the results contained in the land sampling from the land based collector were compromised.
Paragraph 51 is rejected in the attempt to substitute other results for those obtained by St. Johns in the rule development.
Paragraphs 52 and 53 are subordinate to facts found.
Paragraph 54 is rejected in its suggestion that other means should have been employed in developing the rule.
The first sentence to Paragraph 55 is subordinate to facts found. The second sentence is not relevant. The remaining sentence is contrary to facts found.
Paragraphs 56 through 58 are subordinate to facts found with the exception that the latter sentences in those paragraphs are rejected in the suggestion that the governing board of St. Johns must have considered these issues prior to rule adoption as opposed to relying upon the St. Johns' staff.
ST. JOHNS
Paragraphs 3 through 8 are subordinate to facts found. Paragraphs 9 and 10 constitute legal argument.
Paragraphs 11 through 25 are subordinate to facts found. Paragraph 26 is not necessary to the resolution of the dispute. Paragraph 27 is subordinate to facts found.
Paragraph 28 is not necessary to the resolution of the dispute. Paragraphs 29 through 33 are subordinate to facts found.
Paragraph 34 is subordinate to facts found with the exception of the latter sentence of that paragraph which was not proven.
The first sentence to Paragraph 35 is subordinate to facts found. The latter sentence in that paragraph is rejected in the suggestion that the rule would not place requirements that could not be economically met. That proposed finding was not proven.
Paragraphs 36 through 51 are subordinate to facts found.
Paragraph 52 is contrary to facts found in the suggestion that the sediments in the UCF and CF come from much difference communities.
Paragraph 53 is rejected in its suggestion that there are two different communities in the UCF and CF as is Paragraph 54.
Paragraph 55 constitutes legal argument.
Paragraphs 56 and 57 are rejected in the suggestion that the data on muck/CF was properly censored.
Paragraphs 58 and 59 are subordinate to facts found.
Paragraph 60 is rejected in its suggestion that the correct analysis was performed on core data in the muck/CF layer.
Paragraphs 61 through 77 are subordinate to facts found.
Paragraph 78 is subordinate to facts found with the exception that the last phrase related to other scientific investigations is not necessary to the resolution of the dispute.
Paragraphs 79 through the first sentence in Paragraph 84 are subordinate to facts found. The last sentence in Paragraph 84 is not necessary to the resolution of the dispute.
Paragraphs 85 through 93 are subordinate to facts found.
Paragraphs 94 and 95 are not necessary to the resolution of the dispute.
Paragraph 96 is subordinate to facts found other than in its suggestion that the proposed rule is intended to achieve Class III water quality standards for all nutrients. The only nutrient under consideration is phosphorous.
Paragraph 97 in its suggestion of the intention of the legislature constitutes legal argument. The remaining portion of Paragraph 97 is subordinate to facts found.
Paragraphs 98 through 103 are subordinate to facts found. Paragraph 104 constitutes legal argument.
Paragraph 105 is not necessary to the resolution of the dispute. Paragraphs 106 through 108 are subordinate to facts found.
Paragraph 109 is not necessary to the resolution of the dispute. Paragraphs 110 and 111 are subordinate to facts found.
Paragraphs 112 and 113 are not accepted. Paragraph 114 is subordinate to facts found.
Paragraph 115 is not necessary to the resolution of the dispute. Paragraphs 116 through 120 are not relevant.
Paragraph 121 is not necessary to the resolution of the dispute. Paragraph 122 is subordinate to facts found.
Paragraphs 123 and 124 are not relevant.
Paragraphs 125 is not necessary to the resolution of the dispute. Paragraphs 126 through 129 are subordinate to facts found.
Paragraph 130 is not necessary to the resolution of the dispute. Paragraph 131 is subordinate to facts found.
COPIES FURNISHED:
Steve Lewis, Esquire
John W. Forehand, Esquire Lewis, Longman and Walker, P.A. Post Office Box 10788 Tallahassee, FL 32302
Wayne E. Flowers, Esquire Eric T. Olsen, Esquire St. Johns River Water
Management District Post Office Box 1429 Palatka, FL 32078-1429
Henry Dean, Executive Director St. Johns River Water
Management District Post Office Box 1429 Palatka, FL 32078-1429
James Hawley, Board Member Jack Amonn, President Friends of Lake Apopka, Inc.
c/o Thomas K. Maurer, Esquire
111 North Orange Avenue, Suite 1800 Orlando, FL 32801
Liz Cloud, Chief
Bureau of Administrative Code The Elliott Building Tallahassee, FL 32399-0250
Carroll Webb, Executive Director Administrative Procedure Committee
120 Holland Building Tallahassee, FL 32399-1300
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
=================================================================
DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
ST. JOHNS RIVER WATER NOT FINAL UNTIL TIME EXPIRES TO MANAGEMENT DISTRICT, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED.
Appellant,
CASE NO. 95-3223
vs. DOAH CASE NO. 94-6578RP
ZELLWOOD DRAINAGE AND WATER CONTROL DISTRICT,
Appellee.
/ Opinion filed June 27, 1996.
An appeal from an order of the Division of Administrative Hearings. Wayne E. Flowers and Eric T. Olsen, Palatka, for Appellant.
Steve Lewis and John W. Forehand of Lewis, Longman & Walker, P.A., Tallahassee, for Appellee;
John J. Fumero and Keith W. Rizzardi, West Palm Beach, for Intervenor/Amicus Curiae South Florida Water Management District; Michael L. Rosen, Tallahassee, for Amicus Curiae Florida Legal Foundation, Inc.;
Kenneth F. Hoffman and M. Christopher Bryant, of Oertel, Hoffman, Fernandez & Cole, Tallahassee, for Amicus Curiae Florida Fruit & Vegetable Association;
Douglas H. MacLaughlin, Assistant General Counsel, Tallahassee, for Amicus Curiae Department of Environmental Protection
BARFIELD, C. J.
In this appeal from an order of the Division of Administrative Hearings, St. Johns River Water Management District challenges the decision of the hearing officer that invalidated its proposed rule to quantify discharge limitations for phosphorous for Lake Apopka. Because we hold that the hearing officer correctly determined that appellant did not have the statutory authority to set water quality standards as proposed by the rule in reliance on sections 373.085, 373.086, and 373.103, Florida Statutes (1993), we do not reach any other issues raised by the parties to this appeal.
It appears that the proper course for the appellant to have taken would have been to present its research and data to the Department of Environmental
Protection and request that the department adopt numerical standards for the water bodies in issue. See Miccosukee Tribe of Indians v. State, 656 So. 2d 505 (Fla. 3d DCA 1995).
AFFIRMED.
KAHN and DAVIS, JJ., CONCUR
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT
To the Honorable Charles C. Adams, Hearing Officer
Division of Administrative Hearings
WHEREAS, in that certain cause filed in this Court styled: ZELLWOOD DRAINAGE AND WATER
CONTROL DISTRICT
vs. Case No. 95-3223
Your Case No. 94-6578RP
ST JOHNS RIVER WATER MANAGEMENT DISTRICT and FRIENDS OF LAKE APOPKA, INC.
The attached opinion was rendered on June 27, 1996,
YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.
WITNESS the Honorable Edward T. Barfield
Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 15th day of July, 1996.
Karen Robert, Deputy Clerk
District Court of Appeal of Florida, First District
| Issue Date | Proceedings |
|---|---|
| Jul. 16, 1996 | First DCA Opinion and Mandate filed. |
| Jul. 01, 1996 | First DCA Opinion dated 06/27/96 (Affirmed) filed. |
| Jun. 28, 1996 | Opinion issued 6/27/96 rec'd from the 1st DCA. |
| Jan. 03, 1996 | Index, Record, Certificate of Record sent out. |
| Dec. 05, 1995 | Amended Index sent out. |
| Nov. 30, 1995 | Supplement directions to clerk to correct the record on appeal (Wayne Flowers) filed. |
| Nov. 21, 1995 | BY ORDER OF THE COURT (Extension of time to serve initial brief is granted) filed. |
| Nov. 16, 1995 | Directions to clerk to correct the Record on Appeal (from St. Johns River Water Management District) filed. |
| Nov. 02, 1995 | Index & Statement of Service sent out. |
| Sep. 25, 1995 | Appellee's Directions to Clerk filed. |
| Sep. 20, 1995 | Directions to Clerk filed. |
| Sep. 19, 1995 | Letter to DOAH from DCA filed. DCA Case No. 1-95-3223. |
| Sep. 12, 1995 | Certificate of Notice of Administrative Appeal sent out. |
| Sep. 11, 1995 | Notice of Administrative Appeal filed. |
| Aug. 15, 1995 | CASE CLOSED. Final Order sent out. Hearing held Jan 23-27, 1995. |
| May 05, 1995 | Proposed Final Order of the St. Johns River Water Management District(for Hearing Officer Signature); Disk w/cover letter filed. |
| May 05, 1995 | Petitioner`s Proposed Final Order; Petitioner`s Argument filed. |
| Mar. 23, 1995 | Transcripts (Volumes I through X, tagged) filed. |
| Feb. 10, 1995 | Letter to CCA from J. Forehand (RE: enclosing exhibits: 1 Box) filed. |
| Jan. 23, 1995 | Prehearing Stipulation filed. (2nd) |
| Jan. 23, 1995 | Prehearing Stipulation filed. |
| Jan. 23, 1995 | CASE STATUS: Hearing Held. |
| Jan. 20, 1995 | Amended Petition for Administrative Determination of Invalidity of Proposed Rule filed. |
| Jan. 20, 1995 | (Steve Lewis) Notice of Voluntary Dismissal filed. |
| Jan. 19, 1995 | (Respondent) Notice of Service of Answers to First Set of Interrogatories to Respondent St. Johns River Water Management District filed. |
| Jan. 19, 1995 | Order sent out. (ruling on Motion to dismiss or Strike) |
| Jan. 12, 1995 | Order sent out. (Petition to intervene granted) |
| Jan. 12, 1995 | (Respondent) Notice of Taking Deposition filed. |
| Dec. 27, 1994 | Respondent St. Johns River Water Management District`s Second Request for Production of Documents to Petitioners; Notice of Service of St. Johns River Water Management District`s Second Request for Production of Documents to Petitioners; Notice of Servi |
| Dec. 27, 1994 | Petitioner`s Response to Respondent`s Motion to Dismiss or Strike filed. |
| Dec. 21, 1994 | (Petitioner) Notice of Voluntary Dismissal filed. |
| Dec. 21, 1994 | and Sons, Arthur J. Hensel, Leon Rogers, and Clarence W. Beall, Jr. filed. |
| Dec. 21, 1994 | and Clarence W. Beall, Jr.; Notice of Service of St. Johns River water Management District`s First Request for Production of Documents to Zellwin Farms, Corporation, Grinnell Farms, Incorporated, Crakes and Sons, Incorporated, Long Farms, Incorporated, |
| Dec. 21, 1994 | Notice of Service of St. Johns River Water Management District`s First Set of Interrogatories to Zellwin Farms, Corporation, Grinnell Farms, Incorporated, Crakes and Sons, Incorporated, Long Farms, Incorporated, Stoup Farms, Incorporated, Lust Farms, In |
| Dec. 19, 1994 | (Friends Of Lake Apopka, Inc.,) (2) Petition To Intervene w/cover letter filed. |
| Dec. 15, 1994 | Notice of Hearing and Order of Consolidation sent out. (Consolidated cases are: 94-6578RP, 94-6579RP, 94-6580; hearing will be held January 23-27, 1995; 10:00am; Tallahassee) |
| Dec. 13, 1994 | (Respondent) St. Johns River Water Management District`s Motion To dismiss Or Strike; Florida Sugar Cane League, Inc., Petitioner v. Florida Department Of Environmental Regulation, Respondent filed. |
| Dec. 12, 1994 | (Petitioner) Notice Of Service Of Zellwood Drainage and Water Control District`s First Request for Production Of Documents To St. Johns River Water management District; Notice Of Service Of Zellwood Drainage and Water Control District`s First Set Of Inter |
| Dec. 08, 1994 | Notice Of Service Of St. Johns River Water Management District`s First Set Of Interrogatories To Petitioner filed. |
| Dec. 08, 1994 | (Respondent) Notice Of Service Of St. Johns River Water Management District`s First Request for Production Of Documents To Zellwood Drainage and Water Control District; Respondent St. Johns River Water Management District`s First Request for Production Of |
| Dec. 05, 1994 | Order of Assignment sent out. |
| Nov. 29, 1994 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Nov. 23, 1994 | Petition for Administrative Determination of Invalidity of Proposed Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 27, 1996 | Opinion | |
| Aug. 15, 1995 | DOAH Final Order | The agency did not have authority to establish a nutrient budget for phosphorous. |
