STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MICCOSUKEE TRIBE OF INDIANS, ) ) Petitioner, ) ) vs. ) Case No. 03 2872RP ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and ENVIRONMENTAL ) REGULATION COMMISSION, ) ) Respondents, ) ) and ) ) UNITED STATES SUGAR CORPORATION ) and SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, ) ) Intervenors. ) ________ __________________________) FRIENDS OF THE EVERGLADES, ) ) Petitioner, ) ) vs. ) Case No. 03 2873RP ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and ENVIRONMENTAL ) REGULATION COMMISSION, ) ) Respondents, ) ) and ) ) UNITED STATES SUGAR CORPORATION ) and SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, ) ) Intervenors. ) __________________________________) SUGAR CANE GROWERS COOPERATIVE ) OF FLORIDA, ) ) Petitioner, ) ) vs. ) Case No. 03 2884RP ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, ) ) Respondent, ) ) and ) ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, ) ) Intervenor. ) __________________________________) FINAL ORDER These consolidated cases were heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, from December 4 5, 8 12, and 15 19, 2003, and January 5 and 6, 2004, in Tallahassee, Florida. APPEARANCES For Petitioners Miccosukee Tribe of Indians and Friends of the E verglades: Dexter Lehtinen, Esquire Kelly S. Brooks, Esquire Felippe Moncarz, Esquire Lehtinen, Vargas & Riedi, P.A. 7700 North Kendall Drive, Suite 303 Miami, Florida 33156 For Petitioners New Hope Sugar Company and Okeelanta Corporation: Joseph P. Klock, Jr., Esquire Gabriel E. Nieto, Esquire Steel, Hector & Davis, LL P 200 South Biscayne Boulevard, Suite 4000 Miami, Florida 33131 2398 For Petitioner Sugar Cane Growers Cooperative of Florida: William H. Green, Esquire Gary V. Perko, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 For Respondents Department of Environmental Protection and E nvironmental Regulation Commission: David Crowley, Esquire Winston Borkowski, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 3000 and Mary F. Smallwood, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 For Intervenor United States Sugar Corporation: Daniel H. Thompson, Esquire Berger Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 For Intervenor South Florida Water Management District: Kirk L. Burns, Esquire Luna Phillips, Esquire Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road, MSC 1410 West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE Whether Proposed Rule 62 302.540, as formally noticed for adoption by the Depa rtment of Environmental Protection on July 18, 2003, is an invalid exercise of delegated legislative authority? PRELIMINARY STATEMENT On August 7, 2003, the Miccosukee Tribe of Indians of Florida (the "Miccosukee Tribe" or the "Tribe") filed at the Divisio n of Administrative Hearings a petition for an administrative determination of the invalidity of Proposed Rules 62 302.530 and 62 302.540. The two proposed rules were adopted by the Environmental Regulation Commission on July 8, 2003. They were formally noticed for adoption when the Department of Environmental Protection published a Notice of Change and Notice of Statement of Estimated Regulatory Costs on July 18, 2003. The filing of the Tribe's petition was rapidly followed by the filing of four related petitions. The first of them, filed by Friends of the Everglades ("Friends"), an environmental organization represented by the same counsel as the Tribe's, seeks relief identical to that of the Tribe's petition: an administrative determination that Propo sed Rules 62 302.530 and 62 302.540 are invalid exercises of delegated legislative authority. A third petition sought a final order determining that Proposed Rule 62 302.540 (the "Proposed Rule"), one of the two proposed rules subject to the petitions of t he Tribe and Friends, is an invalid exercise of delegated legislative authority. Filed by Florida Audubon Society, d/b/a Audubon of Florida, National Audubon Society, The Everglades Foundation, Inc., and Florida Wildlife Federation ("Audubon Petitioners") , and like Friends, each an environmental organization, the petition was voluntarily withdrawn in early December of 2003. The result was the closing of DOAH of Case No. 03 3882RP prior to the commencement of final hearing. The fourth and fifth petitions ( in order of case number assigned) were filed by business organizations. The fourth was filed jointly by New Hope Sugar Company and Okeelanta Corporation, both of which cultivate lands in the Everglades Agricultural Area. Their petition sought a determina tion that subsections (5)(c)1.b. and c., and (5)(c)2.b. and c. of Proposed Rule 62 302.540 are invalid exercises of delegated legislative authority. This fourth petition was voluntarily dismissed at DOAH and the file in Case No. 03 2883RP was closed pri or to the commencement of final hearing. The fifth petition was filed by the Sugar Cane Cooperative of Florida, an agricultural marketing cooperative association composed of 54 member farmers who grow sugar cane and other crops in the Everglades Agricultur al Area in Palm Beach County. This Cooperative's petition seeks a determination that subsections (4) and (5) of Proposed Rule 62 302.540 constitute an invalid exercise of delegated legislative authority "to the extent they would establish or require compl iance with the proposed 10 ppb criterion in already impacted areas of the Everglades Protection Area, or as more fully discussed in paragraph 18" of the petition. Petition for Administrative Determination of Invalidity of Proposed Rule , filed in DOAH Case No. 03 2884RP, p. 18. On October 27, 2003, the Cooperative filed a motion with the notice that it had "concluded that the rule will be workable and appropriate if none of its provisions is determined to be invalid so that it can all take effect." Unopp osed Motion for Leave to Amend Petition , p. 2, filed by the Cooperative on October 27, 2003. The Cooperative's motion to amend its petition to withdraw without prejudice its prior challenges to subsections (4) and (5) of the proposed rule, and to realign itself in support of the validity of the rule provisions challenged by others, drew no objection. It was granted. In the meantime, the five cases were consolidated and, in short order, U.S. Sugar Company, petitioned to intervene in the consolidated case s. The P etition to I ntervene was granted subject to proof of standing. An U nopposed M otion to I ntervene as R espondent was filed by the South Florida Water Management District. It was granted by O rder issued on September 3, 2003. Originally set to commenc e November 12, 2003, the hearing was reset to commence November 19, 2003, because of difficulty in copying numerous documents produced via the discovery process. Following the filing of a Stipulated Motion for Continuance, the hearing was re set to commen ce December 1, 2003. The same motion also requested that a pre hearing conference be held on November 21, 2003, in order to dispose of all pending motions and to take opening statements. The pre hearing conference was conducted as scheduled. Among the mo tions considered prior to the commencement of the hearing was a motion in limine to exclude the testimony of Dr. Ronald Jones, a witness for the Tribe. The motion was based on the refusal of the Tribe on the ground of privilege to respond to various disco very requests with regard to data and documents related to the Tribe's own Everglades phosphorus criterion including water quality data and the instruction to Dr. Jones during his deposition not to answer certain questions. The motion was granted and Dr. Jones' testimony was excluded in its entirety. See Order dated December 2, 2003. Two interrelated bases were the foundation for the ruling. First, Dr. Jones' opinion testimony about the appropriateness of the phosphorus criterion in the proposed rule co uld have been based on the withheld data and documents. 1 The withheld information has the potential of relevance to experts assisting the parties who sought the documents to prepare and present their cases to counter Dr. Jones' testimony. Second, the par ties opposed to the Tribe and Friends could not fully cross examine Dr. Jones without access to the withheld documents and data and without being able to fully prepare for hearing without the answers Dr. Jones would have given during his deposition but for the instruction not to answer certain questions. The Tribe, therefore, was faced with a choice in the administrative proceeding. It could continue to withhold the data and documents (despite the order compelling disclosure entered in the DOAH proceedings , because of an appellate court stay, see E ndnote 1,) and not present its witness whose testimony in all probability would relate to the documents and data. Or it could disclose the data and documents and otherwise allow full discovery and present the wit ness. The Tribe resisted the latter. Instead, it requested twice in writing that the order excluding Dr. Jones' testimony be reconsidered. After the taking of some testimony in the proceeding, reconsideration was granted and the motion in limine was modi fied. Dr. Jones was allowed to testify as to his knowledge of general ecology and background levels of phosphorus in the Everglades. Consistent with the earlier ruling on the motion in limine , however, the scope of Dr. Jones' testimony remained limited; he was not allowed to testify as to matters critical of the proposed rule that might have related to the withheld data and documents and which would have been, in all likelihood, helpful to experts in favor of the Tribe's opponents and relevant to cross ex amination of Dr. Jones by the Tribe's opponents. On December 4, 2003, before the ultimate resolution at the administrative level of the controversy surrounding Dr. Jones' testimony, the final hearing commenced. 2 At the outset, prior to taking any testimon y, the Department submitted three sets of documents bound in blue covers. The parties agreed that official recognition should be taken of them and accordingly, they were marked as OR 1, OR 2, and OR 3. The first consisted of Notices of Change, published July 18 and 25, 2003, with regard to the proposed rule. The second consisted of the Everglades Forever Act (1994 and 2003), other sections of the Florida Statutes and administrative rules deemed relevant by the parties, and notices of rule development and proposed rulemaking. The third was the Pre hearing Stipulation. The Tribe opened the first phase of the proposed rule challenge in which the Tribe and Friends had the burden of going forward with the presentation of Colonel Terry Rice, Ph.D., an expert i n hydrology, water resource engineering, regulatory issues, and permitting as it relates to Everglades restoration. The Tribe offered Tribe Exhibit 169 during the testimony of Dr. Rice. The Tribe and Friends jointly presented the testimony of three other witnesses (one of whom was Ronald Dean Jones, Ph.D., in light of the granted motion for reconsideration): David Parkhurst, Ph.D., an expert in environmental statistics; Felicia Coleman, Ph.D., an expert in principles of scientific method; and, Dr. Jones. Dr. Jones was accepted as an expert in general ecology of the Everglades, wetlands ecology, biogeochemistry, and water quality . The Tribe and Friends offered Tribe/Friends Exhibits, numbered as 22, 45, 46, 49, 67, 97, 115B, 116, 117, 119B, 119C, 124 (A D, F P, and R Z), 126 (A E), 130, 132, 138, 141, 146, 148, 149, 150, 166, 167, 168, and 207 ibe/Friends Exhibits 124E, 126F, and 189 were rejected. In addition, the Tribe and Friends proffered a series of exhibits associated with testimony of Dr. Jo nes excluded by the order on the motion in limine . The testimony that Dr. Jones would have presented but for its exclusion was summarized by the Tribe and Friends as part of the proffer. The Department presented the testimony of Ian Ray McKeague, Ph.D., a n expert in statistics; Program Administrator Frank Lester Nearhoof, an expert in the Everglades Forever Act, water quality data evaluation, including the statistical evaluation of data, and the establishment and implementation of water quality standards; Environmental Administrator Russell Frydenborg, an expert in biology, wetlands ecology, including Everglades flora and fauna, quality assurance and quality control, including field sampling and laboratory analysis methodologies, evaluation of water quality and biological data, including statistical evaluation and evaluation of aquatic biological communities, application of scientific principles to experimental design, regulatory compliance, and the establishment of water quality criteria; and Environmental Specialist Kenneth Charles Weaver, an expert in evaluation of water quality and biological data. The Department offered Exhibits 17, 19, 21, 22, 23, 24, 24 A, 24 B, 27, 29, 31, all of which were admitted into evidence. Four demonstrative exhibits were ma rked for identification as Department Exhibits 37 40. The South Florida Water Management District presented the testimony of three witnesses: Thomas Teets; Garth Redfield, Ph.D., an expert in environmental science, water quality, and aquatic ecology, inc luding Everglades ecology; and Gary Goforth, Ph.D., an expert in environmental engineering and water quality treatment. The District offered E xhibits 8, 20, 29, 31, 40, 43, 49, 59, 60, and 62, all of which were admitted into evidence. District Exhibit 1 6 was marked for identification and District Exhibit 64 was a demonstrative exhibit. Petitioner/Intervenor Sugar Cane Growers Cooperative of Florida (the "Cooperative" or the "Coop") presented the testimony of Sujoy Roy, Ph.D., an expert in environmental e ngineering with special emphasis in the computer modeling of the transport and fate of chemicals in the environment and analysis of water quality and biological environmental data for the purpose of developing water quality criteria for nutrients, which in clude phosphorus. Cooperative exhibits, marked for identification as "Coop" Exhibits 2, 8B, 8E, 9 (with a substitute appendix, Appendix 13, filed on January 15, 2004), 11A, 21, 24, 28, 30, 38, and 43A were admitted into evidence. Coop 9A was marked separ ately for identification; its original was in Appendix 2 to Coop 9 and was admitted as part of Coop 9. Intervenor U.S. Sugar ("U.S. Sugar") presented the testimony of Donald M. Kent, Ph.D., an expert in the fields of wetlands science and wetlands ecology. Its E xhibits 1, 4A, 5 1, 5 2, 10, 11, llA, 12 and 88B were admitted into evidence. U.S. Sugar Exhibit 65A was marked for identification but not offered. Intervenors New Hope Sugar Company and Okeelanta Corporation ("New Hope") presented the testimony of Robert Lewis Sielken, Jr., Ph.D., an expert in statistics and the use of statistical methods, including the application of statistics to ecological studies. Exhibits offered by New Hope and marked as New Hope 12, 22, 23, 24, 25, 26, 27, and 43 were admi tted into evidence. On the last day of hearing, January 6, following the testimony of Dr. Sielken, Colonel Rice was recalled by the Tribe and Friends in response to the cases in chief of their opponents. Rebuttal of the Tribe and Friends' response consist ed of testimony of Mr. Weaver. The hearing concluded on January 6, 2004. The transcript was filed on February 23, 2004. Proposed Final Orders were submitted timely by all of the parties on March 16, 2004. 3 FINDINGS OF FACT The Everglades 1. A vast expa nse of solitude, the flow of whose waters is nearly imperceptible to the human eye; a matchless mosaic of shallow sawgrass marsh, wet prairies interspersed with tree islands, and aquatic sloughs; terra incognita prior to the arrival of the Native American predecessors and ancestors of today's Miccosukee Tribe; secluded terrain, yet a distinctive home to a broad diversity of wetland species including those that are threatened and endangered such as the wood stork, snail kite, bald eagle, Florida panther and American crocodile; exceptional habitat for extensive populations of wading birds; an ecosystem of utmost environmental importance highlighted by the commitment in recent years of prodigious federal, state, and regional resources devoted to, among other en deavors, ground breaking scientific research and construction of mammoth projects for water management in furtherance of restoration and preservation; the principal and most significant subtropical freshwater peat wetland in North America: the tributes be stowed upon Marjory Stoneman Douglas' inimitable "River of Grass" are many. Among the accolades, one adjective stands out: "unique." Put simply, there is no ecosystem on earth like the Everglades. 2. The Florida Legislature succinctly honored the imm ense watershed's one of a kind nature in the opening paragraph of the 1994 Everglades Forever Act with the enactment of one sentence: "The system is unique in the world and one of Florida's greatest treasures." § 373.4592(1)(a), Fla. Stat. By this recogn ition of international prominence and incalculable import to the state of Florida, the Legislature reiterated that the Everglades are, indeed, irreplaceable. Oligotrophic and Phosphorus limited 3. The system that makes up the Everglades and its ecology wa s formed due to a number of factors described in the "Background" section of this O rder, below. 4. Among the most significant of the factors is that the system is oligotrophic: poor in one or the other (or a combination) of the nutrients necessary to sus tain life. In the case of an ecologically healthy Everglades, the system is poor in the nutrient phosphorus. There is also a disproportionately low level of phosphorus in relation to the presence of other nutrients (nitrogen and potassium) so that the sy stem is described as not only oligotrophic but "phosphorus limited," as well. 5. Among the findings in the Everglades Forever Act, (the "EFA" or the "Act"), that refers to phosphorus is the following: The Legislature finds that waters flowing into the Eve rglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. § 373.4592(1)(d), Fla. Stat. 6. Section (4) of the Act, entitled "Everglades Program" contai ns a subsection devoted to "Evaluation of water quality standards." Its provisions include the direction to the Department and the District to complete research to "[n]umerically interpret for phosphorus the Class III narrative nutrient criterion necessar y to meet water quality standards in the Everglades Protection Area[,]" § 373.4592(4)(e)1.a., Fla. Stat. The Class III narrative nutrient criterion (the "Narrative Criterion") is that "[i]n no case shall such phosphorus criterion allow waters in the Ever glades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna." § 373.4592(4)(e)2., Fla. Stat. A criterion, furthermore, is set by the EFA at "10 parts per billion (ppb)," section 373.4592(e)2. (th e "Default Criterion") if the Department does not by rule adopt a numeric phosphorus criterion for the Everglades Protection Area (the "EPA") by December 31, 2003. 7. In response to the mandate of the EFA, the Department, in July of 2003, published its p roposal for a rule that numerically interprets for phosphorus the Narrative Criterion (the "Proposed Rule.") The Proposed Rule 8. Rule 62 302.540 is entitled "Water Quality Standards for Phosphorus Within the Everglades Protection Area." OR 1. As "spec ific authority" it lists S ections 373.043, 373.4592 and 403.061. For "law implemented" it lists S ections 373.016, 373.026, 373.4592, 403.021(11), 403.061, and 403.201, Florida Statutes. 9. The Proposed Rule is the result of a decade long process. The process involved "tens of millions of dollars worth of research . . . and . . . thousands of man hours . . . worth of . . . data evaluations." (Tr. 1614) 10. From the outset, the process for development of the Proposed Rule was transparent; all of the da ta and the analyses of the data continued to be made available to interested parties. 11. Before the passage of the EFA, work had begun on an Everglades Nutrient Threshold Research Plan (the "Research Plan"). The Research Plan had been developed and adop ted under the direction of the Department by a panel of scientists appointed by the Everglades Technical Oversight Committee (the "TOC"). The TOC, in turn, was the product of an agreement settling a suit by the federal government in federal court to requi re the state of Florida to enforce water quality standards in the Everglades (the "Settlement Agreement," discussed, below). 12. In 1995, the Department created the Everglades Technical Advisory Committee (the "ETAC") to assist in the development of the p hosphorus criterion and to ensure transparency. 13. The ETAC consisted of representatives of the Everglades National Park (the "Park"), the Arthur R. Marshall Loxahatchee National Wildlife Refuge (the "Refuge" or "WCA 1"), the District, the Florida Game a nd Fresh Water Fish Commission, USEPA, the Army Corps of Engineers, the Miccosukee and Seminole Tribes, agricultural interests and environmental groups. 14. In addition to the ETAC process, the Department coordinated a series of workshops and site visits involving research groups, external peer reviewers, and interested parties starting with an initial workshop held by the District in February of 1995 and culminating in a 1998 Peer Review Report. 15. From June 1996 through December 2001, the Department ma de 13 presentations to the Environmental Regulation Commission (The "ERC") detailing the Department's efforts to establish a numeric interpretation of the Narrative Criterion. These presentations culminated in the filing of a Notice of Proposed Rulemaking in December of 2001. 16. The presentations were followed by a publicly noticed ERC rule approval hearing beginning in January of 2002. Continued over a series of 14 monthly ERC meetings (each a full day or two days), the hearing ended with ERC approval of P roposed Rule 62 302.540, Water Quality Standards for Phosphorus Within The Everglades , on July 8, 2003. 17. Numerous stakeholders and special interests presented information to the ERC during the rule approval hearing process. These included the Trib e and Friends and the intervenors to this rule challenge proceeding. The record reflects that the process by which both the criterion was established and that led to the Proposed Rule was a long term and deliberative public process with comment, input and criticism directed to the Department from a broad array of perspectives and interests. A Brief Summary 18. In order to understand the contentions of the Tribe and Friends and the responses of the other parties, a discussion of the background that led to the Proposed Rule beginning with the formation of the Everglades and concluding with recent amendments to the EFA by the 2003 Florida Legislature is necessary. Following that discussion, the Proposed Rule will be described in more detail together with add ress of the issues. First, however, is the following brief summary of the Proposed Rule. 19. The Proposed Rule contains nine sections. 20. Section (1) articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area. It establishes, as the Proposed Rule's title reflects, water quality standards for phosphorus, that contain, as one element, the numeric interpretation of the Narrative Criterion. 21. Section (2) bears a similarity with the Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62 302.300, that contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quali ty." Relevant to its initial finding, Section (2) sets forth the finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the [Everglades Protection Area] must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. 22. Section (3) of the Proposed Rule contains definitions. Among them is the definition of "Impacted Areas": "areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." 23. Section (4), of the Proposed Rule concerns two concepts: establishment of the phosphorus criterion, the "heart of the Proposed Rule" and achievement of the criterion. 24. Establishment of the criterion occurs in the sectio n's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. 25. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. 26. Section (5) of the Proposed Rule entitled "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" contains a complexity of subsections. Subsection (a) requires separate determinations in impacted and unimpacted areas in each of the four water bodies into which the EPA is divided: Water Conservation Area 1 ("WCA 1" or the "Refuge"), Water Conservation 2 ("WCA 2"), Water Conservation Area 3 ("WCA 3") and Everglades National Park (the "Park"). Subsection (b) governs achievement in the Park and the Refuge. Subsection (c) governs the achievement in WCA 2 and WCA 3. 27. Subsection (d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodic ally that the methodologies for achievement are working both to protect the EPA and to prevent false positives. 28. Subsection (e) governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions, both natural and man induced, the Department believes not to be consistent with determining an accurate estimate of ambient water column total phosphor us. It excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. 29. Section (6) provides long term compliance permit requirements for phosphorus discharges into the EPA. 30. Section (7) sets forth moderating provisions designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA. There are two types of moderating provisions in the section. Subsection (a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (b) allows for discharges to be permitted that accomplish the purpose of "hydropattern restoration" under certain circumstances. 31 . Section (8), by reference, incorporates a single document: "Data Quality Screening Protocol, dated ." 32. Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Depart ment bring the matter back before the Commission for reconsideration in the event "any provision of the rule is determined to be invalid under applicable laws or is disapproved by the U.S. Environmental Protection Agency (the "USEPA") under the Clean Wat er Act. Standing and/or Identification of the Parties 33. The parties stipulated to the standing of the Tribe, Friends, New Hope and the Coop to initiate the proceedings in Case Nos. 03 2872RP, 03 2873RP, 03 2883RP, and 03 2884RP. 34. The parties stip ulated to the standing of U.S. Sugar to intervene in the consolidated proceeding with I ntervenor R espondent status. 35. The parties stipulated to the standing of the South Florida Water Management District to intervene as a R espondent in the consolidated proceeding. 36. The parties further stipulated to facts with regard to standing that identify the parties. These are contained in paragraphs 20, 21, and 27 43 under Tab 4 of the Pre hearing Stipulation, at pages 65 71 of the stipulation. They are inco rporated by reference. 37. A summary of the identifications (repetitive of those incorporated by reference) follows. This summary in no way limits the facts incorporated by the reference to the Pre hearing Stipulation. i. Miccosukee Tribe of Indians 38 . The Everglades has been the home of the Miccosukee Tribe for generations, and it is an integral part of their culture, subsistence, religion, historical identity and way of life. Members of the Tribe work, reside, and practice their culture and way of life in the Everglades Protection Area. The Tribe's land interests in the Everglades Protection Area include, without limitation, perpetual Indian rights; a perpetual lease from the state of Florida for the use and occupancy of substantial WCA 3A, which t he state of Florida guarantees will be maintained in its natural state in perpetuity; aboriginal title of Tribal members to portions of the Everglades; and rights to traditional use and occupancy in Everglades National Parkibal members live in, use an d enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. ii. Friends of the Everglades 39. Friends of the Everglades is a Florida based non profit corporation founded in 1969 by Marjory Stoneman Doug las, a pioneer conservationist, recipient of the Presidential Medal of Freedom, and the author of the Everglades River of Grass . Mrs. Douglas formed this grassroots organization to educate the public about the importance of the Greater Kissimmee Okeechobe e Everglades ecosystem, to protect the Everglades ecosystem from human activities that would impair its health and natural function, and to work for its restoration. Friends of the Everglades has approximately 3,500 members who use and value the Everglade s for recreational and spiritual pursuits, including hiking, walking, bird watching, fishing and nature trips. Members of Friends use various sections of the Everglades Protection Area and want to protect and preserve these areas for themselves and future generations. The members of Friends of the Everglades use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. iii. DEP 40. The Department of Environmental Protection, is the state agency aut horized, to adopt through the ERC water quality standards under Chapter 403. It is also directed by the Everglades Forever Act to adopt a numeric interpretation of the Narrative Criterion for the Everglades Protection Area. The DEP Secretary has rulemaki ng responsibility under Chapter 120, but must "submit any proposed rule containing standards to the [ERC] for approval, modification, or disapproval[.]" § 403.805, Fla. Stat. iv. The ERC 41. The Environmental Regulation Commission (the "ERC") is require d to "exercise the standard setting authority of the department under . . . section 373.4592(4)(d)4. and (e)." § 403.804, Fla. Stat. In exercising its authority, the ERC is directed to "consider scientific and technical validity, economic impacts, and re lative risks and benefits to the public and the environment." Id. v. Sugar Cane Growers Cooperative of Florida 42. The Cooperative is an agricultural marketing cooperative association formed and operating pursuant to Chapter 618, Florida Statutes. The Cooperative and its 54 member farmers cultivate sugar cane and other crops in the Everglades Agricultural Area (EAA) in Palm Beach County, Florida. That cultivation involves the use and management of surface waters which are supplied to and ultimately re leased from their lands by way of the Central and Southern Florida Flood Control Project (the "C&SF Project") approved by the U.S. Congress over 50 years ago. vi. South Florida Water Management District 43. The District has been a party to the rulemakin g that led to the Proposed Rule, actively participating in the presentation of testimony and written submissions. A significant portion of scientific data used to establish the phosphorus criterion in the Proposed Rule was predicated upon District staff r esearch. In addition, the EFA mandates the District to obtain permits for all of its structures that discharge into the Everglades. In accordance with the EFA, the Phosphorus Rule sets the permitting requirements for the District's discharge structures. Accordingly, the Phosphorus Rule will impact the District's implementation of the Long Term Plan and how it will operate its discharge structures. vii. U.S. Sugar, New Hope and Okeelanta 44. U.S. Sugar is a privately held agribusiness corporation with its principal offices in Clewiston, Florida. 45. New Hope Sugar Company and Okeelanta Corporation are privately held agribusiness corporations with their principal offices in West Palm Beach, Florida. 46. U.S. Sugar, New Hope, and Okeelanta all own farml and within the Everglades Agricultural Area (EAA). U.S. Sugar owns about 194,000 acres of farmland in Florida. Most of U.S. Sugar's, New Hope's and Okeelanta's farming operations occur in the EAA where they grow and processes sugar cane. The Challenges o f the Tribe and Friends 47. The Tribe and Friends described a unified position with regard to their separately filed challenges that the Proposed Rule constitutes an invalid exercise in delegated legislative authority in the "position statement" section of the Pre Hearing Stipulation filed by the parties: The [P]roposed Rule, first and foremost, fails to establish a numeric interpretation of the narrative nutrient criterion for phosphorus that would prevent an imbalance of the natural populations of aquat ic flora and fauna in the Everglades Protection Area. The grounds upon which the Tribe and Friends are challenging the [P]roposed Rule . . . include, but are not limited to: distorted findings of fact; improper designation of impacted areas; improper use of a geometric mean to establish the criterion that will cause an imbalance of flora and fauna; improper merging of the numeric criterion with moderating and permitting provisions that will in fact negate the numeric criterion; improper measurement method ology that does not prevent imbalance or protect designated use; improper division of the Everglades Protection Area into impacted and unimpacted areas; allowance of an arbitrary and capricious method for analyzing data; allowance of hydropattern restorati on with water above the criterion that will cause an imbalance of flora and fauna; adoption of the Long Term Plan as a moderating provision, which is really a license to pollute, and which will also result in an imbalance of flora and fauna; and an imprope r vesting of authority in the Department of Environmental Protection to change the Long Term Plan. Pre Hearing Statement, pp. 7 8. Factual statements that are at issue in the view of the Tribe and Friends are listed in the Pre Hearing Stipulation at pag es 74 to 77. 48. Distilled to its essence, the Tribe and Friends' claim that the Proposed Rule because of flaws, including the establishment of a numeric phosphorus criterion of for Class III waters in the EPA as "a long term geometric mean of 10 ppb," Section (4) of the Proposed Rule, "does not prevent an imbalance to the natural population of aquatic flora and fauna." (Tr. 59) This essence is captured in two of the eight statements of ultimate facts in their petitions, ( see paragraphs 19 26, pgs. 5 6 of the Petition in Case No. 03 2972RP): 22. The proposed Rule will not in fact prevent an imbalance in the natural populations of aquatic flora and fauna in the Everglades Protection Area. 23. The proposed Rule is not in fact a numeric interpretation o f, or consistent with, the Class III narrative criterion for phosphorus which prohibits causing an imbalance in natural populations of aquatic flora and fauna. Id. , at p. 5. 49. The concerns of the Tribe and Friends were summed up in opening argument as falling under ten main points. For purposes of discussion, these ten categories may be titled as "1) Authority to establish a Water Quality Standard for Phosphorus and Merger of the Criterion with Achievability; Moderating Provisions and Permitting Provis ions; 2) Inaccurate Findings; 3) Defensible Science and Consideration of Achievability and Economics; 4) The Impacted Areas Definition; 5) The Phosphorus Criterion Does Not Protect Against Imbalance; 6) Relationship of Criterion to the Park, Refuge, Unimpa cted Areas, Impacted Areas; 7) Achievement Methodology; 8) Data Screening; 9) Creation of a Legislative Permit To Pollute Through the Year 2016; and, 10) Use of Moderating Provisions and the Long Term Plan. ( See T r. 39 59) 50. An understanding of the co ntentions of the Tribe and Friends and the responses of DEP, the ERC, the District, U.S. Sugar, New Hope and the Cooperative, requires a considerable amount of background, beginning with the historical Everglades. The Historical Everglades 51. The Histor ical Everglades was part of one system that began at its northernmost with the chain of lakes at the headwaters of the Kissimmee River and extended downriver through Lake Okeechobee and southward across the interior of southern peninsular Florida to Florid a Bay. Formed over a period of at least 5,000 years, the system reached a peak in the mid 19th Century. The system at that point in time (not long before the initiation of a series of man made alterations that had profoundly negative environmental effect s) is commonly referred to as the "1850 system." 52. Most of the water that flowed in the Everglades over its millennia of formation was introduced through rainfall. The 1850 system, therefore, was ombrotrophic: one in which atmospheric deposition (ra in) is the primary source of nutrients and water table recharge. 53. The 1850 system contained a variety of habitats. A densely vegetated area immediately south of Lake Okeechobee (a zone of custard apple associated with abundant wildlife and immense bir d rookeries) transitioned to elderberry, dense sawgrass, and then to less dense sawgrass. Cypress swamps stood on the western periphery, pine flatwoods on the eastern edge; ridge and slough areas dotted with tear shaped tree islands aligned in the directi on of southerly flow dominated the central region. At the southern end, freshwater entered the Shark River and Taylor sloughs and was carried by small rivers and through mangrove thickets at the southern tip of the Florida Peninsula to meet the salt water s of the sea. 54. The presence of the tremendous numbers of birds and their rookeries in the area immediately south of Lake Okeechobee led to phosphorus concentrations in the soil in this "enriched custard apple zone" as high as 1,500 to 2,000 parts per million. The zone comprised slightly under 300,000 acres, about 10% of the approximately 3,000,000 acres in the historical freshwater Everglades. Lake Okeechobee Pulses 55. A critical relationship existed between the lake and the areas of the historical Everglades further south. The enriched custard apple zone, the sawgrass marsh, the wet prairies and the aquatic sloughs received waters directly from Lake Okeechobee from time to time by means of gentle overflow. Sheet flows generated from the lake lang uidly pulsed southward in seemingly endless repetition interrupted only by drops in water levels that came with seasonal fluctuations. 56. The flows were confined for the most part by ridge systems such as the Atlantic Coastal Ridge to the east and terrai n that includes plateaus, the Immokalee Rise and Big Cypress Swamp at a higher elevation to the west. To a relatively slight extent, waters from the flows escaped eastward to the Atlantic or westward to the Gulf of Mexico. For the most part, the hydro pu lses, above the gently sloped peat and marl soils below, successively overran the southern interior of the peninsula that is S outh Florida to join the sloughs that carried them to the salt water of the seas connected to Florida Bay. Contributions to the Sy stem's Make up 57. On the inexorable journey southward, the slow flowing waters were fed by the main source of Everglades flow: plentiful rain. The rains included the torrents from the inevitable tropical storms and hurricanes that were instrumental in creating the system as they blew across South Florida. Stressors such as fire, drought, and rare but occasional frosts, made additional contributions to the shaping of the ecosystem and its unique ecology. 58. Aside from the rain driven nature of the sys tem, the lake generated hydro pulses and the seasonal fluctuations in water levels together with intermittent contributions by fire, drought, frost and torrential rain that shaped its ecology, there is another central premise concerning the formation and l ife of the Everglades. The system is poor when it comes to the nutrient with which this proceeding is concerned: phosphorus. Phosphorus in the Historical Everglades 59. With the exception of localized areas associated with tree islands or because of fir e or other natural occurrences such as an alligator hole, the phosphorus concentrations in the water column south of the enriched zone historically achieved homeostasis at or below an extremely low level: 10 parts per billion ("ppb"). 60. The historic Ev erglades south of the enriched zone had concentrations of phosphorus in the water column that ranged from 5 to 8 ppb in slough habitats to a phosphorous level one or two ppb higher in the areas of dense sawgrass, that is, peaking at a level of 10 ppb homeo statically. 61. An exception to these low levels of phosphorus in the historic Everglades south of the enriched zone is the tree islandee islands had higher levels attributed to the habitation of the islands by wildlife that translocated nutrients f rom the marsh to the islands. In the case of translocation by birds, translocation of phosphorus lowered the concentration of nutrients in the marsh fed on by the birds and increased it wherever birds congregated, especially in rookeries. 62. Extremely l ow levels of phosphorus were an essential component of the health of the historical Everglades and its unique ecology. At the base of this phosphorus limited ecology, historically and today, is the periphyton community, described by Ronald Jones, Ph.D., a nd the Tribe and Friends' expert witness, as "the real key to the Everglades." (Tr. 2958) The Periphyton Base of the Everglades Ecosystem 63. Today, periphyton accounts for 30% to 50% of the vegetative biomass of the Everglades and 70% to 80% of the dail y productivity of the system. In a healthy Everglades ecology, periphyton are knitted together in formations referred to as periphyton sweaters or as "periphyton mats." 64. A periphyton mat is composed of different microscopic life forms, predominately blue green algae or cyanobacteria, followed by diatoms and green algae. The microbial organisms are held together by mucilage that they produce themselves. The majority of a periphyton mat (about 68%) is void of mucilage and the organisms, themselves. I n the aquatic environment of the Everglades, therefore, this space is filled with water, which leaves 30% or so of the mat as organic material. Six percent of the organic material is composed of the cells of the microscopic cyanobacteria, diatoms and gree n algae. The remaining 94% of the organic material is mucilage, the substance that holds the cells together in a glue like fashion. 65. Mucilage is a direct result of the phosphorus poor environment. It is essential to the survival of the periphyton cel ls because "in intimate contact with each other . . . they're able to make the most efficient use of the . . . resources" (Tr. 2982), particularly the most limited resource: phosphorus. 66. When levels of phosphorus increase in the water column, periphy ton mats fall apart. There is no longer a need for the cells to produce mucilage, an activity "expensive" (Tr. 2981) in carbon, as there is in a healthy Everglades ecology when limited phosphorus must be maximized by the periphyton communities. 67. Toda y, periphyton mats continue to disintegrate at an alarming rate in the Remaining Everglades despite recent progress made in reducing the inflow of excessive amounts of phosphorus in discharges that comprise some of the water management practices of the Dis trict. 68. Nonetheless, progress is being made toward a reversal of Everglades loss. In an October/November 2003 publication of the South Florida Water Management District, the District in an article entitled "Encouraging Signs for Everglades Recovery," reported that "[b]etween 1995 and 2003, the rate of cattail expansion in Water Conservation Area 2A . . . declined from 2,375 acres per year to 785 acres per year." Tribe/Friends Ex. 138. 69. The District's publication explained why cattails, one indicat or looked at by scientists "among multiple indicators to determine the condition of the Everglades," id. , are a marker of poor ecological health in the Everglades: Cattails are a natural aquatic plant, typically found in wetland systems around the world, including the Everglades. In fact, it is an approved species for shoreline restoration projects in the state of Florida. Under historic conditions, the Everglades' low nutrient levels kept the smattering of cattail plants in check. But cattail is an aggressive, opportunistic plant. Fueled by high phosphorus inflows from agricultural and urban areas, cattail began to bully its way into the Everglades landscape, out muscling more desirable plants such as sawgrass and other vegetation which provide habi tat for wildlife. Thickets of cattail form a dense mat, blocking sunlight and lowering dissolved oxygen levels needed by aquatic life below. They grow so close together that wading birds are unable to forage for food in the shallow marsh. Sustained deep water levels also give cattails a competitive advantage due to their ability to move oxygen from their leaves down to their roots. In the late 1980s and early 1990s, aerial vegetation mapping and field visits in a 104,000 acre portion of the Everglades k nown as Water Conservation Area 2A verified intense growth stands along major inflow points. This cattail explosion was visual documentation of changes in the Everglades habitat due to excess nutrients and became a rallying cry for water quality improveme nts. Id. While a slowing in the rate of cattail expansion is progress toward slowing the loss of the Everglades, an annual rate of 785 acres of cattail expansion is a serious threat to the Everglades that remain today. The Remaining Everglades 70. The " remaining Everglades" is the roughly 50% or 1.6 million acres of the Everglades today left from the original 3,000,000 acres or so of the historical Everglades. The remaining Everglades is what remains of the system in the wake of the anthropogenic chang es that began in the second half of the 19th Century. Anthropogenic Changes 71. The initial man made or "anthropogenic" changes to the Everglades began with the arrival of Hamilton Disston, a Philadelphia developer. The state deeded him land for the pur pose of drainage or "re claiming" of swampland. Under a contract entered in 1881 with the Board of Trustees for the Internal Improvement Fund as part of the first comprehensive drainage plan, Mr. Disston dug canals from Lake Okeechobee in directions both east and west. To the east, leading to the Atlantic Ocean, is the St. Lucie Canal. "[T]o the west is the Caloosahatchee and its called a river, but it looks rather more like a canal if you . . . look at it today." (Tr. 1536) The effect of the two cana ls was to lower the level of Lake Okeechobee by several feet. 72. Mr. Disston's efforts were followed by efforts by Governor Broward, directed by him personally, that implemented advice from the Army Corps of Engineers. The Corps had advised that conver ting the swampland adjacent to the lake into agricultural land would require flood control, irrigation systems and drainage. The Corps also had advised that reclamation of the narrow eastern edge of Everglades (now much of the developed Lower East Coast o f Florida) would require a substantial levee on the coastal lands' western border and drainage ditches where small streams flowed from the Everglades to the Atlantic. As part of the activity recommended by the Corps, a set of four major canals was dug in a generally southeasterly direction: the West Palm Beach Canal, the Hillsboro, the North New River, and the Miami Canal. 73. In the late 1920's, around 1926 and 1928, there were back to back hurricanes in South Florida. Damage was primarily south of th e lake in the area now known as the Everglades Agricultural Area. The hurricanes "resulted in tremendous loss of life, and . . . widespread flooding in the area. In response, the Army Corps of Engineers built . . . Hoover Dike, . . . the dike that now [ surrounds] the lake." (Tr. 1538) The dike renders the lake a contained, closely managed body of water. 74. These developments altered the natural balance between water and soil in substantial parts of the historical Everglades. Drainage led to parched prairies, muckfires, the flooding of farms and communities, and salt water intrusion into the water supplies of the Lower East Coast of the state. HOUSE DOCUMENT No. 643, dated May 6, 1948 is a letter from the Secretary of the Army to the Congress. It t ransmitted, in turn, a letter from the Chief of Engineers, United States Army, submitting a comprehensive report to the Congress of the United States that pronounced concern about the Everglades. The document summarized, for example, the toll that water c ontrol changes had exacted on Everglades wildlife: Southern and Central Florida were originally one of the greatest natural habitats for fish, birds and game on the North American continent. The shores of Lake Okeechobee and the Everglades once afforded a refuge for thousands of water fowl and other birds which are now virtually extinct . . . In brief, it appears that large parts of the Everglades should be held and protected as conservation areas which would be ideal for preservation of wildlife. Coop. 9a, p. 36 (paragraph 48 of the Report of the District Engineer.) These facts added to the urgency of the need for conservation. But the concern led to further alteration disruptive to Everglades ecology. 75. Authorized by Congress in 1948, the "Centra l and Southern Florida Project for Flood Control and other Purposes" (the "C&SF Project") implemented a comprehensive plan to reclaim wetlands for agricultural and urban development. The project's purposes included flood control, water supply for municipa l, industrial and agricultural uses, prevention of saltwater intrusion, water supply for Everglades National Park, and protection of fish and wildlife resources. 76. To take advantage of the fertile soils in the custard apple zone immediately south of th e lake, the C&SF Project called for the creation of the Everglades Agricultural Area (the "EAA") 4 to bring into agricultural production 500,000 acres. Other large portions of the Everglades have also been converted to agricultural use. 77. The project w as also intended to pump water south into interconnected water conservation areas in Palm Beach, Broward, and Dade Counties to facilitate the other purposes of the project. 78. The C&SF Project includes 1,000 miles each of levees and canals, 150 water co ntrol structures, and 16 major pump stations. The extensive agricultural operations and considerable residential and commercial development that followed the initiation of the project are dependent on the maintenance of this highly controlled system of ca nals, levees and pumps, now operated by the South Florida Water Management District (the successor to the Central and Southern Flood Control District created by the state in response to the federal project.) 79. The C&SF Project was largely complete by 1 962 with the creation of works that facilitated man made divisions of the historic Everglades located within the Everglades Protection Area (the "EPA"). The EPA 80. The EPA is defined at Section 372.4592(2)(i). It consists of four divisions or water bodi es whose segmentation has been facilitated by the C&SF Project works: three Water Conservation Areas and the Everglades National Park. Water Conservation Area 1 is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (it is referred to in this ord er, therefore, interchangeably as the "Refuge," or WCA 1.) WCA 2 is further divisible into 2A and 2B and WCA 3 is further divisible into 3A and 3B. The fourth water body in the EPA is the Park. The Main Effects of the Anthropogenic Changes 81. There ar e two main effects of the changes made by humans to the historical Everglades. The first is an issue of water quantity and flow. The hydrology of the system has been dramatically altered. What was once "broad, shallow sheet flow across the marsh," dicta ted by nature is now "a compartment alized system with segmented flow" (Tr. 1539) managed to a highly significant degree by man. 82. Hydropatterns have been altered in a number of ways that have resulted in major effects. The draining of the system has affected the water table. Water that had flowed through the peat, in addition to above the peat, keeping it wet, no longer does so in many parts of the Everglades. On the other hand, water impounded in the WCAs moved subsequently through canals and levee s has made some areas, including relatively shallow areas, deeper. The custard apple zone has been drastically affected hydrologically; it no longer exists. Roughly in its place is the EAA. The EAA is 6 to 8 feet lower than the historic custard apple zo ne. In fact, the EAA is lower than the Everglades immediately to its south, precisely the opposite of the situation in the historical Everglades. Most of the soil is still present in the EAA, but because it has lost its hydric characteristic it is ten ti mes denser than the soil found to the south. The soils density is another result of hydropattern disruption. 83. The second effect is one of water quality. Drainage from the urban areas to the east and from the EAA have created water quality problems. Pesticides and herbicides have made their way into the Everglades. 84. Both agricultural and urban land uses result in the release of excess nutrients, including phosphorus and nitrogen, from fertilizers. These excess nutrients are carried in stormwate r runoff. They are also present in agricultural discharges. The runoff and discharges are ultimately pumped through water management district canals and facilities into the remaining Everglades. 85. While pesticides, herbicides and nitrogen pose water quality problems, the preeminent water quality problem in the Everglades is phosphorus enrichment. 86. For the 3 or 4 decades prior to the initiation of best management practices ("BMPs"), including those that employ stormwater treatment areas ("STAs") co nstructed in the last decade or so, the levels of phosphorus in the water column reaching the WCAs ranged from approximately 100 to 200 ppb. 87. The introduction of excessive levels of phosphorus into the Everglades caused and continues to cause profou nd changes to its biology. Natural populations of aquatic flora and fauna adapted to the oligotrophic and phosphorus limited system become displaced by species that thrive on the phosphorus rich waters pumped into the EPA and the phosphorus from these wat ers that settles out and makes its way into Everglades soil. 88. In some areas of the EPA into which the Federal Project and the water management practices that have followed have pumped phosphorus enriched water from the EAA, soil phosphorus concentratio n exceeds 500 parts per million. See areas designated in yellow on Coop Ex. 21 or in green on Coop Ex. 8E. These areas (defined by the Proposed Rule as "impacted"), for the most part, are on the periphery of the Refuge, WCA 2A (where the impacted areas e xtend deeply from the northeastern border into the interior of the conservation area), WCA 3A and WCA 3B. An exception occurs in the middle of WCA 3A along the Miami Canal which runs from Lake Okeechobee through the EAA and then across WCA 3 in a southeas terly direction. The impacted areas shown on Coop Ex. 8E comprise about 6% of the total 1.6 million or so acres of the freshwater portions of the Remaining Everglades. 89. The conversion of a low nutrient or oligotrophic system to a high nutrient syst em is known as "eutrophication." One especially visible example of a nutrient induced shift in biology is the displacement of sawgrass marshes with an invasive monoculture of pollutant tolerant cattails. 90. The oligotrophic nature of the system is th e same today in areas of the Everglades that have not suffered the impacts of man. This determination is supported by the low nutrient content in Everglades peat and at interior marsh sites as determined by a recent study. Today, "a large body of evidenc e [citations omitted] indicates that . . . the primary limiting nutrient throughout the remaining Everglades" is phosphorus. DEP 23, Vol. 1, p. 4., but there is no gaseous form of phosphorus. The amount of phosphorus that comes directly from rain, theref ore, is very low, "usually less than a part per billion." (Tr. 2765) 91. Pollen, plant particles and dust tossed into the air in the normal course of events make up "dry fall." Dry fall contains phosphorus. Dry fall can drift into the waters of the Eve rglades but usually its components, including phosphorus, get deposited through rain on a localized scale. Dry fall, therefore, is another source of phosphorus in the Everglades. 92. A major source of phosphorus in the Everglades today stems from disch arges that are a part of a regime of water management practices conducted by the South Florida Water Management District. Discharges of water from urban and agricultural areas generally have contained phosphorus at levels significantly higher than occur n aturally in the Everglades. Soils in the EAA and elsewhere subside through a process of inundation, drying out and oxidation. As soil oxidizes, concentrations of phosphorus are left behind. Rainfall produces stormwater runoff which carries with it the m ore concentrated phosphorus that eventually is pumped off of the agricultural fields and into the canals. In addition, fertilizers, plowing and burning in the EAA, all contribute to excess phosphorus entering the system. Critical Indicators of Impact and Imbalance 93. On the basis of the testimony of Dr. Jones, impact and imbalance to aquatic flora and fauna caused by excessive phosphorus is determined by use of three critical indices: (1) water column concentrations; (2) soils; and (3) vegetation, with a particular emphasis on periphyton. 94. Water column concentrations of phosphorus higher than background conditions contribute to higher soil concentrations by way of the phosphorus settling out of the water. So does compaction. As soils compact (as i n the case of soils in the EAA) the soil gets heavier with more phosphorus per unit area. Compacted soils under water tend to leach phosphorus out in higher concentrations, a process referred to as "reflux." 95. Since periphyton is composed of microscop ic organisms, the initial impacts of phosphorus on periphyton are difficult to observe. Nonetheless change takes place in these microcosms in an early step of a chain of events described at hearing by Dr. Jones. 96. The first step toward change in Evergl ades ecology due to the entry of excess phosphorus into the system occurs with an increase in total phosphorus in the water column by way of the introduction of phosphorus laden discharges of water or reflux. 97. The second step is a change in the micro bial community, with the first indicator being decreased alkaline phosphotase production. 98. The third and fourth steps, interchangeable depending on soil type, cross a threshold of visible change. The visible change takes place in the periphyton commun ity (periphyton mats disintegrate); the other step is a total phosphorus increase detectable in the soils. 99. The fifth step is an increase in the biomass because of increased growth. The increase in growth translates eventually into more litter and soi l build up. 100. The sixth step is the change in the composition of plant species that leads to an imbalance of flora and fauna. Imbalance in flora occurs in macrophytes ("plants we can see," Tr. 2940) with the loss of sawgrass. In the seventh step, cat tails emerge. When cattails fill in wet prairies, an imbalance in fauna soon follows, the eighth step. Habitat is lost for wading birds and other organisms that had used the area resulting in a decrease of those organisms. 101. This eight step process c ulminates in visible destruction of Everglades ecology and ecology defined by low productivity, low biomass and low litter production. Most significantly, at the end of the process, the imbalance in Everglades aquatic flora and fauna is complete. Imbalanc e of Aquatic Flora and Fauna 102. The Everglades Forever Act and the Proposed Rule do not contain a definition of "imbalance of aquatic flora and fauna." 103. As demonstrated by Dr. Jones, the process of reaching the state of imbalance is a continuum. I t begins with the introduction of excess phosphorus to the water column and is complete when wading birds and other fauna lose habitat because of the take over and dominance of cattails. 104. According to U.S. Sugar's witness, Donald M. Kent, Ph.D., an expert in wetlands ecology, imbalance in aquatic flora and fauna occurs when there is visible change in periphyton: "If periphyton just completely disappeared and didn't come back, or it changed from what we've considered a desirable natural species to so mething that was indicative of pollution, that would be imbalance." (Tr. 3934) These visible changes are also evident with regard to vascular plants, such as bladderwort that, as in the case of periphyton, is particularly sensitive to excess phosphorus. Visible changes to the periphyton community, such as disintegration of mats, and to bladderwort and other vegetation, coincide with changes in macroinvertebrates, such as insects, and fish. See Tr. 3947. In other words, once the continuum of impact has reached the point of visible change to periphyton and vascular vegetation, an imbalance in aquatic flora and fauna is relatively sure to occur soon. 105. Dr. Kent's definition of "imbalance in the aquatic flora and fauna" is consistent with a definition o f imbalance employed for the Park and the Refuge in the Settlement Agreement reached in litigation between the United States, the State of Florida and the South Florida Water Management District in the early part of the last decade. See findings, below. 1 06. Phosphorus laden waters discharged into the Everglades lead to another effect related to imbalance: phosphorus gradients that are man made. Phosphorus Gradients 107. Prior to localized phosphorus gradients produced by canal inflows with high phosp horus levels today, there was a historic phosphorus gradient in the Everglades. It existed before the man made changes that cut Lake Okeechobee off from the rest of the 1850 system. The historic phosphorus gradient was manifest in the high levels of phos phorus that existed in the custard apple zone immediately south of Lake Okeechobee in comparison to the phosphorus levels south of this enriched zone. 108. Today there are localized phosphorus gradients. They occur relatively close to the points of dis charge of waters managed by the District where the waters flow into the EPA. Generally, the closer to a point of discharge the greater the concentration of phosphorus in the water column and the greater the soil concentration of phosphorus. As the flow o f the phosphorus laden waters continues downstream the concentrations in the water column and the soils tend to decrease. Florida and the United States Adopt Water Quality Laws i. Florida Water Quality Laws 109. In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act." Ch. 67 436, Laws of Fla. This act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this pur pose. 110. Chapter 403 established a policy to "conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other aquatic life, and for domestic, agricul tural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The act empowered the Department to "develop . . . a grouping of waters into classes . . . in accordance with the present and future most beneficial uses," and to "esta blish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. 111. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enume rating five classes of beneficial uses to be protected. Coop Ex. 9, App. 4, at 1. The R ule enumerating the five classes can now be found at Florida Administrative Code Rule 62 302.400. Water bodies not specifically identified in the R ule are listed as C lass III on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62.302.400(1) and (12). Surface waters in the WCAs and the freshwater portion of the P ark are Class III waters. ( See also Tr. 1568) 112. "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28 5 (1968). See Coop Ex. 9, App. 4, at 1. The original wa ter quality criteria were not required to be met uniformly throughout a given water body; rather, they were applied after an opportunity for mixture with the receiving water had been afforded. Fla. Admin. Code R. 28.5.05(1)(1968). See Coop Ex. 9, App. 4, at 5. Relief from Department rules was also allowed in certain circumstances. § 403.201, Fla. Stat. 113. In 1978, effective March 1, 1979, the Department updated the water quality criteria for the different water use classes, and added a narrative nut rient criterion that applies to Class III waters, outside mixing zones: (20) Nutrients in 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. Fla. Admin. Cod e R. 17 3.121 (1979). See Coop Ex. 9, App. 7, at 41 and 43. This is the same nutrient criterion language now found at Florida Administrative Code Rules 62 302.530 and 62 302.530(48). The 1979 rules did not define the phrase "imbalance in natural populat ions of aquatic flora and fauna" for this narrative criterion, nor has the phrase been subsequently defined by rule. 114. The 1979 rules also added a new use category for waters of special recreational or ecological significance, known as "Outstanding Flo rida Waters" (OFWs), which included the Park and the Refuge. Fla. Admin. Code R. 17 3.041(3)(a) and (b) (1979). See Coop Ex. 9, App. 7 at 13 14. These waters are now included in the listing of OFWs at Florida Administrative Code Rule 62 302.700(9)(a) an d (b). Under Florida Administrative Code Rule 62 302.700(1), "No degradation of water quality, other than that allowed in Subsections 62 4.242(2) and (3), is to be permitted" in OFWs. Pertinent to the issue in this proceeding, these OFW rules have remain ed in substantially the same form as they did in 1979. 115. Florida Administrative Code Rule 62 4.242(2) is entitled "Standards Applying to Outstanding Florida Waters." Subsection (2)(a) of the rule prohibits permits from being issued "for any proposed a ctivity or discharge within an [OFW], or which significantly degrades" an OFW, unless the permit applicant can affirmatively demonstrate that the proposed discharge is "clearly in the public interest" and that "existing ambient water quality . . . will not be lowered." Subsection (2)(c) of the rule defines "existing ambient water quality" as "the better quality of either (1) that which could reasonably be expected to have existed for the baseline year of an [OFW] designation or (2) that which existed durin g the year prior to the date of the permit application." Since the Park and Refuge were designated as OFWs when the OFW rules were adopted in 1979, the "baseline year" for the Park and Refuge was 1978 79, some 15 years after construction of the C&SF Proje ct had segregated the Everglades in the units of the EPA and had begun its operations that redistributed natural water flows. 116. The permitting rules further specify, at Rule 62 4.242(2)(c), the following: The Department recognizes that it may be nece ssary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if: 1. The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or 2. Manag ement practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and 3. There is no alternative to the proposed activity, i ncluding the alternative of not undertaking any change, except at an unreasonably higher cost. Id. 117. The 1979 revisions added a second policy to limit further degradation of Florida surface waters, at Florida Administrative Code Rule 17 3.041(3)( a) and (b)(1979). See Coop Ex. 9, App. 7 at 13 14. Known as the "antidegradation policy," the policy applies to both OFW and non OFW waters and can now be found at Florida Administrative Code Rule 62 302.300, with implementing permitting requirements at Florida Administrative Code Rule 62 242. In addition to establishing permitting criteria for discharges to OFWs, as noted above, the R ule also allows for discharges to other waters (which would include WCA 2 and WCA 3) that cause water quality degradation "if necessary or desirable under federal standards and under circumstances that are clearly in the public interest[.]" See Fla. Admin. Code R. 62 4.242(1)(listing various factors for determining what constitutes "clearly in the public interest"). The ru les also articulate policies "to limit the introduction of man induced nutrients," especially to low nutrient waters, to prohibit new violations of water quality standards, and to limit degradation below designated uses. Fla. Admin. Code R. 62 302.300(13) (18). See also Fla. Admin. Code R. 17 3.041(3)(a) and (b) (1979); SCGC Ex. 9, App. 7 at 2. 118. In its 1979 rewrite of the state's water quality standards, the Environmental Regulation Commission (the "ERC") recognized that Florida's water body use cla ssifications and the associated water quality criteria might not be appropriate for part or all of a given water body. Therefore, in the same rule that contained the antidegradation policy, the ERC approved a special set of provisions as a substantive par t of Florida's water quality standards. It was understood that "the implementation policies and procedures [of these new rules] . . . will govern the manner in which the proposed water quality standards are applied." Written Statement of the Facts an d Circumstances Justifying the Proposed Amendments , p. 2, filed with the Secretary of State on August 18, 1978. Coop Ex. 9, App. 10. 119. Known as "moderating provisions," these special "implementation policies and procedures" remain an integral part of Florida's "water quality standards." The ERC's 1979 rationale for "moderating provisions" continues today in substantially the same language as a key feature of DEP rules: (b) 1. The Department's rules that were adopted on March 1, 1979, regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and 2. The mixing zone, [and] site specific alternative criteria . . . provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, [and] natural background . . . . (c) . . . [T]he continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideratio n environmental, technological, social, economic, and institutional factors. The companion provisions of Chapters 17 4 and 17 6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the states comprehensive program for the control, abatement and prevention of water pollution. (d) Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above, nor determined that they are attainable as generally applicable water quality standards. Fla. Admin. Code R. 62.300.200(10). See also Fla. Admin. Code R. 62 4.249 (providing for ERC review "at the earliest opportunity" if a moderating provision is invalidated). 120. Moderating provisions, as are "water quality criteria," are constituents of "water quality standards" as shown in Florida Administrative Code Rule 62 302.200 (29) and (30), which currently defines the terms as follows: (29) "Water quality criteria" shal l mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing the quality of water that supports the present and future most beneficial uses. (30) "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating prov isions contained in this Rule and in F.A.C. Rule 62 4, adopted pursuant to Chapter 403, F.S. 121. Thus, a water quality standard is not necessarily a simple number. For over a quarter of a century a water quality standard has been a system of regulation , with four separate components that include classified uses, water quality criteria, an antidegradation policy, and moderating provisions. 122. One final aspect of state water quality standards is pertinent to these proceedings. The term "net improvemen t," which appeared first in the original EFA at Section 373.4592(4)(e)3., was introduced into Florida law in 1984 as part of the Warren K. Henderson Wetlands Protection Act , Ch. 84 79, Laws of Fla., and was originally codified at Section 403.918(2)(b), as part of the Act's dredge and fill permitting criteria. In 1993, when it established the environmental resources permitting program in Chapter 93 213, Laws of Florida, the Legislature transferred "net improvement" to Section 373.414(1)(b)3. The language has remained essentially the same: If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptabl e to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. ii. The Federal Clean Water Act 123. The Federal Water Pollution Control Act of 1972 (now known as the " Clean Water Act" or "CWA") established a comprehensive federal water pollution program to further its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's water." 33 U.S.C. § 1251(1)(2002). It declared a nat ional goal, "wherever attainable," to achieve "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Id. 124. The CWA assigned to the States the primary role in esta blishing water quality standards. Id. § 1313. See also Chevron USA, Inc. v. Hammond , 726 F.2d 483, 489 (9th Cir. 1984). The United States Environmental Protection Agency (the "USEPA" to distinguish it from this order's reference to the Everglades Protec tion Area as the "EPA") has the duty to then review State water quality standards for approval under the CWA. 33 U.S.C. § 1313. Like Florida's system, USEPA regulations explain that a "water quality standard defines the water quality goals of a water bod y, or portion thereof, by designating the use or uses to be made of the water and by setting criteria to protect the uses." 40 C.F.R. § 131.2. 125. In a manner similar to Florida's rules, federal water quality laws also clearly distinguish between "water quality criteria" and "water quality standards": The word "criterion" should not be used interchangeably with, or as a synonym for, the word "standard." The word "criterion" represents a constituent concentration or level associated with a degree of envi ronmental effect upon which scientific judgment may be based. As it is currently associated with the water environment it has come to mean a designated concentration of a constituent that when not exceeded, will protect an organism, an organism community, or a prescribed water use or quality with an adequate degree of safety. A criterion, in some cases, may be a narrative statement instead of a constituent concentration. On the other hand, a standard connotes a legal entity for a particular reach of wate rway or for an effluent. A water quality standard may use a water quality criterion as a basis for regulation or enforcement, but the standard may differ from a criterion because of prevailing local natural conditions, such as naturally occurring organic acids, or because of the importance of a particular waterway, economic considerations, or the degree of safety to a particular ecosystem that may be desired. (Citations omitted.) National Resources Defense Council, Inc. v. USEPA , 770 F. Supp. 1093, 1100 (E.D. Va. 1991)(quoting from USEPA guidance), aff'd , 16 F.3d 1395 (4th Cir. 1993). 126. The CWA requires states to periodically review and update their water quality standards. Such revisions must be submitted to USEPA for review to ensure that they co ntain designated uses of the waters and water quality criteria for those waters needed to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act. 33 U.S.C. § 1313(c)(2)(A). 127. The practicality of water qual ity controls is also relevant under the CWA. Recognizing that use attainability (or criterion achievement) can be precluded under certain conditions, USEPA regulations provide that States (or Indian Tribes) "may, at their discretion, include in their stan dards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances." 40 C.F.R. § 131.13. See SCGC Ex. 9, App. 10. USEPA regulations specify six independent situations where states may justify the gran t of relief via rule or permit for specific discharges or entire water bodies (or portions thereof). 40 C.F.R. § 131.10(g). 128. States and Tribes are given such regulatory flexibility when any of the following factors is present: (1) Naturally occurri ng pollutant concentrations prevent the attainment of the use; or (2) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or (3) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more damage to correct than to leave in place; or (4) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way th at would result in attainment of the use; or (5) Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainm ent of aquatic like protection uses; or (6) Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. Id. In essence, these USEPA rules have found circumstan ces where the inclusion of moderating provisions in state and tribal water quality standards is appropriate. Background Levels of Phosphorus Today 129. Background levels of phosphorus in the four water bodies in the EPA vary. 130. Everglades National Park, the least impacted and most pristine section of the EPA, has an historic background level of phosphorus that varied between 5 to 8 eight ppb. Today, background levels have the same range during the wet season (the summer months to late fall). In th e dry season, phosphorus levels can be anywhere from 8 to 13, with some instances of very high numbers in isolated pools where fish congregate when the system has dried down (in February and late winter) and water levels decrease. 131. Everglades Nation al Park is an Outstanding Florida Water (OFW). Fla. Admin. Code R. 62.302.700(1)(9). That designation offers special protection that is consistent with the existing ambient water quality at the period of designation. 132. Background levels in the Park are consistently lower than background levels in the water conservation areas. 133. Background concentration levels of phosphorus in the water column are not uniform in the Refuge, Water Conservation Area 1. The perimeter canal has significant impacts f rom nutrients. In contrast, the interior of WCA 1 is pristine and contains uniform levels of phosphorus. 134. The interior part of WCA 1 has a background level of phosphorus in the water column of between 5 and 9 ppb. 135. WCA 1 is perched. The perche d effect has been exacerbated by the drainage and canals placed around the Refuge. The Refuge is an OFW. That designation offers special protection consistent with the existing ambient water quality at the period of designation (1978, 1979). 136. Histori c levels of phosphorus in WCA 2, divisible into WCA 2A and WCA 2B, probably existed in the range of 5 to 8 ppb. Although today the background levels in some areas are still in this range, there are other indicators of impact. 137. Measurements of the enz yme alkaline phosphatase can be made that indicate change not susceptible to visible detection. Bacteria produce this enzyme when there is an absence of phosphorus. In an oligotrophic situation, the bacteria produce a great deal of this enzyme, which all ows them to cycle phosphorus more efficiently. 138. Where the levels of the enzyme are depressed, it indicates higher levels of phosphorus. Conversely, where the levels of alkaline phosphatase are high, the more oligotrophic the system. Another way to d etermine impact is to measure the phosphorus levels in the tissue concentrations of the periphyton itself. In WCA 2A, the periphyton has slightly higher phosphorus tissue concentrations than elsewhere in the Everglades. 139. Much of WCA 2A suffers from excess phosphorus at some level based on levels of alkaline phosphatase and examination of the periphyton community. 140. Water Conservation Area 3 can be divided into three distinct hydrological areas: WCA 3A North, WCA 3A South, and WCA 3B. WCA 3A is northwest of the L 67 canal; WCA 3B is south east of the canal. WCA 3A can be divided into WCA 3A North and WCA 3A South, because Alligator Alley, a roadway, separates the two and constricts water flow. 141. There are different background levels of pho sphorus in WCA 3A North and South. Areas in WCA 3A show impacts along the canals and inflow points. WCA 3A North has a slightly higher phosphorus concentration than WCA 3A South. There are also nutrient impacts along the Miami Canal. Background levels of phosphorus in WCA 3A, north of Tamiami Trail, are around 7 to 8 ppb. 142. Most areas of WCA 3A South are pristine, as shown by the presence of intact periphyton mats. Exceptions exist along the canals and along Tamiami Trail, as indicated by cattails and altered native species. 143. The vegetation in WCA 3B is mostly eleocharis, periphyton and utricularia (bladderwort). All three of these vegetative species are indicative of healthy Everglades ecology. While the periphyton mat is the key to Evergl ades health, the presence of utricularia offers a different indication of the health of the ecosystem. It is "a carnivorous plant . . . characteristic of . . . oligotrophic environments because . . . [utricularia] have to get their nutrients by . . . ea ting other organisms [rather than from the water or soil]." (Tr. 2836) 144. The current background levels of phosphorus in the water column in WCA 3 are from 5 to 8 ppb. The Federal Lawsuit and the Settlement Agreement 145. In 1988, the United States s ued the South Florida Water Management District (the "District") and the Department of Environmental Regulation ("DER"), the predecessor to the Department of Environmental Protection. Among the allegations in the complaint, the federal government alleged that the District's pumping of phosphorus rich water into the Everglades National Park and Loxahatchee Wildlife Refuge resulted in violations of State water quality standards. See generally United States v. South Fla. Water Management District , 847 F. Sup p 1567 (S.D. Fla. 1992). The federal government further alleged that DER and the District had failed to take appropriate regulatory action to prevent water quality violations within the Park and the Refuge. 146. As the litigation proceeded, the Florida L egislature in 1991 passed the Marjory Stoneman Douglas Everglades Protection Act, codified as Section 373.4592 (re named as the Everglades Forever Act in 1994) to address concerns raised by the federal government. 147. In July of the year in which the Act passed, the federal and state parties settled the litigation initiated three years earlier. The "Settlement Agreement" set forth a commitment of the parties to restore and maintain water quality in the Park and the Refuge. 148. Among other matters, the Settlement Agreement envisions a remedial plan in which the District agreed (a) to adopt a regulatory program that requires EAA interests to implement on farm best management practices ("BMPs") to reduce phosphorus in stormwater running off their lands and (b) to construct over 35,000 acres of publicly owned STAs within the EAA to further reduce phosphorus in waters prior to discharge into the Everglades. 149. The Settlement Agreement set forth a definition of "Imbalance in natural populations of aquatic f lora and fauna" in paragraph 1., the "Definitions" section of the agreement: F. "Imbalance in natural populations of aquatic flora and fauna" and "imbalance of flora and fauna" shall have the meaning in Florida Administrative Code Rule 17 302.560: "Class III Waters Recreation, Propagation and Maintenance of Healthy, Well Balanced Population of Fish and Wildlife. (19) Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aq uatic flora and fauna." Imbalance includes situations when nutrient additions result in violation of other standards contained in Chapter 17 302 as defined in Rule 17.302.510(3)(j). In the case of the Park and Refuge, imbalance specifically shall include nutrient additions that result in, but are not limited to, replacement of native periphyton algal species by more pollution tolerant algal species, loss of the native periphyton community or, in advanced stages of nutrient pollution, native sawgrass and w et prairie communities giving way to dense cattail stand or other nutrient altered ecosystems, which impair or destroy the ability of the ecosystem to serve as habitat and forage for higher trophic levels characteristic of the Everglades. Numerical interp retation of imbalance shall specifically include an array of indices to measure sensitivity of the ecosystem to small changes in nutrients, such as nutrient cycling processes and the basic components of the Everglades ecosystem, including periphyton and ot her sensitive indicators of nutrient enrichment. Tribe/Friends 164, (Exhibit B), p. 3, 4 (emphasis supplied). The specific inclusion in the definition of "imbalance" in the Settlement Agreement of "replacement of periphyton algal species by more polluti on tolerant algal species [and] loss of the native periphyton community . . . " applies to the Park and the Refuge. The definition of "imbalance" to include periphyton disruption and loss does not apply to WCA 2 or WCA 3. 150. The Settlement Agreement also drew a distinction between "interim concentration limits" set for the Park and "interim concentration levels" set for the Refuge on both an interim and long term basis: G. "Interim concentration limits" for the Park shall mean the concentration limit s to be measured at discharges to the Park and attained by July 1, 1997 October 1, 2003 , as determined in Appendix A. H. "Interim concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior mar sh stations and attained by July 1, 1997 February 1, 1999 , as determined by Appendix B. I. "Long term concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 2002 December 31 , 2006 , as determined by Appendix A. J. "Long term concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 2002 December 31, 2006 as determined by App endix B. Id. , p. 4. 151. Since the use of "geometric mean" in the Proposed Rule has been placed at issue by the Tribe and Friends, it is notable that the Settlement Agreement employs a geometric mean to measure concentration levels of the Refuge as a wat er body at interior marsh stations. In contrast, a geometric mean is not employed by the Settlement Agreement in the measurement of concentration limits in the Park since by the agreement's definition "limits" (unlike "levels") are not applicable to ambie nt water quality but are applicable rather to discharges. 152. Appendix A of the Settlement Agreement establishes the interim and long term discharge limits for waters entering the Park at designated locations: Phosphorus limits apply to flow weighted me an concentrations computed on an annual Water Year basis, with data reported and calculated on a monthly basis. To account for hydrologic variations in Shark River Slough, the limits vary with the previous 12 month's total flow in each basin. The long te rm limit for Taylor Slough and the Coastal Basin is fixed and does not vary with the flow. The limits represent the 10% rejection level of the observed flow weighted mean concentration at a given total annual flow, adjusted to a baseline time period of Ma rch 1, 1978 to March 1, 1979 for Shark River Slough (OFW baseline). The baseline time period for the Taylor Slough and Coastal Basins is Water Year 1984. Compliance with these limits is expected to provide a long term average flow weighted mean inflow co ncentration of approximately 8 ppb for the Shark River Slough Basin and 6 ppb for the Taylor Slough and Coastal Basins. Approximate values are as follows: Dry Year Wet Year (117 Kac ft/yr) (1061 Kac ft/yr) Shark River Slough Interim Limits Flo w Weighted Mean Shark River Slough Long Term Limits Flow Weighted Mean Taylor Slough & Coastal Basins Long Term Limit is 11 ppb. Tribe/Friends 164, Appendix A, at A 2 to A 3. 153. Appendix B to the Set tlement Agreement establishes interim and long term levels for waters within the Refuge at designated locations. The interim marsh concentration levels are based upon a 14 station geometric mean of between 8 and 22 ppb, based upon water stage levels, and the long term levels range from 7 to 17 ppb, adjusted to a baseline time period of June 1978 to June 1979. This baseline starts and ends three months after the baseline used for OFWs. 154. Compliance with the long term Park "limits" is to be determined based on the flow weighted means of monitoring data collected at specified structures discharging into the Park. Compliance with the long term Refuge "levels" is to be determined based on the geometric means of monitoring data collected at a network of 14 specified stations located in the interior marsh of the Refuge. 155. The long term limits for the Park are necessary to satisfy the OFW Rules. In the case of the Refuge, the levels were derived to depict the existing ambient water quality that existed as of the 1978 time frame that corresponds to the OFW baseline. Appendix B further provides that the "Class III standard" applies if a Technical Oversight Committee (the "TOC" established in the Agreement) determines that it is lower than the 14 station g eometric mean. 156. Appendix B states "[t]he current control program, consisting of on line STAs and BMPs . . . is designed to achieve a long term average annual flow weighted concentration of 50 ppb for each discharge to the Refuge and WCAs from the EAA ." Tribe/Friends 164 at B 2. If the interim, or lower of the long term Refuge levels or Class III criteria are not met with the current control program, the state is directed by agreement to "require additional components to be added . . . to meet a max imum annual discharge limitation of 50 ppb for discharges into the Refuge from the EAA." Id. More intensive management of the STAs alone will not suffice to satisfy the requirement for additional components. A range of such components includes more inte nsive management, but also includes increased STAs acreage, a stronger regulatory program or a combination of the three. 157. If the lower of the Class III or long term levels is not met by December 31, 2006, and the 50 ppb maximum annual discharge limit is being met at all inflow structures into the Refuge from the EAA, the TOC is required to "recommend a lower maximum annual discharge limits for the structures to be enforced by the [state]." Id. at B 4. 158. The Definitions section of the Settlement Agreement states that "'Class III water quality standards' shall have the meaning set forth in Florida Administrative Code Chapter 17 302." Tribe/Friends 164, p. 2. 159. With regard to research and monitoring, the Settlement Agreement provided, in part, A. Several aspects necessary to achieve compliance with this Agreement must be defined by additional research. The research objectives are to: 1. Numerically interpret the narrative Class III nutrient water quality criteria (i.e., the nutrient levels which cause an imbalance of flora and fauna in the units of the EPA); and 2. Assess current and continuing responses of the EPA to nutrient input levels resulting from the efforts to achieve interim and long term concentration limits and levels. Tribe/ Friends 164, pp. 15 16. 160. In its 1992 consent decree approving the Settlement Agreement, the federal district court emphasized that "the agreement is not self executing, but rather is subject to Florida's [Administrative Procedure Act]." South Fla. W ater Management Dist. , 847 F. Supp. at 1570. The federal and state parties agreed to propose the substantive requirements of the agreement for finalization in the state administrative process, including the Park limits and Refuge levels (and the numeric i nterpretation of the Class III criterion). Id. at 1572. "The Agreement does not predetermine the outcome of any state proceedings required under Chapter 120 of the Florida Statutes . . . . The Agreement requires the District and DER to fulfill thei r obligations under existing state law." Id. The Everglades Forever Act 161. In 1994, after a renewal of litigation as a result of attempted implementation of the requirements of the Settlement Agreement and the Marjory Stoneman Douglas Everglades Prot ection Act, the Florida Legislature enacted the Everglades Forever Act (the "EFA"). i. Findings and Intent 162. The EFA sets forth extensive "Findings and Intent" in its opening paragraphs. Among those are the following: (a) The Legislature finds that the Everglades ecological system not only contributes to South Florida's water supply, flood control, and recreation but serves as the habitat for diverse species of wildlife and plant life. The system is unique in the world and one of Florida's greatest treasures. The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution and timing of flows, and, therefore, must be restored and protected. * * * (d) . . . The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. (e) . . . the Everglades ecosystem must be restored both in terms of water quality and quantity. § 373.4592(1), Fla. Stat. ( E mphasis supplied) ii. The Everglades Program and the Everglades Construction Project 163. The EFA codified and expanded the phosphorus reduction program of the Settlement Agreement by a doption of the Everglades Program. See § 373.4592(2)(h), (4)(a) and (4)(f), Fla. Stat. The Everglades Program includes: (a) implementation of "best management practices," defined in section 373.4592(2)(b), (or "BMPs") and the Everglades Construction Proj ect ("ECP") defined in Section 373.4592(2)(g); and (b) a comprehensive program and projects to improve and restore water supply and hydroperiod. § 373.4592 (4)(a),(b), and (f), Fla. Stat. 164. The ECP "represents the largest environmental cleanup and res toration program of this type ever undertaken." § 373.4592(1)(h), Fla. Stat. The ECP was targeted to achieve a 50 ppb, flow weighted mean discharge concentration. iii. The Everglades Agricultural Privilege Tax 165. The EFA funded the ECP, in part, by creating an Everglades Agricultural Privilege Tax assessed annually: for the privilege of conducting an agricultural trade or business on: 1. All real property located within the EAA that is classified as agricultural . . .; and, 2. [certain leaseholds or other interests in real property.] § 373.4592(6), Fla. Stat. iv. Direction to DEP and Rule making 166. The EFA directed DEP and the District to undertake research to numerically interpret for phosphorus the Class III narrative nutrient criterion ne cessary to meet water quality standards in the Everglades Protection Area and to evaluate water quality standards applicable to the EPA and EAA canals. The precise language of the direction is: (e) Evaluation of water quality standards. 1. The depart ment and the district shall employ all means practicable to complete by December 31, 1998, any additional research necessary to: a. Numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area; and, b. Evaluate existing water quality standards applicable to the Everglades Protection Area and EAA canals. § 373.4592(4), Fla. Stat. This direction led DEP to conduct rulemaking in conjunction with the ERC to e stablish a "phosphorus criterion" for the EPA that interpreted the Act's narrative criterion. v. The Narrative Criterion 167. Limited to Everglades phosphorus, the Narrative Criterion in the EFA replicates to an extent the "narrative nutrient criterion " in Florida Administrative Code Rule 62 302.530(49)(b): In no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The Narrative Criterion of the Act is quite simi lar; both it and the "narrative nutrient criterion" in the Proposed Rule prescribe that in no case shall there be alterations allowed so as to cause imbalance in natural populations of aquatic flora and fauna. 168. As stated earlier neither the EFA nor DE P rules define the terms "imbalance" or "natural populations of aquatic flora and fauna." The EFA directs, however, that the criterion "shall not be lower than the natural conditions of the [EPA]" and that it "shall take into account spatial and temporal variability." § 373.4592(4)(e)2., Fla. Stat. 169. The difference between the two criteria one in the existing rule governing all nutrients, the other in the EFA and carried forward in the Proposed Rule is one of limitation; the term "nutrient concent rations" in the existing rule is replaced with "such phosphorus criterion" in the Act and the term "body of water" is replaced with "waters in the Everglade Protection Area": In no case shall such phosphorus criterion allow waters in the Everglades Protect ion Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. § 373.4592(4)(e)2, Fla. Stat. 170. The Narrative Criterion is central to this case and the dispute between the Miccosukee Tribe and the Friends of the Everglades on one side and the rest of the parties to this Proposed Rule Challenge on the other. 171. The case of the Tribe and Friends draws much of its force from the clarity and power of the Legislature's choice of the Narrative Criterion's first t hree words, "[i]n no case." This proscription, absolute on its face, is the introduction to the Narrative Criterion's mandate that the phosphorus criterion not allow waters in the EPA to alter the natural balance of flora and fauna. 172. The power and c larity of the Narrative Criterion is at the base of the criticism of the Proposed Rule by the Tribe's witness Colonel Terry L. Rice, (US Army ret.). vi. The Testimony of Colonel Rice 173. The Tribe opened its case by calling Terry L. Rice, Ph.D., a re tired colonel in the U.S. Army and a former Commander of the Army Corps of Engineers District headquartered in Jacksonville. The Corps District once under the command of Colonel Rice is composed of Florida, Puerto Rico and the Virgin Islands. 174. Colone l Rice's Ph.D. is in Water Resources Engineering Hydraulics and Hydrology. He is a registered professional engineer in Florida and several other states. He has numerous other credentials, including an M.S. from the University of Illinois, and a B.S. fro m the United States Military Academy at West Point. He has been a Senior Service College Fellow at the Walsh School of Foreign Service at Georgetown University, and is both an Honor Graduate of the Command and General Staff College at Fort Leavenworth and a Graduate of the Department of State's Foreign Service Institute. 175. Colonel Rice's many credentials, his high level training and the depth of his experience nationally and internationally are strikingly impressive. They serve as his qualifications f or the fields of expertise in which he was accepted in this case (hydrology, water resources engineering and regulatory and permitting issues as related to Everglades restoration) and, moreover, bolster his credibility as a witness. 176. Of particular rel evance to this case is that from August of 1994 to October of 1997, Colonel Rice while a District Commander for the Corps was responsible for projects and planning to enhance flood control, navigation, shore protection and environmental restoration in the Corps District that contains the state of Florida. 177. During this period of his distinguished military career, the Corps was directed to develop the Comprehensive Everglades Restoration Plan ("CERP"). For Colonel Rice this meant that "Everglades restor ation was his top priority." Tribe 169. He arrived in Jacksonville at the Corps' District headquarters in 1994, three months after the EFA was passed, a moment described by Colonel Rice as "the crucible of . . . this . . . coming together." (Tr. 72) C olonel Rice's responsibility was to steer the development of CERP. Among the projects he was involved in were: the modified water deliveries project coming out of the 1989 act, a major restoration project, still not done; the C 111 restoration; the Kissi mmee Restoration, which I'm happy to say, is moving along very well. Something I think we're all proud of; and the Everglades Restoration Project. (Tr. 72 3) This required that Colonel Rice permit under the Clean Water Act construction of the STAs so th e water management district would be allowed to fill the Everglades in which they would be constructed. 178. In the midst of Colonel Rice's being in charge of CERP, the Governor of Florida established the Governor's Commission for Sustainable South Flo rida to oversee CERP from the state's perspective. At roughly the same time, the Secretary of the United States Department of Interior established the South Florida Ecosystem Task Force to oversee CERP at the federal level. Colonel Rice served the Assist ant Secretary of the Army for Civil Works as his representative on the federal task force and served on the Governor's Commission as well. The work of these two groups, much of it under the guidance of Colonel Rice and the Corps, culminated in a consensus on CERP. 179. Colonel Rice's leadership in the formulation of CERP has been a tremendous accomplishment reflected in its recognition in all three branches of the federal government. He has received a letter of commendation from the White House for his w ork on Everglades Restoration. He has testified before Congress about it and a report on his efforts has been read into the Congressional Record. On several occasions, Colonel Rice has testified before Judge Hoeveler in the litigation over the Everglades initiated in 1989. His testimony has been in regard to issues related to water quantity, water quality, use of a geometric mean, interpretation of the Settlement Agreement, the STAs and the 404 program under the Clean Water Act. 180. Colonel Rice's opin ion is that the Proposed Rule does not protect the Everglades. He believes that the various components of the Proposed Rule when taken together "overwhelm the resource." (Tr. 153) Objection was made to Colonel Rice's opinion on the basis that it was bey ond the scope of his expertise. The objection was overruled. It was concluded that while not a wetlands ecologist, Colonel Rice was qualified nonetheless to render his opinions in light of all of his qualifications, particularly the depth of his experien ce in Everglades issues. 181. Colonel Rice criticized the Proposed Rule on a number of different grounds. Among them is that by employing a geometric mean for the phosphorus criterion, the rule "skews data low" (Tr. 155), in such a way as to allow phosph orus discharge that will not protect the Everglades. He also faulted achievement methodologies employed by the Proposed Rule and data exclusion. Furthermore, he criticized its allowance of discharging phosphorus water into areas that were not impacted by phosphorus if a net environmental benefit accrued by virtue of hydropattern restoration. 182. Within each set of Colonel Rice's criticisms, there were a number of different faults he found with the Proposed Rule. 183. He criticized some of the data excl usion provisions in subsection (e) of Section (5), "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" of the Proposed Rule. For example, he testified that words "flood" and "drought" in the subsection are not defined. The lack of definition, in his view, confers unbridled discretion on DEP to exclude data. Since water levels are the subject of water management practices by the District, moreover, Colonel Rice fears that floods and drought in the Everglades could be m anmade, thus allowing manmade manipulation of data exclusion. 184. Furthermore, he questioned the subsection's exclusion of data related to "authorized restoration activities," one of the "temporary" human activities listed in paragraph (5)(e)4., of the P roposed Rule. He assumed that the term related to all of the projects under CERP and stated that while CERP will cause permanent impacts, there will be periods of construction and stabilization with regard to CERP projects that will cause impacts temporar ily. 185. Colonel Rice also questioned the exclusion of data under paragraph (5)(e)5., of the Proposed Rule that related to samples taken when hydrologic conditions were outside the range that occurred during the time period used to set the numeric criter ion (the "period of record") on the basis of the Proposed Rule's lack of a definition of the period of record. 186. The evidence demonstrates, as discussed below, that the period of record for establishing the numeric phosphorus criterion is 1978 2001. 5 1 87. Colonel Rice questioned the allowance of hydropattern restoration using phosphorus rich waters to achieve what might appear to provide immediate improvement on the basis of the concept of "resilience." 188. Overly dried areas suffer impacts from the lack of hydration. "But when you add water back, [the impacted area] comes back to life fairly rapidly." (Tr. 163) That is, areas that suffer impacts for lack of water retain short term resiliency. In contrast, phosphorus does not leave once it permeat es the soil. "So when it comes to the standpoint of resilience, it only becomes prudent to make sure you've got clean water before you rehydrate." Id. 189. Rehydration beforehand, with phosphorus rich waters, results in "losing something you're not goin g to gain back in a reasonable amount of time." (Tr. 163) In other words, pollution of the water column in the Everglades with phosphorus and deposits of the phosphorus into the soil renders the area formerly unimpacted by phosphorus but impacted by disr uption of hydropatterns or lack of water much less resilient and much less capable of achieving recovery in a reasonable amount of time. 190. One of Colonel Rice's criticisms related to a moving front of degradation visible in its last stage by the advan cement of cattails, the "tombstones on the grave of the Everglades." (Tr. 333) Indeed, it was proven that phosphorus enrichment in the EPA is causing a moving front. Colonel Rice offered a solution. Instead of measuring ambient water quality, that is, the quality of the water body as a whole, Colonel Rice suggested that a phosphorus criterion should be established at the points of discharge, that is, "in the water as it flows into the Everglades." (Tr. 335) He further suggested that the criterion shou ld be a concentration of 10 ppb. 191. There is little question from this record that Colonel Rice is correct that if the water flowing into the Everglades had a phosphorus concentration of 10 ppb, the phosphorus in the inflows of water would not cause an imbalance of the natural populations of aquatic flora and fauna. 192. Despite the fact that Colonel Rice is not a wetlands ecologist, his opinions, given his outstanding qualifications, and his integral involvement with the Everglades as a District Comman der in the Army Corps of Engineers, the entity that has had such a huge hand in the Everglades over the years and which now has such a central role in the restoration and preservation of the Everglades, are weighty ones. 193. Colonel Rice's opinion that t he Proposed Rule is not protective of the resource is the equivalent of stating that it allows the discharge of phosphorus that will create an imbalance of the natural flora and fauna, contrary to the Narrative Criterion. 194. The ultimate issue in this c ase, however, is not limited to just whether the Proposed Rule interprets the Narrative Criterion appropriately. The ultimate issue in this case, is whether the Proposed Rule is an invalid exercise of delegated legislative authority, a determination that depends on an understanding of the all of the legislation that is at issue. Indeed, it depends on an understanding of the EFA as a whole. Beyond the Narrative Criterion, there are several aspects of the EFA that must be taken into account before the dete rmination that this case requires is made. Those aspects, in other provisions of the EFA, include amendments enacted in 2003 immediately prior to the publication of the Proposed Rule. 195. For example, Colonel Rice testified that "net improvement" in the Everglades would mean when cattails start to recede. The term "net improvement" in the EFA quite plainly refers to an improvement in water quality. Water quality could improve in an impacted area but not enough to cause cattails to recede. Thus, Colone l Rice's definition of "net improvement" is at odds with the EFA's use of the term. 196. In short, there are provisions aside from the Narrative Criterion in the EFA that directly or indirectly authorize aspects of the Proposed Rule with which Colonel Ric e finds fault. vii. Other Provisions of the EFA 197. The EFA requires the Department to establish discharge limits in permits using the "relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area." § 373.4592(4)(e)3., Fla. Stat. The Department is charged with determining ambient water quality based on the phosphorus discharges just as it does in the application of water quality standards generally in bodies of water in Florida other than the EPA. The se limits must be set at a level "necessary to prevent an imbalance in the natural populations of aquatic flora and fauna" and "to provide a net improvement in the areas already impacted." Id. Again, the EFA charges the Department with the approach the D epartment has used for many years in its application of water quality standards. 198. Compliance with the rule is to be based on a long term geometric mean of phosphorus concentration levels at representative sampling stations "to assure" that the EPA "is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted." Id. Furthermore, Compliance with the phosphorus criterion shall be based upon a long term geomet ric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of the receiving waters in the [EPA . . .]. For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively, of the settlement agreement dated July 26, 1991, entered in case No. 88 1886 Civ Hoeveler, United Sta tes District Court for the Southern District of Florida, that recognizes and provides for incorporation of relevant research. Id. 199. The EFA was amended by two session laws passed in 2003. The amendments were described at hearing by Frank Nearhoof, DEP's Administrator of Water Quality Standards and Special Projects Program. The program is responsible for a broad range of technical and regulatory activities under the EFA, CERP Regulatory Act and the Lake Okeechobee Protection Act. Mr. Nearhoof was a ccepted as an expert in Everglades ecosystem; the Everglades Forever Act; water quality data evaluation, including the statistical evaluation of data; and the establishment and implementation of water quality standards. The amendments were also described by Gary Goforth, Ph.D., Consulting Engineer with the Water Resources Management Group in the District. 200. The 1994 EFA implemented BMPs and STAs to reduce phosphorus concentrations in the water column to 50 ppb. It also called for research to permanent ly establish a phosphorus criterion that would, in all likelihood, establish a number lower than 50 ppb. By 2003, enough was known as the result of experience with BMPs, the STAs and research "to implement a second phase of technology." (Tr. 1566) 201. The EFA as amended in 2003 called for the implementation of this second phase and made four basic changes described by Mr. Nearhoof at hearing: [A] long term plan [was put in place], which basically builds on the initial Everglades Construction Project, a nd adds certain modifications to the various STAs to enhance their treatment effectiveness. It . . . provided funding . . . of 450 million dollars . . . to build those enhanced features. . . . [I]n recognition that we're . . . setting a low criterion . . . , and that our technology [isn't] quite [sufficient] yet, it . . . put in place a relief mechanism to deal with that technological limitation ... the net improvement moderating provision. . . . And it also added another moderating provision for r ehydration . . . of unimpacted areas . . . in the sense that they're unimpacted by phosphorus, [although] hydrologically impacted. And that's the provision that's been discussed that . . . under certain circumstances could allow [rehydration] even though the water may be less than perfect at that point in time. (Tr. 1566 1568) 202. The EFA as amended in 2003 also requires the District to implement "without delay" and to periodically revise the Long Term Plan, which is defined as "the district's 'Evergla des Protection Area Tributary Basins Conceptual Plan for Achieving Long Term Water Quality Goals Final Report' dated March 2003, as modified herein." § 373.4592(2)(j), Fla. Stat. 203. The Long Term Plan contemplates three enhancements to the state's cur rent phosphorus control program and a demonstration project for an approach claimed to be effective with regard to phosphorus reduction. First, the District will install a series of interior levees and water control structures in the STAs that will increa se their ability to move water uniformly through the treatment areas, thereby increasing phosphorus uptake. Second, portions of the existing cattail populations in the STAs will be converted to submerged aquatic vegetation (SAV). (Research has shown that combined cattail and SAV operations perform better than cattail alone.) Third, the District will refine the operations of the STAs in order to better balance hydraulic load and nutrient for each of the treatment cells between which the water is moved. F ourth, the District will conduct a large scale demonstration project to explore the viability of periphyton based stormwater treatment areas ("PSTA"), a technology claimed to allow further reduction in phosphorus levels. 204. The demonstration project was described by Gary Goforth, Ph.D., at hearing: [W]e will be building a . . . demonstration project in STA 3/4. It will be [in] . . . one of the downstream cells of STA 3/4. * * * The total area devoted to the demonstration[] [is] 400 acres. There's a 200 acre upstream portion that'll be entirely SAV. And then downstream . . . there'd be roughly a 100 acre PSTA cell, and then a 100 acre SAV cell side by side. (Tr. 3800 3801) The results of the PSTA cell phosphorus reduction will be compared to the results of the SAV cell to determine if PSTA is a superior technology, as claimed, for phosphorus reduction by means of stormwater treatment areas. 205. The Long Term Plan also contemplates coordination with the $8.1 billion Comprehensive Everglades Res toration Plan ("CERP"). CERP is a conceptual plan intended to modify and replumb the C&SF Project to rectify water resource problems caused by the Project. It addresses water quality, water quantity, timing of water deliveries and the distribution of wat er flows. With a 50 year planning horizon (until 2050), CERP calls for full implementation by the year 2036. 206. There are several CERP projects that will require direct coordination. For example, CERP includes a project that will divert water from th e C 11 basin (which presently pumps water into the Everglades from the S 9 pump station), south and away from WCA 3, in order to eliminate the basin as a source of phosphorus. The project will render obsolete an STA that had been planned for western Browa rd County. The District, therefore, is implementing source controls in the interim so as to obviate redundant costs. 207. Computer modeling of the Plan's pre 2006 strategies predicts phosphorus levels in discharges from the STAs at a geometric mean of 10 to 14 ppb. In the event the phosphorus criterion is not achieved by January 2007, however, the Long Term Plan sets forth additional control measures to be evaluated and implemented if necessary. 208. In addition to the provisions relative to the Long T erm Plan, the EFA as amended in 2003 allows a Department rule adopting a phosphorus criterion to include "moderating provisions," not to extend beyond December 2016 without further legislative authorization: The Department's rule adopting a phosphorus crit erion may include moderating provisions during the implementation of the initial phase of the Long Term Plan authorizing discharges based upon BAPRT providing net improvement to the impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with the anti degradation requ irements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592(4)(e)2., Fla. Stat. viii. EFA Requirement for Research and Monitoring 209. The EFA also required establishment of an extensive research and monitoring program to serve as the scientific foundation for the phosphorus criterion rulemaking and related efforts. § 373.4592(4)(d), Fla. Stat. As part of that program, the EFA re quired the District to conduct annual workshops and to file annual peer reviewed status reports on the research and monitoring efforts with the Governor and the Legislature. § 373.4952(4)(d)5., Fla. Stat. Besides the EFA, the reports address a number of different requirements in law. In fact, they contain "over 40 different legal mandates and permit reports . . . under one cover" (Tr. 3429) and so are referred to as the Everglades Consolidated Reports. See , e.g. , District 16, the 2003 Everglades Consoli dated Report. Post EFA Events 210. In the wake of the enactment of the EFA and the acceptance of the Settlement Agreement a number of events occurred relevant to these proceedings. 211. The EFA phosphorus criterion research program and external peer r eview process were implemented and documented. See 2003 Everglades Consolidated Report, Executive Summary , DEP Ex. 24. 212. The USEPA issued technical guidance on state water quality standards and also on how Florida should go about establishing the nume ric interpretation for the narrative nutrient criterion for the Everglades. 213. Modifications to conform the Settlement Agreement to the EFA were proposed by the settling parties in 1995. They were approved by the federal court in 2001. See DEP Ex. 13. The primary changes included increases of the number and sizes of the STAs and an extension from July 1, 2002 until December 31, 2006, of the deadline for meeting the long term limits for the Park and for meeting the lower of the Class III standard or long term levels for the Refuge. 214. In August of 1994, the USEPA updated its Water Quality Standards Handbook ("USEPA WQS Handbook"). See Coop Ex. 9, substitute App. 13 (filed January 15, 2004). The USEPA WQS Handbook makes clear that state relief procedures that are a part of their water quality standards "must be consistent with the requirements of 40 CFR 131." Id. at pp. 5 12. See 40 CFR § 131.13 ("States may, at their discretion, include in their State standards, policies generally affecting t heir application and implementation.") USEPA will continue to approve state granted relief if, among other things, "the State demonstrates that meeting the standard is unattainable based upon one or more of the grounds outlined in 40 CFR 131.10(g) for rem oving a designated use." See Coop Ex. 9, substitute App. 13 (filed January 15, 2004) at pp. 5 12. 215. In 1997, while the state's research and phosphorus reduction programs were underway, the Tribe adopted water quality standards for "all Tribal Reserva tion Surface Waters." ("Tribe Standards"). Miccosukee Tribe of Indians, Water Quality Standards, Dec. 19, 1997 . See US Sugar Ex. ibe Standards allow for moderating provisions in the form of variances or mixing zones ( id. at 24 27), where the disc harger demonstrates, among other things, "that meeting the standard is currently unattainable based on one or more of the grounds outlined in 40 CFR § 131.10(g) from removing a designated use." Id. at 24, 30. Development of the Proposed Rule i. The EFA M andate re: a Numeric Phosphorus Criterion 216. In addition to the Department's rulemaking authority set out in Section 403.061(7), allowing the Department to implement Chapter 403 as a whole, Chapter 373 includes an analogous provision. Section 373.043 states that the Department has the authority "to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter," referring to Chapter 373 which includes the EFA. 217. Lest there be any confusion on the point, the EFA mand ate to adopt a numeric interpretation of the Narrative Criterion is set out under Section 373.4592(4)(e), entitled, " Evaluation of water quality standards . " In keeping with the nature of the phosphorus criterion as an element of a water quality standard, moreover, the Proposed Rule is entitled, "Water Quality Standards for Phosphorus Within the Everglades Protection Area." ii. Development of the Criterion 218. The development of the phosphorus criterion is well documented. See DEP Ex. 24, Chapter 5; DE P Ex. 23, Everglades Phosphorus Criterion Technical Support Document , Parts I III. 219. A number of different groups provided research, some of which preceded the EFA, that contributed to its development. The District had been conducting research for so me time, "some of their publications go back into the 70's." (Tr. 1582) Duke University Wetlands Center conducted research in the Everglades, some of which was intended to be useful for Department rulemaking with regard to phosphorus. Florida Internatio nal University also conducted research useful to the Department. 220. In the meantime, the Settlement Agreement was entered and approved by the federal court. The agreement called for a Technical Oversight Committee (the "TOC"). See Definition R., p. 6 , of the Settlement Agreement in DEP Ex. 13. 221. Paragraph 18 of the Settlement Agreement required that each of five persons, the Superintendent of the Park, the Manager of the Refuge, the Secretary of the Department, the Executive Director of the Distr ict and the District Engineer, Jacksonville District, U.S. Army Corps of Engineers, appoint one technical representative to the TOC. Among the purposes of the TOC was to "plan, review and recommend all research, monitoring, and compliance, conducted pursu ant to the terms of this agreement . . . ." DEP Ex. 13, paragraph 18, p. 26, of the Amended Settlement Agreement attached to the Omnibus Order. The TOC also "was set up to assure that technical issues were going to be addressed in an open, deliberative f orum." (Tr. 3425) 222. TOC nominated four participants to develop a threshold research plan under the direction of Dr. Landon Ross, the Department's chief biologist at the time. Two of the four working under Dr. Ross' direction were federal nominees, Dr . David Lean and Dr. William Walker; two were state nominees, Dr. Robert Wetzel and Dr. Kenneth Reckhow. 223. Convened under the direction of Dr. Ross, the four produced a formal technical document: the Everglades Nutrient Threshold Research Plan (the " Research Plan", sometimes referred to as "Lean, et al. ," because the name of Dr. Lean is listed first on the formal document). 224. Not only was the Research Plan developed with federal and state input, but its results were reported annually in the Eve rglades Consolidated Report . They were, moreover, subject to and approved by an annual peer review conducted as part of the document's preparation. The methods of the process, the reporting of its results and the ensuing peer review led witnesses at hear ing, including Dr. Garth Redfield, Chief Environmental Scientist for the District, to conclude that the criterion and its achievement methodology were protective of the Everglades aquatic flora and fauna, and were developed in accordance with accepted scie ntific practices. 225. One of the Tribe and Friends' criticism of the methodology for deriving the phosphorus criterion, presented through David Parkhurst, Ph.D., is that it ignores mass balance, a concept which assists in the measurement of the net amoun t of phosphorus left in a water body after the calculation of the flow of phosphorus into and out of the water body. 226. Indeed, an initial question was whether the research should address the mass of phosphorus entering the Everglades. In conjunction w ith an Everglades Technical Advisory Committee ("ETAC"), "all of the scientists that were actively working in the area," (Tr. 1591) were convened. A peer review group of three outside scientists were impaneled to review the question as well. While it was determined that the system responds to both mass and concentration, the consensus was that it was both easier and better to conduct research on the basis of the concentration levels of phosphorus in the waters of the Everglades. 227. One reason that it w as decided not to conduct research on load is that in order to determine load, "you'd have to know the flow." (Tr. 1595) Flow is easily calculated as it comes through structures, that is, at the point of discharge. It is not easily calculated in the mar sh where flow is so slow. "[Flow] isn't a calculable number in the middle of [Everglades] marsh typically." (Tr. 1597) Moreover, because of the Legislature's policy choice to regulate phosphorus in a water quality standard for ambient water quality rath er than at the point of discharge, it makes more sense to approach the problem from a concentration level perspective. 228. The calculation of load is also complicated by the necessity to know both the "flow in" and "flow out." This calculation is furthe r complicated by seepage, "surface water that's going into the ground . . . ." ( T r. 1598), precipitation, dry fall, and the effect of evaporation. 229. At bottom, regardless of whether concentration levels or load was examined, the purpose of the Resear ch Plan was to determine a threshold at which a departure from natural flora and fauna occurred such that there was imbalance. It was determined that the research toward a threshold at which imbalance occurs should focus on concentration levels in the amb ient water. The Three prongs of the Research Plan 230. The Research Plan recommended a three prong approach consisting of (1) field transect monitoring along existing man made nutrient gradients; (2) dosing experiments; and (3) laboratory experiments. 23 1. Research performed by the South Florida Water Management District included all three approaches suggested by the panel under the Research Plan. Additional research efforts included those of the Duke University Wetland Center, Florida International Un iversity, and the USEPA's Regional Environmental Monitoring and Assessment Program (REMAP). Throughout the process of developing the Proposed Rule, the Department solicited feedback from interested parties through the TOC and an ETAC, convened by the Depa rtment specifically for that purpose. 232. While valuable to understanding imbalance, the mesocosm and laboratory studies were not used directly to derive a numeric phosphorus criterion. As explained in the 2003 Everglades Consolidated Report (the "2003 Report"): While the District's mesocosm and laboratory studies provide much information about how and why the biological changes occur, they were not designed nor intended to be used to derive a numeric criterion. (District Ex. 16, p. 5 6) 233. That left the transect monitoring as the main approach that had been recommended by the Research Plan. It is described in the 2003 Report: [DEP's] efforts to derive a numeric P [Phosphorus] criterion relied primarily on data collected by the District along a serie s of transects traversing existing phosphorus gradients in each portion of the EPA (WCA 2, the Refuge, WCA 3 and ENP [the Park]). [DEP] relied heavily on the gradient transect studies during the derivation of the P criterion due to their distinct advantag es over experimental studies. Because some areas within the EPA have received elevated levels of phosphorus rich runoff for as long as 40 years, [DEP] had an excellent opportunity to study what had happened to the natural biological communities in the ma rsh as a result of long term P enrichment. Id. 234. Whatever the outcome of the threshold research with regard to a numeric concentration level expressed as a geometric mean or as some other measure of central tendency that constituted a threshold of im balance, DEP did not use a numeric expression of a threshold to derive the numeric phosphorus criterion. 235. In adopting its ultimate approach, DEP's hypothesis was not a threshold hypothesis. ( See Tr. 3288) Rather than asking the question at what long term geometric mean level of phosphorus concentration does imbalance occur, DEP asked the question at what long term geometric mean of phosphorus concentration is balance maintained. In other words, the approach was not a "threshold approach." ( See Tr. 3288) Instead of using a threshold point at which imbalance occurs as a beginning point in setting the numeric criterion ( see the discussion of confidence intervals, below), DEP set out find the central tendency of water column concentrations of phosphoru s in which "reference conditions" were maintained. Reference conditions are conditions in which there is no imbalance. 236. This approach, which "switches" ( id. ) a threshold hypothesis had ramifications, as explained below, for whether DEP should move do wnward in value from the geometric mean revealed by the data in deriving the criterion (the direction militated by a threshold approach if there was to be any movement away from the data's geometric mean) or upward in value (the direction taken by DEP sinc e the approach determined a geometric mean at which there was no imbalance.) 237. The site of the reference conditions, also as explained more fully below, was in the same general area (identified by DEP as "minimally impacted") in which gradient transec t threshold research was conducted. Unlike the transects which crossed from unimpacted soils into impacted soils, however, the reference sites were in unimpacted soils only. 238. Ultimately, analysis of the data collected from specific "reference sites" in a "minimally impacted" area of WCA 2 was used to establish the numeric phosphorus criterion. This methodology for establishment of the numeric phosphorus criterion is referred to by DEP as the "reference site" approach. Reference Site Approach 239. Th e 2003 Report describes the "reference site" approach, its scientific acceptance and the basis for its use: [DEP] employed a "reference site" approach during the evaluation and analysis of the District gradient transect data. The use of reference sites to evaluate biological integrity, establish restoration goals and develop water quality criteria has become standard practice [citations omitted] since the USEPA issued an explicit definition of "biological integrity" in 1982 that incorporated the concept of reference sites [citation omitted]. [DEP] used the reference site approach during the development of a numeric P [phosphorus] criterion for the EPA based on maintaining balanced populations of natural flora and fauna (reference conditions) because of its widespread acceptance, the existence of long term manmade P gradients in the EPA, and the type of biological response characteristic of P enrichment. Id. 240. Figure 5 1 on page 5 8 of the 2003 Report (admitted into evidence as an excerpt from the re port, DEP 24A) is a sediment contour map. The sediment contours provide phosphorus concentrations in milligrams per kilogram in the upper 10 centimeters of sediment. The map shows the locations of transect monitoring sites established across a phosphorus gradient in WCA 2A. The gradient extends from the source of phosphorus enrichment (points where phosphorus rich waters are discharged, also termed as "canal inflows") into an area in which imbalance caused by phosphorus enrichment was not visible, descri bed in the 2003 Report as "not impacted." District Ex. 16, p. 5 6. Some of the contours are designated with numeric values of milligrams per kilogram. They range from a high of 1600 mg/kg to a low of 400 mg/kg. 241. There are two transects on the WCA 2 A site, an "E" transect and an "F" transect. The E transect shows five transect stations labeled E1 through E5 and a sixth station labeled E0, at the point of the canal inflow. Similar labeling occurs with regard to the F transect with six stations. The higher the station number the farther away it is from the point of discharge so that E5 and F5 are the transect stations that are the farthest from the source of the phosphorus and E0 and F0 (the "0" being a zero) are the stations at the point of discharg e or inflow. 242. There are also three other stations on the map identified as U1, U2 and U3. Stations U1, U2 and U3 are farther away from the canal inflows than are E5 and F5. Based on preliminary data analyses and field observations, Stations U1, U2 a nd U3 were designated as initial "reference" sites, that is, sites that exhibit reference conditions, conditions in which balanced populations of natural flora and fauna are maintained. 243. Consistent with the aim of the Research Plan to establish a phos phorus threshold, the purpose of collecting and analyzing data at the transect stations was to determine where along the transects imbalance had occurred, that is to establish a tipping point or a threshold of imbalance. Multiple measures of the periphyto n, macroinvertebrate and macrophyte communities in WCA 2A, along with measure of ecosystem function, were examined. These included the loss of the more sensitive assemblages of organisms such as calcareous periphyton mat, the dominance of more nutrient to lerant organisms, the loss of open water habitat critical to fish and birds, and depressed dissolved oxygen levels. 244. Analyses of the data consisted of multiple statistical tests (including cluster and change point analyses). This allowed DEP to use a weight of evidence approach that factored all the analyses into the determination of where along the transects an imbalance occurred. 245. For WCA 2A, the statistically significant changes in the structure and function of the various biological communiti es generally occurred on the E transect at a point between E4 and E5 and on the F transect at a point between F4 and F5. As one would expect, the farther away from the canal inflow of the phosphorus rich waters, that is, the farther along the gradient fro m the point of inflow, the less the impact 6 generally. The change generally occurred between 7 and 8 km downstream of the inflows, a point between E4 and E5 on the E transect and between F4 and F5 on the F transect. 246. The 2003 Report makes it clear th at the ultimate purpose of the analyses was not to determine a threshold of imbalance from which a numeric phosphorus criterion would be derived but to determine which stations, if any, on the transects were in waters that would support a balance of flora and fauna: The purpose of these analyses was not to derive a phosphorus threshold, but to delineate the sites impacted by P [phosphorus] enrichment from those that are biologically similar to the initial reference sites and could thus be used to derive a l ong term P criterion. 1 05 Id. at 5 7. To re phrase, "[t]he results of the analyses were used to determine which sites along the gradient are minimally impacted by [phosphorus] enrichment and could therefore be incorporated into a set of reference sites." Id . The ultimate aim, then, was not to determine a threshold value but to determine which of the transect stations could be joined with U1, U2 and U3 to form a set of reference sites. 247. Based on the analyses of the transect data, it was determined that Stations E5 and F5 were not only stations below the gradient where the threshold of imbalance occurred and stations where balance was maintained but that they were biologically similar to the initial references sites, U1, U2 and U3. A single group of refe rence sites were then formed consisting of these five stations: E5, F5, U1, U2 and U3. 248. After the set of reference sites was established, ambient phosphorus regimes at the sites were used to statistically derive a numeric phosphorus criterion. The Department analyzed the annual median and geometric mean total phosphorus concentrations for the reference sites. Reviewing data from WCA 2A and WCA 1, the Department calculated arithmetic and geometric means and statistical confidence intervals looking a t a number of reference periods and locations: 1978 to 2001 and 1994 to 2001 in WCA 2; 1996 to 2001 in WCA 1. 249. The Tribe and Friends attack the reference site approach used by the Department on a number of bases. With few exceptions (criticisms by way of Dr. Jones' testimony, such as that comparison with data collected before 1995 should not be used because data collection was better after 1995 or that use of data from reference sites in WCA 2, an area that does not represent the least impacted port ion of the EPA, should not have been used), the attack is based on cross examination of witnesses who testified in favor of the reference site approach. 250. One such example concerns the Tribe and Friends' assertion that the phosphorus criterion was not selected on the basis of dosing studies, the most common method, as the state concedes, see Tr. 1901, for scientifically determining the threshold effect of a "toxin." Id. 251. With regard to whether dosing studies are the method of choice for determini ng the threshold effect of all substances, however, Mr. Nearhoof was not sure. With regard to nutrients, such as phosphorus, his answer was that dosing studies, while an acceptable way of evaluating threshold effects, were not necessarily the method of ch oice: [T]he State of Florida . . . in this exercise [the reference site approach for determining the phosphorus criterion] is way ahead of the nation or the world, for that matter in having done what we've done. I don't think anybody else around has repli cated anything remotely like this. So I don't know that there is a common way for that. (Tr. 1901) The results of dosing studies conducted by Dr. Jones (about which Dr. Jones was not allowed to testify because of the Tribe's refusal to disclose docume nts and data in discovery) had been recently received by DEP but there had not been time to review them in detail. Furthermore, dosing studies were conducted by Duke University, were "corroborative" (Tr. 1904) of the results of the reference site approach used to set the phosphorus criterion. 252. The Tribe also stresses that only five stations in WCA 2, an impacted body of water, were used to establish a criterion that applies to all of the Everglades. The preponderance of the evidence is that five st ations were adequate for establishing a set for sites that exhibited reference conditions, particularly given the relationship of two of the stations (E5 and F5) to the transect monitoring studies and the evidence that they were at sites that exhibited ref erence conditions close to phosphorus gradients and the moving front of advancing cattails. 253. A weighing of the testimony on cross examination, the use of documents, and the minimal direct examination used to attack the reference site approach against the direct and re direct testimony of witnesses in support of the approach, leads to the conclusion that, by a preponderance of the evidence, the reference site approach is rational. It is, moreover, scientifically appropriate, reasonable and supported by logic or necessary facts. The Tribe and Friends' attack on the reference site approach fails. 254. The reference site approach yielded data and analysis that was but one step toward establishment of the phosphorus criterion. There were a number of oth er steps. 255. In the next of the preliminary steps, central tendencies of annualized data that related to stations in either the Refuge or WCA 2A were determined and expressed as geometric means, arithmetic means or both. (For example, see DEP/ERC 17, w hich provides a summary expressed in both a geometric and an arithmetic mean for WCA 2A for the years 1978 2000, with the exclusion of data for the years 1984, 1985 and 1992 when too little data was collected). 256. A summary of total phosphorus concentra tions measured at the five reference sites in WCA 2A appears in Table 5 1 of the 2003 Report in several sets: for individual years from 1978 to 2001; as a summary of the years 1994 2001 and as a summary of the years 1978 2001. A summary of total phosphor us concentrations measured at five stations in the Refuge from 1996 to 2001 appears in Table 5 2 of the 2003 Report. 257. Other steps followed in the derivation of the numeric criterion. These appear in Table 5 3 of the 2003 Report. See the findings rel ated to Table 5 3, including the application of a confidence interval, the selection of the upper limit in the interval, together with a rounding of that limit up to 10, discussed below. These will be explained in the discussion below that relates to Sect ion (4) of the Proposed Rule. 258. Other steps followed as well in the development of the Proposed Rule. Development of the Proposed Rule 259. On July 20, 2001, the Department published a Notice of Rule Development in the Florida Administrative Weekly. The notice announced rule development to establish a numeric phosphorus criterion for the Everglades Protection Area, via the amendment of Rule 62 303.530 ( Table: Surface Water Quality Criteria ) and creation of Rule 62.302.540 ( Water Quality Standards fo r Phosphorus Within the Everglades Protection Area ). Pre Hearing Stipulation, Ex. 4, No. 4. 260. The parties stipulated to a series of publications of notices and continuances of hearings before the ERC that led to ERC approval of a proposed rule during the July 8, 2003, meeting. Id. at 5 7. 261. During the interim, the ERC held numerous public meetings to consider testimony and other evidence in support of DEP's rule as proposed at that point. ERC considered evidence in support of Lower Cost Regulat ory Alternatives submitted by other entities, including the Cooperative, that proposed adoption of a higher numeric phosphorus criterion in impacted areas than in unimpacted areas. 262. On July 18, 2003, the Department published a Notice of Change on the Department's Official Internet Noticing Site, pursuant to Section 120.551, which included the rule as approved by the ERC and announced the availability of a Statement of Estimated Regulatory Costs ("SERC"). Id. at 9. 263. On July 25, 2003, the Departm ent published a second Notice of Change on the Department Official Internet Noticing Site, pursuant to Section 120.551. The notice corrected a scrivener's error in the Notice of Change as published on July 18, 2003. Id. at 10. Issues Related to the Propo sed Rule Section (1) Purpose and Scope 264. Section (1) of the Proposed Rule articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area but es tablishes, as the title reflects, water quality standards for phosphorus within the EPA. 265. There is no disputed issue of fact or law as to Section (1) of the Proposed Rule. Section (2) Findings 266. The Department's existing Surface Water Quality St andards rule, Florida Administrative Code Rule 62 302.300, contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Section (2) of the Proposed Rule is similar. It sets forth findings relevant to the i nitial finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the EPA must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. 267. Petitioners assert the factual inac curacy of the sentence in Subsection (2)(b) that "Stormwater Treatment Areas (STAs) have reduced phosphorus concentrations to less that the goal of 50 ppb established in the Everglades Forever Act." 268. The assertion is based on Table 4A 1 of the draf t 2004 Everglades Consolidated Report. See Tribe/Friends Ex. 120, p. 2. The Table is a Summary of Stormwater Treatment Area (STA) hydrology and total phosphorus (TP) removal for Water Year 2003. For "Flow weighted mean Outflow TP (ppb)" the table shows values for STA 1W, STA 2, STA 5 and STA 6 of 53, 17, 136 and 26 respectively; for All STAs, the table lists a value of 54. Two of the STAs for Water Year 2003, therefore, were in excess of 50 ppb and STA 5, in particular, was 172% above 50. 269. There i s, therefore, a basis for the Tribe/Friends' assertion. In support, their witness, Colonel Rice, after review of the table, concluded that "the most recent information published . . . [shows] that the finding is . . . not really being met." (Tr. 177) 27 0. Mr. Nearhoof conceded that in the most "recent period," that is, as the Water Year 2003 data is reflected in Table 4A 1 of the Draft 2004 Consolidated Everglades Report, the total phosphorus levels have "crept back up a bit . . . ." (Tr. 2048) Consid ering the entire time the STAs have been operational (since 1994 for some and 1999 for the others), however, the range of total phosphorus flow weighted mean outflow "has been generally down [to] . . . 20 to 30 part[s] per billion . . . ." Id. The long t erm average of total phosphorus "flow weighted mean outflow," therefore, has been below 50 parts per billion. Mr. Nearhoof's testimony is confirmed by the statement in the summary of "Chapter 4A: STA Performance and Compliance" of the Draft 2004 Everglade s Consolidated Report that: "As of the end of Water Year 2003, the four operational STAs combined have reduced total phosphorus concentrations to about 40 parts per billion (ppb)." Tribe/Friends Ex. 120, p. 1. 271. Petitioners also took issue with a po rtion of Subsection (2)(g) of the Proposed Rule: "[a]chievement of water quality standards for water quality projects required under the Everglades Forever Act can be most effectively and efficiently attained when integrated with CERP projects." 272. Th e contested sentence in Subsection (2)(g) is similar to Section 373.4592(3)(c): It is the intent of the Legislature that implementation of the Long Term Plan shall be integrated and consistent with the implementation of the projects and activities in the c ongressionally authorized components of the CERP so that unnecessary and duplicative costs will be avoided. Nothing in this section shall modify any existing cost share or responsibility provided for projects listed in s. 528 of the Water Resources Develo pment Act of 1996 (110 Stat. 3769) or provided for projects listed in s. 601 of the Water Resources Development Act of 2000 (114 Stat. 2572). The Legislature does not intend for the provisions of this section to diminish commitments made by the State of F lorida to restore and maintain water quality in the Everglades Protection Area, including the federal lands in the settlement agreement referenced in paragraph (4)(e). The "Long Term Plan" details the South Florida Water Management District's overall appr oach to achieving water quality goals in the Everglades Protection Area. DEP Ex. 25. See also § 373.4592(2)(j), Fla. Stat. 273. Dr. Gary Goforth, the Chief Consulting Engineer for the Water Management District's Water Resources Management Group, detaile d the importance of integrating water quality enhancement with CERP projects to avoid unnecessary and redundant costs with the following example: [T]he C 11 West basin . . . discharges water to the Everglades from . . . the Weston Area [near] Fort Lauderda le . . . That . . . basin has several CERP projects associated with it . . . that will reduce significantly the amount of water that eventually goes into the Everglades. So if we're to design and build a project that treats all of the water that presentl y goes through S 9, within just a very few years, that project would be unnecessary since the CERP project is going to be diverting virtually all of that water away from the S 9 pump station. (Tr. 3807) Dr. Goforth went on to explain that the practical i mpact of lack of coordination would be spending several hundred million dollars unnecessarily. Once CERP is implemented, moreover, there would be impoundments to assist in meeting water supply needs and diversion of the rest of the water southward. 274. Ultimately, there is nothing about the Findings section as challenged in this proceeding that would support a determination of invalidity. Section (3) Definitions 275. The Tribe and Friends challenge the definition of "impacted areas" in Subsection (3) (d) of the Proposed Rule. "'Impacted Areas' shall mean areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." 276. Soils are reservoirs of recent history, "so they do give . . . a lon ger term picture of what's going on in the system." (Tr. 3517) Dr. Jones believes soil "to be a very good indicator if used properly." (Tr. 3099) He has published papers with soil concentrations as a basis for demonstration of impacts to the Everglades . Nonetheless, he does not believe the Proposed Rule uses soil properly to determine impact because of the use of a single level of 500 mg/kg phosphorus concentration as a measure of impact, no matter what the soil type. 277. Colonel Rice joined Dr. Jon es in the criticism of the use of a single concentration level in soils because of soil type variability in the Everglades. North of the Tamiami Trail, that is north of the Park, the soil in the Everglades is predominantly peat. South of the Trail, it is a mixture of peat and marl and then becomes calcitic. For each of the soil types, Dr. Jones and Colonel Rice believe a different level of phosphorus is required to determine impact. 278. The soil south of the Trail, moreover, may be more marl than peat or more peat than marl. Depending upon whether the mixture is more peat or marl, Dr. Jones would ascribe different concentration levels of phosphorus in the soil to determine whether there had been impact. 279. Furthermore, there are other indicators, in the opinion of Dr. Jones and Colonel Rice, that should be considered to determine impact: phosphorus in the water column, dissolved oxygen levels, and changes in flora and fauna, particularly in the periphyton communities. 280. Dr. Garth Redfield, on be half of the District and disclaiming any depth of expertise in soils, conceded that in addition to soil the use of appropriate indicators other than soil would provide more information and so "could" (Tr. 3599) yield better accuracy. But his opinion as a scientist and expert in Everglades ecology is that the definition is reasonable since it was the product of careful deliberation at public workshops by experts from DEP, the District and other groups. 281. Among those experts was Mr. Nearhoof. Mr. Nearho of did not address directly the opinions of Dr. Jones and Colonel Rice that soil alone should not be used to determine impact. He did testify, however, that soil phosphorus tends to be a more stable and consistent parameter than surface water total phosph orus (one of the other indicators advanced by Dr. Jones) because soil integrates the effect of variability. Soil isopleths are consistent and stable and better able to define an impacted area than water column concentrations, which vary to a greater exten t. 282. The Department points out in its proposed order, moreover, that Section (5) of the Proposed Rule, which sets forth the method for determining the achievement of the numeric phosphorus criterion in areas of the EPA deemed impacted, states in its la st sentence: Notwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five year geometric mean is less than or equal to 10 ppb and the annual geometric mean is less than o r equal to 15 ppb. While this statement does not meet directly the criticism of Dr. Jones and Colonel Rice, it demonstrates that soils are not always the sole determinative parameter as to whether an area is impacted. Ambient water quality dictates that an area that would be classified as impacted based on a soils analysis be classified as unimpacted if ambient water quality data under the Proposed Rule so dictates. 283. Finally, to the extent that impacted areas have a relationship with imbalance of aq uatic flora and fauna, DEP 24A (Figure 5 1 in the 2003 Everglades Consolidated Report) and the discussion, above, concerning the reference site approach demonstrate that the threshold of visible imbalance in the location of the gradient transect monitoring sites in WCA 2 occurs where concentrations of phosphorus in the upper 10 cm of soil are somewhere between 400 mg/kg and a level above 600 mg/kg. 284. The F5 station is located between contour lines marked 400 and 600. The E5 station is close to a spot t hat is below 400 mg/kg. It may be concluded that it is at a spot that is below 500 mg/kg. The F4 station is in an area that is between a 600 mg/kg contour and an 800 mg/kg. So is the E4 station. The points of imbalance determined by the transect studie s in WCA 2, therefore, lends support to the definition of an impacted area as one whose phosphorus soil concentrations in the upper 10 cm exceed 500 mg/kg., that is, at a spot that is between the E5 and E4 stations (somewhere between 400 mg/kg and above 60 0 mg/kg) on the E transect and between the F5 and F4 stations (somewhere between a 400 to 600 mg/kg value and a value above 600 mg/kg) on the F transect. 285. A weighing of the evidence leads to the conclusion that the Department by a preponderance of t he evidence has proven that the definition is valid. Section (4) Phosphorus Criterion 286. Section (4), of the Proposed Rule, concerns two concepts: establishment of the phosphorus criterion and achievement of the criterion. 287. Establishment of the c riterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spat ial and temporal variability. 288. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. i. Establishment 289. Establishment of the criterio n is at the "heart" of the Proposed Rule. It is a numeric interpretation of the Narrative Criterion and, if adopted timely, avoids the statutory imposition of the Default Criterion. 290. The numeric criterion of the Proposed Rule differs in specificity f rom the Default Criterion in the statute. The Default Criterion is silent as to whether the criterion shall be an "arithmetic" or "geometric" mean or some other statistical or non statistical measure of concentration of a water body based on multiple samp ling events such as "mode," "median," or "harmonic mean." 291. Unlike the Default Criterion in the statute, the Proposed Rule specifies that the phosphorus criterion "shall be a long term geometric mean of 10 ppb . . . ." 292. The Department, supporte d by the other parties opposed to Petitioners, justifies the use of a "geometric mean" in the Proposed Rule's establishment of the criterion on a number of bases. For one, subsection (4)(e) of the EFA, " Evaluation of water quality standards , " the very sub section of the EFA that mandates adoption of a "Phosphorus Criterion Rule," also mandates that compliance with the criterion be based upon a long term geometric mean of concentration levels: Compliance with the phosphorus criterion shall be based upon a lo ng term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving waters in the Everglades Protection Area, and so located so as to assure that the Everglades Protec tion Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. § 373.4592(4)(e)3, Fla. Stat. ( E mphasis supplied) For another, a long term geometric m ean of concentration levels is a conventional way of determining numeric criteria, elements in water quality standards that govern ambient water quality, as well as compliance with the standards. 293. If the Tribe and Friends' opponents are correct, that the statutory language with regard to "long term geometric means" and "water quality standards" defeat a determination that the Proposed Rule constitutes an invalid exercise of delegated legislative authority on the basis of its use of long term geometric mean in establishment of the criterion, then there is no need to find facts with regard to the criticism. Even if the other parties are correct, however, there is relevance to the criticism because it relates to Colonel Rice's opinion that a number of fa ctors in the Proposed Rule allow a greater amount of phosphorus to enter the Everglades (use of a long term geometric mean being only one of them) that when taken alone or together contravene the statute's Narrative Criterion. 294. Statutory language asid e, the Department and the other parties vigorously responded to the criticism at hearing by offering justification for the use of a long term geometric mean. Findings of fact are also made with regard to the response. a . Criticism of the Use of a Geometr ic Mean 295. In statistics textbooks when the word "mean" without a descriptor is used, it refers to the arithmetic mean. "Arithmetic mean" is also a term used interchangeably with "average" as in the average of a number of different values. An arithme tic mean accurately describes the average concentration levels of substances in a number of samples of water whose concentration levels vary. A geometric mean accurately describes the central tendency of concentration levels in samples of water whose data set exhibits a log normal distribution. 296. A mean is one of several methods of expressing a measure of "central tendency," a central value around which less frequently observed high and low values fluctuate. (Other methods of expression of central te ndency of a data set include modes and medians. Means, moreover, are not limited to geometric and arithmetic means, there is also a harmonic mean that is an expression of central tendency.) 297. Because "central tendency" may be expressed by several met hods, Dr. Ian McKeague, DEP's expert statistician, referred to it as a term that is not well defined and that has a flexible meaning. ( See Tr. 652) "[Central tendency] . . . in a vague sense . . . represent[s] . . . the center of a . . . collection of me asurements or a distribution." Id. Which method of expression is most appropriate depends on characteristics of the data set or measurements it describes. For data sets that are log normally distributed, the more statistically appropriate and preferred expression of central tendency is a geometric mean. 298. "Arithmetic means" are determined by adding a series of values (or data points) and dividing the sum by the number of values (or data points). Using three numbers, an arithmetic mean would be arriv ed at by this formula: a b c = d; d/3 = the arithmetic mean In the formula, three values (a, b, and c) are added to reach a sum (d). The sum is then divided by the number of values (3) to calculate the arithmetic mean of the three values. To use numbe rs, by way of example: 1 4 16 = 21; 21/3 = 7. The arithmetic mean of the three numbers, "1, 4 and 16" is "7." 299. A "geometric mean" is "the antilog of the mean logarithm of a set of numbers, or equivalently, the n th root of the product of n number s." Tribe/Friends Ex. 46. The formula for calculating a geometric mean of three numbers is: (a) x (b) x (c) = d; the cube or 3rd Ö (in this example, the 3rd root is taken because it employs three values) of d = the geometric mean. The value "a" is multi plied by the value "b" which is multiplied by the value "c." The product of the three is "d." The cube root or "3rd root" is taken of d because there are three values in the data set. The cube root of "d" is the geometric mean. To use the same numbers as used in the example of an arithmetic mean, above: 1 x 4 x 16 = 64; the cube root or 3 Ö of 64 = 4. 300. For all practical purposes, the geometric mean of a data set is always lower than the arithmetic mean of the same data set. (Geometric means and arithmetic means will be the same when the data points are equal, an event that in the real world of water sampling almost never occurs. See Tr. 244.) In the examples used above, for instance, the geometric mean of the data points with values of 1, 4 and 16 is "4," a number lower than "7," the geometric mean for the same data points. 301. A geometric mean of samples of concentration levels of a substance in water may bear little resemblance to physical reality. (Dr. Parkhurst, at page 449 of the transc ript, testified that the geometric mean "has no physical meaning whatsoever." It is accepted that a geometric mean may have no physical meaning in some cases. But the testimony that it never has physical meaning is rejected as an overstatement in light o f other testimony of record.) This point was made by Colonel Rice with an example similar to an example employed by Dr. Parkhurst in his paper admitted into evidence as Tribe/Friends 46: Arithmetic Versus Geometric Means for Environmental Concentration D ata , Parkhurst, Environmental Science and Technology/News, Feb. 1, 1998, p. 92A. 302. Colonel Rice referred to two jars of equal volumes of water, one of which contained one arsenic unit and the other of which contained 100 arsenic units. 7 The arsenic co ncentration of the first bottle is one unit per bottle; the concentration of the second is 100 units per bottle. Pouring the two bottles together into a container double the size of the jars would yield a concentration of 50.5 units per the bottle volume. This concentration would be the same as the arithmetic mean of the two original bottles: 1 100 = 101. The sum of the two data points (101) divided by the number of data points (2) equals 50.5. 303. In Colonel Rice's example, the geometric mean woul d be 10, a number far lower than the actual concentration expressed by the arithmetic mean of 50.5. The geometric mean would be calculated by multiplying the values of the two data points: 1 x 100 to equal 100. The square root or 2 Ö (taken because there are two data points) of 100 equals 10. 304. The example is cited because it so clearly illustrates several characteristics of geometric means versus arithmetic means. The example is problematic, however, when applied to the methodology used to derive th e numeric phosphorus criterion and the achievement methodologies in the Proposed Rule. Neither the derivation nor the achievement methodologies are the result of taking two containers or "buckets" as they were referred to by a critic of Colonel Rice's tes timony, and pouring them together. The derivation and the achievement methodologies involve taking many samples at number of stations over time. 305. A comparison of the examples of Colonel Rice and Dr. Parkhurst shows another property of comparison betw een arithmetic mean and geometric mean. The greater the variability among data points in the data set used to calculate the arithmetic and geometric means, the greater the difference between the two. 306. One reason that the geometric mean of a set of da ta points of concentration levels of substances in water may bear little resemblance to the actual concentration level of water is that the geometric mean discounts large values. It does so, moreover, without knowing the cause of the high value and withou t a conscious choice to exclude it for a justifiable reason. For example, a high value could be due to a high discharge of phosphorus that could cause degradation. On the other hand, a station from which a sample is taken could have become contaminated b y a nearby alligator hole, a localized event that would justify exclusion of the sample's data because it has little, if anything, to do with phosphorus discharge into the EPA. 307. Another problem with the use of a geometric mean is that it can reverse t he appropriate way in which a set of data is to be regarded if there is much greater variability in one set than in another. An example was testified to by Dr. Parkhurst and appears at page 50 of the Tribe/Friends proposed recommended order. Assume that the values represent parts per billion of phosphorus in samples of Everglades water: Data Set A Data Set B 2, 20 10, 11 Total Value=22 Total Value = 21 Arithmetic Mean = 11 Arithmetic Mean = 10.5 2 20 = 22; 22/2 = 11 10 1 1 = 21; 21/2 = 10.5 Geometric Mean = 6.32 Geometric Mean = 10.49 2 x 20 = 40; 2 Ö 40 = 6.32 10 x 11 = 110; 2 Ö 40 = 10.49 In Data Set A, the concentration, as reflected by the arithmetic mean, is higher than in Data Set B: 11 ppb versus 10.5 ppb. Yet, the geometric mean of Data Set A (6.32) is lower than the geometric mean of Data Set B (10.49). The reversal is due to the higher variability in Data Set A (a difference of 20 between 2 and 22) than in Data Set B (a difference of only 1 between 10 and 11 ). b . Support for Use of a Geometric Mean 308. The true long term concentration of a chemical constituent within a water body cannot ever be known precisely. Part of the problem is the enormous variability in ecological systems. As Dr. Coleman explain ed, "there is enormous variability in ecological systems, whether they're marine, arctic, freshwater, terrestrial, any system. And a high degree of variability means that there's an enormous amount of uncertainty." (Tr. 1012) The true long term concentr ation of a chemical constituent of a water body, therefore, must be estimated from a set of samples. 309. Frequency distribution, a characteristic of data, can be plotted by preparing a graph with values of the parameter on the horizontal or x axis and t he observed frequencies of these values on the vertical or y axis. As plotted, the data points in a data set may exhibit a normal distribution on the graph: the distribution of data points starts out low, rises to a central but rounded peak, and then ret urns to smaller values. Plotted on a graph, the result is a bell shaped curve. 310. Data points showing concentration of chemical constituents in water, and environmental data in general, often exhibit log normal distribution rather than normal distribu tions. A log normal distribution differs from a normal distribution in that instead of resulting in a bell shaped curve, it results in a right skewed or long tailed distribution: the right end of what would have been a bell curve (where higher values are represented) is pulled to the right. A log normal distribution may have an extremely long tail skewed to the right of the graph when there are infrequent but very high valued data points. In the case of phosphorus concentrations in a water sample, a lon g tail would be created by rare but high level of concentrations in samples. 311. When Department staff plotted the data used to establish the numeric phosphorus criterion, the data set demonstrated characteristics more closely approximating a log normal distribution than a normal distribution. The data set only "approximated" a log normal distribution because "an actual log normal distribution is a . . . hypothetical construct." (Tr. 1633) When it comes to plotting data from sampling events "there is no perfect log normal distribution." Id. But the data collected by DEP "clearly, and very demonstratively, are . . . log normally distributed [as opposed to normally distributed]." (Tr. 1634) 312. Certain statistical parameters are appropriate for use with log normally distributed data. One of them is the geometric mean. As Dr. Ian McKeague, the Ralph A. Bradley Professor of Statistics as Florida State University, testified in answer to the question "[w]hen might a geometric mean be used in statistic s?" (Tr. 645): Especially when you're dealing with distributions that are called long tailed. For example, log normal, where there's . . . an area with central tendency, and then there's a long tail, as you see in a log normal typically very often found . . . in environmental data. Id. There is no statistical reason one would ever use an arithmetic mean as a measure of central tendency, given data demonstrating a log normal distribution. 313. While a geometric mean discounts high values, an arit hmetic mean, on the other hand, may be too influenced by high values if the aim is to find central tendency. A high value, especially if data points are few, will raise the arithmetic mean substantially. In particular, in the case of data that exhibits a log normal distribution, the arithmetic mean might be significantly removed from point of central tendency if there were some data point that was unusually high in relation to the remainder of the data. 314. It was statistically appropriate, therefore, that a geometric mean be used in establishment of the phosphorus criterion. 315. Furthermore, as testified to by Dr. McKeague, it would be statistically inappropriate to mix parameters in a single endeavor such as for protecting the Everglades from imbala nce by derivation of a criterion and assessing compliance. In other words, it would not be appropriate to use an arithmetic mean to derive the criterion and then a geometric mean, as required by the EFA, to assess compliance. These opinions of Dr. McKeag ue were supported by Dr. Sielken. 316. Natural systems such as the Everglades are subject to significant spatial and temporal variation. When taking water samples across a network of monitoring stations, water column total phosphorus concentrations will most certainly vary spatially from station to station or temporally from sampling event to sampling event at the same station. Seasonal changes, localized disturbances and extreme climatic related events like fire, flood or hurricane increase variability . Phosphorus concentrations measure in samples of water taken from the Everglades, therefore, may range from relatively small to relatively large. Still they tend toward a central value characteristic of phosphorus concentration in most of the Everglades most of the time, a determination of which is the aim of water quality standards concerned with ambient water quality. 317. Application of the geometric mean to a data set demonstrating a log normal distribution results in a more accurate estimate of th e true central tendency of the population of measures and therefore a more accurate estimate of the concentration of water column total phosphorus in the areas sampled over most of the time. 318. The Tribe and Friends suggest that an arithmetic mean shou ld be used for establishment of the phosphorus criterion. Since compliance with the criterion by use of a geometric mean is mandated by the EFA, however, using an arithmetic mean for establishment of the criterion would amount to a mixture of statistical parameters. Mixing statistical parameters is "not . . . natural . . . statistically. It's not appropriate . . . one tells . . . little about the other." (Tr. 668) 319. An arithmetic mean, moreover, has its own problem that accompanies its virtue of tak ing into account all values including rare but very high ones. If a high value is due, for example, to airboat traffic near the sampling site that has stirred up the sediment and caused a high reading due to reflux and the sample has escaped screening, it is justifiable to exclude it because of limitations on data collection. 8 ( See findings, below). An arithmetic mean would not exclude this high value when it should be excluded. c. The Numeric Value 320. In addition to the decision to describe the pho sphorus criterion in terms of a long term geometric mean, DEP also had to establish a numeric value. There were several steps in the process of deriving a numeric value that followed the selection of the references sites. Means, both arithmetic and geome tric, of reference conditions at individual reference sites and at all reference sites taken together are reflected in DEP/ERC Ex. 17 and several other exhibits that contained Table 5 3 of the 2003 Everglades Consolidated Report. 321. The 2003 Everglades Consolidated Report was admitted into evidence in its entirety as District Ex. 16. (It bears an exhibit label marked "WMD 16.") Table 5 3 on page 5 14 of the report is entitled, "Comparison of results of phosphorus criterion derivation for WCA 2A and WC A 1 using several methods and data sets." The Table was also admitted into evidence as an excerpt from the 2003 Everglades Consolidated Report both as Tribe and Friends Ex. 119 B and as DEP Ex. 24B. 322. Conclusions were drawn from the Evaluation of WCA 2A and Refuge Data as reflected in the 2003 Everglades Consolidated Report. These conclusions appear at page 5 13 and page 5 14 of the 2003 Everglades Consolidated Report. 323. In these conclusions appears the following sentence: "Based on EFA requirem ents, the annual geometric mean TP [total phosphorus] concentrations are used to characterize the P [phosphorus] regime in the minimally impacted areas of the Refuge and WCA 2A." WMD Ex. 16, p. 5 13 (emphasis supplied). 324. Table 5 3 contains a colum n entitled "1978 2001 Reference site data minus three years with less than four measurements." (It was appropriate to delete the data from the three years referenced because there was not enough of it.) It has essentially three columns. The first bears the heading "Central Tendency of Annual Geometric Means" and is divided into "Measure" and "Value." The second bears the heading "95% Confidence Interval (Mean with the sign for 'plus or minus')." The third bears the heading "Upper Limit." 325. In the column referred to in paragraph 5., above, adjacent to "Mean" (as opposed to "median") is shown a Central Tendency of Annual Geometric Means Value of 8.51. This number, 8.51, is the geometric mean of reference conditions, a description of central tendency in all of the reference sites at which there was no visible imbalance. The Department chose 8.51 as a starting point from which to derive the numeric phosphorus criterion. The Department then employed another statistical tool in the derivation of the cr iterion: a confidence interval. After determination of the interval, DEP chose the upper limit in the interval and then rounded that number to 10, as explained below. 326. Determining long term geometric means of reference conditions that exhibit balanc e, rather than seeking a threshold of imbalance (which, in essence, "switches" the hypothesis, tr. 3288) had an impact on the derivation of the numeric criterion. The approach allowed DEP to raise the numeric value from the long term geometric mean reveal ed by the data rather than to lower it as would have been the usual process had the geometric mean been associated with a threshold of imbalance. d. Confidence Intervals and Limits 327. Even with relatively large data sets used to derive a value, the a nalysis of the data and the calculations used to determine the value rarely, if ever, results, in certainty that the value produced by the data is absolutely correct. To provide a level of confidence about the parameter sought to be derived, DEP resorted to a confidence interval. 328. A mathematical characteristic derived from a data set, the confidence interval is an expression of the probability that the true value (in the case of the Proposed Rule, the "true" value reflecting reference conditions or ba lanced populations of flora and fauna) is within a statistical range or interval. A confidence interval, therefore, is a statistical tool that provides probabilities of confidence that the parameter sought is captured within the range of values within the interval. 329. Confidence intervals are expressed in terms of percentage. The percentage values may vary. For example, in setting toxin thresholds a confidence interval of 75% is sometimes used. (The evidence indicated that percentages of confidence b etween 90 and 99% are most common.) 330. With regard to derivation of the phosphorus criterion, a 95% confidence interval was applied. It was scientifically sound to apply a 95% confidence interval. Such a broad interval is commonly applied in exercises of the type undertaken that led to the Proposed Rule. 331. The 95% interval as reflected in Table 5 3 and DEP/ERC Ex. 17 was 8.51 plus or minus 1.03 or an interval that spanned from its lowest value to its highest value a total of 2.06 units. There is a 95% probability that the true value of the geometric mean of phosphorus levels under reference site conditions, therefore, will fall between 7.48 and 9.54 ppb, that is, in a range 1.03 above and below the annual geometric mean of 8.51. At the same time, there is a 2.5% confidence level that the true value is above the interval and a 2.5% confidence level that the true value is below the interval or a total confidence level of 5% that the true value is outside the interval. 332. The lowest number in a con fidence interval is referred to as the "lower confidence limit" or the "lower limit"; the highest number in the interval as the "upper confidence limit" or "upper limit." Using the geometric mean of 8.51, the lower confidence limit of the 95% confidence i nterval is 7.48 (8.51 minus 1.03). The upper confidence limit is 9.54, or as shown on the table, 9.55 (due to a rounding error, perhaps, or decimals beyond the 9.54 not expressed on the chart exhibiting the data analysis.) The upper limit will be referre d to, therefore, as 9.55 as reflected on the table. 333. In its process of deriving the numeric phosphorus criterion, the Department selected the highest number or the upper confidence limit within the 95% confidence interval revealed by its data: 9.55. 334. The Department chose the upper confidence limit on the basis that the substance tested for is a nutrient and on the basis that the 8.51 number derived from the data reflected reference conditions of balance rather than a threshold of imbalance. Had the substance been a toxin, DEP, in all likelihood, would have determined a threshold of response inimical to human health and then selected the lower limit because when it comes to toxins, any error that might be made should favor human health. 335. Dr. Parkhurst criticized the selection by DEP of the upper confidence limit. He explained that protection of the resource would be accomplished more likely by selecting the geometric mean (8.51) than the upper limit or even more surely by selecting the lower limit (7.48). Selection of the upper confidence limit, in his words, "is protecting the polluter essentially." (Tr. 501) 336. During his testimony, Dr. Parkhurst was asked if an upper limit was used to set the criterion in the Proposed Rule. He answe red in the affirmative "on the basis of three pieces of information" (tr. 501): In my deposition, I talked about a recent article in a journal of the American Statistical Statistical Association called Chance. It's a paper by two authors, the last name s are Q i a n and L a v i n e. That paper says in it that the DEP set its criterion of 10 by finding a best estimate of central tendency of the geometric mean to be 8.5, and then they used the upper limit of that, which was 10, to set the criterion. That 's one piece of information. The second piece of information is that several of the depositions that I've read by DEP, and other people, said that they had used confidence intervals in this way. And thirdly, Table 5 3 of the 2003 Consolidated Everglades Report shows that that's being done. (Tr. 501 502) Dr. Parkhurst was then asked questions about Table 5 3. 337. After being shown Table 5 3 at hearing, the following question and answer occurred during Dr. Parkhurst's testimony: Q. Now, what does this table tell you about the upper confidence limit? A. What it tells me is totally consistent with what Qian and Lavine said, mainly that the central tendency of the annual geometric mean, which is another way of saying, in some sense, the best estimate of what the geometric mean would be at these threshold spots, was 8.51. (Tr. 503) 338. Objections to this testimony on the basis of its being beyond the witnesses' expertise were overruled. (Tr. 504 506) No objection to Dr. Parkhurst's testimony about Ta ble 5 3 was made contemporaneous with the testimony, but during cross examination, the District moved to strike the testimony about Table 5 3 on the basis of surprise. (Tr. 555) The motion was granted. But it was also made clear that Dr. Parkhurst's tes timony about the confidence interval independent of reference to Table 5 3 was not stricken. See Tr. 574. That testimony, based on the two sources other than Table 5 3, concluded that after applying a confidence interval to a geometric mean of 8.5, an up per limit was chosen to reach the criterion's number of 10. ( See Tr. 501) 339. During DEP's case Table 5 3 was introduced into evidence as DEP Ex. 24B and discussed. A table that contained the precise information in Table 5 3 that was discussed by Dr. Parkhurst was also introduced into evidence by DEP and admitted, DEP/ERC Ex. 17. It contains more information than Table 5 3 in that it "is a cross comparison of the . . . use of the arithmetic mean versus the use of geometric mean for the derivation of t he criterion." DEP/ERC Ex. 17 reveals that the "Mean 95% Confidence Interval" for "All Reference Sites" expressed as a geometric mean is 9.55; as an arithmetic mean, it is 12.50. Like Table 5 3, DEP/ERC Ex. 17 shows a geometric mean for all reference s ites as being 8.51, and the addition of a 95% confidence interval of 1.03 above the 8.51 to arrive at an upper limit of 9.55. 340. Selection of the upper limit in the 95% confidence interval did not conclude DEP's process in producing the ultimate number for the criterion. DEP rounded the 9.55 up so that the process finally yielded a numeric phosphorus criterion as a geometric mean of 10. The rounding up was also criticized by Dr. Parkhurst: [I]nstead of using their best estimate of what the geometric me an would be at these reference sites, [DEP has] used a value that's a whole unit higher than that. . . . [I]n fact, they've . . . rounded . . . up to 10. . . . [W]hat's happened is [DEP] changed the best estimate of 8.5 to a geometric mean of 10. . . . By using that value, [DEP is] underregulating and overprotecting [the discharger of phosphorus.] (Tr. 504) 341. As found above, the threshold approach would not have supported the selection of the highest number in the 95% confidence interval that surro unded the geometric mean revealed by the data. But as DEP made clear, the numeric criterion was not derived on the basis of a threshold approach. It was derived from a reference site approach. The Department sought a value from reference site conditions , conditions at which imbalance was sure not to occur. Had a threshold of imbalance been the parameter sought in the calculations, "you'd be concerned with the lower confidence [limit]." Id. 342. Selection of the highest number in the 95% confidence int erval (9.55) that surrounds the geometric mean (8.51) and then rounding that number up to 10 achieves another purpose besides deriving a numeric value which is a component of an interval within which balance is sure to occur. It also helps to ensure that a value in excess of 10 ppb reflects a true exceedence of the criterion and not just expected variability around the long term geometric mean. See Respondent's Proposed Order , p. 40. 343. In other words, the selection of the upper limit in the confidence interval and the rounding of that number to 10 helps to avoid false positives. ( See Tr. 1711 1714) 344. U.S. Sugar, New Hope, and the Coop directly confront Dr. Parkhurst's suggestion that the upper limit in the 95% confidence level should have been rep laced by the geometric mean revealed by the data or the lower limit in the 95% confidence interval: Setting the criterion at the population geometric mean would result in at least a 50% chance that the actual long term geometric mean of unimpacted sites wo uld be above the criterion. [Citations omitted.] Setting it at the lower confidence limit would be even more improper. That would result in a 95 percent chance that the unimpacted reference sites would be above the criterion over the long term, with no a ctual change having occurred at the sites that the Department identified as unimpacted. ( Proposed Final Order submitted by U.S. Sugar, New Hope and the Coop, p. 90) 345. This argument again raises avoidance of false positives as a justification for sele cting the upper limit of the 95% confidence level and then rounding that number to 10. The argument is correct as far as it goes but there is another half to the story: the effect on false negatives. 346. The record does not reveal whether DEP determine d a precise geometric mean of the threshold of imbalance. But it may be inferred that it is a long term geometric mean with a value above 8.51. It is clear from the record, therefore, that setting the numeric criterion at the geometric mean of 8.51, rath er than at 9.55, the upper limit of a 95% confidence interval, would result in a greater avoidance of false negatives. Setting the numeric criterion at the lower limit of the confidence interval provides even more assurance that false negatives (reports o f no imbalance in sites that do not have balanced populations of flora and fauna) do not occur. An understanding of the full picture proves Dr. Parkhurst's point. 347. It is desirable, of course, to avoid false positives. There is a caution in the EFA, moreover, that the criterion "shall not be lower than the natural conditions of the Everglades Protection Area," paragraph (4)(e)2. of the EFA, a warning not to set the numeric criterion too low. But there is no caution in the EFA that a percentage of fal se positives are to be avoided within some acceptable range of costs. 348. In contrast to the lack of language in the EFA concerning the avoidance of false positives stands the Narrative Criterion. The goal of the Narrative Criterion, after all, is to en sure that phosphorus rich waters discharged into the EPA do not cause an imbalance in flora and fauna. It favors, therefore, the avoidance of false negatives over the avoidance of false positives. 349. Avoidance of false positives is not a basis for esta blishment of the numeric phosphorus criterion. Furthermore, moving away from the geometric mean established by the data in a direction that provides less certainty that false negatives will be avoided threatens contravention of the Narrative Criterion. 35 0. There are bases other than avoidance of false positives in the record, however, for why a geometric mean of 10 does not contravene the Narrative Criterion. e. Other Bases 351. Mr. Nearhoof offered the first basis. 352. In addition to the geometri c mean of 8.51 that led to an upper limit of 9.55, there are seven other upper limits expressed as either a mean or a median for four different data sets on Table 5 3 of the 2003 Everglades Consolidated Report. Three of the data sets are for Water Conserv ation Area 2A: "1994 2001 References site data"; "1978 2001 Reference site data [that includes data from the period for Station U3]"; and "1978 2001 References site data minus three years with less than four measurements." The fourth data set is for Wate r Conservation Area 1: "1996 2001 Reference site data." See DEP Ex. 24A. 353. In addition to the upper limit of 9.55 already discussed for the 1978 2001 Reference site data that excludes data for three years, upper limits of 95% confidence intervals aro und central tendencies expressed as means and medians for each of these data sets are 8.69, 8.77, 10.57, 9.42, 9.25, 10.08, and 10.00. The overall average result reflected on the table, of the upper limits is 9.54. Including the 9.55 value used by DEP in the derivation of the criterion, two of the values on the chart are above 10, one is exactly 10, three are between 9 and 10 and two are below 9. Mr. Nearhoof offered DEP's evaluation of all of these values: . . . [W]hen you do all of those calculations, that number essentially bounces all around 10. . . . [T]hat's exactly why we concluded that 10 was the number. And I think we clearly documented that on all of our technical documents. We could probably collect data for another decade and calculate this several different ways, and it's going to continue to bounce around 10. We, therefore, chose the simple means . . . of adopting the 10. (Tr. 1667) These upper confidence levels, however, as detailed by Dr. Parkhurst, suffer from the same problem as the one selected: their use reduces the risk of false positives but increases the chance of false negatives. 354. The better basis offered by Mr. Nearhoof is that other studies were corroborative that a long term geometric mean of 10 would be protective. F or example, the lower confidence levels of studies that sought to establish thresholds, such as a study conducted by the Duke University Wetland Center, yielded a number around 10. ( See Tr. 1671 and 1903) 355. The Coop and New Hope offered testimony from Sujoy Roy, Ph.D., and Robert Sielken, Ph.D., that the long term geometric mean of 10 was a highly conservative number and that a threshold of imbalance was likely to be at a much higher number. 356. On the basis of an independent analysis of DEP's water quality and biological data, Dr. Roy recommended that a 30 ppb standard be adopted for impacted areas and an annual geometric mean of 16 ppb for unimpacted areas be adopted, the lower end of what he believed to be the threshold of imbalance. In his view, these levels would have been adequate to sustain fish and wildlife in the Everglades. (Tr. 1235) Conspicuous by its absence from his testimony is a reference to protection of flora, in general, and periphyton mats, in particular. Aside from the lack of mention of the effect on flora and periphyton, Dr. Roy's opinion that a long term geometric mean of 10 ppb is a highly conservative value is rejected because his numbers are too much at variance with other evidence of record. 357. Dr. Sielken testified be fore the ERC in the hope of convincing it and DEP that the numeric criterion, expressed as a geometric mean, should be at a number higher than 10, which in turn would raise the numbers in the Four Part Test . His calculations, based on a different analysis than that employed by DEP, led him to the opinion that the numeric phosphorus criterion in the Proposed Rule is too conservative and will lead to an excessive number of false positives. 358. Dr. Sielken's calculations utilized a "prediction" interval ins tead of the confidence interval used by DEP. His calculations lead to the conclusion that, from a reference site approach, a geometric mean of 13 would be a more appropriate number than 10. Again, such a number would reduce false positives but any reduct ion in false positives by bumping the number up carries with it an increase in false negatives. The more the number is raised from the geometric mean DEP calculated, the greater the threat of contravention of the Narrative Criterion. 359. Donald M. Kent, Ph.D., was accepted as an expert in wetlands science and wetlands ecology. 360. Dr. Kent cited an example in which periphyton disappeared in WCA 2A but then reappeared. ( See Tr. 3932) The example contradicts any implication to be taken from the chain o f events described by Dr. Jones, that imbalance in flora and fauna inevitably occurs once the step is reached where periphyton mats disintegrate. Nonetheless, Dr. Kent's opinion is that imbalance in flora and fauna occurs when periphyton completely disapp ears and change is visible among vascular plants. He explained at hearing: . . . I found that periphyton and bladderwort were particularly sensitive, and seemed to be the first first change that was evident . . . in the field when the phosphorus levels got too high Another reason is that . . . macroinvertebrates . . . insects and so forth, and . . . fish, those changes seem to be coincident with . . . major changes in vegetation. (Tr. 3947) There is no need to "look[] at whether the number of insects is changed, or the number of fishes . . . ." (Tr. 3948) Once change is observed in bladderwort or permanent change in periphyton, imbalance in flora and fauna will follow. 361. Dr. Kent's opinion is that there is a range at which periphyton and bladder wort become imbalanced because of phosphorus in the water column. A summary of data provided by DEP, the District and Duke University demonstrated that "naturally occurring periphyton was imbalanced at anywhere from 14 to 27 parts per billion." (Tr. 3951 ). 362. That the number "14" is the low end of a range at which imbalance of periphyton occurs is revealed by his testimony and U.S. Sugar Ex. 4A. 363. Dr. Kent, moreover concluded that "15 [is] a nice safe place" (tr. 3959) for the numeric phosphorus criterion. Dr. Kent's work validates DEP's determination that balance will be maintained if there is compliance with a long term geometric mean of 10. 364. Dr. Kent concluded that compliance with the numeric phosphorus criterion would not allow waters in the EPA to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. While DEP did not give a number at which imbalance would occur, the reference sites were in areas that were minimally impacted and close to impacted areas. Thus, DEP's number at which balance is maintained must be relatively close to a number at which imbalance occurs. Unlike Dr. Roy, Dr. Kent's numbers for imbalance are relatively consistent with DEP's conclusion based on maintenance of balance. 365 . Dr. Kent was not the only wetlands ecologist to testify that the Proposed Rule's establishment of the numeric phosphorus criterion as a long term geometric mean of 10 will not cause imbalance. Other witnesses accepted as experts in wetlands ecology or Everglades ecology who offered the same ultimate opinion were Dr. Redfield and Environmental Administrator Frydenborg. Furthermore, Mr. Nearhoof, experienced in Everglades issues, offered the same opinion. 366. In contrast, no wetlands ecologist testifie d that the Proposed Rule will cause an imbalance. The only wetlands ecologist offered by the Tribe and Friends was Dr. Jones. He was precluded from testifying about any criticism of the Proposed Rule on the basis of the pre hearing ruling discussed in th e Preliminary Statement of this order because of the Tribe's refusals with regard to discovery. 367. After DEP, the District, U.S. Sugar, New Hope and the Coop had rested their cases in chief, the Tribe and Friends re called Colonel Rice. 368. The questi ons asked of Colonel Rice concerned DEP Ex. 19 which consisted of charts related to total annual inflows, annual average stage and total annual rainfall in WCA 2 and WCA 3. His testimony did not relate to any of Mr. Nearhoof's testimony or Dr. Kent's test imony as other bases for why a long term geometric mean of 10 was appropriate for the Proposed Rule's numeric phosphorus criterion. 369. Choosing to rely on the evidence presented in the opening phase of the hearing when the Tribe was required to go forwa rd, the Tribe and Friends did not present any further evidence in response to the opinions offered by Dr. Kent, Dr. Redfield, Mr. Frydenborg and Mr. Nearhoof with regard to the numeric phosphorus criterion. 370. In the final analysis, Colonel Rice's opini on that the Proposed Rule's numeric phosphorus criterion will lead to imbalance, must be weighed in the context of the entire record and against the opinions of three wetlands or Everglades ecologists and Mr. Nearhoof, an expert with a depth of experience in Everglades issues. As weighty as Colonel Rice's opinion may be, it is outweighed by the opinions of others. ii. Achievement 371. The Proposed Rule requires that achievement of the phosphorus criterion take into account deviations above the long term geometric mean of 10 ppb if attributable to any of three categories of events: (1) the full range of spatial and temporal variability; (2) statistical variability inherent in sampling and testing procedures; or (3) higher natural background conditions. 372. Achievement is to be determined by the methods in Subsection (5) of the Proposed Rule. Section (5) Methods for Determining Achievement of the Criterion in the Everglades Protection Area 373. The Proposed Rule sets forth the methods for achievement for both impacted and unimpacted areas. i. Water Bodies 374. The methods used depend on the "water bodies." The Proposed Rule lists the four "water bodies" into which the EPA is divided: Water Conservation Area 1 (the Refuge), Water Conservation 2, Wa ter Conservation Area 3, and Everglades National Park. 375. Subsection (5)(b) governs achievement in the Park and the Refuge. 376. Subsection (5)(c) governs the achievement in WCA 2 and WCA 3. ii. Achievement in the Park and the Refuge 377. Subsecti on 5(b) tracks closely the language of Section 373.4592(4)(e)3: For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consist ent with Appendices A and B, respectively of the [Settlement Agreement], that recognizes and provides for incorporation of relevant research. 378. The Proposed Rule adds a caveat. Should the Settlement Agreement be rescinded or terminated, achievement of the criterion is to be assessed as in the remaining portions of the Everglades. 379. For the Refuge, paragraph (5)(b)1., of the Proposed Rule states that: The Department shall review data from the interior marsh stations established pursuant to Append ix B of the Settlement Agreement and will determine that the criterion is achieved if the Department concludes that average phosphorus concentrations at interior marsh stations will not result in a violation of the total phosphorus concentration levels est ablished for the interior marsh stations using the methods set forth in Appendix B. In addressing discharges into the Refuge, the paragraph applies the concept of "technology based effluent limitations" or "TBELs." 380. Phosphorus concentrations within t he inflows to the Refuge that are above the average for the interior marsh stations will not be considered a violation of the numeric criterion even if they exceed the average phosphorus concentrations for the interior marsh stations so long as they meet the TBEL established for the discharge. In Section 373.4592(3)(b) of the EFA, the Legislature concluded that the Long Term Plan provides the best available phosphorus reduction technology ("BAPRT"). The TBEL provision of the paragraph recognizes the pos sibility that discharges into the Refuge may exceed the numeric criterion even when complying with a TBEL derived from applying the BAPRT. While discharges exceeding the criterion but satisfying a TBEL may not be considered violations, the TBEL provision does not eliminate the requirement to assess achievement applying Appendix B of the Settlement Agreement as set out in the first provision of the paragraph. In fact, as explained by Everglades TOC Chair Garth Redfield, the Settlement Agreement calls for l ong term phosphorus limits of 7 ppb (measured as a geometric mean), below the proposed numeric criterion of 10 ppb applicable elsewhere in the EFA. 381. Assessing achievement of the numeric phosphorus criterion in the Park, as directed by the EFA, is bas ed upon the limits established in Appendix A to the Settlement Agreement. Because of the influence of specific discharge structures, assessment is related to flow in the Park with long term phosphorus levels set at 8 ppb as a flow weighted mean. iii. A chievement in WCA 2 and WCA 3: The "Four Part Test" 382. For those parts of the EPA not falling within the Park or Refuge (WCA 2 and WCA 3), Section 373.4592(4)(e)3., states in pertinent part: Compliance with the phosphorus criterion shall be based upon a long term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving water in the Everglades Protection Area, and so located so as to assure that the Everglades Pr otection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. (Compliance with the Proposed Rule cannot be determined, obviously, until the station s are set and they are not yet set.) 383. The achievement methodology for "unimpacted areas" is contained in paragraph (5)(c)1., of the Proposed Rule; for "impacted areas" in paragraph (5)(c)2. 384. There are two differences between the methodologies for unimpacted areas and impacted areas. 385. First, "[a]chievement of the criterion in unimpacted areas in each WCA shall be determined based upon data from stations that are evenly distributed and located in freshwater open water sloughs similar to the areas from which data were obtained to derive the phosphorus criterion." Paragraph (5)(c)1., of the Proposed Rule. There is no requirement that the stations in impacted areas be in sloughs similar to the areas from which data were obtained to derive the criterion. 386. Second, with regard to impacted areas, "[i]f . . . limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (7) [of the Proposed Rule] . . . are met." Subparag raph (5)(c)2., of the Proposed Rule. No clause providing such an escape from compliance with achievement of the criterion is applicable to unimpacted areas. 387. Discussed earlier in this order with reference to the definition of "impacted area" based on soils, there is one more clause that is not part of the "Four Part Test" applicable to both unimpacted areas and impacted areas. It is the final sentence in the paragraph (5)(c) of the Proposed Rule: "[n]otwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five year geometric mean is less than or equal to 10 ppb and annual geometric mean is less than or equal to 15 ppb." 388. The remainder of the Proposed Rule's secti on on the achievement methodologies in WCA 2 and WCA 3 contain the Four Part Test applicable in both unimpacted and impacted areas. Each of the four parts of the test must be met for there to be achievement of the criterion except that: Consistent with su bsection (4) above, exceedences of the above provisions shall not be considered deviations from the criterion if they are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing p rocedures, or higher natural background conditions. Paragraphs (5)(c)1., and 2., of the Proposed Rule. 389. The first part of the test is the primary achievement test. It converts the "long term" geometric mean mandated by the statute for achievement of the criterion to a "five year" geometric mean: "[both impacted and unimpacted areas] of the water body will have achieved the criterion if the five year geometric mean is less than or equal to 10 ppb." See paragraphs (5)(c)1., and 2., of the Proposed Ru le. 390. To protect against imbalance, since a "long term" geometric mean of "five years" is employed in the first part of the Four Part Test, three additional provisions (Parts 2, 3 and 4 of the Test) must be met. The second, third, and fourth parts of the Four Part Test, therefore, are backstops to ensure achievement of the narrative criterion and to protect the resource. 391. Part 2 of the Four Part Test or "the three of five" test, see DEP Proposed Order , p. 44, is that "the annual geometric mean av eraged across all stations is less than or equal to 10 ppb for three of five years[.]" Subparagraphs (5)(c)1., a., and 2.,a., of the Proposed Rule. 392. Part 3 of the Four Part Test or "the one year 11" test, id. , is that "the annual geometric mean avera ged across all stations is less than or equal to 11 ppb[.]" Subparagraphs (5)(c)1.,b., and 2., b., of the Proposed Rule. 393. Part 4 of the Four Part Test or "the one year 15 test," is that "the annual geometric mean at all individual stations is less th an or equal to 15 ppb. Individual station analyses are representative of only that station." 394. Colonel Rice criticized the Four Part Test based on its discounting of high values by use of a geometric mean as the measure of central tendency and the man ner in which the test takes into account spatial and temporal variability. He offered an example of 99 stations in pristine areas and one in an area with concentration readings of 200 ppb in which degradation was occurring. The example was hypothetical, since it is not known "where they're going to be finally . . . ." (Tr. 251) The degradation "would be masked as far as this compliance methodology goes." Id. 395. Whatever validity Colonel Rice's criticism has with regard to protection of the resource ultimately, the Four Part Test follows the statute. It employs a "long term" geometric mean, as mandated by the EFA, in its primary step, the first part of the test, when it calls for achievement "if the five year geometric mean is less than or equal to 10 ppb." Subsections (5)(c)1., and 2., of the Proposed Rule. It accounts, moreover, in Part (3) of the test, the "one year 11" provision, for spatial variability as required by the EFA, when it calls for an annual geometric mean "across all stations," su bparagraphs (5)(c)1., b. and 2.,b., of the Proposed Rule. And, in Part (2) of the test, the "three of five" provision, it accounts for temporal variability as required by the EFA when it calls for a geometric mean at a level "for three of five years." S ubparagraphs(5)(c)1.,a., and 2.,a., of the Proposed Rule. iv. Adjustment of Achievement Methods 396. Subsection (5)(d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the Everglades and to prevent false positives. v. Data Screening 397. Subsection (5)(e) of th e Proposed Rule governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions not consisten t with determining an accurate estimate of ambient water column total phosphorus. 398. Data excluded under subsection (5)(e) are not discarded under the Data Quality Screening Protocol referred to in paragraph (5)(e)2. "[I]t's extremely important [that what is done] with any data set is clearly documented . . . ." (Tr. 2220) The purpose of such documentation is transparency "so that all interested parties can determine what [DEP] is doing and why . . . ." Id. To that end, the Data Screening Protocol, which is incorporated by reference in Section (8) of the Proposed Rule requires that "[t]he [Department/District] shall note for the record any data that are excluded and provide any details concerning the reasons for excluding those data." (Tr. 2220) 399 . It is proper to exclude data when a sample is not representative of the ambient total phosphorus concentrations in the EPA because of variability both within the Everglades system, itself, and variability outside the system that is associated with the m ethods of data collection and measurement. 400. An explanation was offered at hearing by Russell Frydenborg, a DEP Natural Science Manager. Mr. Frydenborg has considerable relevant experience with the State over many years that, among many aspects, invol ves the assurance of scientific quality. Mr. Frydenborg explained that in addition to the natural variability in the Everglades environment caused by rainfall, biological and seasonal changes and the like, there is also variability associated with measure ment due to error. For example, tap water has significantly higher levels of phosphorus than does the natural background water of the Everglades. It is not unusual for tap water to have a range between 40 and 80 micrograms of phosphorus per liter (40 to 80 ppb). Tap water used to rinse measurement gear will leave a residue of phosphorus. The contamination of equipment such as bottles by phosphorus residue left after rinsing will produce artificially high levels of phosphorus in samples. Data obtained b y means of contaminated equipment must be excluded. 401. Subsection (5)(e) excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. 402. Paragra phs (5)(e)1., and 2., address measurement error. 403. Paragraph (5)(e)1., requires the exclusion of data that fails to comply with the Chapter 62 160, the Department's Quality Assurance Rule (the "QA Rule.") The purpose of the QA Rule is to assure that d ata used by the Department are appropriate and reliable, and collected and analyzed by scientifically sound procedures. The QA Rule encompasses a comprehensive quality assurance program that addresses quality control in the field and the laboratory. 404. Paragraph (5)(e)2., excludes data if it fails to meet the Department's "Data Quality Screening Protocol," developed as part of the criterion development process to address quality assurance concerns of particular importance when sampling phosphorus in the water column. For example, the protocol requires that water samples not be taken from sites less than 10 centimeters in depth. See DEP Ex. 21. Attempting to sample in such shallow waters (less than four inches) may disturb nutrient rich floc that would contaminate the sample and result in artificially high total phosphorus concentration. 405. Paragraph(5)(e)3 excludes data "collected from sites affected by extreme events . . . until normal conditions are restored . . . ." Examples of such events are l isted: "fire, flood, drought or hurricanes . . . ." While all "extreme events" are not listed, all that are listed are events associated primarily with the Everglades system itself, that is, they are events associated with natural phenomena that contribu ted to the formation of the Everglades and the maintenance of its phosphorus limited status. (It is possible, however unlikely, that drought or flood today could be caused by water management practices. Changes in water levels caused by water management practices, moreover, are covered by paragraph (5)(e)5.) 406. Fire, flood, drought and hurricanes are extreme natural conditions. It is known that they will occur in the future but it is difficult to predict precisely when. It is possible to design a sam pling regime that would capture spatial and temporal variability caused by these natural events. As a practical matter, however, the Department and District are limited physically and fiscally as to the number of quality samples that can be properly taken in any one year. 407. It is the Department's position, therefore, that the effects of such natural phenomena, all influences that contributed to the formation and continue to contribute to the health of the Everglades, must be screened from consideratio n. The Department is comfortable with the screening because the data that is not screened is from water samples that have integrated the effects of extreme events so that, in the end, data related to the long term impact of the events is not screened, onl y data related to the short term impact of the events. 408. Felecia Coleman, Ph.D., is a member of the Best Available Science Committee of the National Research Council, an arm of the National Academy of Sciences. She was accepted at hearing as an exper t in principles of scientific method. 409. Scientific disciplines have their own methodologies that vary. The underlying principles of the scientific method are the same, however, for all the disciplines. 410. It is not good scientific method, in Dr. Coleman's opinion, to exclude data related to fire, flood, drought and hurricanes from calculations to determine achievement of the criterion in the Everglades. While they are events that are extreme in the Everglades, they are also events that are normal in the Everglades and produce significant effects on the Everglades' ecological system. To exclude them, then in Dr. Coleman's opinion, fails to take into account spatial and temporal variability in the system due to these events that occur in all parts of the Everglades from time to time. 411. The Department argues just the opposite. To reach the objectives of sampling strategies intended to assure the collection of "representative" samples within a routine natural variability or hydrologic cycle, ext reme event data must be excluded. Representative conditions, moreover, reflect the integration of the effects of extreme events over time, thereby taking into effect the temporal variability of the system. 412. The concept of "representation" takes into account the practical consideration in support of the screening of extreme events: the Department cannot obtain sufficient data to account for variability caused by untold combinations and permutations of extreme events. Failing to screen the variabilit y or "noise" caused by such events, moreover, would result in excessively high estimates of total phosphorus concentrations. To include data taken when the water was under the short term influence of the extreme event would skew the data high because not enough samples could be taken when the waters sampled were not under the short term influence of the extreme event to off set the impact of the event in a fair way so as to produce results that were representative. 413. Paragraph (5)(e)4., requires the e xclusion from assessment calculations of data affected by localized disturbances whether natural or caused by humans. As in the case of extreme events, the Proposed Rule lists some of these disturbances: airboat traffic, authorized restoration activities , alligator holes and bird rookeries. The former two are human activities; the latter two, natural. In common, all are "localized" rather than tending to be system wide like the listed extreme events. 414. Future physical disturbances from airboat tra ffic and alligators will suspend sediment and flocculent organic material that contains phosphorus from discharges that occurred prior to the Proposed Rule. A spike in the total phosphorus concentration for a sample taken at the disturbed location may co ntribute to an indication that the criterion has not been achieved. The same is true of samples heavily influenced by organic waste, a concentrated source of phosphorus, produced in bird rookeries. Temporary restoration activities may suspend nutrient la den floc and sediment as well causing artificially high phosphorus concentrations not reflective of typical ambient conditions. Samples taken in the wake of these localized activities are not representative. 415. Just as in the case of extreme event da ta, if a sampling regime of sufficient magnitude to properly take into account for such short term and random variability were theoretically possible so as to produce results representative of typical conditions, neither the Department nor the District has the resources to implement such a program. Without a sufficient number of samples, data influenced short term by localized activity will skew the data too high. And, in the end, samples taken that are not influenced short term by the localized activitie s will have integrated the effects of the activities over the long term. 416. Paragraph (5)(e)5. of the Proposed Rule requires the exclusion of data from assessment calculations from years when hydrologic conditions are outside the range that occurred du ring the period used to set the phosphorus criterion. Examples of such conditions are given in the Proposed Rule: rainfall amount, water levels and water deliveries. 417. The period used to set the criterion is not defined, but conditions during the de velopment of the criterion reflected a broad range of conditions such that this provision would rarely by employed. In the unlikely event an extreme in water quantity covered by paragraph (5)(e)5. occurred, data collected under such conditions would not r eflect normal ambient conditions. Section (6) Long Term Compliance Permit Requirements for Phosphorus Discharges into the EPA 418. Permits for discharges into the EPA are addressed in S ubsection 373.4592(4): The department shall use the best available information to define relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area. The department or the district shall use these relationships to establish discharge limits in permits for discharges int o the EAA canals and the Everglades Protection Area necessary to prevent an imbalance in the natural populations of aquatic flora or fauna in the Everglades Protection Area, and to provide a net improvement in the areas already impacted. During the implem entation of the initial phase of the Long Term Plan, permits issued by the department shall be based on BAPRT and shall include technology based effluent limitations consistent with the Long Term Plan. § 373.4596(4)(e)3., Fla. Stat. See also , § 373.4592( 10), Fla. Stat. 419. Section (6) of the Proposed Rule, entitled "Long Term Compliance Requirements for Phosphorus Discharges into the EPA," sets forth an initial requirement in subsection (6)(a), that an applicant for a permit to discharge into the EPA p rovide reasonable assurance that the discharge will comply with state water quality standards as set forth in the section. 420. Subsection (6)(b) sets forth three conditions, under any of which, discharges will be deemed to be in compliance. 421. The f irst is that phosphorus levels in the discharges will be at or below the criterion. This condition is independent of ambient water quality. It refers to phosphorus levels of the discharged water at the point of discharge. If such a level meets the crite rion, the level in the ambient water body (provided it was lower than the level in the discharge prior to discharge) will remain lower than the level in the discharged water. 422. The second is that discharges will not cause or contribute to exceedences of the criterion in the receiving waters, the determination of which will take into account the phosphorus in the water column that is due to reflux. The "cause or contribute" analysis is not unique to the permitting of discharges to the EPA but a longsta nding concept routinely applied in the Department's permitting of wastewater discharges. If a discharge contains a pollutant in concentrations in excess of the ambient criterion, but the discharge of the pollutant is accommodated by the system such that n o exceedence of the criterion occurs in ambient waters, then the discharge has not caused or contributed to a violation of the criterion or that standard of which the criterion may be a part. 423. If an exceedence occurs, but it is not the result of the phosphorus in the discharge but rather caused by reflux the biogeochemical release of phosphorus into the water column from the sediment stirred by the discharge the discharge would also be said not to have "caused or contributed to" the exceedence of th e criterion. 424. Phosphorus discharges may also exceed the phosphorus criterion, under paragraph (6)(c)3, if they comply with moderating provisions set forth in Section (7) of the Proposed Rule. Moderating provisions are a type of relief mechanism wher eby the permit applicant is not held to strict compliance with the applicable standard or criterion if a variety of alternative conditions are met. 425. Under subsection (6)(d), discharges into the Park and Refuge must not result in a violation of the co ncentration limits and levels established for the Park and Refuge in Appendices A and B, respectively, of the Settlement Agreement as determined through the methodology set forth in Section (5). 426. Closely tracking statutory language, subsection (6)(d) of the Proposed Rule states that discharge limits from permits allowing discharges into the EPA shall be based upon TBELs established under BAPRT and shall not require water quality based limitations ("WQBELs") through the year 2016. Section (7) Moderati ng Provisions 427. Subsection (7)(a) sets forth a moderating provision for impacted areas within the EPA. Moderating provisions are designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA and are specifically allowed by the EFA as the result of legislative amendment enacted in 2003: . . . The department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long Term Plan authorizing discharges based upon BAPRT providing net improvement to impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with antidegradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further autho rized by the Legislature pursuant to paragraph (3)(d). § 373.4592((4)(e)2., Fla. Stat. 428. There are two types of moderating provisions in the section. Subsection (7)(a) allows discharges to be permitted upon a showing of "net improvement" to the recei ving waters. Subsection (7)(b) allows for discharges to be permitted that accomplish for purposes of "hydropattern restoration" under certain circumstances. 429. To be permitted under (7)(a), the applicant must meet two criteria. First, the permittee must demonstrate that BAPRT will be implemented that includes a continued research and monitoring program designed to reduce outflow concentrations of phosphorus. Paragraph (7)(a)1 of the Proposed Rule. Second, the applicant must demonstrate that the di scharge will be into an impacted area. 430. The subsection states that the "Long Term Plan" shall constitute BAPRT consistent with the Legislature's declaration in Section 373.4592(3)(b): The Legislature finds that the Long Term Plan provides the best av ailable phosphorus reduction technology based upon a combination of the BMPs and STAs described in the Plan provided that the Plan shall seek to achieve the phosphorus criterion in the Everglades Protection Area. Consistent with the Legislative finding, t he subsection states, "[t]he planning goal of the Long Term Plan is to achieve compliance with the criterion . . . ." Paragraph (7)(a)3., of the Proposed Rule. As part of the permit review process, moreover, the Department will review the Process Develop ment and Engineering component of the long term plan and determine if changes are needed to comply with the Proposed Rule, including the numeric criterion. Any changes the Department deems necessary "shall be incorporated through an adaptive management ap proach." Id. 431. Under subsection (7)(b), discharges that cause relevant ambient concentrations in excess of the criterion may be allowed for hydropattern restoration in unimpacted areas if three conditions are met. First, the permittee must implement BAPRT under sub paragraph (7)(a)1.a. Second, the environmental benefits of hydropattern restoration must clearly outweigh potential adverse effects in the event phosphorus levels in the discharge exceed the criterion. Third, the discharge must comply wi th the Department's long standing antidegradation requirements. 432. Section (7)(c) declares that the Proposed Rule's moderating provisions do not pre empt other moderating provisions. Section (8) Document Incorporated by Reference 433. A single docum ent is referenced for incorporation into the Proposed Rule: "Data Quality Screening Protocol, dated ." Section (8) of the Proposed Rule. Although the Proposed Rule does not identify the Data Quality Screening Protocol by date, a protocol wa s adopted by the ERC. It was made available to the public electronically via the Department's website "by PDF file on the site dated March 21, 2003." (Tr. 3358) The protocol adopted by the ERC and made available to the public is the protocol about which testimony was taken at hearing. The date was left blank with the intention of filling it in with the effective date of the Proposed Rule once that date becomes known. Section (9) Contingencies 434. Section (9) requires notification to the ER C in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule: (a) is determined to be invalid under applicable laws; or (b) is disapproved by the U.S. Environmental Protection Agency under the Clean Water Act . . . ." Section (9) of the Proposed Rule. CONCLUSIONS OF LAW Jurisdiction 435. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.56, Fla. Stat. Standing 436. The Tribe, Friends and I ntervenors have standing to participate in the proceedings. Burden 437. The Tribe and Friends have the burden of going forward in these proceedin gs, and their petitions "must state with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority." § 120.56(2)(a), Fla. Stat. Then, "as to the objections raised," the Department "has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority." Id. See also Southwest Fla. Water Management District v. Charlotte County , 774 So. 2d 903, 9 08, (Fla. 2d DCA 2001)("[n]othing in section 120.56(2) requires the agency to carry the burden of presenting evidence to disprove an objection alleged in a petition challenging a proposed rule. Instead a party challenging a proposed rule has the burden of establishing a factual basis for the objections to the rule, and then the agency has the ultimate burden of persuasion to show that the proposed rule is a valid exercise of delegated legislative authority."), citing St. Johns River Water Management Distri ct v. Consolidated Tomoka , 717 So. 2d 72, 76 (Fla. 1st DCA 1998). 438. A rule may not be declared invalid on any other ground without impermissibly extending the authority of the administrative law judge. See Schiffman v Department of Professional Regul ation, Board of Pharmacy , 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative agency has only the authority that the legislature has conferred it by statute.") Thus, a proposed rule may not be invalidated simply because the administrative law jud ge believes it is not the wisest or best choice. See Board of Trustees of Internal Improvement Fund v. Levy , 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue before the hearing officer in this [rule challenge] case was not whether the Trustees made th e best choice . . . or whether their choice is one that the appellee finds desirable . . . ."); Dravo Basic Materials Co., Inc. v. State, Department of Transportation , 602 So. 2d 632, 634 (Fla. 2d DCA 1992) ("It is not our task, however, to write the best rule for DOT. That was not the task of the hearing officer."); cf . Rollins v. Pizzarelli , 761 So. 2d 294, 299 (Fla. 2000)("An interpretation of a statutory term cannot be based on this Court's own view of the best policy.") 439. In 1996, the Legislature made comprehensive changes to the APA. See Ch. 96 159, Laws of Fla. Among others, it amended Section 120.56(2) to shift the burden of proof in challenges to proposed rules from the petitioner to the agency. Those changes, however, did not negate the pr eviously existing degree of deference to be accorded agencies in rulemaking. For example, in Board of Podiatric Medicine v. Florida Medical Association 779 So. 2d 658 (Fla. 1st DCA 2001), the court upheld an agency's definition as a "proper exercise of th e Board's delegated legislative authority," "[i]n light of the broad discretion and deference which is accorded an agency in the interpretation of a statute which it administers, and because such an interpretation should be upheld when it is within the ran ge of permissible interpretations [.]" Id. at 660. (Citations omitted) (Emphasis added). 440. Similarly, where the statute is complex and contains technical or scientific terms not susceptible to precise definition, the administrative law judge may not r eject the reasonable interpretation of those terms by the agency responsible for implementing the statute, for to do so would defeat the Legislature's intent to leave to the sound discretion of the agency the responsibility of clarifying and fleshing out t he terms. See Wallace Corp. v. City of Miami Beach , 793 So. 2d 1134, 1140 (Fla. 1st DCA 2001). When construing the EFA, the Florida Supreme Court observed that "[t]his legislative scheme is implemented by numerous volumes of regulations containing extens ively detailed, scientific criteria and is enforced by agencies having the required scientific expertise, such as the DEP." Flo Sun, Inc. v. Kirk , 783 So. 2d 1029, 1040 (Fla. 2001). 441. When reviewing scientific determinations made by an agency within its area of special expertise "at the frontiers of science," the administrative law judge should be particularly deferential. See Island Harbor Beach Club, Ltd. v. Department of Natural Resources , 495 So. 2d 209, 223 (Fla. 1st DCA 1986) ("The complexity o f the scientific and technical issues in this case and the consequent deference necessarily given to DNR's expertise vividly illustrate the limited role an appellate court can play in resolving disputes arising out of an administrative agency's exercise of delegated legislative discretion in respect to technical matters requiring substantial expertise and 'making prediction . . . at the frontiers of science.' . . . The legislature's use of scientific terms and words of art in the organic statute, without s etting forth more precise definitions, has compelled us to accord considerable if not extraordinary deference to DNR's interpretation of those terms and its selection of scientific techniques and methodologies to be employed in carrying out its statutory responsibilities.") (Citations omitted.) 442. Furthermore, this is a challenge to the facial validity of provisions of the Proposed Rule and "not to determine their validity as applied to specific facts." See Fairfield Communities v. Florida Land and W ater Adjudicatory Commission , 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988). See also Advantage Therapy & Nursing Center (Beverly Health & Rehabilitative Servs., Inc.) v. Agency for Health Care Administration , Case No. 97 1625RX, 1997 WL 1053289 (DOAH July 29 , 1997)(Final Order). Invalid Exercise of Delegated Legislative Authority 443. The ultimate question in a rule challenge proceeding is whether an existing or proposed rule is an "invalid exercise of delegated legislative authority." § 120.56(1), Fla. S tat. That term is defined in Section 120.52(8) as "action which goes beyond the powers, functions, and duties delegated by the Legislature." As further explained in Southwest Florida Water Management District v. Save the Manatee Club, Inc. , 773 So. 2d 59 4, 597 598 (Fla. 1st DCA 2000), Section 120.52(8) enumerates the specific grounds for challenging a rule, followed by a statement of general grounds (often referred to as the "flush left language") to be used in determining rule validity. As amended by th e legislature in 2003, there are six specific enumerated grounds in paragraphs (a) through (f) of the statute. The Tribe and Friends allege in their petitions that the Proposed Rule should be determined to be invalid on four of the grounds, found in parag raphs (b) through (e) as follows: (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; (c) The rule enlarges, modifies, or contravenes the specific provision of law implemented, citation to w hich is required by s. 120.54(3)(a)1.; (d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; (e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; . . . § 120.52(8)(b) (e), Fla. Stat. After paragraph (f), the statute goes on to provide general grounds in the "flush left" language, dupl icated in full at Section 120.536(1): A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the spe cific powers and duties of the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall b e construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute. § 120.52(8),Fla. Stat. See also Board of Trustees of the Internal Improvement Trust Fund v. Day Cruise , 794 So. 2d 696 (Fla. 1st DCA 2001); Southwest Florida Water Management District v. Save the Manatee Club, Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000). 444. Subsections 120.52(8)(b) and (c) address two different matters. "[T]he former pertains to the adequacy of the grant of ru lemaking authority and the latter relates to limitations imposed by the grant of that authority." Consolidated Tomoka , 717 So. 2d at 81. The test under subsection (8)(c) is whether a rule gives effect to a "specific law to be implemented" and whether the rule implements or interprets "specific powers and duties." Day Cruise , 794 So. 2d 696 at 704. "Logic dictates that the closer the rule tracks the statute, the less likely it modifies or contravenes the statute [within the meaning of Subsection (8)(c)]. The language need not be identical, however, as there would be no need for the rule." Sierra Club v. St. Johns Water Management Dist. , 816 So. 2d 687, 692 (Fla. 5th DCA 2002). 445. Subsection (8)(d) prohibits rules that are so vague that persons of co mmon understanding must guess at their meaning. See Charlotte County , 774 So. 2d at 915. However, a less demanding standard applies for a proposed rule that is not penal in nature (like the Proposed Rule at issue here), in terms of the amount of detail a nd specificity required to withstand an "invalid for vagueness" challenge, because "the fundamental concern of the vagueness doctrine is not threatened" where a rule does not itself punish violations. See Florida East Coast Indus., Inc. v. State, Dep't of Community Affairs , 677 So. 2d 357, 362 (Fla. 1st DCA 1996)(Citation omitted). 446. A proposed rule is not impermissibly vague simply because it may be subject to differing interpretations. See Department of Ins. v. Southeast Volusia Hosp. Dist. , 438 So . 2d 815, 820 (Fla. 1983); State v. Pavon , 792 So. 2d 665, 667 (Fla. 4th DCA 2001); and Scudder v. Greenbrier C. Condominium Ass'n, Inc. , 663 So. 2d 1362, 1368 (Fla. 4th DCA 1995). See also Cole Vision Corp. v. Department of Business and Prof'l Regulatio n, Bd. of Optometry , 688 So. 2d 404, 410 (Fla. 1st DCA 1997)("The sufficiency of a rule's standards and guidelines may depend on the subject matter dealt with and the degree of difficulty involved in articulating finite standards.") 447. The use of subje ctive terms in proposing rules dealing with complex matters "does not automatically render the rules invalid . . . . It is appropriate and acceptable for the rules to allow for the exercise of professional judgment." Charlotte County , 774 So. 2d at 911. 448. A statute delegating legislative authority may be drafted in such a manner as to give the agency "the flexibility needed to deal with complex and fluid conditions ." Ameriquatic, Inc. v. Department of Natural Resources , 651 So. 2d 114, 117 (Fla. 1s t DCA 1995)(Citation omitted). "[A]n administrative rule . . . which fails to extinguish the discretion a statute confers . . . is not invalid on that account." Cortes v. State, Board of Regents , 655 So. 2d 132, 138 (Fla. 1st DCA 1995). Thus, the "unbri dled discretion" that Subsection (8)(d) condemns is, as stated in Cortes , "Rule Engendered Standardless Discretion." Id. 449. Subsection (8)(e) was amended by Chapter 2003 94, Laws of Florida, to define the terms "arbitrary" and "capricious." In so doi ng, it used definitions established by prior judicial precedent under the Administrative Procedures Act ("APA"). See , e.g. , Agrico Chem. Co. v. Department of Envtl. Regulation , 365 So. 2d 759, 763 (Fla. 1st DCA 1978); Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc. , 808 So. 2d at 255. See also Dravo Basic Materials Company, Inc. v. State, Dep't of Transp. , 602 So. 2d 632, 634 n. 3. (Fla. 2d DCA 1992)(If a proposed rule is "justifiable under any analysis that a reasonable person would use t o reach a decision of similar importance, it would seem that the [rule] is neither arbitrary or capricious."). Action taken by an agency that the Legislature has specifically authorized is neither arbitrary nor capricious. See Florida Manufactured Housin g Ass'n, Inc. v. Department of Revenue , 642 So. 2d 626, 627 (Fla. 1st DCA 1994)(proposed rules that "add nothing whatsoever to the requirements of the law, but instead fit squarely within [statute implemented]" are not arbitrary or capricious). 450. The closing paragraph of Subsection (8) is known as the "flush left' paragraph." In Day Cruise , 794 So. 2d at 698, the court explained the import of this provision as follows: Under the 1996 and 1999 amendments to the APA, is now clear, agencies have rulemaki ng authority only where the Legislature has enacted a specific statute, and authorized the agency to implement it, and then only if the (proposed) rule implements or interprets specific powers or duties, as opposed to improvising in an area that can be sai d to fall only generally within some class of powers or duties the Legislature has conferred on the agency. Id. at 700. On a motion for rehearing, the court expanded on this and clarified that, as it held in Save the Manatee Club : The question is whether the statute contains a specific grant of legislature authority for the rule, not whether the grant of authority is specific enough . Day Cruise , 794 So. 2d at 847. Subsequently, in Board of Medicine , 808 So. 2d at 253, the court further clarified this pr inciple: "[T]he authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute. Otherwise, the rule is not a valid exercise of delegated legislative authority." Southwest Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000). Moreover, "the authority for an administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, no t whether the grant of authority is specific enough ." Id. (Emphasis in original) The Merits 451. At the outset, there are a number of aspects of this case that should be understood. 452. First, much of the criticism of the Tribe and Friends is an a ttack on a policy choice made by the Legislature when it mandated that a numeric phosphorus criterion be adopted by DEP in the context of water quality standards. This choice justifiably led to DEP's approach in deriving the numeric criterion and the Prop osed Rule's achievement methodologies to measure the concentration levels of phosphorus in the ambient water in the Everglades rather than to measure the concentration of phosphorus levels at the point of discharge when the water flows from the canals and water management structures into the EPA. 9 453. The Tribe and Friends disagree with the Legislature's policy choice in this regard. This fundamental disagreement explains the Tribe and Friends' forceful attack on use of a geometric mean, when it so clea rly is an appropriate measure of central tendency for log normally distributed data such as the data collected by DEP for establishing the numeric criterion. 454. As Colonel Rice testified, his experience and his review of the literature led him to believ e that a phosphorus criterion should be established in the water as it flows into the EPA and it should be at a concentration level of 10. Colonel Rice's approach is based, at least in part, on the observation that the phosphorus problem in the Everglades is not one that occurs everywhere in the water body but that is localized as evidenced by the moving fronts of phosphorus enrichment along man made phosphorus gradients and the advancement of cattails in tandem with such fronts. 455. There is little doub t from this record that Colonel Rice's approach is one that would protect the resource. The Legislature's approach, on the other hand, is one that allows higher water levels of phosphorus into the EPA if the aquatic flora and fauna can tolerate them. The purpose of the research and the approach by DEP was to determine what level of phosphorus in the water body above background conditions should be allowed so as to maintain balance of aquatic flora and fauna. 456. Whatever the merits of Colonel Rice's obs ervations, the Legislature quite plainly has rejected a criterion that measures levels of phosphorus of waters at the point at which they flow into the Everglades in favor of measures of levels of phosphorus in the water body as a whole. 457. Second, the re is enormous variability, as Dr. Coleman testified, in the Everglades. To account for all of the variability by water sampling is not humanly possible. The inability to know for sure that any numeric phosphorus criterion as one element of water quality standards will never allow imbalance requires the pragmatism in which DEP has engaged in its interpretation of the absolutist language of the Narrative Criterion. 458. Third, neither the Proposed Rule nor the EFA provides a definition of "imbalance in n atural populations of aquatic flora and fauna" in the Everglades. A definition emerges from the record, however, and it is consistent with the definition of imbalance as it applies to the Park in the Settlement Agreement. 459. Fourth, with the limitatio n of Dr. Jones' testimony, the Tribe and Friends lost its wetlands ecologist who would have presented testimony critical of the Proposed Rule. The Tribe and Friends, moreover, did not opt to present the testimony of another wetlands ecologist to do so. A s impressive as are Colonel Rice's qualifications, his opinion that the Proposed Rule does not protect the resource is outweighed in the context of the entire record, by the opinions of others, several of whom are wetlands ecologists or Everglades ecologis ts. i. Authority to create a Water Quality Standard for Phosphorus and Merger of the Criterion with Achievability, Moderating Provisions and Permitting Provisions 460. In their petition, the Tribe and Friends question the Department's authority to establish water quality standards for phosphorus in the Proposed Rule which incorporates the numeric phosphorus criterion. They argue that the EFA calls only for the development of a numeric criterion, and no more. Additionally, the first of Petitioners' ten categories of flaws, as titled, above, contains the assertion that the proposed rule exceeds delegated authority by merging the phosphorus criterion with achievability, moderating provisions, and permitting provisions. 461. A review of the EFA reveals no provision that in any way limits, modifies or restrains the Department's existing authority under Chapter 403 to adopt surface water standards and criteria. 462. To the contrary, Section 373.4592(11)(a) states that, except as may be ot herwise provided, nothing in Section 403.4592, shall be construed: 1. As altering any applicable state water quality standards, laws, or district or department rules in areas impacted by this section; or 2. To restrict the authority otherwise granted th e department and the district pursuant to this chapter or chapter 403. 463. Additionally, Section 373.4592(4)(e), the provision of the EFA that mandates the establishment of a numeric interpretation of the existing narrative nutrient criterion, is entit led, "Evaluation of water quality standards." Section 373.4592(e)2., makes reference to the numeric criterion as well as the availability of moderating provisions, both of which are typical elements of a water quality standard. Fla. Admin. Code R. 62 302 .200(30). 464. In development of the Everglades Forever Act, the Legislature faced a policy choice, undoubtedly among many, as to whether excessive phosphorus inflow to the Everglades should be addressed at points of discharge or in the ambient water of the water body. It is apparent from its reference at the heading of the Section 373.4952(4)(e) "Evaluation of water quality standards," that it meant for DEP to address excessive levels of phosphorus in the Everglades Protection Area by means of a water q uality standard that would contain a phosphorus criterion, that is, in the ambient water quality of the water body. That this is the intent of the L egislature is supported by references in the EFA to geometric means for compliance and moderating provision s, another element of a water quality standard. It is also consistent with the long standing approach in both federal and Florida laws governing water quality. 465. Petitioner's merging argument with regard to moderating and permitting provisions also i s not supported by Section 373.4592(4)(e)2. of the EFA, which specifically allows moderating provisions "during the implementation of the initial phase of the Long Term Plan" under certain circumstances. Similarly, the EFA specifically addresses the conce pt of permitting: "The department shall use these relationships [between waters discharged to, and the resulting water quality in, the Everglades Protection Area] to establish discharge limits in permits for discharges into the EAA canals and the [EPA] . . . ." § 373.4592(4)(e)3., Fla. Stat. See also , § 373.4592(10), Fla. Stat., "LONG TERM COMPLIANCE PERMITS." ii. Accuracy of the Findings 466. Petitioners took issue with subsections (b) and (g) of Section (2) of the proposed rule (Findings) during the ir joint opening statement alleging that each of the two individual findings were inaccurate. Factually, the Department has provided evidence that both subsections (b) and (g) are accurate. 467. As a matter of law, Section (2) provides guidance to those interpreting the rule as to the collective thought processes of the ERC when reviewing the rule as a standard. Section 120.52(15), Florida Statutes, defines a rule as follows: "Rule" means each agency statement of general applicability that implements, i nterprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term a lso includes the amendment or repeal of a rule. The term does not include: (a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application ou tside the agency issuing the memorandum. (b) Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action. (c) The preparation or modification of: 1. Agen cy budgets. 2. Statements, memoranda, or instructions to state agencies issued by the Chief Financial Officer or Comptroller as chief fiscal officer of the state and relating or pertaining to claims for payment submitted by state agencies to the Chi ef Financial Officer or Comptroller. 3. Contractual provisions reached as a result of collective bargaining. 4. Memoranda issued by the Executive Office of the Governor relating to information resources management. A fair reading of the stat utory definition of "rule" suggests that the definition is designed to identify those agency actions that must be considered a rule for purposes of agency accountability. See , e.g. , Environmental Trust v. State , 714 So. 2d 493 (Fla. 1st DCA 1998)(discuss ing which type of agency statement may or may not need to be a rule). 468. The statutory definition of "rule" does not expressly preclude rule provisions that may assist the public, interested parties and/or stakeholders in understanding the regulatory c ontext of an agency's actions, or in this case, the deliberative process of the Environmental Regulation Commission. The Department's existing Rule 62 302.300, which is indeed entitled " Findings, Intent and Antidegradation Policy for Surface Water Quality ," sets out detailed findings explaining the context in which the Department's long standing water quality standards and criteria were approved by the ERC. 469. Neither the Tribe nor the Friends have argued that the Department lacks the authority, howeve r, to include "findings" but that certain of the findings may not be factually accurate. Those factual issues have been resolved in favor of the Department. Accordingly, there being no legal assault on Section (2), and the factual issues raised resolved in favor of Respondent, there is no basis to determine any of the "Findings" in Section (2) of the Proposed Rule to constitute an invalid exercise of legislative authority. iii. Defensible Science 470. The third in the list of flaws Petitioners see in the Proposed Rule is that it is not based on defensible science and incorrectly considers achievability and economics. Development of the numeric phosphorus criterion was a decade long process performed under the auspices of the Everglades Technical Overn ight Committee (TOC), as established by the Settlement Agreement, and scrutinized by an Everglades Technical Advisory Committee (ETAC), a variety of state and federal agencies, agricultural interests, environmental advocates, and other stakeholders includ ing the Tribe. The Department employed a reference site approach, relying heavily on transect data and dosing studies performed by the South Florida Water Management District but also drawing corroborating data from a variety of studies, including those p erformed by the Duke University Wetlands Center, Florida International University and the U.S. Environmental Protection Agency's REMAP study. The science used to arrive at a geometric mean of 8.51 as a threshold at which imbalance occurs is defensible. A pplication of a confidence interval, moreover, is scientifically appropriate and defensible. 471. Selection of the upper limit in the 95% confidence interval and rounding of the value to 10 to derive the numeric phosphorus criterion, is defensible for the reasons detailed in the findings of fact. iv. Definition of Impacted Areas 472. Petitioners challenge the definition of "impacted areas" as "areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of soil are greater than 500 mg/kg." Subsection (3)(d) of the Proposed Rule. A weighing of the testimony on the definition of "impacted areas," that is, consideration of the testimony of Colonel Rice and Dr. Jones versus the testimony of Mr. Nearhoof and Dr. Redfield supported b y the other scientists and research, coupled with the public hearings that considered the definition, leads to the conclusion that the definition is not arbitrary and capricious. While the potential remains for a definition that might be better or more re fined, that is, one that considered biological indicators and varied according to soil type, the preponderance of the evidence establishes that the definition is not arbitrary and capricious as defined by Section 120.58(e). In other words, supported by an array of data and that soil phosphorus is a stable indicator, a 500 mg/kg break point is not irrational. The ERC was given several options, listened to discussion and selected the proposed definition after deliberation. 473. The administrative law judge need not view the agency's interpretation of the statutes it implements to lead to the best result. The interpretation need only within the range of permissible interpretations. See Board of Podiatric Medicine , 779 So. 2d 658. 474. The Proposed Rule's definition of impacted areas is not an invalid exercise of delegated legislative authority. v. Derivation of the Phosphorus Criterion 475. The Tribe and Friends allege that the phosphorus criterion, itself, contravenes the Narrative Criterion and theref ore is invalid under Section 120.52(8)(c). 476. As a threshold matter, there is no support for any argument that the EFA requires the Department to adopt 10 ppb as the numeric criterion. 477. It is easy to understand the appeal of the number "10." Occu rring in areas populated by dense sawgrass, it is the peak number homeostatically of water column concentrations of phosphorus in the natural background of the Everglades. It is, moreover, the number selected by the Legislature for the Default Criterion. 478. The section of the EFA that contains the Default Criterion, however, is clear; a criterion adopted by the Department supercedes the default. No reasonable construction of the statute supports a claim that the EFA pre ordained the numeric interpreta tion. Had the EFA done so, there would have been little point to the research conducted over the past decade. 479. Nor does the EFA require that the numeric criterion be expressed as an "arithmetic" mean. To the contrary, there are three bases for expre ssion of the numeric phosphorus criterion as a geometric mean. First, the criterion is one element of water quality standards governing water quality in the Class III waters of the Everglades. The EFA plainly calls for the criterion to be an element of a water quality standard for phosphorus in the Everglades. Such an approach is supported, moreover, by conventional and long standing water quality regulatory schemes at the state and federal levels. Second, the Department's use of a geometric mean is san ctioned by the EFA's requirement that a geometric mean be used with regard to compliance in S ection 373.4592(4)(e)3. If a geometric mean is required to be employed for compliance determinations, it is more appropriate to express the criterion that must be complied with as a geometric mean. Third, the Reference Site Approach used by the Department, while it expressed data in both arithmetic means and geometric means, determined that balance is maintained at a geometric mean of 8.51. Expression of phosphor us levels in reference conditions as a geometric mean following a determination that the data exhibits a log normal distribution, supports expression of the numeric phosphorus criterion as a geometric mean. 480. The Legislature did not direct the Departm ent to establish a number that replicates background phosphorus levels. It mandated that the criterion be set so as to assure that EPA waters will not "be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna." § 373. 4592(e)2., Fla. Stat. (Emphasis added). The parties opposed to the Tribe and Friends argue that Petitioners failed to establish that "a long term geometric mean of 10 ppb" will cause an imbalance to aquatic flora and fauna. They further argue that their evidence established that no such imbalance will occur if the waters meet the criterion. 481. The Tribe and Friends met the burden of going forward with regard to the invalidity of the Phosphorus Criterion established in the Proposed Rule. In their case s in chief, the parties opposed to the Tribe and Friends offered evidence that the Proposed Rule's establishment of the criterion as a long term geometric mean of 10 is a valid exercise of delegated legislative authority. This evidence produced little by way of response from the Tribe and Friends. Upon examination of all of the evidence in the proceeding, it is determined that, by a preponderance of the evidence, DEP and the parties allied with it, proved that the numeric phosphorus criterion established in the Proposed Rule is not invalid. vi. Relationship of Criterion to the Park, Refuge, Impacted and Unimpacted Areas 482. In paragraph 6 of their list of alleged flaws, Petitioners asserted that the proposed rule: Improperly subdivides the EPA into four areas with different criteria: A. Park no criterion numerically interpreted by ERC to protect against imbalance; B. Refuge no criterion numerically interpreted by ERC to protect against imbalance; C. Unimpacted Areas ERC approves geometric mean criterion that does not protect against imbalance; D. Impacted Areas ERC approves moderating provisions that guarantee a continued imbalance. Petitioners have offered no evidence in support of these assertions and the record contains evidence to the co ntrary. The numeric criterion applies to the entire EPA. There is no requirement in the EFA that different criteria be established for the different segments of the EPA. 483. By statutory mandate, the Department must assess achievement of the numeric ph osphorus criterion differently in the Park and Refuge from the remainder of the EPA. See § 373.4592(4)(e), Fla. Stat. By statutory mandate, the Department must assess achievement differently in impacted than in unimpacted areas within the EPA. Id. Thes e mandates are recognized in the Proposed Rule. But there is no requirement that different phosphorus criterion be established to tailor them to the different segments of the EPA. vii. Achievement Methodology 484. Petitioners' seventh category of alleg ed flaws states that the achievement methodology set forth in the Proposed Rule "has no ecological basis," "creates escape clauses," and allows impacted areas to "never have to meet the criterion." Taking the last item first, impacted areas within the EFA are subject to the numeric phosphorus criterion, upon the proposed rule becoming final. The explicit goal of the Long Term Plan is to achieve the numeric phosphorus criterion in the entire EPA. There is no evidence of record to suggest that the impacted areas never have to meet the criterion. 485. Petitioners also complain that the achievement methodology for criterion has no "ecological basis." The achievement methodology is a statistical application used to assure that the numeric phosphorus criteri on is in fact being met by accounting for spatial and temporal variability. Its ecological basis lies in the fact that it is a statistical means of assuring that waters in the EFA are indeed meeting the numeric criterion which is based upon the correlatio n of biological responses to varying ambient concentrations of phosphorus. 486. Employment of a five year geometric mean in the first part of the "four part test" is reasonable. The three remaining parts of the test are simply back ups to ensure that the first part of the test is met in ways that account for spatial and temporal variability. 487. Petitioners also stated their concern that the achievement methodology, Section (5) of the proposed rule, "creates escape clauses." None of Petitioners' witne sses specifically offered any testimony as to the notion of "escape clauses." 488. Section 373.4592(4)(e)3., Florida Statutes, states that "compliance" with the phosphorus criterion "shall be based upon a long term geometric mean of concentration levels" at sampling stations that are representative of receiving waters and located so as to assure the EPA is not altered so as to cause imbalance and to assure net improvement in areas impacted areas. The Department and the District have consistently equated the use of the term "compliance" with achievement of the criterion within the waters of the EFA requiring the assessment of ambient total phosphorus concentrations. While the Legislature used the word "compliance," which is often used in the context of pe rmitting point sources, and the language does fall within a paragraph in the EFA that starts out by discussing discharge permits, the Department interprets the provision to be addressing ambient water quality conditions and not total phosphorus concentrati ons in point source discharges. Section (5) of the Proposed Rule is intended to implement the EFA compliance provision while Sections (6) and (7) of the rule separately address permitting and moderating provisions associated with permitting, respectively. 489. A key point supporting the Department and District's interpretation of the EFA compliance provision is the statutory mandate to employ a geometric mean. While the Department rejects Petitioners' assertion that a geometric mean is inappropriate for expressing or measuring an ambient numeric nutrient criterion, the Department employs a flow weighted mean, not a geometric mean, when assessing nutrient loading from point source discharges. The statutory mandate of a geometric mean is more consistent w ith an assessment of ambient conditions and inconsistent with the evaluation of point source discharges. Consequently, the Department's interpretation of the compliance provision is not an unreasonable one. viii. Data Screening 490. Petitioners take is sue with the data screening provisions of the Proposed Rule, Section (5)(e). They contend that its open to abuse because data that reflect short term natural extreme events are excluded form consideration; the "authorized restoration activities" exception allows the wholesale exclusion of data, and the hydrologic period for comparison is ambiguous and will exclude entire years of data. 491. As a preliminary matter, Section (5)(e), entitled Data Screening , makes reference to the Data Quality Screening Prot ocol, which is incorporated by reference in Section (8) of the rule entitled Document Incorporated By Reference with a blank space left for the date of the Data Quality Screening Protocol. 492. None of Petitioners' witnesses had any experience promulgati ng and adopting rules under the APA. As explained by Department witnesses, the date of the document incorporated by reference corresponds to the effective date of the rule. Documents are incorporated by reference as they exist as of the date the rule is adopted. See § 120.54(1)(i)1., Fla. Stat. A proposed rule is considered adopted when filed with the Florida Department of State. See § 120.54(3)(e)6., Fla. Stat. However, the rule and therefore documents made part of the rule by reference become effe ctive 20 days after filing with the Department of State, or a later date specified in the rule, or an alternative effective date required by statute. Id. Consequently, the effective date of the Data Quality Screening Protocol cannot be determined until t he Department is free to file the rule with the Department of State. The Department cannot file its rule with the Department of State while an administrative challenge to the rule is pending. See § 120.54(3)(e)2., Fla. Stat. 493. Petitioners take issue with the fact that Section (5)(e)3. of the Proposed Rule excludes data from extreme, albeit natural, events. Data from sampling sites subjected to fire, floor, drought, or hurricanes, are excluded from calculations, for the purpose of determining achieve ment of the criterion, until normal conditions are restored. These terms are not vague but are susceptible to being understood within their ordinary meanings. 494. Furthermore, while natural, such extreme events are unpredictable as to frequency, duratio n and intensity. Once again, the Department is required to account for spatial and temporal variability in establishing the numeric phosphorus criterion for the EPA. See § 373.4592(4)(e)2., Fla. Stat., and § 403.021(11), Fla. Stat. Were it theoretically possible to establish a sampling program to account for variability caused by infrequent and unpredictable extreme events, the number of samples that would be needed, and the cost of executing such a sampling regime, would render such a sampling effort im practical if not impossible. Consequently, data resulting from such extreme events must be excluded from calculations designed to assess achievement of the numeric criterion. Id. If the data from these extreme and infrequent events were not excluded, es timates of total phosphorus concentrations would be artificially high and not reflective of typical ambient conditions. Id. Furthermore, and most persuasively, data from samples of water not influenced by recent extreme events have integrated the effects of extreme events over the long term. In this sense, then, the effects of the extreme events are not ignored. To the contrary, they are not allowed to distort conclusions. Distortion would be the result if they were included due to the highly impractic al if not impossible sampling that would be required to prevent the distortion. 495. Petitioners also take issue with Section (5)(e)4., which excludes data affected by localized activities caused by temporary human or natural disturbances which could inc lude airboat traffic, authorized restoration activities, alligator holes and bird rookeries. Colonel Rice feared that "authorized restoration activities" included the entire Comprehensive Everglades Restoration Plan (CERP) which, as an Everglades wide eff ort, would allow the Department to exclude any and all phosphorus data. 496. Mr. Nearhoof explained that the restoration activities anticipated by the proposed rule provision were indeed to be localized and temporary, neither of which would describe the CERP's permanent impacts. Data from a station with an artificially elevated phosphorus concentration caused by a localized and authorized disturbance, such as construction or stabilization of a CERP project is simply not relevant to assessing achievemen t by virtue of discharges, any more than if the disturbance were caused by a burrowing or wallowing alligator. 497. As explained by Mr. Frydenborg, the Department has certain data quality goals tailored to obtaining the best estimate of ambient total p hosphorus concentrations from a necessarily limited set of samples. Data from sources that do not reflect normal ambient conditions at a station do nothing but add variability to the data deteriorating the quality of the Department's estimate. Since it i s not feasible to take enough samples to accurately quantify all sources of variability whether airboats or alligators those sources must be accounted for but screened. 498. Similarly, hydrologic conditions that are not consistent with the broad range of reference conditions under which the criterion was derived do not reflect normal ambient conditions and tell the Department little or nothing as whether the numeric phosphorus criterion has been achieved in the EPA. Events that cannot be quantified mus t be screened. 499. The Department's argument of impracticality points out the enormous quantity of data that would necessary to incorporate the data that has been excluded under the date screening provisions of the Proposed Rule. Since it is impossibl e to accumulate that much data, to allow the data influenced in the short term by an extreme event to be included would yield inaccuracy. On the other hand, exclusion allows a proper focus on data that has integrated the short term effects of similar even ts. 500. The "period used to set the phosphorus criterion" referred to in paragraph 5., of Section (5)(e) that governs data screening is not invalid because it is not defined. The record established that the period of record used to set the phosphorus c riterion is from 1978 to 2001. 501. The data screening provisions of the rule are determined to be valid. ix. The Legislative Permit Argument 502. The EFA expressly allows moderating provisions to be included in the rule adopting the numeric phosphorus criterion and also requires that the Department, when assessing achievement of criterion, assure a net improvement in the areas already impacted. See § 373.4592(4)(e)3. Fla. Stat. 503. Within the impacted portions of the EFA, a "net improvement" moderati ng provision may be available upon a demonstration that any discharges into an impacted area will employ Best Available Phosphorus Reduction Technology (BAPRT) and include a program designed to continuously work toward further reductions of phosphorus from any such discharges. Both the EFA and the proposed rule recognize the Long Term Plan as BAPRT. The specific planning goal of the Long Term Plan is compliance with the criterion. The "net improvement" moderating provision like all moderating provisions allowed by the EFA and the two included in the rule is not available beyond 2016. x. Use of Moderating Provisions and the Long Term Plan 504. While Petitioners correctly note that the EFA states that the rule adopting a phosphorus criterion "may" incl ude moderating provisions, it is clear from the record that the current status of the Everglades is the result of several decades of modification and eutrophication. See § 373.4592(1)(g), Fla. Stat. As noted, moderating provisions are provided where the social, economic or environmental costs of forcing strict adherence to a numeric criterion outweigh the social, economic or environmental benefits from such strict adherence, i.e. , such provisions moderate the effect of criteria. The administrative act of adopting the phosphorus standard rule will not, with a stroke of the pen, undo decades of degradation. Additionally, the District cannot simply cease operations. 505. Moderating provisions may be included as elements of the Department's water quality s tandards under Chapter 403, Florida Statutes, and Florida Administrative Code Chapter 62 302, promulgated thereunder. The EFA specifically authorized moderating provisions as part of the rule adopting the numeric phosphorus criterion for the EPA. Accordi ngly, the moderating provisions of Section (7) while not mandatory under the EFA are authorized under the EFA. 506. Petitioners assert that the "net improvement" moderating provision is in some manner defective in that the term is not afforded its own definition under Section (3) of the proposed rule and that it includes "no biological indicators." As explained by the Department's Frank Nearhoof, "net improvement" is effectively defined as the implementation of BAPRT. The EFA sets forth the Legislativ e finding that the Long Term Plan is BAPRT and, "based upon a combination of the BMPs and STAs described in the Plan provided that the plan shall seek to achieve the phosphorus criterion in the Everglades Protection Area." See § 373.4592(3)(b), Fla. Stat. Accordingly, the "net improvement" moderating provision allows a discharge into an impacted area so long as that discharge is the subject of an established, ongoing, and constantly monitored program of implementing state of the art phosphorus reduction t echnology. 507. While Department scientists are certain that BAPRT will result in improvements in water quality and biology within the EPA, it remains to be seen which parameters will demonstrate statistically significant changes and when those changes w ill be observed. Consequently, it would be premature to attempt to anticipate within an administrative rule which parameter or parameters will be the bellwether of the inevitable "net improvement" within the EPA. 508. Petitioners characterize the "hyd ropattern restoration" moderating provision as a "license to create impacted areas." Petitioners argue that no water in the EPA may be better than dirty (phosphorus enriched) water. Petitioners' position fails to recognize that restoring water quantity as well as water quality is an integral element of the EFA and the State's efforts to restore the Everglades. See , e.g. , § 373.4592(1)(f), Fla. Stat. (It is the intent of the Legislature to expedite plans and programs for improving water quantity reachin g the Everglades, correcting long standing hydroperiod problems, increasing the total quantity of water flowing through the system); see also § 373.4592(4)(b), Fla. Stat., "Everglades water supply and hydroperiod improvement and restoration." 509. Rather than ignore the EFA mandate to expedite plans and programs to address the water quantity issue, Section (7)(b) of the Proposed Rule specifically links discharges into unimpacted portions of the EFA to water quality considerations. As a preliminary step, any new discharge is subject to BAPRT and continued research and monitoring to reduce outflow phosphorus concentrations. Next, it must be determined that the environmental benefits of establishing the discharge clearly outweigh potential adverse effects o f using the phosphorus enriched waters to rehydrate overly dried areas to essentially put the wet back in the wetlands. Finally, a proposed discharge must comply with the Department's anti degradation requirements which, among other things, prohibit disch arges that would reduce the surface water classification of a waterbody. 510. Petitioners' characterization of the use of the term "reflux" as "nonsensical" is not supported by the record. Reflux is a chemical process whereby phosphorus previously bound in aquatic soils is released into the water column from the sediments. The reference to reflux in Section (6)(b) of the proposed rule simply acknowledges that discharges will not be considered the source of an exceedence of the numeric phosphorus criteri on if the phosphorus is coming into the water column from the sediment and not the discharges. 511. Petitioners also assert that because the Proposed Rule specifically allows the consideration of reflux, a chemical phenomenon, the Department has been gra nted "unfettered discretion." Petitioners did not present any evidence to establish exactly how the Department is imputed such unfettered discretion by simply failing to attribute an exceedence of the numeric phosphorus criterion to a source that did not cause the exceedence. 512. Petitioners criticize the Long Term Plan on two fronts asserting that the plan allows "zero compliance" with the criterion and that the ERC has via the proposed rule improperly vested "legislature rulemaking authority in DEP to change the plan." Once again, the Florida Legislature has determined that the Long Term Plan is indeed the BAPRT. See § 373.4592(3)(b), Fla. Stat. The very purpose of the Long Term Plan is to implement projects to reduce phosphorus entering the EPA and to continually find ways to reduce phosphorus even more to assure achievement of the numeric criterion. Petitioners' "zero compliance" argument is based solely upon the facts that, as of the effective date of the proposed rule, the Water Management D istrict will not have ceased operation, extensive agricultural practices will exist in South Florida, and stormwater will continue to flow from urbanized areas. In short, phosphorus will still be a problem in the Everglades. In recognition of these facts , the Florida Legislature has concluded that the Long Term Plan subject to review and revision to incorporate incremental optimization measures for additional phosphorus reduction is the best means to solve the problem of phosphorus in the Everglades. T he Department cannot be said to have erred because it has established a phosphorus standard, by rule, utilizing the very tool approved by the Florida Legislature as the Best Available Phosphorus Reduction Technology. 513. Petitioners' assertion that the ERC has somehow imbued the Department with some special rulemaking powers is equally misplaced. Paragraph (7)(a)4. of the Proposed Rule notes that the Department shall propose amendments as science and environmental conditions warrant and the Department s hall approve all amendments to the Long Term Plan. The Florida Legislature in the Everglades Forever Act, not the ERC, granted the Department the explicit authority to propose changes in the Long Term Plan as well as approve changes to the Long Term Plan. Section 373.4592(3)(b), Florida Statutes, states, in relevant part: Revisions to the Long Term Plan shall be incorporated through an engineering component to identify and implement incremental optimization measures for further phosphorus reductions. Re visions to the Long Term Plan shall be approved by the department . In addition, the department may propose changes to the Long Term Plan as science and environmental conditions warrant . (Emphasis supplied). The language in the Proposed Rule is consisten t with the specific enabling provision of the Everglades Forever Act. Summary 514. The Department and the parties aligned with the Department have shown by a preponderance of the evidence that those parts of the Proposed Rule appropriately challenged by t he Tribe and Friends are not invalid exercises of the authority delegated to the Department by the Legislature. ORDER Based on the foregoing, it is hereby determined that Proposed Rule 62 302.540 is not an invalid exercise of delegated legislative authori ty. DONE AND ORDERED this 17th day of June, 2004, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 3060 (850) 488 9 675 SUNCOM 278 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2004. ENDNOTES 1/ An order denying the Tribe's motion for protective order to protect it from production of the data and documents had been appealed to the First District Court of Appeal. The court stayed the order denying the motion for protective order and the stay remained in effect throughout the final administrative hearing. The motion in li mine , also appealed to the First District Court of Appeal, therefore, did not further require that the documents and data be disclosed. 2/ The time requirement in Section 120.56(1)(c) for commencement of the hearing had been waived by the parties. 3/ O n March 22, 2004, opinions were filed by the First District Court of Appeal in Case Nos. 1D03 4849 and 1D03 4574. Both per curiam, the opinions dismissed the petitions of the Tribe that sought review of the two interlocutory orders referred to in this ord er, the first that had denied the protective order for the data and documents which the Tribe claimed were privileged and the second that had excluded the testimony of Dr. Jones. 4/ The EAA is defined at Section 373.4592(2)(a) by reference to the detaile d legal description in Section 373.4592(15). 5/ Mr. Nearhoof testified that the period of record for establishment of the numeric criterion would include 2002, as well (Tr. 1916 1918) because this proceeding (the Proposed Rule Challenge Proceeding) means that "strictly speaking [DEP is] still in . . . the period used to establish the criterion . . . . ." (Tr. 1917) The record, however, clearly establishes that the period of record used for deriving the numeric phosphorus criterion was from 1978 20 01. 6/ This is the case throughout the Everglades. See Dr. Roy's testimony at Tr. 1257. 7/ Colonel Rice's example was roundly criticized by other witnesses. See , e.g. , Dr. Kent's testimony that measurements under the Proposed Rule will not be of numb ers of water samples, not two buckets poured into one container. 8/ High values due to airboat traffic should be screened out under the data screening provision in Section (5) of the Proposed Rule. Use of a geometric mean, therefore, is a type of double check. It will exclude such a value if it was mistakenly not excluded by application of the data screening provision. 9/ The difference in approaches is seen in the Settlement Agreement. "Levels," measures of ambient water quality are established for the Refuge. "Limits," measures of water quality at point sources are established for the Park. COPIES FURNISHED: Dexter Lehtinen, Esquire Kelly S. Brooks, Esquire Felippe Moncarz, Esquire Lehtinen, Vargas & Riedi, P.A. 7700 North Kendall Drive, Suite 3 03 Miami, Florida 33156 Joseph P. Klock, Jr., Esquire Gabriel E. Nieto, Esquire Elizabeth C. Daley, Esquire Steel, Hector & Davis, LLP 200 South Biscayne Boulevard, Suite 4000 Miami, Florida 33131 2398 William H. Green, Esquire Gary V. Perko, Esquire H opping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 David Crowley, Esquire Winston Borkowski, Esquire Jere Earlywine, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 3000 Mary F. Smallwood, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Daniel H. Thompson, Esquire Berger Singerman 215 South Monroe Street, Suite 70 5 Tallahassee, Florida 32301 Kirk L. Burns, Esquire Luna Phillips, Esquire Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road, MSC 1410 West Palm Beach, Florida 33406 Scott Boyd, Executive Director and General Counsel Joint Administrative Procedures Committee 120 Holland Building Tallahassee, Florida 32399 1300 Liz Cloud, Chief Bureau of Administrative Code The Elliott Building, Room 201 Tallahassee, Florida 32399 0250 Kathy C. Carter, Agency Clerk Departmen t of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 3000 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 the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District C ourt 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.

Docket for Case No: 03-002872RP

Orders for Case No: 03-002872RP