Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Henry I. Whatley, owner of Hank's Septic Tank Service, was the holder of a permit to operate a septic tank cleaning service issued by the Polk County Health Unit of DHRS. DHRS was the agency charged with regulating operation by the Petitioner. In early June, 1987, Richard Lee Coleman, a Commissioner with the Winter Haven Lake Region Boat Course District, along with members of the press, was involved in a boat-borne examination of several of the northern lakes in the lake chain which made up a part of the District's jurisdiction. As the party was leaving Lake May, going south on the canal joining Lake May with Lake Shipp, Mr. Coleman noticed a white liquid storage truck parked on property abutting the canal, property identified as owned by Petitioner. At the back of the truck, a young man, later identified as Petitioner's son, had opened a valve allowing a 4 to 6 inch stream of grey-brown material pour out from the truck to the ground. When the young man saw the boat coming, he immediately stopped the dumping and started to drive off. Another Commissioner in the group yelled at him to stop, which he did. The Coleman party pulled its boat over to the bulkhead and received permission from Petitioner's son to come on the property. While the group was talking with the young man, Mr. Coleman walked over to the dump site, a filled area which sloped off toward a swampy wetland to the east which constitutes an extension of the lake system. He observed the effluent which had come from the truck draining across the area into the swamp. Mixed in with the effluent were such solid materials as tampon containers and lumps of waste material which, from the smell, was from septic tanks. Mr. Coleman took a sample of the effluent materiel in a sample bottle which had been provided to him by the health department. Just as Mr. Coleman finished taking the sample, Mr. Whatley came up to the group and in the course of the ensuing conversation, indicated he had been dumping effluent there for 10 years without problem and felt there was no harm in it. Mr. Coleman did not want to discuss the matter with Petitioner and left the area. In the company of a reporter who was on the trip with him, Mr. Coleman took the sample to the health department where he left part for analysis, and took the remainder to the Winter Haven water department where the chemist, Ms. Dennis, agreed to analyze it for systems the health department analyst could not look for. A week later, on June 13, 1988, Officer Quarles was operating the police patrol boat in the area when he received a call that a truck was dumping sewage into the canal. When he got to the purported site, he did not see a truck at or near the canal, but saw one about 100 feet east of the canal, parked on an incline with the rear hatch open. On top of the truck, up near the front, he saw Mr. Whatley with a hose, running water into the top hatch. A powerful smelling pile of sand was on the ground outside the back hatch where the water was coming out. This was the same odor of sewage he detected from the water when he entered the canal from Lake May. Officer Quarles called for someone to bring him a sample container into which he placed a sample of the sludge from the center of the pile. Quarles asked Petitioner to stop washing out the truck and Petitioner complied. The sludge at the back of the truck was up to twelve inches deep in parts but the water it contained did not seem to be running off the site. Instead, it was going into the ground. The sludge sample gathered by Mr. Quarles was taken to the Winter Haven health department where it was analyzed for fecal coliform bacteria and fecal streptococci. In October, 1987, Petitioner pleaded no contest in Polk County Court to a charge of depositing a deleterious substance in a lake and was fined $106.00. After the entry of the Court's order, the Department revoked Petitioner's permit to operate a septic tank cleaning service and in place thereof, issued him an interim permit under which he could operate until the expiration of his period of probation. When he submitted his application for a new permit, on December 23, 1987, it was denied because his activities were considered to constitute a pollution hazard. Petitioner does not deny either he or his son was washing out the truck on the dates and at the sites in question. He had been having difficulty stopping the truck because of the heavy buildup of sand in the tank which had to be removed so the truck could pass inspection. As a result, he was cleaning out the truck on his own property, a four acre piece of land which contains its own small lake and which is bordered on one side by 900 feet of the canal between Lake May and Lake Shipp. He was not arrested on either occasion, but several months after the last incident, he was notified to appear in County Court. He was advised by his attorney that he would be fined $106.00 and would be required to do some community service and, thereafter, upon the advice of counsel, pleaded no contest to a charge of illegal dumping of septic tank seepage into the lake chain in the county. He contends that he was told by both the judge and his lawyer that his license to operate his business would not be affected by his plea. As a result of the refusal to renew his permit, he has been relegated to doing repair work in his own name and has been able to continue to service his accounts with a truck borrowed from a competitor. He contends that if he does not get his own permit, he will be put out of business and will have to dispose of his land, the end sought by his wife who is in the process of divorcing him and who wants the land. Both Lake May and Lake Shipp consistently have the highest bacteria count in the chain. Both are used for fishing, water skiing, and other recreational purposes and the bacteria count, checked periodically, usually twice a year, is "alarmingly" high. Admittedly, there are sources other than Petitioner's property which cause bacterial pollution to the lakes, such as storm water drains and industry. Based on tests run in the area, however, it does not appear the industrial waste contains human waste bacteria. Though Petitioner was not dumping directly into the canal, the effluent from his dump was observed to run into the swamp which carries into the lake system. The water samples taken to the health department in this case were initially reviewed by Mr. Tucker, a biological scientist, who routinely chemically tests water from the lakes using the Environmental Protection Agency approved "most probable number" test. He checks for total coliform bacteria, (either animal or vegetable), fecal coliform bacteria, (animal), and fecal streptococci which can determine what animal provided the contamination. The lakes involved here are usually very low in fecal coliform bacteria, showing an average of less than 16 - 200 colonies per ml of water. Fecal streptococci count is usually in the low teens. With these levels, the water in the chain is usually pretty good except for the few trouble spots such as the storm drains and industrial inflows described above. The tests he ran on the water sample submitted by Mr. Coleman showed extremely high bacteria count. The concentration was so high he was unable to distinguish individual colonies even at a dilution rate of 1 to 10,000. The ample, which at this level was off the scale, showed a solid mass of bacteria. The streptococcus count was also well above what normal lake water would show. The sample obtained by Mr. Quarles running water through the sand was also so high as to be off the scale. Ordinarily an incubation period of 48 hours is required to get a reading on tests such as these. In this case, Mr. Tucker got a reading after only 8 hours even using a different method for analysis than that used on the Coleman sample. The sample's bacteria count was so concentrated, a comparison with normal lake water was impossible. Ordinarily, introduction of bacteria like this in the concentrations shown here, could destroy the lake and produce in humans anything from scarlet fever to simple diarrhea. Ms. Dennis, the water plant chemist who conducted the additional tests on the water sample brought in by Mr. Coleman, evaluated chemical oxygen demand, (COD), biological oxygen demand, (BOD), and the PH factor which, in this case, was neutral. The COD test, which shows how much oxygen is used by chemical activity caused by the presence of chemicals or organics, normally averages 430 in raw sewage. Here, the sample showed 11,552. The BOD test, which shows how much oxygen is being used by organisms in the water averages 150 - 250. Here, the sample showed 1400. The higher the number on these two tests, the greater the degree of contamination. Ms. Dennis also ran other tests. Ammonia in the water shows what the microorganisms use for food. Whereas the average is usually 10 - 40 ppm in raw sewage, the sample in question showed 41. Organic nitrogen is usually 1 - 10 ppm in raw sewage. Here it was 200 ppm. Nitrate levels were not significantly above average. Taken together, the tests run by Ms. Dennis on the Coleman samples showed counts much higher than the counts for raw sewage generally in Winter Haven. Mr. Whatley claims he has been in business for 19 years without having any difficulty with the health department. He denies any health hazard, claiming that any harmful bacteria in the waste are killed by the many household chemicals which end up in the septic tank with the waste. He holds himself out as an example, claiming he has worked with this substance for years and has never been made sick by it. Chemical analysis, however, is far more significant and convincing evidence of danger than Mr. Whatley's health and clearly indicates that bacteria in the waste were alive and active.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that Petitioner's application for a permit to operate a septic tank cleaning service be denied. RECOMMENDED this 29th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1988. COPIES FURNISHED: Henry I. Whatley 127 Strain Blvd. Lakeland, Florida 33801 Edward Haman, Esquire HRS District VI Legal Counsel W. T. Edwards Facility 4000 E. Buffalo Avenue Tampa, Florida 33614 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact On August 12, 1982, the partnership made application for a fill permit to fill approximately .67 acres and to create approximately .45 acres of wetlands in St. Johns County, Florida. A copy of this permit application may be found as DER Exhibit No. 1 admitted into evidence. At the same time, the partnership requested permission from Department of Environmental Regulation to construct a roadway associated with the residential project mentioned in permit application Number 1. This road construction contemplated filling approximately .06 acres associated with a 20 foot roadway with swale drainage in an area the applicant identified as a transitional wetland. A copy of the second permit application may be found as DER Exhibit No. 2 admitted into evidence. Those permit applications were received by DER on August 18, 1982. The applications for permit were reviewed by the Northeast District Office, State of Florida, Department of Environmental Regulation. Tim Deuerling, a member of that district staff, was the individual primarily responsible for the permit review. His position with the staff is that of Environmental Specialist and his duties include dredge and fill permit review. In the course of the hearing, Deuerling was qualified as an expert in the evaluation of dredge and fill projects on the subject of water quality impacts associated with the activity. The permit applications have been considered separately based upon several on-site inspections made by Deuerling. Having concluded the inspections, Deuerling made a written permit application appraisal for each permit request. These activities took into account the biophysical features of the project area, with emphasis on the possible impact of the project related to ecology of the water body. DER Exhibit No. 17 admitted into evidence, is a copy of the appraisal report related to the dredge and fill activities in the wetlands of approximately .67 acres fill and the creation of .45 acres marsh. DER Exhibit No. 18 admitted into evidence, is a copy of the permit application appraisal by Deuerling related to the fill activities associated with the construction of the road. In summary, these appraisals recommended the denial of the permit applications, based upon the concern that the projects would damage the existing biological resources and have the effect of degradation of the local water quality. In the face of the Department's initial statement of intent to deny the permit, revisions were made to the permit applications. In particular, the revisions contemplated the filling of approximately 10,000 square feet of transitional zone vegetation, as defined in Rule 17-4.02(17), Florida Administrative Code, while creating approximately 56,000 square feet of marshland vegetated with low marsh submerged species. The newly created marsh area would be protected by a coquina rock revetment. The destruction of the transitional vegetation in the project is not a violation of Department of Environmental Regulation regulatory standards, per se. Moreover, the substituted submerged vegetation which is sought is of a higher quality in performing the function of enhancing water quality, when contrasted with the transitional-type vegetation. DER Exhibit No. 5 admitted into evidence is a diagram which points out the associated fill in the revised permit application, with the fill areas over which the Department of Environmental Regulation has jurisdiction being delineated in red. The green line depicts the demarcation of the landward extent of the Department's permitting jurisdiction. DER Exhibits 6, 7, and 8, copies of which have been admitted into evidence, are information and synopsis of meetings related to the revisions. In commenting on the topic of an on-site meeting, which was conducted on November 19, 1982, an official with the United States Corps of Engineers expressed concern that the mitigation plan for protecting the environment should require a minimum of one-to-one marsh creation for marsh destroyed. The project, as contemplated, allows for roughly five times the area to be created in contrast to area destroyed. A copy of the letter from the employee of the United States Army Corps of Engineers may be found as DER Exhibit No. 9 admitted into evidence. Comments from other regulatory agencies were received by the Department of Environmental Regulation. These comments were from the United States Environmental Protection Agency; State of Florida, Department of Natural Resources; United States Fish and Wildlife Service; and the Building and Zoning Department, St. Johns County, Florida. Copies of these comment letters were received as DER Exhibit Nos. 10, 11, 12, and 13 respectively. The concerns expressed by the United States Environmental Protection Agency and United States Fish and Wildlife Service have been addressed in the subsequent conditions set forth in the Notice of Intent to Issue Permits by Department of Environmental Regulation. That comment in DER Exhibit No. 13 made by officials with the Building and Zoning Department of St. Johns County on the subject of their reluctance to accept the fact that there is a trade off of wetlands for wetlands as opposed to the substitution of uplands for wetlands to-be filled, is satisfactorily addressed in the revised proposal. The uplands that are being graded will become a marsh area and will not remain uplands. Comments in opposition to the project were received from members of the public. Copies of these letters in opposition may be found as DER Exhibits Nos. 14, 15, and 16. Those items respectively are from John W. Morris, Esquire, DER Exhibit No. 14; Elouise Kora and Yolande Truett, DER Exhibit No. 15; and Rod and Jacqueline Landt, DER Exhibt No. 16. Having reviewed the original project, the revisions to the permit applications, and the comments by various private individuals and public agencies, the Department of Environmental Regulation noticed all interested parties of the Department's intent to issue permits for the benefit of the Partnership. Copies of those notices may be found as DER Exhibit Nos. 19 and 20 pertaining to the substituted marshland permit and road permit respectively. Those letters of intent establish the particular conditions that the Department would impose on the grant of the permit. In the instance of the substituted wetlands area, it would include turbidity controls during the placement of the fill, the stabilization of fill to prevent erosion into state waters, the placement of coquina rip-rap along open waters of the Tolomato River prior to the excavation of upland areas to the intertidal elevation that is referred to as one of the other conditions, the excavation of the project area to allow the growth of Spartina alterniflora to be planted on three foot centers, and the assurance that the new wetlands vegetation shall have a 70 percent survival rate following planting as measured at the conclusion of the first year or that replanting of that species shall occur until a 70 percent survival rate is achieved. DER Exhibit No. 20 related to the construction of the roadway sets forth conditions related to the fact that the road should be constructed at a time when the area is not inundated with water, turbidity control at the time of construction, and the stabilization of the road and swales to prevent erosion leading to the introduction of materials into the waters of the state. Each Notice of Intent to Grant also sets out opportunity for parties in opposition to request a hearing to consider the propriety of the grant of permit. At the time that the Notices of Intent were sent, permits were also drafted pertaining to the marsh area and roadway. Copies of those permits may be found as DER Exhibit Nos. 21 and 22 respectively. Those permits are considered to be proposed agency action, pending the outcome of the hearing conducted March 30, 1982, to address the question of the grant of permits. The permits contain the conditions above. A protest was received leading to the current hearing, following the Department's request for the assignment of a Hearing Officer and such assignment. In addition to the review of the project made by Deuerling, Jeremy Tyler, an employee in the Northeast Florida District, Department of Environmental Regulation, considered the original project and its revisions. Tyler was accepted as an expert in the assessment of impact of dredge and fill projects on water quality. In view of the revisions to the project, and keeping in mind that the work to be done pursuant to the revisions would be landward of the line of mean high water, Tyler correctly asserts that standards or criteria related to water quality in the State of Florida will not be violated by project activities, i.e., reasonable assurances have been given by the applicant. This pertains to standards established pursuant to Chapter 403, Florida Statutes, as carried forward in Chapter 17, Florida Administrative Code. Based upon the revisions, Deuerling correctly concurred in Tyler's impression that water quality standards or criteria would not be violated, i.e., that reasonable assurances had been given by the applicant. Deuerling was particularly impressed with the design of the revised project, the stormwater control methods to be implemented at the project site, and the decrease in the amount of filling to be done within areas of. the Department' s jurisdiction. The jurisdictional boundaries are determined by reference to transitional vegetation which is dominant, specifically, the first fifty feet of that area. Steve Beamon, marine biologist and consultant hired by the Partnership to plant the marine vegetation in the new marsh area, is convincing when he, by expertise, vouches for the reliability of the 70 percent survival rate for that vegetation. In fact, his experience has been that 97 percent of the vegetation planted survives. Here, the survival rate is premised upon the placement of the rip-rap coquina rock to protect that vegetation. The Department of Environmental Regulation, through Jeremy Tyler, concurs in the necessity for the placement of the revetment. The Partnership had applied for a permit for stormwater discharge. See DER Exhibit No. 3 admitted into evidence, a copy of that application. The Department, in responding to that application, a copy of which response may be found as DER Exhibit No. 4 admitted, declined jurisdiction in the face of a purported exemption available to the Partnership. This action, on the part of the agency, is premised upon its reading of Rule 17-25.03(2)(c), Florida Administrative Code. Petitioner did not present expert testimony to refute the evidence related to reasonable assurances of compliance with applicable standards of the Florida Statutes and associated rules within the Florida Administrative Code. Their concerns pertain to the removal of beach area that would occur in association with the project build-out, especially as it relates to the placement of the coquina rock, which would make the beach area available only at low tide. The witness, Elouise Kora, also established that sand which has been placed in anticipation of the possible permitting of the project has washed into the current marsh areas Other witnesses for Petitioner identified the effects of placement of fill in certain areas as covering food sources for fish and denying opportunity to fish from the shoreline. At present, flounder, drum, whiting, bluefish, and catfish are caught in the area of the project site. Swimming and wading are done in the area of the project site and would be inhibited if the project were granted. Harry Waldron, a member of the St. Johns County Commission, expressed concern that access to the beach area would be denied by the contemplated project. He also indicated that the placement of revetment material was not before the County Commission when it-considered the propriety of this project from the point of view of local government. In Waldron's opinion, although the public can get to beach areas in that basic location, other than the project site, the build-out would cause the loss of a "prime fishing hole", which is not in the public interest, according to Waldron.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Petitioner qualifies for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Petitioner's application No. 46-0199306-001-EE, seeking to place a modular home on a fill pad in Lake Blake, should be approved by DEP.
Findings Of Fact Parties DEP is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Lee Maddan (Maddan) is a long-time resident of Okaloosa County, and the Petitioner in Case No. 03-1499. Maddan is a Respondent in Case No. 03-2040. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Santa Rosa Three, Inc. (the Corporation), is a Respondent in Case No. 03-2040, and holds fee simple title to the property containing Lake Blake, which is located in unincorporated Okaloosa County between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. Santa Rosa II is also Respondent in Case No. 03-2040, and is a corporate predecessor in interest to the Corporation. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water body of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the body of water of the State nearest to Lake Blake. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake originally resulted from collected rainfall, as well as underground water intrusion in the borrow pit. Over the subsequent years and at the present time, additional diverted stormwater runoff collected in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that a former owner of the property, Ron Blake, excavate the lake and have it made ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots Okaloosa County has installed several pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed, nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976 utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981), for "Blake Lake Modifications," which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984 DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001 letter, like the previous letter, was issued from DEP's Northwest District signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the lake and lacustrine wetlands. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001 letter, nor the subsequent October 24, 2001, letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, in order to establish DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria stated in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State, and in lacustrine wetlands.. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. The water discharged from Lake Blake ultimately is released through the Okaloosa County stormwater drainage system into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou, and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Maddan primarily relies on Rule 62-312.050(4) which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Maddan also cites Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Maddan cites statutory exemptions. The definition of "waters" which are regulated under Chapter 403 as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because the lake actually discharges on the surface waters of Cinco Bayou. Maddan also cites Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake has been utilized by Okaloosa County's stormwater drainage system which is located landward of Cinco Bayou, the lake was not designed nor constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated nor maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction. Dredge and Fill Permit Denial On September 30, 2002, Maddan was notified of DEP's denial of his application to place a modular home on a fill pad in Lake Blake. Because Maddan took the position that DEP did not have dredge and fill jurisdiction over Lake Blake, or alternatively that Lake was exempt from DEP's jurisdiction, an analysis of whether Maddan's application might be approved under Rule 62- 312.060(5), Florida Administrative Code, has not been done. DEP has not performed any analysis of water quality standards nor public interest assessment required by the rule, and Maddan offered no evidence which would be necessary to make such determinations.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered upholding denial of Maddan's Permit Application No. 46-0199306- 001-EE. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2003. COPIES FURNISHED: Charles T. Collette, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James E. Moore, Esquire Post Office Box 746 Niceville, Florida 32588 Robert W. Stills, Jr., Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied. DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340 The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted. Accepted. Accepted. 4-5. Accepted, but not relevant and material. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Vernon Merritt P.O. Box 325 Inglis, FL 32649 Frances S. Childers, Esq. Assistant District 111 Legal Counsel Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609 =================================================================
The Issue In a Notice of Proposed Rulemaking published on September 5, 2003, the Department of Environmental Protection ("DEP" or the "Department") proposed amendments (the "Proposed Rule") to an existing rule, Florida Administrative Code Rule 62- 304.700. The Proposed Rule establishes a Total Maximum Daily Load ("TMDL") for Total Phosphorus ("TP") for a number of streams (referred to in this proceeding as the Nine Northern Tributaries) in the Lake Okeechobee Basin and addresses other related matters. The issue in this proceeding is whether the Proposed Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Lake Okeechobee Of the freshwater bodies located wholly within the forty-eight contiguous states in the continental United States, Lake Okeechobee (the "Lake") is the second largest. Given its size, it is not surprising that the Lake is a water source of great import to its region. It provides drinking water for lakeside cities and towns in South Florida and is a potential backup water supply for the urban communities of Florida's southeast coast. The Lake supplies irrigation water for the Everglades Agricultural Area ("EAA") and in times of drought, it serves as a critical supplement to the rain upon which the Everglades, an ombrotrophic system, is dependent. Home to one of the nation's prized bass and speckled perch fisheries, the Lake is also an "economically important commercial fishery." Petitioners' Ex. 12, p. 9. Most significantly to this proceeding (one involving the application of Florida's water resources and environmental control laws), Lake Okeechobee is a key component of Central and South Florida's Kissimmee-Okeechobee-Everglades ecosystem which extends from the chain of lakes at the headwaters of the Kissimmee River in the north to Florida Bay in the south. As such, it has had tremendous ecological value in the past. Despite significant detrimental changes in the Lake's hydrological regime and water quality since the early 1900s, the Lake continues to "provide[] habitat for a wide variety of wading birds, migratory waterfowl, and the federally-endangered Everglades Snail Kite." Id. The Lake suffers from major impacts due to hydrologic modifications. In the making since the days of the Great Depression, these include the construction of the Herbert Hoover Dike prior to World War II and the installation of a system of canals and levees built following congressional authorization just after the war in 1948. The latter was part of a comprehensive water resources project undertaken by the United States Army Corps of Engineers and known as the Central and Southern Florida Project for Flood Control (the "C&SF Project"). Whether producing water levels too high or too low, the changes in hydrology brought about by mankind over the past century have led to various impacts that have been significantly detrimental to the ecology of the Lake and the surrounding area. Aside from hydrologic modifications, there have been other factors that have led to significant impacts detrimental to the Lake and its ecology. Excessive nutrient loading is one of them. Nutrient loading has occurred because of the conversion of much of the land around the Lake to agriculture, cattle ranches and dairy farms. The conversion is described in the Lake Okeechobee Surface Water Improvement and Management (SWIM) Plan, Planning Document dated February 28, 2003, prepared by the Lake Okeechobee Division of the Northern District Restoration Department of the South Florida Water Management District (the "SWIM Planning Document"): To the north [of the Lake], dairy farms and beef cattle ranching became the major land uses, while to the south, sugarcane and vegetable farming increased rapidly. These land use changes resulted in a large increase in the rate of nutrient (nitrogen and phosphorus) inputs to the lake, and detrimental changes occurred in the lake's water quality. Id. at 10. The inputs of phosphorus and their impact is also described in the SWIM Planning Document. Pertinent to this proceeding, in particular, the document describes the phosphorus inputs north of the Lake and their impacts: Phosphorus inputs from the northern watershed increased dramatically, and can be traced primarily to the animal agricultural activities in that watershed. Loads (concentrations times flow) of total phosphorus to the open water region of the lake nearly tripled between the early 1970s and mid-1980s, and coincident with this trend, the concentration of phosphorus in the lake itself increased from below 40 to over 100 parts per billion (ppb). Blooms of blue-green algae became more common, with particularly large blooms covering more than 40 percent of the lake surface in the 1980s. Id. at 10-11. The Nine Northern Tributaries Among the rivers, streams, creeks, canals and sloughs that comprise the Lake Okeechobee Basin are nine tributaries to the north: Taylor Creek, Nubbin Slough, the S-135 Canal, Mosquito Creek, Otter Creek, Lettuce Creek, Henry Creek, Myrtle Slough, and Chandler Hammock Slough (the "Nine Northern Tributaries"). Located in sub-basins (the S-191, S-133, S-135, and S-154 Basins) within the Lake Okeechobee Basin, the Nine Northern Tributaries contribute between five and fifteen percent of the annual water flow into the Lake. All are plagued by nutrient pollution that consists mainly of excess nitrogen and phosphorus. The Nine Northern Tributaries were relatively unpolluted prior to agricultural development in the area. In the aftermath, the environments in their respective watersheds have been profoundly altered by pollution. The pollution has been especially dramatic with regard to phosphorus. For example, phosphorus levels in the area were lower than 60 parts per billion ("ppb") in 1953. In recent years, phosphorus levels for most basins in the Lake Okeechobee water levels have been double and triple 1953 levels. In some cases phosphorus levels have been at even greater multiples of 1953 levels. One of the higher examples is the Taylor Creek/Nubbin Slough Basin where the level of phosphorus for the period 1990-1994 was 602 ppb, an increase ten-fold over that forty years earlier. Between nitrogen and phosphorus (and all other pollutants, for that matter), phosphorus is the pollutant of primary concern in the Nine Northern Tributaries. Designated Uses In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act" (the "Pollution Control Act.") Ch. 67-436, Laws of Fla. The Pollution Control 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 purpose. 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, agricultural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The Pollution Control Act empowered the Department to "develop . . . a grouping of water into classes . . . in accordance with the present and future most beneficial uses," and to "establish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enumerating five classes of beneficial uses to be protected. The Rule enumerating the five classes can now be found at Florida Administrative Code Rule 62-302.400. Water bodies not specifically identified in the Rule are listed as Class 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). The Nine Northern Tributaries are all Class III waters. See Department's Ex. 4. The import of a Class III designation was described at hearing by Mr. Mandrup-Poulsen: The designated uses is intended as a way to describe quickly and easily to those in the profession, and to the public, as to what the intent and the use of that water body ought to be. So that for Class [III], for example, . . . we would intend to protect those [so designated] to ensure that they have a healthy and well-balanced natural population of fish and wildlife (Tr. 195-196) "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). Since then, the Department has updated the criteria and added a narrative nutrient criterion that applies to Class III waters: (48)(b) Nutrients - in no case shall nutrient concentration of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 62-302. The phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, however, has not been defined by rule. The nutrient criterion also requires that the nutrient level be "limited as needed to prevent violations of other standards contained in this chapter." Fla. Admin. Code R. 62- 302. Phosphorus in Florida and Imbalance of Flora and Fauna There is a wide range of natural nutrient conditions in the state of Florida especially with regard to phosphorus. Phosphorus is common in Florida soils. In fact, some Florida soil is so rich in phosphorus that it is the site of phosphate mines, where phosphorus is mined for use in fertilizers and for other purposes. The presence of such large amounts of phosphorus is due to a combination of factors. Limestone formations, the base of Florida rock, and shallow reef systems inundated by marine waters over millions of years led to a sedimentary deposit system laden with phosphorus in the land mass that is Florida. The sedimentary system is now composed of phosphatic sands and clays. Soils laden with phosphorus contribute phosphorus to adjacent water bodies as part of a natural process independent of human activities. The presence of so much phosphorus in Florida soils and its natural leaching into water bodies poses a problem for the scientist asked to determine when phosphorus has created an imbalance in natural flora and fauna especially when other factors contribute to imbalance. There is no question, however, that there is too much phosphorus in the Nine Northern Tributaries and Lake Okeechobee to maintain a balance of natural flora and fauna and that the presence of this phosphorus is largely the result of human activity and disturbance. The Florida legislature, moreover, has said so. See Finding of Fact 36. The question for the investigator in pursuit of a TMDL for TP, such as the Department in this proceeding, is how much phosphorus can these water bodies tolerate before imbalance is reached. Another way of looking at the problem with regard to the streams at issue in this proceeding is: at what concentration level does TP allow the streams to sustain a healthy population of aquatic flora and fauna so as to avoid phosphorus impairment? Phosphorus Impairment The Nine Northern Tributaries were included on the list of impaired surface waters adopted by the Department through Secretarial Order issued August 28, 2002. They are central to this proceeding because they are the subject of the Proposed Rule by virtue of their identification in the Proposed Rule as "[o]ther waterbodies in the Lake Okeechobee Basin" subject to a TMDL set at "an annual median TP [total phosphorus] concentration of 0.159 mg/L." See Notice of Proposed Rulemaking, September 5, 2003, OR-1, Department's Exhibit No. 5, p. 3. Like the Nine Northern Tributaries, Lake Okeechobee has also been determined to be impaired due to the presence of excessive phosphorus. It is not an exaggeration to deem the Lake profoundly polluted by phosphorus. Concentrations have risen from 40 ppb in the early 1970s to 145 ppb in 2000. The Lake receives phosphorus both from external (such as the Nine Northern Tributaries) and internal sources. A large percentage of the lake bottom that was formerly covered in sand is overlain by organic mud, estimated to contain over 30,000 metric tons of phosphorus. Mud sediment accumulation and phosphorus deposition have increased significantly in the last 50 years. Phosphorus in the water column in the Lake, therefore, has an external and an internal source as well: sediment and deposition on the lake bottom. Over time, elevated phosphorus loadings from external and internal sources have intensified the eutrophication of the Lake. Eutrophication is apparent to the eye by the presence of widespread algal blooms. The algal blooms, in turn, have caused die-off of macro-invertebrate communities due to toxic byproducts of algal decay. Dense blooms of algae, moreover, adversely affects the quality of drinking water. As part of the commencement of the restoration process in the hope of overcoming the eutrophic nature of the Lake, the Department has adopted a phosphorus TMDL of 140 metric tons for the Lake. Atmospheric deposition will account for 35 metric tons of phosphorus entering the lake externally every year. The TMDL for the Lake, therefore, requires that phosphorus from surface water loading not exceed a maximum of 105 metric tons per year (the difference between the Lake's TMDL of 140 metric tons and the 35 metric tons contributed by precipitation and other contributions from the atmosphere). This limitation on surface water loading applies to the Nine Northern Tributaries and other surface waters in the Lake Okeechobee Basin. Phosphorus Impairment in the Okeechobee Basin The Lake Okeechobee Basin is heavily impacted by phosphorus. Streams within the basin are likely to be impacted by phosphorus as opposed to streams that meet reference conditions, that is, that are under minimal impacts, as explained, below. If the Lake is ever to be restored it is critical that the phosphorus that is introduced from external sources (other than atmospheric deposition) be reduced. External Phosphorus Load Reduction Four "major issues" critical to the restoration of the Lake Okeechobee ecosystem have been identified by the SWIM Planning Document. This proceeding is concerned with one of them: "[e]xternal loads of phosphorus [that] must be substantially reduced." Petitioners' Ex. 12, p. 10. Two enactments of the Florida Legislature address or relate to phosphorus pollution in the Lake and the Nine Northern Tributaries: the most recent, passed in 1999, is the Florida Watershed Restoration Act1; the other, passed in 1987, codifies the Lake Okeechobee Protection Program.2 The Lake Okeechobee Protection Program Unique among watersheds in the State, Lake Okeechobee is specially protected by the Legislature through the Lake Okeechobee Protection Program (the "Protection Program"). Under the Protection Program, the Legislature's goal is to provide "a reasonable means of achieving and maintaining compliance with state water quality standards" in conjunction with Section 403.067, Florida Statutes. See § 373.4595(1)(g), Fla. Stat. The "findings and intent" section of Section 373.4595, Florida Statutes (the "Protection Statute") bearing the catchline, "Lake Okeechobee Protection Program," sets out both the import of Lake Okeechobee to the State as well as the hydrological and water quality impacts the Lake has suffered due to the use of land in its watershed and construction of the C&SF Project. Section (1)(c) announces, moreover, the Legislature's finding "that improvement to the hydrology and water quality of Lake Okeechobee is essential to the protection of the Everglades." The statute goes on to declare "it . . . imperative for the state, local governments and agricultural and environmental communities to commit to restoring and protecting Lake Okeechobee and downstream receiving waters," Section 373.4595 (1)(d), Florida Statutes, and to develop and implement immediately a "watershed-based approach to address these issues." Id. With regard to phosphorus, the Legislature, in the Protection Statute, "finds that phosphorus loads from the Lake's watershed have contributed to excessive phosphorus levels in the Lake and downstream receiving waters and that reduction in phosphorus levels will benefit the ecologies of the systems." § 373.4595 (1)(e), Fla. Stat. This finding is supported by Petitioners' Exhibit 43, a page from the Lake Okeechobee SWIM Plan, in which it is stated: "Phosphorus is of particular concern in this system because it is an essential element that contributes to eutrophication in Lake Okeechobee [citations omitted]. Phosphorus within the Lake's water column increased dramatically from 40 ppb in the early 1970s to 145 ppb in 2000 [reference omitted]." Toward reducing phosphorus levels, the Protection Statute references a technical publication,3 South Florida Water Management District's Publication 81-2. See § 373.4595(1)(f), Fla. Stat. The technical publication is also referred to in Petitioners' Ex. 43, which describes attempts at phosphorus load reduction to the Lake that took place from the early 1980s to the early 1990s: A phosphorus load reduction goal was developed to restore the ecological condition of Lake Okeechobee. This goal requires a 40 percent reduction in phosphorus loading to the lake based on the data collected from 1973 to 1979 (Federico et al., 1981). Tributary phosphorus limitations were based upon reaching an in- lake phosphorus concentration of 40 ppb by July 1992 as recommended by a modification of the Vollenweider (1976) nutrient loading model, described in SFWMD Technical Publication 81-2 (Federico et al., 1981). As controls within the basin surrounding Lake Okeechobee increased, a noticeable decline in the phosphorus load to the lake occurred from 1983 to 1993 [reference omitted].[4] Despite this load reduction, no reduction of phosphorus occurred within the lake [reference omitted]. This in part was attributed to the huge amount of phosphorus that has accumulated over decades in sediments within this shallow lake [reference omitted]. As the external loads have declined, internal loads from the sediments have become more significant, acting as a buffer to the system and preventing the phosphorus concentration in the water column from declining. Petitioners' Ex. 43 (emphasis added). Recent data demonstrate the phosphorus pollution problem in Lake Okeechobee. The five-year moving average of the long-term phosphorus load to Lake Okeechobee (that includes an atmospheric load of 35 metric tons per year) was 554 metric tons as of 2002. According to the January 1, 2004, Lake Okeechobee Protection Plan, this included the "smallest measured historical load (169 Mtons in 2000), due to the worst drought in recent history; and the largest measured load in the past decade (780 metric tons in 1998) that was a very wet year " Petitioners' Ex. 14, p. 4. The Protection Statute also references the Legislature's call in 1999 for "subsequent phases of phosphorus load reductions [to be] determined by the total maximum daily loads [TMDLs] established in accordance with s. 403.067": "Florida Watershed Restoration Act," (or the "TMDL Act"). The Florida Watershed Restoration Act Originally passed in 1999 as Chapter 99-223, Laws of Florida, the Florida Watershed Protection Act, in its present form5 (the "TMDL Act") declares "that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted], will promote improvements in water quality throughout the state through the coordinated control of point and non-point sources of pollution." § 403.067(1), Fla. Stat. The TMDL Act requires the Department to "submit periodically to the United States Environmental Protection Agency (the "USEPA") a list of surface waters for which total maximum daily load assessments will be conducted." § 403.067(2), Fla. Stat. The parties' descriptions of the requirements of the TMDL Act are in accord: In short, the [TMDL] Act requires the Department to formulate a prioritized list of "impaired waters' (i.e., that fail to meet water quality standards) to develop TMDLs for the listed impaired waters, and to allocate pollution load reductions so as to restore all impaired waters to water quality standards. §403.067, Fla. Stat. Petitioners' Proposed Final Order, pp. 9-10. Through the TMDL Act, the Legislature directed the Department to develop a methodology to identify waters of the state that were failing to meet the state's water quality standards due to pollutants. Using that methodology, the Department has been directed to assess the waters of the state and list as impaired those waters that fail to meet water quality standards because of a particular pollutant. Once those waters and causative pollutants have been identified, the Department is to establish a TMDL. Respondent's Proposed Final Order, pp. 11-12. TMDLs Defined as "the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint source and natural background," the statutory definition of TMDLs in the chapter of the Florida Statutes that contains the TMDL Act continues, "[p]rior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated." § 404.031(17), Fla. Stat. This definition was simplified at hearing by the Department's expert in the "development of total maximum daily load, DEP's Watershed Assessment Section Administrator Jan Mandrup-Poulsen. Mr. Mandrup-Poulsen testified that a TMDL, "is quite simply the amount of a pollutant that can be assimilated by a water body without causing the water body's designated use to be exceeded." (Tr. 194) As explained in a draft publication of the USEPA's Region 4 office, TMDL formulation is a process that: establishes the allowable loadings of pollutants or other quantifiable parameters for a waterbody based on the relationship between pollution sources and in-stream water quality conditions, so that states [such as Florida] can establish water quality based controls to reduce pollution from both point and non-point sources and restore and maintain the quality of their water resources [citation omitted]. Petitioners' Ex. 3, p. 2. Establishment of the amount of a pollutant that a water body can receive without exceeding water quality standards is not the end of the TMDL process for the Department. With the establishment of a TMDL, the Department is also required to "account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." § 403.067(6)(a)2., Fla. Stat. This is what the Department has set about do for TP in the Lake Okeechobee Basin through its Proposed Rule. The Proposed Rule An Amendment to the Existing Rule The existing rule is Florida Administrative Code Rule 62-304.700 (the "Existing Rule"). The Existing Rule sets the TMDL for total phosphorus ("TP") in Lake Okeechobee at 140 metric tons. Atmospheric loading to Lake Okeechobee is considered to be 35 metric tons. That leaves 105 metric tons as the total amount of phosphorus that can flow into the Lake annually from surface sources such as the Nine Northern Tributaries. The 140-metric ton total phosphorus TMDL is to be met by the year 2015. Presently entitled "Total Maximum Daily Loads in the Southeast Florida District," the Proposed Rule will change the title of the Existing Rule to "Lake Okeechobee Basin TMDLs." In addition to a revision of the numbering scheme in the Existing Rule, the Proposed Rule adds the proposed TMDL (the "Proposed TMDL") for TP in the Nine Northern Tributaries expressed as a concentration level: 0.159 mg/L. ii. 0.159 mg/L In collaboration with the USEPA, the Department calculated the Proposed TMDL for TP in the Nine Northern Tributaries as "an annual median TP concentration of 0.159 mg/L." The Proposed Rule, § (2)(a). The Proposed Rule makes no allocation between point sources and non-point sources. The TMDL is allocated entirely to nonpoint sources because "there are currently no permitted point sources in the watershed." The Proposed Rule, § (2)(a)2. The Margin of Safety for the TMDL, required by the TMDL statute to be included in the TMDL's calculation,6 is declared to be "implicit." The following contains the textual amendments proposed by the Proposed Rule as they appear in the Proposed Rule's Notice of Proposed Rulemaking. They are underscored because they are new language added to the Existing Rule: Other Waterbodies in the Lake Okeechobee Basin Other waterbodies in the Lake Okeechobee Basin include Chandler Hammock Slough, Nubbin Slough, Mosquito Creek, Lettuce Creek, Henry Creek, S-135 Canal, Myrtle Slough, Taylor Creek, and Otter Creek. The Total Maximum Daily Load for these waterbodies is an annual median TP concentration of 0.159 mg/L, and is allocated as follows: the Wasteload Allocation for point sources is not applicable because there are currently no permitted point sources in the watershed. the Load Allocation for nonpoint sources is an annual median TP concentration of 0.159 mg/L, and the Margin of Safety is implicit. As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above. Notice of Proposed Rulemaking, published September 5, 2003, OR- 1, Tab 5, p. 3. The Challenge to the Proposed Rule On September 26, 2004, pursuant to Section 120.56, Florida Statutes, the Petitioners filed at DOAH their petition to invalidate the Proposed Rule. The petition was amended several times. The petition at issue in the proceeding is the Second Amended Petition to Invalidate Proposed Rules. It was filed June 24, 2004, just more than one month before final hearing commenced. By virtue of the filing of the petition by the three Petitioners challenging the Department's rules, there are four parties to this proceeding: Florida Wildlife Federation, Environmental Confederation of Southwest Florida, Inc., Save Our Creeks, Inc., and the Department. Identification of the Parties Florida Wildlife Federation Florida Wildlife Federation ("FWF"), one of the three Petitioners in this case, is a Florida not-for-profit corporation with its principal place of business in Tallahassee, Florida. It has approximately 14,000 members throughout the state. Its purpose is to promote the preservation, management, and improvement of Florida's fish, wildlife, soil, water and plant life. Lake Okeechobee is a particular focus of FWF as well as the adverse affects of past management practices in the Lake's watershed that threaten the continued existence of the Lake. On behalf of its members, FWF has participated and continues to participate in legal and administrative challenges to defend and otherwise support rules that protect Lake Okeechobee. The organization also brought the civil action that resulted in a Consent Decree that requires promulgation of a TMDL for TP in the Nine Northern Tributaries. A substantial number of FWF members reside near Lake Okeechobee. They use and enjoy the waters of the Lake and the waters of the Nine Northern Tributaries. They observe and enjoy wildlife that rely on these waters for habitat. If the Proposed Rule is not determined to be invalid, there will be continuing adverse impacts to the waters of Lake Okeechobee and the Nine Northern Tributaries.7 These impacts will substantially affect a substantial number of FWF's members in their ability to observe, study and enjoy the waters and wildlife of the Lake Okeechobee basin. Environmental Confederation of Southwest Florida, Inc. Environmental Confederation of Southwest Florida, Inc. ("ECOSWF"), the second of the three Petitioners, is a Florida not-for-profit corporation with its principal place of business in Sarasota, Florida. It has approximately 100 members. They are business entities, governmental agencies and other organizations, and individuals who live in South Florida. Organized for the purpose of conserving natural resources in Southwest Florida, ECOSWF has participated in numerous legal challenges with the aim of preserving Florida's waters. The members of ECOSWF use and enjoy the waters of Lake Okeechobee and the Nine Northern Tributaries. They also observe and enjoy the wildlife that depend upon the waters for habitat. If the proposed rules are not determined to be invalid, there will be continuing adverse impacts to the waters of the Nine Northern Tributaries and the Lake.8 These impacts will substantially affect a substantial number of ECOSWF's members in their ability to observe, study, and enjoy the waters and wildlife of the Nine Northern Tributaries and the Lake. Save Our Creeks, Inc. Save Our Creeks, Inc. ("SOC"), the third of the Petitioners, is a Florida not-for-profit corporation with its principal place of business in Moore Haven, Florida. It has about 100 members who reside primarily in South Florida. Organized to preserve Fisheating Creek and other South Florida water bodies for the use and enjoyment of the public and for their natural resource value, SOC has participated in legal actions with the aim of preserving the environmental integrity of South Florida's rivers, streams, and lakes. A substantial number of SOC's members use and enjoy the waters of Lake Okeechobee and its tributary waters of the Nine Northern Tributaries and also observe and enjoy the fish and wildlife depend upon these waters for habitat. Department of Environmental Protection The Department is the state agency authorized to adopt TMDLs through rulemaking under Chapter 403. See §§ 403.061 and 403.067, Fla. Stat. Standing The parties stipulated to facts related to the standing of Petitioners. See Exhibit 4 to the Pre-hearing Stipulation, paragraphs 5-7. The Elements of the Challenge or Petitions The Petitioners' challenges may be divided broadly into two categories. The first of these is that the derivation by the Department of the Proposed TMDL for TP in the Nine Northern Tributaries (0.159 mg/L.) was so flawed as to render the Proposed TMDL arbitrary and capricious ("Flawed Derivation"). The second is that the Proposed TMDL contravenes the provisions of the Lake Okeechobee Protection Program because it has been set prior to the allocation among sources in the water basin, a condition precedent to the establishment of the TMDL in the view of Petitioners, allowed by the TMDL Act ("The Lake Issue"). The first of these two categories of the challenge is further sub-divided into discreet elements as shown in the findings below. Before addressing the two main categories of Petitioners' challenge, however, there is a preliminary matter to be addressed: the Department's decision to reject water quality modeling results when water quality modeling is the only statutorily-recognized method for developing a TMDL. The Department's decision to forego water quality modeling and accept the method eventually followed for development of the Proposed TMDL must be understood in context. The context includes the TMDL Law, a lawsuit filed against the USEPA, and the various methods for establishing a TMDL. The Law, the Lawsuit and the Methods In Subsection (1) of the TMDL Act, the Legislature declares "that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted] will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution." § 403.067(1), Fla. Stat. Before 1998, the Department had not extensively implemented the TMDL requirements of the Clean Water Act. As a result of a lawsuit against the USEPA, however, a consent decree was entered by USEPA and Earthjustice, the plaintiff in the lawsuit and organization that has some relationship with the Petitioners (the "Consent Decree"). Under the Consent Decree, USEPA agreed to require the Department to evaluate the Nine Northern Tributaries for TMDL development for nutrients by 2002. The USEPA followed through on its agreement under the decree and imposed the requirement for TMDL nutrient development by 2002 on the Department. In the same year that the Consent Decree was entered, 1999, the Florida Legislature passed the TMDL Act. Subsection (6) of the TMDL Act, bearing the catchline "CALCULATION AND ALLOCATION," imposes at its outset requirements on the Department before development of a TMDL for any water body or water segment determined to be impaired. The requirements include coordination with other groups to determine the data required, the methods of collection and analysis, and requirements for quality control: Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. § 403.067(6)(a)1., Fla. Stat. The Department coordinated with groups that had data concerning the Nine Northern Tributaries. In the words of Mr. Mandrup-Poulsen, "[t]he Department considered all readily available data. The primary provider of data . . . is the South Florida Water Management District." (Tr. 204) The Department gave notice by publication on June 27, 2003, of three public workshops in Tallahassee, Perry, and Okeechobee, Florida, and public comment periods on "draft total maximum daily loads . . . for . . . the Northern Tributaries to Lake Okeechobee (nutrients and dissolved oxygen)." Department's Ex. 2. The notice set a period for acceptance of public comment on the draft TMDLs through July 31, 2003, and announced placement of the draft TMDLs on the Department's web site. The TMDL Act endorses only one principal method of analysis of TMDL data: water quality modeling.9 The TMDL Act, however, does not restrict the method of analysis to water quality modeling. In fact, there are at least three other methods that are valid, albeit not endorsed statutorily by the Florida Legislature. These methods are set out in a publication of the Office of Water and the Office of Science and Technology of the USEPA bearing a date of July 2000. The publication is entitled "Nutrient Criteria Technical Guidance Manual" (the "Guidance Manual.") Before involving itself with the three methods in the Guidance Manual or any other method not statutorily-recognized, DEP, as to be expected from the legislative endorsement, attempted to use water quality modeling. This attempt was not merely because of the statutory endorsement. Aside from being statutorily-recognized, water quality modeling was the method "routinely use[d by DEP] in developing maximum daily loads." (Tr. 197) Water quality modeling, moreover, is DEP's "standard operating procedure," id., and a method that the Department has used successfully on a number of occasions and one that, as of the date of final hearing, it continues to use. Water quality modeling requires a great deal of data. In pursuit of data collection and other activities required by water quality modeling, the Department pursued the development of TMDLs for TP in the Nine Northern Tributaries "for many months and at great expense both in personnel time and contractual time." Id. Nonetheless, on the basis of the water quality modeling results, the Department was "unable to come to a scientifically defensible conclusion." Id. Approaches to the Development of the TMDL According to Mr. Mandrup-Poulsen, in developing the TMDL for TP, the Department was not looking for a level of phosphorus that would or would not cause an imbalance in flora and fauna. Instead, the focus was "to ensure that [the Department] had evidence sufficient to support the fact that the concentrations in the TMDL were protective, conservative, and did allow for a healthy population of fish and wildlife." (Tr. 197) Presumably, this would be at a level below the concentration level at which imbalance would occur and, therefore, would comply with the narrative criterion. After the inability to reach a scientifically defensible conclusion on the basis of water quality modeling, the Department attempted alternative approaches. The first post-water quality modeling attempt was by way of an "Artificial Neural Network." (Tr. 198) The employment of a "Neural Network" required the Department to recognize certain realities. For example, the Class III criterion for dissolved oxygen ("DO") of 5.0 milligrams per liter mg/L, at present, is not achievable in the part of the watershed in which the Nine Northern Tributaries are located. Mr. Mandrup-Poulsen, the administrator of the Watershed Assessment section in the Bureau of Watershed Management within the Department's Division of Water Resource Management, therefore, set the DO criterion at a much lower level for purposes of the Neural Network approach. The criterion selected for DO was 1.5 mg/L. The selection of such a low numeric value for DO was criticized by the USEPA. In a document entitled "EPA Comments on FEDP's Nutrients and DO TMDL for the Northeast Tributaries to Lake Okeechobee [the Nine Northern Tributaries]," the EPA wrote, Please explain how the minimum DO requirement of 1.5 mg/l was selected. The DO water quality criterion for Class III fresh water in Florida is "Shall not be less than 5.0 mg/L. Normal daily and seasonal fluctuations above these levels shall be maintained." (See Section 62-302.530(31), F.A.C.) Pursuant to 40 CFR §130.7(c)(1), "TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical WQS..." If FDEP's intent is to change the DO water quality criterion for these water bodies from 5.0 mg/L to 1.5 mg/L, then a Site Specific Alternative Criterion (SSAC) must be developed through Florida normal administrative process or the State must explain how the target properly implements water quality standards. Otherwise, the stated goal of the TMDL must be to attain the 5.0 mg/L DO water quality criterion. Petitioners' Ex. 86D, para. 5 (emphasis added). The selection of 1.5 mg/L for DO was also criticized by the South Florida Water Management District as "arbitrary," see Petitioners' Ex. 86-E, page stamped 002178, and as without "acceptable justification . . . because it will not support a well-balanced community . . . of fish." Id. at pages stamped 002175 and 002176. The Department was not unaware that the DO level selected was far below the level necessary to sustain Class III water uses. Being so far below the Class III criterion referred-to by USEPA, the 1.5 mg/L., was not intended by DEP to be a replacement criterion. In Mr. Mandrup-Poulsen's view, it "was the floor . . . as low as [one should] go with this particular approach [the Neural Network approach.]" (Tr. 200) The Neural Network Approach yielded a value of 115 ppb for TP in the Nine Northern Tributaries, a lower numeric value, and hence more protective, than the Proposed TMDL of 159 ppb. Rulemaking was initiated to establish a TMDL of 115 ppb. A draft of the rule was presented at a public hearing on July 8, 2003. The value produced disagreement within DEP or as it was put in an internal DEP memorandum dated July 14, 2003, "among ourselves (DEP)." Petitioners' Ex. 96A, stamped 002063. Written evidence of the dissension is the following which appears in another memorandum internal to DEP, dated July 14, 2003, that is attached to the first July 14 memorandum: "c) It is highly unlikely that tributary concentrations of 0.115 mg/l will result in the Lake meeting its TMDL requirement, and as such will require the eventual lowering of these tributary TMDLs. Using a DO criteria of 2.0 or 2.5 mg/l might result in a tributary TP concentration more amenable to Lake restoration." Petitioners' Ex. 86-A, second page, stamped 002064, (emphasis added). The 0.115 mg/L concentration level produced by the Neural Network Approach also yielded the contradictory result that to improve the DO level necessary to sustain fish and other aquatic biota would require the addition of more phosphorus to the Nine Northern Tributaries.10 Such an outcome was neither scientifically supportable nor acceptable to the Department and so the Neural Network Approach was rejected and its concentration level abandoned. Proceedings to propose the 0.115 mg/L in rule, accordingly, were halted. Driven by USEPA-imposed requirements under the deadline set by the Consent Decree and with the results of the Neural Network Approach having proved unsatisfactory, the Department made a second attempt at water quality modeling. This attempt, just as the first, proved to be scientifically indefensible. The process was described in more detail by Mr. Mandrup-Poulsen at hearing: The Department had a comment period that extended for 30 days, and our modeling efforts were made known to both the public and to EPA. EPA was very much involved with the model development process. They were concerned because, again, they have a consent decree with Earthjustice that they were obligated to report to a judge whether they were generating the TMDLs per the consent decree and the time line in that consent decree. When the results were not satisfactory for either of those two approaches [water quality modeling and the Neural Network approach], we had advised EPA that we would continue to pursue the water quality modeling contract, and had hoped that we would be able to get improvements on that model. We provided as much data as we could, and we continued to provide our expertise to Dr. Bottcher and his staff [the water quality modelers] in hopes that we would get a better outcome. (Tr. 202) The continued resort to the water quality modeling method failed again to yield a better outcome. The Department alerted the USEPA that its models were not producing scientifically defensible results. With the Consent Decree deadline looming, the USEPA, therefore, encouraged the Department to take an approach referred to as the "Reference Stream Approach." In actuality, the USEPA's role was more than mere encouragement. Personnel from USEPA made the calculations that produced the Proposed TMDL on the basis of data submitted to USEPA by the Department. This data involved streams, most of which were initially identified by the Department, as described in more detail below. Mr. Mandrup-Poulsen's expression of this arrangement was that the Department "evaluated [the work of the USEPA] and then produced [the Proposed] TMDL in September of 2003." (Tr. 203) In other words, while the USEPA performed the calculations used to determine the 75th percentile, the Department evaluated that work, so as, in essence, to adopt the calculations of USEPA as its own in support of the Proposed TMDL derived by the 75th Percentile Method. The value ultimately derived for the Proposed TMDL, therefore, was the result of collaboration between USEPA and the Department or as the Department put it in one of its reports, "[f]or this TMDL [the Proposed TMDL], the Department worked with the Environmental Protection Agency (EPA) to determine a target TP concentration using a reference stream approach." Petitioners' Ex. 2, p. 4. Mr. Mandrup-Poulsen's concessionary opinion of the Proposed TMDL is that while it is not based on the highest quality model it is based on "the best science available at the time." (Tr. 203, (emphasis added)) He believes it provides the protection necessary "to begin the restoration process" id., for the Nine Northern Tributaries. (Id. (emphasis added)) He sees the Proposed TMDL as supported by three factors: (1) a guidance manual published by the USEPA; (2) support by USEPA's technical staff; and (3) "multiple layers of management review." Id. In its Proposed Recommended Order, the Department describes the Reference Stream Approach as follows: "The reference stream approach is one of the USEPA's recommended approaches for the development of nutrient criteria. The approach examines the phosphorus concentrations in healthy streams and designat[es] the 75th percentile of phosphorus concentrations in these reference streams as a target in the stream to be remediated." Respondent's Proposed Recommended Order, pp. 25-26. In fact, the USEPA's Reference Stream Approach is more complicated than the Department's position in this proceeding would lead one to believe. The Department's over-simplification of the Reference Stream Approach is plain from reading of the source extolled by the Department as support for the Proposed TMDL: the "Nutrient Criteria Technical Guidance Manual" for "Rivers and Streams" published in July of 2000 by the USEPA's Offices of Water and Science and Technology (the "Guidance Manual.") The Guidance Manual Chapter 7 of the Guidance Manual was admitted into evidence as Petitioners' Ex. 16. Entitled "Nutrient and Algal Criteria Development," the chapter "addresses the details of developing scientifically defensible criteria for nutrients and algae." Petitioners' Ex. 16, Page 93. Three approaches are provided by the Guidance Manual for use by states in deriving numeric criteria related to nutrients for streams in their eco-regions. These are described in the Guidance Manual as: "(1) the use of reference streams, (2) applying predictive relationships to select nutrient concentrations that will result in appropriate levels of algal biomass, and (3) developing criteria from thresholds established in the literature." Id. The Department did not attempt to derive a TMDL for TP in the Nine Northern Tributaries using either the second or the third approach offered by the Guidance Manual. The USEPA encouraged the first approach, the use of reference streams. The Department provided stream data to the USEPA and then USEPA calculated a phosphorus concentration level based on that data. (An extended discussion of the way this data was provided by the Department - a part of Petitioners' case - takes place below.) The USEPA, however, with the Department's concurrence or acquiescence, did not follow the complete methodology under the Reference Stream Approach. It followed only part of the methodology. Petitioners challenge the method used to derive the Proposed TMDL because it entailed only part of the entire, more involved, methodology. In their view, the Department's acceptance of a concentration level determined by USEPA's calculations under only part of a methodology renders the Proposed TMDL arbitrary. The Guidance Manual bears out Petitioners' assertion that the method used to derive the Proposed TMDL was, indeed, only a part of a more comprehensive methodology. The Guidance Manual's discussion of the Reference Stream Approach under the heading, "Using Reference Reaches to Establish Criteria," see Petitioners' Ex. 16, Page 94, takes up the better part of four pages of the publication, i.e., pages 94 through 97. As a preliminary matter, the use of reference streams Reference Stream Approach, "requires identification of reference reaches for each established stream class based on either best professional judgement (BPJ)or percentile selections of data plotted as frequency distributions." Id. The process of identifying reference streams "allows the investigator to arrange the streams within a class in order of nutrient condition (i.e., trophic state) from reference, to at risk, to impaired." Id. The Guidance Manual warns that when minimally- disturbed streams are rare in an ecoregion, "[c]riteria developed using reference reach approaches may require comparisons to similar systems in States or Tribes that share the ecoregion so that criteria can be validated." Id. Thus, the manual recognizes a difference between streams that exhibit reference conditions ("reference streams") and other streams that are too degraded or impaired to qualify as reference streams and, in methods using the latter types of streams, indicates the import of comparative review for purposes of validation. The difference between "reference" streams and streams that do not exhibit "reference conditions" is apparent from the definition of reference reaches or reference streams provided by the manual: "relatively undisturbed stream segments that can serve as examples of the natural biological integrity of a region." Id. Furthermore, the manual refers to reference streams elsewhere as "acknowledged to be in an approximately ideal state for a particular class of streams." Petitioners' Ex. 16, Page 95. Reference streams, therefore, do not include degraded streams or streams that are degraded even if they are the "least" impacted in an impacted region. This definition is crucial to the Petitioners' case. The reference streams chosen, as discussed below, did not meet the Guidance Manual's definition. Rather than being "relatively undisturbed stream segments" that serve as "examples of the natural biological integrity of a region," or that are "in an approximately ideal state," the reference streams chosen by the Department were "the least impacted streams for that stream class" within the area of the Nine Northern Tributaries, an area that has been greatly impacted. Use of Reference Reaches The Guidance Manual offers three methods of using reference reaches (the "Three Reference Streams Methods") to derive a numeric value for nutrients. They are: Characterize reference reaches for each stream class within a region using best professional judgement and use these reference conditions to develop criteria (the "BPJ Method"). Identify the 75th percentile of the frequency distribution of reference streams for a class of streams and use this percentile to develop the criteria ([reference omitted]) (the "75th Percentile Method"). Calculate the 5th to 25th percentile of the frequency distribution of the general population of a class of streams and use the selected percentile to develop the criteria ([reference omitted]) (the "25th Percentile Method"). Petitioners' Ex. 16, Page 94. The three methods are not three separate methodologies, however; the latter two, the "percentile" methods, are part of one methodology that is more comprehensive then either of the two percentile methods, alone. Under this comprehensive methodology, as a preliminary step, "a reference condition may be selected using either of two frequency distribution approaches." Petitioners' Ex. 16, Page 95. In the first of the two frequency distribution approaches, the 75th Percentile Method: a percentile is selected (EPA generally recommends the 75th percentile) from the distribution of primary variables of known reference systems (i.e., highest quality or least impacted streams for that stream class within a region). As discussed in Chapter 3, primary variables are TP, TN, chl a, and turbidity or TSS. It is reasonable to select a higher percentile (i.e., 75th percentile) as the reference condition, because reference streams are already acknowledged to be in an approximately ideal state for a particular class of streams [reference omitted]. Id. (emphasis added) The second of the two frequency distribution approaches, the 25th Percentile Reference Stream Method is also described in the Guidance Manual: [It] involves selecting a percentile of (1) all streams in the class (reference and non- reference) or (2) a random sample distribution of all streams within a particular class. Due to the random selection process, an upper percentile should be selected because the sample distribution is expected to contain some degraded systems. This option is most useful in regions where the number of legitimate "natural" reference water bodies is usually very small, such as highly developed land use areas (e.g., the agricultural lands of the Midwest and the urbanized east or west coasts.) The EPA recommendation in this case is usually the 5th to 25th percentile depending upon the number of "natural" reference stream available. If almost all reference streams are impaired to some extent, then the 5th percentile is recommended. Id. (emphasis added) (Although described as involving selection of a 5th to 25th percentile, for shorthand purposes, this second percentile method is referred-to in this order as the "25th Percentile Method Reference Stream Method.") There is a critical distinction between stream data used under the two percentile methods. Under the 75th Percentile Method, the streams are to exhibit reference conditions, that is, they are to be minimally impacted or in an approximately ideal state for their class. Data used for the 75th Percentile Method should not include data from streams that are impacted or degraded or the least-impacted for a region that is heavily impacted. The 25th Percentile Method, on the other hand, is expected to use data from streams that have been impacted since it uses data from the general population of streams in a region. This population would include impacted, degraded streams or, in a region that is heavily impacted, some of the least-impacted streams as well as more impacted streams. If the streams were generally impacted or impacted to a great extent, then the percentile chosen to derive a numeric value would not be the 25th percentile, but a lower percentile with a range that reaches as low as the fifth percentile if the general population is sufficiently impacted. Ultimately, the Guidance Manual points out, the 75th Percentile Method and the 25th Percentile Method are "only recommendations" because the "actual distribution of the observations should be the major determinant of the threshold point chosen." Id. An example is given in the Guidance Manual of when the 75th Percentile Method produces a concentration level of 20 ppb and the 25th Percentile Method produces a level of 25 ppb. "Because there is little distinction [in such a case], the Agency may select either 20 [ppb], 25 [ppb], or the intermediate 23 [ppb] . . . ." Id. Each state is cautioned, however, to "similarly calculate reference conditions initially using both approaches [the 75th Percentile Reference Stream Method and the 25th Percentile Reference Stream Method] to determine which method is most protective." Id. Once the calculations are made, the Guidance Manual is clear: "[t]he more conservative approach is recommended for subsequent reference condition calculations." Id. In other words, the State is to choose the lower value produced by the two methods when deriving a TMDL. Margin of Safety The margin of safety contained in the Proposed Rule (one that is implicit in the Proposed TMDL) is viewed favorably by DEP because it used the "75th Percentile Method" to establish the TMDL. Since the concentration of TP theoretically could be higher, that is at a level in excess of the 75th percentile derived from the method, the Department's view of the Proposed TMDL is that it is a conservative one. The Department's view depends, however, on the validity of using only the 75th Percentile Method to establish the Proposed TMDL and not deriving a value based on the 25th Percentile Method for purposes of comparison and selection of the more protective value. It also depends on the validity of the streams chosen as the reference streams for the purposes of data collection. In addressing the selection of reference streams by DEP for use in deriving the Proposed TMDL, it is useful to understand the background that preceded the selection of the reference streams as well as historical information about phosphorus in Florida waters. Historical Information Historical information plays a role in the analysis of appropriate nutrient levels in water bodies. Numbers for historical phosphorus levels inform the analysis or, as Dr. Boyer put it at hearing, gives the investigator "another piece of evidence as to what . . . that system had been before and what could be achieved now." (Tr. 93) Two pieces introduced into evidence by the Petitioners comprise the historical evidence in the record of this proceeding. One, not quite two decades old, is more recent, a 1986 USEPA publication for guidance to the states; the other is a report submitted to the Florida Geological Survey more than half a century ago. The report sums up the analysis of phosphorus data collected prior to many of the drastic changes in land use in the State that have contributed to so much of the problem decried by the Florida Legislature that the Proposed TMDL is intended to address. The report regarding phosphorus in Florida water bodies in the mid-20th Century was referred-to in the record as the "Odum Report." The Odum Report On January 9, 1953, Howard T. Odum of the Department of Biology at the University of Florida submitted a report (the "Odum Report") to the Florida Geological Survey. Entitled "Dissolved Phosphorus in Florida Waters," it appears as Part I in a 1953 Report of Investigations and Miscellaneous Studies published by the State through the State Board of Conservation and the Florida Geological Survey. Mean values of phosphorus in Florida streams are divided into two categories by the report: those in the Phosphate District where "streams are enormously laden with phosphorus" and those elsewhere under the category of "Other." See Petitioners' Ex. 20, p. 13. Data was collected from 18 streams in the Phosphate District and from 44 "other" streams. In the "Phosphate District," the mean value was 0.876 micrograms per liter or 876 ppb; in the "Other" streams the mean value is listed as 0.046 micrograms per liter or 46 ppb. Id. The Department considered the historical data of the Odum Report but gave it short shrift for several reasons: first, the data set is "very limited." (Tr. 206) Second, "collected back in the fifties, [it] might not have met the quality assurance that we would expect for data [today]." Id. Third, the data refers to "dissolved" phosphorus which is a fraction of total phosphorus and therefore a subset of the data needed to establish a TMDL for TP or "total" phosphorus. Most significantly, in the Department's view, the data does not assist in the Department's inquiry to "find values that are still protective of the designated use" (tr. 207) that is, a value that is higher than the historical value but one that will still support the designated use. ii. 1986 USEPA Document On May 1, 1986, the Office of Water Regulations and Standards for the USEPA published a guidance document entitled "Quality Criteria for Water 1986." See Petitioners' Ex. 19. It stated that "[t]o prevent the development of biological nuisances and to control accelerated or cultural eutrophication, total phosphates as phosphorus (P) should not exceed 50 [ppb] in any stream at the point where it enters any lake or reservoir, nor 25 [ppb] within the lake or reservoir." Id. As with other historical reporting, the 1986 Statement by the USEPA has been rejected by the Department. This time the rejection is on the ground that "it is very difficult to generalize. There is a very strong need to assess on a case-by-case basis the capacity of each water body as it enters into a different water body." (Tr. 210) Background Provided by Mr. Frydenborg Russell Frydenborg, the Department's expert in aquatic ecology (among other fields), was not involved in the selection of the Five Reference Streams. He was the main witness for the Department, however, in defense of their selection, largely on the basis of a post-proposal inquiry he conducted to confirm the validity of the Proposed TMDL. In addition to testifying about his after-the-fact justification, he provided background by way of testimony that included the Department's experience with reference streams and the Nine Northern Tributaries, in general. A Reference Stream Approach for establishing numeric criteria for nutrients had never been used prior to its use in this case. A reference site approach was used to set a phosphorus concentration level for the water bodies in the Everglades. It is an approach similar to the approach used for the Proposed TMDL.11 But a reference site approach and a reference stream approach are not precisely the same. Streams are "a whole different type of beast." (Tr. 241) For example, unlike a lake or a standing body of water, "stream biology is very dependent upon flow regime." (Tr. 246) Artificial channelization of a stream affects its habitability for biota. As explained by Mr. Frydenborg: [O]nce you channelize a stream and take out its bends, . . . you will eliminate vast quantities of habitat that the organisms can be able to colonize . . . [Y]ou'll destroy [habitat] when you channelize, and you destroy the hydrologic regime as well. [There will no longer be] microhabitats within the stream where you have different areas of different flow. [It will cause the organisms] to catastrophically drift. (Tr. 247) Bank stability is another factor important to stream evaluations. Erosion can cause sediment flow into a stream system and bring unwanted sand, silt, muck and organic debris that will cover the substrates and keep them from being suitable for macroinvertebrate colonization. The state of riparian buffer systems has an impact on stream ecological health particularly in cases of human encroachment. Likewise the riparian vegetation zone, particularly leaf-litter fall originating within the zone, has an impact on ecological stream health. The impact is detrimental when the zone is disturbed by human activities. Selection of the Reference Streams by DEP Data from five reference streams (the "Five Reference Streams") were used in deriving the Proposed TMDL by the 75th Percentile Method. The Five Reference Streams are Fish Slough, Cypress Slough, Fort Drum Creek, the Northwest Fork of the Loxahatchee River (the "NW Fork") and the North Fork of the Loxahatchee River (the "North Fork"). With the exception of Fish Slough, the reference streams were initially identified by an Environmental Manager in the Department: Julie Espy. Ms. Espy was not called by the Department to the witness stand to explain at hearing the identification of the reference streams. Her deposition was introduced into evidence, however, by Petitioners because the circumstances surrounding the identification of these four streams (the "Four Reference Streams") inform their claim that the process for the derivation of the Proposed TMDL was arbitrary and capricious. Ms. Espy was a logical person to have assisted in the selection of reference streams. Her duties includes the supervision of algal and freshwater macroinvertebrate taxonomy groups, the management of freshwater data and filed assessments and sampling of rivers, wetlands, lakes, canals, and streams. The data she manages, moreover, is collected for various programs that include TMDL programs. All in all, in her words, they include "Everglades, TMDL, small projects, like restoration projects [and] monitoring. Some of it is method development data." Petitioners' Ex. 90, p. 7. Ms. Espy was a logical choice to choose reference streams based on experience with programs and the types of data she managed. Yet, when asked to identify streams in the area in which the Nine Northern Tributaries are located, Ms. Espy was not informed of the purpose of the identification. The request was made by USEPA when Ms. Espy was contacted in mid-2003 by "David Melgaard from EPA." Id. at 10. Prior to the request by Mr. Melgaard, no one from the Department had requested or ordered that she participate in the development of the Proposed TMDL. When Mr. Melgaard asked about some "six or seven" (id. pp. 10-11) specific streams in the area of Lake Okeechobee, that included Fish Slough and Cypress Slough, he did not inform Ms. Espy why she had been contacted or the use to which the information would be put. Mr. Melgaard suggested that she search in Ecoregion 75(d). Canals were excluded because they "don't act the same as a stream echo system. With all the hydrological modification, the SCI metrics [for canals] . . . don't work the same [as for streams]." Id. at 11-12. The following colloquy took place in Ms. Espy's deposition when she was asked the basis of her recommendation for the Four Reference Streams: Q What were you looking at in making these recommendation? A I was using our GIS coverage. We have data layer that includes all of our biological stations, so that one thing I looked at, because it also had the ecoregion coverage, so I could see spatially the proximity of the sites and that type of thing. Q What else were you looking at? * * * A That's all I was looking at. He was just asking me for sites. Q You were not making an assessment about the appropriateness of the stream for any purpose? A No. Q You were strictly identifying streams that were in proximity -- A Biological samples -- where biological samples had occurred. I might add, that at the time that I requested this, he did not approach me with we are looking for streams for the Lake Okeechobee tributary TMDL. I was totally unaware of why he was asking for the information. I really didn't have any context to base that on. Q Have you ever visited any of these streams A I went -- Q I mean prior to the site visit that took place in April [of 2004]. A No. Q At the time you were making these suggestions to EPA had you ever visited any of these streams? A No. Id. at 13-15. On August 18, 2003, Ms. Espy sent an e-mail message to Mr. Melgaard. The message listed the Four Reference Streams. Ft. Drum Creek and Cypress Slough were listed as "closest to the Fish Slough site" (Petitioners' Ex. 90, Ex. 2.); the "NW Fork of the Loxahatchee River" and the "North Fork of the Loxahatchee River" were described as "further away, but . . . very good (biologically). They've been sampled numerous times but may be too large to compare to the others." Id. After informing Mr. Melgaard that they were in "ecoregion 75d," the message from Ms. Espy stated as she later confirmed at her deposition, "I haven't been to any of these sites." Id. Following the transmission of the message to EPA, Ms. Espy received an e-mail message from Mr. Melgaard. See Petitioners' Ex. 90, Ex. 3. It asked her to "ask the biologists from that area if comparing nutrient levels in the reference streams to those in the North Okeechobee Tribs is appropriate considering all the hydrological modifications in the Lake O [Lake Okeechobee] area." Id. Ms. Espy spoke to Mark Thompson, a biologist from the Department's southeast district office but Mr. Thompson "wasn't very familiar with any of the sites." Ms. Espy did not check with anyone else. She relayed the outcome of her inquiry to EPA but was not asked any further about the Four Reference Streams prior to the publication of the Proposed Rule in September 2003. In October of 2003, approximately 6 weeks after the publication of the Notice of Proposed Rulemaking with regard to the amendments to the Existing Rule that establish the Proposed TMDL, Dan Scheidt of Region 4 of the USEPA, sent an e-mail message (the "October 2003 E-Mail Message") to Ms. Espy: Julie- I am trying to follow up and close the loop on proposed stream TP reference sites for the S-191 basin. There are 5 reference sites proposed for S-191 basin TP: these four along with Fish Slough: [Code and No. IDs omitted] Ft. Drum Creek [" " " " " " " " ] Cypress Slough [" " " " " " " " ] NW Fork of the Loxahatchee River [" " " " " " " " ] North Fork of the Loxahatchee River For which of these sites does FDEP have bio data that confirms that these are in fact reference sites, ie., there is no impairment due to nutrients. Thanks Ex. 4 attached to Petitioners' Ex. 90. Not surprisingly, since the rule amendment containing the Proposed TMDL had been published more than a month earlier, Ms. Espy did not respond promptly to Mr. Scheidt. At the time of her identification of the Four Reference Streams for USEPA, Ms. Espy had not been involved in the selection of Fish Slough as the fifth reference stream. Nor did she have any familiarity with Fish Slough. Of the Four Reference Streams she identified for USEPA, Ms. Espy was familiar at the time she suggested them with only two: the NW Fork and the North Fork. Her familiarity was based on receipt of "samples from those two sites on a few occasions in the laboratory." (Petitioners' Ex. 90, p. 15). The basis of her familiarity was described in this way: "I was familiar with analyzing the samples, putting the data into the database and what those results were." Id. When the streams were recommended Ms. Espy had not examined their SCI scores nor the data that supported the scores. Ms. Espy had never looked at any bio assessment data with regard to the reference streams prior to December 16, 2003. In response to the USEPA October E-mail Message, however, Ms. Espy eventually provided Stream Condition Index ("SCI") scores. The entirety of the scores consisted of one score for Fish Slough, one score for Cypress Slough, six scores for Fort Drum Creek, 15 for the North Fork of the Loxahatchee and 16 for the Northwest Fork of the Loxahatchee. These scores were compiled from the statewide biological database. The scores were sent to USEPA in a November 2003 e- mail message. In her e-mail message, Ms. Espy wrote to Mr. Scheidt at USEPA: Attached find the macroinvertebrate data we have for these sites [the Four Reference Streams ]. These data are the Stream Condition Index scores for these sites. I would not say that because these sites have good SCI scores they have NO impairment for nutrients. These sites are just the best available for that area in the state. Ex. 4, 3rd page, attached to Petitioners' Ex. 90 (emphasis added). This message is consistent with the Department's position that the Five Reference Streams are "least impacted in the region," a status to be distinguished from the requirement that streams be minimally impacted or in a nearly ideal state to qualify as reference streams. Ms. Espy does not believe that the SCI scores confirm that there is no impairment due to nutrients to the Four Reference Streams because "[t]he SCI isn't necessarily a tool that is used just to point out or indicate nutrient impairment." (Petitioners' Ex. 90, p. 23). Mr. Frydenborg's After-the-Fact Efforts Mr. Frydenborg visited the Nine Northern Tributaries in order to collect data for purposes of supporting the Proposed TMDL after the Proposed Rule was published and challenged by Petitioners. The collection effort, as expected, revealed widespread hydrologic modification in the area of the Nine Northern Tributaries. The majority of the sites visited in the area had unacceptable, that is, "very low" (tr. 252) habitat scores. The habitat and the hydrology of the sites led Mr. Frydenborg to conclude that no matter what improvement was made to water quality with regard to TP, "you wouldn't get very good biological communities." Id. The only potential exception among the Nine Northern Tributaries is Mosquito Creek. Mosquito Creek Among the Nine Northern Tributaries, Mosquito Creek had the best habitat. Under a recalibrated Stream Condition Index ("the New SCI"), conducted by the Department, it scored a 102, just below the threshold level of 105 that is considered optimal. The scores for the other Nine Northern Tributaries ranged from 21 to 69. Mosquito Creek also enjoyed the best hydrologic score ("7") while the others all scored 9 or 10, indicating that the others enjoyed very few natural hydroperiods but rather suffered with impaired hydroperiods, "completely human-controlled." (Tr. 253) Mr. Frydenborg's assessment of Mosquito Creek does not square precisely with an earlier assessment conducted by the Department in 1999 and summarized in Petitioners' Ex. 25. Petitioners' Exhibit 25 is an Ecosummary of Mosquito Creek prepared by the Department's Southeast District's Assessment and Monitoring Program. Issued in September of 1999, it describes Mosquito Creek in much the same way as Mr. Frydenborg at hearing but with a few differences: Despite water quality problems, the creek has beautiful stretches with luxurious aquatic and riparian vegetation and an extensive and populous benthic invertebrate community, all thriving on the excessive nutrient load. Native vegetation such as maple, cypress, willow, and oak dominate the canopy while noxious and rank growths of exotics (water hyacinth, water lettuce, wild taro, and pepper trees) clog the water surface and understory. A diverse assemblage of aquatic insects, worms, and mollusks utilize the nutrient enriched water. Petitioners' Ex. 25, 1st page (emphasis added). The exhibit refers to the historical use of the watershed for dairy and beef cattle production. Although data was limited, the exhibit reflected the finding that "water quality in the creek appears to be improving." Id. This was attributed to best management practices and changes in land use away from dairy and beef cattle production. "Nevertheless," the document states, "water quality continues to be poor." Id. From 1992 to 1998, TP averaged 0.728 mg/l, or over seven times what an acceptable limit might be . . . ." Id. The document describes "Type II Error" that occurs with regard to environmental assessments: Contrary to its obvious water quality impairment (which includes very high phosphorus and nitrogen nutrient concentrations and chronically low dissolved oxygen), Mosquito Creek scored very highly (33 or "excellent") during a 1994 biological dipnet macroinvertebrate assessment using FDEP's SCI method. This misleading evaluation may have occurred due to the good habitat and flow present at the Mosquito Creek site, and illustrates the potential danger of employing "cookie-cutter" environmental assessment approaches. An incorrect assessment such as this is called a "Type II Error" wherein a polluted stream is deemed to be in "excellent" condition. * * * Failure to avoid "Type II Error" may result in a false public perception about the true condition of a polluted waterway. Petitioners' Ex. 25, 2nd page. The exhibit further warns of the effects of the excessive nutrient loading in the creek on Lake Okeechobee: Although Mosquito Creek is but a small tributary to Lake Okeechobee, many such sources combine to exacerbate the Lake's problems. Heavy loads of nutrients have resulted in massive algal blooms which can deplete dissolved oxygen levels and cause Id. fishkills. The type of algae that make up these blooms can include those which produce toxins. These Harmful Algal Blooms (HABs) can sicken, kill, and even be carcinogenic to a wide variety of organism. The exhibit, as far as its attribution of Type II error to the assessment of Mosquito Creek as "excellent" was dismissed by the Department at hearing. The exhibit was authored by a chemist who "has not passed the stream condition audit". It failed in Mr. Frydenborg's view to consider, moreover, that excessive nutrient loading may not cause poor biological health when there are other factors that would allow biological health despite excessive nutrients such as shading and the darkness of the water that would prevent the penetration of light. The exhibit pointed to other indicators of poor biological health, that in the opinion of the author of Petitioners' Exhibit 25 were overlooked: While the macroinvertebrate fauna collected from Mosquito Creek was diverse, it included many species tolerant to pollution that opportunistically exploited the conditions which pollution caused. Thus air-breathing taxa were common in Mosquito Creek (they can tolerate low dissolved oxygen). The exotic bivalve, Corbicula fluminea, was extremely abundant, but was under-reported by the dipnet method. This species thrives in areas receiving high nutrients, filtering abundant suspended organic materials that result from the over-growth of plants fertilized by runoff. Id. Whatever Mosquito Creek's status, the eight other tributaries among the Nine Northern Tributaries have major problems as all parties to this proceeding agree and as further described by Mr. Frydenborg at hearing. Problems Associated with the Nine Northern Tributaries A major problem for most of the Nine Northern Tributaries is that hydrologic modifications, such as ditching and draining, create a "spike in [the] hydrograph." Id. In rain events, they endure large influxes of water that cause turbulent flow and scouring to the stream system. The result is that the stream's ability to support benthic macroinvertebrate communities is severely reduced. At bottom, an improvement in TP concentrations for the Nine Northern Tributaries is not anticipated by the Department to lead to a normally-expected biological community because major improvements in stream habitat and hydrologic regime are also required. This expectation by the Department, however, is not supported by a Use Attainability Analysis. Use Attainability Analysis A "Use Attainability Analysis" was not done on the Nine Northern Tributaries to determine if they could attain Class III uses. A structured scientific assessment of the factors affecting the attainment of use, a Use Attainability Analysis has been adopted by the federal government. The Department conducted such an analysis of the Fenholloway River, polluted by a the point source of a pulp mill. But there was no evidence that the Department had conducted such an analysis on streams polluted by non-point sources as in the case of the Nine Northern Tributaries. Certainly, Mr. Frydenborg has never been involved in such an analysis. Without having conducted a Use Attainability Analysis, the Department nonetheless continues to anticipate that an improvement in TP concentrations in the Nine Northern Tributaries will not serve to attain Class III uses. DEP Reaction to the Rule Challenge The record does not reflect any response other than the SCI data provided by Ms. Espy to USEPA's request for "bio data that confirms that these are in fact reference sites, i.e., there is not impairment due to nutrients." When this Rule Challenge was filed at DOAH, however, Mr. Frydenborg was asked by Mr. Brooks to visit the sites of the Reference Streams and the Nine Northern Tributaries to "collect some additional data so that we had an objective evaluation . . . ." (Tr. 244) He visited the Nine Northern Tributaries and three of the Five Reference Streams in April of 2003. He was accompanied by Ms. Espy. They spent two days visiting all of the Nine Northern Tributaries but, according to Ms. Espy, we're only able to spend time at two of the reference streams and "drive-by . . . one other." (Petitioners' Ex. 90, p. 38). The reference streams not visited, according to Ms. Espy, were Fish Slough (this may be because Mr. Frydenborg knew from an earlier visit that it would not qualify as a reference stream in its present state, see Finding of Fact 165) and the Northwest Fork of the Loxahatchee. They drove by the North Fork of the Loxahatchee and actually spent time at Cypress Slough and Fort Drum Creek. Mr. Frydenborg, whether with Ms. Espy or not, did visit Fish Slough at some point. (It may be inferred from his testimony that he saw Fish Slough on the April 15-16, 2003 visit.) He was asked about it in the context of the April 15, 2003, trips taken by him and Ms. Espy: Q [C]an you describe what you saw when you visited the reference streams? A Well, when I went to Fish Slough, I immediately determined that it is not a reference site currently. It had a completely channelized system with [no] riparian zone. There were exotic plants in the water. I believe there was hydrilla. . . . I would not characterize the condition of Fish Slough as a reference community today. Gary Ritter [of the water management district] . . . was along with me. I said, "Gary, this is a bad reference site," and he said, "Well, there have been some changes in the basin around 1995," and I believe that the Department used pre-1995 data for that site because it currently would not qualify as a reference site. (Tr. 263-264) In apparent reliance on Mr. Ritter's statement and its interpretation of the statement, the Department used pre- 1995 data for Fish Slough in the calculations for the derivation of the Proposed TMDL. This is noted in the report issued by the Department through its Watershed Assessment Section on September 16, 2003. The report introduced into the record by Petitioners, describes its purpose as "[to] represent[] the efforts to develop a . . . TMDL for . . . TO for impaired waterbodies within the Lake Okeechobee Basin " Petitioners' Ex. 2, pg. 1. With regard to the present status of Fish Slough as not an appropriate reference stream the report states, It should be noted that the entire data record was not used for each station. For Fish Slough, which is within the Lake Okeechobee Watershed and which has a similar soil and topography there were phosphorus data back to 1986. However, land use changes and increased agricultural activity in the watershed since 1996 have led to the concern that Fish Slough may no longer be suitable as a reference site. For this reason, only the Fish Slough data for 1986- 1995 were used to determine the TP target. Using this shorter period of record, there were 490 TP samples for these five streams and the 75th percentile value for TP is 0.159 mg/L. Petitioners' Ex. 2, p. 4, emphasis added. The decision to accept Fish Slough as a reference stream prior to 1996 was made on the basis of Mr. Ritter's statement and the suggestion of Kim Shugar, who, like Mr. Ritter, has been involved in water quality restoration work in South Florida. Neither Mr. Ritter nor Ms. Shugar testified at hearing, however, as to the basis of their belief. Nor with one exception is there any evidence of record that Fish Slough was a reference stream prior to 1996. That exception is the following testimony of Mr. Frydenborg: Well, I did the habitat and the hydrologic index, and, interestingly, the LDI, the Landscape Development Intensity Index I believe was around 2.2 for Fish Slough, and that data that we have that's a complete data set for the State of Florida was like 1996 data. So I guess that is an independent way of confirming that at that point there was a relatively benign land use at Fish Slough ... See Respondent's Proposed Recommended Order, para. 91, p. 34. Otherwise, Mr. Frydenborg disclaimed any knowledge of whether Fish Slough would have qualified as a reference stream prior to 1996: "I really don't have the knowledge to be able to tell you what it [Fish Slough] was like before 1995 " (Tr. 267) Without doubt, however, it is "not an acceptable reference site today . . . ." Id. Infested with exotic plants such as hydrilla, Fish Slough, is a completely channelized system with no riparian zone. At Cypress Slough and Fort Drum Creek, Mr. Frydenborg and Ms. Espy "walked the system probably 200 or 300 meters down from the road crossing and then [conducted] a 100-meter stretch assessment within that." (Petitioners' Ex. 90, p. 39). The 100-meter stretch assessment was described at hearing by Mr. Frydenborg: You pull a tape measure out and you flag the site every ten meters so you can get an accurate map of the habitats, and then you do a series of evaluations. There's eight procedures that you go through for the habitat assessments. (Tr. 245) The procedures which measure "habitat parameters" (see Department Exs. 7 and 9) include an examination of substrate diversity and substrate availability. Substrate in Florida are "snags, leaf packs, root materials, aquatic vegetation" (id.) and may include limestone rock. The habitat parameters also include an examination of water velocity, habitat smothering (affects of sand or silt accumulation), the degree of artificial channelization, bank stability, riparian zone buffer, and riparian zone vegetation. The vegetation in a riparian zone is crucial to a stream's trophic system, particularly its leaf litter fall. The contribution by leaf-producing organisms in the riparian zone to stream habitat was stressed by Mr. Frydenborg at hearing: (Tr. 248) They shed their leaves periodically, and that's a very important source of habitat because organisms . . . live in those leaf packs, and [they are] also a source of organic matter that is naturally found in the systems . . . . [O]rganisms . . . called shredders . . . move in and cut . . . the leaf litter into smaller pieces and produce usable organic matter that then ... [serves] the whole community[.] [At] the base of the food web . . . the organisms . . . eat the native algae . . . the diatoms . . . the leaf litter[.] [For] aquatic macrophytes or aquatic plants in the system, [its] a source of organic production . . . used as food throughout . . . the trophic system[.] . . . [I]t is [the source of] energy [that] moves from one level to the next [within healthy stream habitat] . . . . In addition to the eight procedures for habitat assessment, Mr. Frydenborg also calculated a hydrologic modification score on a form he developed as an off-shoot of USEPA's Human Disturbance Gradient. The form had been used in the recalibration of the Old SCI that led to the New SCI. See Finding of Fact 171 below. The calculation revealed "widespread hydrologic modification in that northeastern tributary area" (tr. 251) the area of the Nine Northern Tributaries. Optimum habitat scores are in excess of 105. Eight of the Nine Northern Tributaries had scores below 69, "unacceptable habitat scores, very low." (Tr. 252) The exception with the highest score was Mosquito Creek. With regard to the Reference Streams, no SCI scores were calculated on the April, 2003 trip. No samples of the reference streams were taken because Mr. Frydenborg and Ms. Espy "didn't feel there would be sufficient time before the hearing was scheduled" (Petitioners' Ex. 90, p. 42) to analyze any such samples. Instead, Mr. Frydenborg and Ms. Espy, as they had done with regard to the Nine Northern Tributaries conducted "habitat assessment and hydrologic scoring" (tr. 261) for the two Reference Streams they visited: Fort Drum Creek and Cypress Slough. The scores for the two are found on Department Exhibit The exhibit consists of three documents for each of the Reference Streams: a "Stream/River Habitat Sketch Sheet," a "Physical/Chemical Characterization Field Sheet," and a "Stream/River Habitat Assessment Field Sheet." See Department Ex. 9. The latter sheet scores the stream on the eight habitat parameters that are included in the habitat assessment. Fort Drum Creek received a hydrologic score of five, "in [the] moderate range of disturbance . . . ." (Tr. 264) Its habitat score was "125." The Stream/River Habitat Assessment Field Sheet has four categories for each habitat parameter. They are "Optimal," "Suboptimal," "Marginal" and "Poor." The creek received optimal scores in four of them: habitat smothering, artificial channelization, riparian buffer zone width and riparian zone vegetation quality. It received suboptimal scores in three habitat parameters: substrate diversity, water velocity, and bank stability and a marginal score in substrate availability which indicates that the creek has only "6% to 15% productive habitat". Department's Ex. 9, p. 3. Cypress Slough received a slightly higher score of 127. Although it had only a marginal score of "8" in substrate availability indicating something less than 15% of productive habitat, Mr. Frydenborg described the segment of the slough in which the assessment was made as a "tropical paradise . . . [with] a beautiful riparian zone [and] nice habitats." (tr. 266) The description matches the maximum optimal scores Cypress Slough received for artificial channelization, bank stability, riparian buffer zone width and riparian zone vegetation quality. With regard to the three other habitat parameters, substrate diversity, water velocity and habitat smothering, the slough received suboptimal scores. Assessments were not taken at the Northwest and North Forks of the Loxahatchee because eight previous samplings had been taken that produced data for habitat assessment and hydrologic scoring had been done of them during the recalibration process of the SCI. In the end, the Department was satisfied with the Reference Streams used for purposes of data in calculating the 75th percentile of TP because of two reasons: (1) their high 1996 Stream Condition Index Scores and (2) their proximity to the Lake Okeechobee basin. In the Department's view, the Proposed TMDL should protect the Nine Northern Tributaries from imbalance "because that is what is represented in the reference site population data." (Tr. 270) That view was confirmed for the Department by three analyses that Mr. Frydenborg conducted after the Proposed TMDL was challenged by Petitioners. The first analysis used cases "where there was an SCI score of good, and in conjunction with [that], on that day, a total phosphorus of greater than 159 . . . ." (Tr. 134) Out of a total of 629 scores available, only 7 qualified in the analysis. Dr. Boyer, Petitioners' expert witness, explained that the analysis was scientifically invalid because it ignored the high variability of phosphorus data over time, ignored the existence of additional SCI scores (New SCI scores) for the same streams in which the streams received only "fair" or "poor" assessments, and ignored the existence of data showing that there was only one stream that had a phosphorus reading of over 159 ppb which also had a consistent New SCI scores of "good." As Dr. Boyer explained: [T]his site is Little Orange [Creek] . . . . [I]t also has TP values of 29 and 39 on different days. There is a lot of variability in the data. So to come to the conclusion that this site is good because on one day it had a high TO and it scored good is invalid . . . . (Tr. 137) The second analysis was a regression analysis, a statistical tool, that showed no relationship between total phosphorus and biological health of a system. The Department again used an approach that employed only the phosphorus level on the day the SCI score was taken and not all the data over a period of time. The approach is invalid. It inappropriately uses point data rather than all available data. The third analysis examined all "good" SCI scores in the Peninsular Region that had a phosphorus reading the same day and took the 75th percentile of the phosphorus data. It then examined all "good" and "fair" SCI scores in the same region that had a phosphorus reading the same day and took the 75th Percentile of the phosphorus data. These two produced 75th percentiles of 243 ppb and 230 ppb. Dr. Boyer criticized the third analysis because "the text category . . . were not what's used of the new method [the New SCI]." (Tr. 146) Under the new method "it dropped several goods into the fair categories and several fairs into the poor category." Id. The analysis also suffered from point phosphorus data rather than all data available for a stream as required under the USEPA's 75th Percentile Method. The limitation of the data set, moreover, because of the point data used rather than all data, produced a result with a large confidence level that fell anywhere between 31 ppb and 441 ppb, hardly a confirmation of the Proposed TMDL. If one categorizes the streams according to their New SCI rating (good, fair, poor and very poor), and takes a mean of the phosphorus data, an entirely different conclusion is reached about the relationship between TP and biological health. The mean phosphorus for good systems is 31 ppb, for fair 88 ppb, for poor 141 ppb and very poor is 193 ppb. Maximum phosphorus for a good system would be 78 ppb. One concludes from this analysis that there is a definite relationship between TP and the health of a biological system. As Dr. Boyer put it, "you're not going to find a . . . system . . . that's consistently good that has high phosphorus." (Tr. 145) The New SCI assesses ten metrics of macroinvertebrate community health. The ten metrics "represent a category of biological attributes so that you can get the best holistic data set [for] an accurate evaluation of the biological community." (Tr. 302) The New SCI also is based on a Human Disturbance Gradient ("HDG"). At the end of the calculation, a stream falls into one of four categories: good, fair, poor or very poor. The scores span a scale from 1 to 100 with 100 being the best. A score of 73 and above qualifies a stream as "good." Of "[t]he sites that got zero on the Human Disturbance Gradient . . ., no observable type of human disturbance . . ., only about 25 percent . . . exceeded . . . 73 . . . ." The remainder fell into the fair category, an indication that a rating of "fair" may not indicate impairment, according to Mr. Frydenborg. Petitioners' Ex. 98, a publication of DEP's bearing a revision date of February 1, 2004, however, indicates otherwise in its description of the SCI category "Fair:" "Significantly different from natural conditions; 20-30% loss of Ephemeroptera, Trichoptera and long-lived taxa; 40% loss of clinger and sensitive taxa; percentage of very tolerant individuals double." Petitioners' Ex. 98, p. 21 of 32, (emphasis added). In addition to testifying about the reference streams, Mr. Frydenborg explained why the Department did not calculate a TMDL under the 25th Percentile Method recommended by the USEPA. The Department regarded the recommendation of that method as a disservice by the USEPA. "Disservice by the USEPA?" As discussed above, the Guidance Manual published by the USEPA suggests that in addition to the "75th Percentile Reference Stream Approach" that the Department should have also applied the 25th Percentile Method and compared the results as part of a comprehensive and protective "frequency distribution" methodology. After comparing the results from the two methods, USEPA recommends selecting the lower result in order to ensure that a TMDL is protective. The 25th Percentile Method was conducted by the USEPA in its Ecoregion XII, described in a document published in December of 2000 by the USEPA's Office of Water as encompassing "the southeast corner of Georgia (excluding the immediate coastline) and a large segment of central and Gulf of Mexico coastal Florida." See Petitioners' Ex. 17, p. 7. This Ecoregion is primarily north of Ecoregion XIII, which is the Southern Florida Coastal Plain. Maps in the document show that Lake Okeechobee is in Ecoregion XIII, but the Nine Northern Tributaries are located in Ecoregion XII. Ecoregion XII contains a sub-ecoregion, sub-ecoregion 75. Testimony at hearing indicated that the Nine Northern Tributaries are at the southernmost end of Sub-ecoregion 75. Employing the 25th Percentile Method, the reference conditions for both "aggregate Ecoregion XII streams" and "level III ecoregion 75 streams" with regard to total phosphorus were 40 ppb or 0.040 mg/L. See Petitioners' Ex. 17, Table 2 and 3, at pp 13 and 14, respectively. Also see id. "Executive Summary," pp. vi and (tr. 92). The concentration level of 40 ppb (or 40 micrograms per liter) produced by USEPA for streams in the Nine Northern Tributaries ecoregion using the 25th Percentile Method was rejected by the Department for purposes of proposing a TMDL for TP in the Nine Northern Tributaries. Despite the USEPA recommendation in the Guidance Document, the Department does not have faith in the 25th Percentile Method for establishing a level at which imbalance occurs. It views USEPA as having done a "huge disservice . . . to the states when they promulgated [the Guidance Document that recommends employment of the 25th Percentile Method]." (Tr. 286) At hearing, Mr. Frydenborg described the Department's view of the flaw in the 25th Percentile Method for establishing imbalance. In his words, the 25th Percentile Method takes, "sites of completely unknown quality - - they could all be excellent quality biologically, no imbalances whatsoever, and by arbitrarily selecting the lower 25th percentile, [it] automatically [makes] any site above that impaired with no evidence to support that there is actually imbalances of biological communities . . . ." (Tr. 286) While theoretically, the 25th Percentile Method could use streams with "excellent" biological quality, that is, streams that were impacted at most minimally, the description of the method in the Guidance Manual makes clear that the precise opposite is the case; the method will typically use streams that are degraded. The potential for degraded streams to be used by the 25th Percentile Method is precisely why the USEPA methodology that employs the 25th Percentile Method recommends that an even lower percentile, down to the fifth percentile, be considered for obtaining a nutrient value for setting a numeric criteria. The method in which one would expect only streams of excellent biological quality to be used is the 75th Percentile Method. This is why the 75th Percentile Method, in contrast to the 25th Percentile Method, is described by the USEPA as "the preferred method to establish a reference condition." Id. at A discussion of the comparison of the two indicates that while the 75th Percentile Method is preferred, the hope is that the two methods will produce similar values for a reference condition: EPA's Technical Guidance Manual for Developing Nutrient Criteria for Rivers and Streams describes two ways of establishing a reference condition. One method is to choose the upper 25th percentile (75th percentile [the 75th Percentile Method]) of a reference population of streams. This is the preferred method to establish a reference condition. The 75th percentile was chosen by EPA since it is likely associated with minimally impacted conditions, will be protective of designated uses, and provides management flexibility. When reference streams are not identified, the second method is to determine the lower 25th percentile of the population of all streams within a region [the 25th Percentile Method]. The 25th percentile of the entire population was chosen by EPA to represent a surrogate for an actual reference population. Data analyses to date indicate the lower 25th percentile from an entire population roughly approximates the 75th percentile of the population for a reference population [citations to case studies in Minnesota and Tennessee omitted]. New York State has also presented evidence that the 25th percentile [method] and the 75th percentile [method] compare well based on user perceptions of water resources [citation omitted]. Id. This discussion also shows that values with a variance from 40 ppb (as produced by USEPA for the Ecoregion in which the Nine Northern Tributaries are located employing the 25th Percentile Method) and 159 ppb (produced by the Department in collaboration with USEPA in employing the 75th Percentile Method) are unexpected. It also explains why the USEPA in the Reference Stream Approach urges that when the values produced by the 75th Percentile Method and the 25th Percentile Method are at a sufficient variance that the lower, more protective, value be chosen for purposes of deriving a TMDL for a nutrient. A Numeric Value at Great Variance When a frequency distribution analysis produces a value that is at great variance with another frequency distribution analysis, it causes the scientific investigator to pause in progress toward the goal. Instead of attempting to proceed toward the ultimate goal of arriving at a numeric criterion, the next step for the investigator is to determine the cause for the variance between the analyses. This is particularly true when the analysis with the higher value is at odds as well with other data, such as historical data. The step for determining the basis of the discrepancy between values produced by various analyses was described by Dr. Boyer at hearing when asked, "What would you do if you found one [a value] that was totally different from the others?" (Tr. 94) Dr. Boyer answered that it would require the scientific investigator to re-examine the result, "either the data are bad or [the] analysis is wrong," id., or the investigator did not account for some factor. While a result at great variance with other results would not necessarily mean that the result was inaccurate, it is a "red flag," id., that requires re-examination. The high value in the Proposed TMDL is indeed a "red flag." It calls into question the streams chosen by the Department as reference streams for the 75th Percentile Method. The legitimacy of the reference status of the streams chosen by the Department was cast into further doubt by the testimony of Petitioners' witness whose fields of expertise include water quality analysis relating to nutrient loading: Jean Marie Boyer, Ph.D. Dr. Boyer's Testimony As referenced above, Fish Slough, at the time of hearing, would not have qualified as a reference stream because of impacts. Whether it was one or not prior to 1996, the end date for Fish Slough data used by the Department for derivation of the Proposed TMDL, is less than clear from the record. The Department relied on statements from water management district personnel. None of those personnel testified at the hearing in this proceeding. There was no other evidence in the proceeding, documentary or otherwise, to support Fish Slough's reference stream status prior to 1996 aside from Mr. Frydenborg's reference to a LDI reading that exceeded the range into which a reference stream would have fallen. It is Dr. Boyer's opinion, moreover, that none of the Five Reference Stream supporting the Proposed TMDL are legitimate reference streams, in part, because of the scores received on the Old SCI and the New SCI. In her opinion, Cypress Slough, furthermore, is more than minimally-impacted so that it does not qualify as a reference stream. Located in the proximity of several dairy farms from which it receives direct drainage, Cypress Slough is "impacted and it is disturbed." (Tr. 102) When the initial SCI report was prepared it was not on the "preferenced stream list." Id. It is listed as "fair" on the New SCI with a modification score of 6. Fort Drum Creek is "less disturbed than Fish Slough or Cypress Slough" id., but still Dr. Boyer "wouldn't consider [Fort Drum Creek] minimally impacted . . . ." Among six RSCI scores, Fort Drum Creek received 5 "fairs" and 1 "good." It was explained at hearing, that a rating of "fair" on the New SCI does not necessarily mean that the stream is more than "minimally impacted." On the Land Development Index, however, Fort Drum Creek scores a 2.9, a number that is higher than "zero to two [which is] considered a good number for the Landscape Development Index." (Tr. 103) The LDI, therefore, indicates that Fort Drum Creek does not qualify as a reference stream. The Northwest Fork of the Loxahatchee (the "Northwest Fork") appears to be in pretty good shape" to Dr. Boyer, except that "there is development upstream." Id. Under the New SCI, the Northwest Fork is shown to be "in very poor shape." (Tr. 104) This is because its "macroinvertebrate community isn't in very good shape." Id. The North Fork of the Loxahatchee (the "North Fork") is in a state park and does not have development upstream but under the New SCI "it hasn't done very well . . . ." Id. Dr. Boyer's opinion, at least so far as three of the streams (Fish Slough, Cypress Slough, and Fort Drum Creek) are concerned, is supported by evidence of record that pre-dated the Proposed Rule and this challenge. A report dated May 31, 1996, that relates the development of the SCI, described as "a primary indicator of ecosystem health and to identify impairment with respect to the reference (or natural) condition" (Petitioners' Ex. 29, Executive Summary, p. 2) was admitted into evidence as Petitioners' Ex. 29. The report in Chapter 3 entitled the "Selection and Geographic Distribution of Reference Sites," id., p. 5, states: Reference stream sites have been sampled by FDEP since summer 1992, using standardized biological methods and habitat evaluations at each site. Reference sites were chosen to represent the least impaired streams throughout Florida. * * * FDEP sample reference streams in all nine subecoregions from 1992 to 1994. * * * For inclusion in the reference stream database, sites had to be wadeable (first- to-third order), meet reference criteria of minimal disturbance, and have a drainage within the subecoregion. Id. at 5-7. (Emphasis added) Twelve reference sites are listed from Subecoregion 75d, the subecoregion in which the Nine Northern Tributaries and the Five Reference Streams are located. Of the twelve, only two are any of the Five Reference Streams: the NW Fork the North Fork of the Loxahatchee River. See id. at 7-9. Dr. Boyer's opinion is also supported, at least in part, by the updated SCI, re-calibrated in 2004 (the "New SCI") referred to in Petitioners' Ex. 46B as the "New SCI." (The 1996 SCI is referred to as the "Old SCI.") Cypress Slough, in a modified state hydrology-wise, rated only "Fair" under the New SCI whereas it had an excellent rating under the Old SCI. Fort Drum Creek, in contrast to its scores in the "excellent" range under the Old SCI, had five "fair" scores, ranging from 53.0 to 59.9 under the New RSCI and only one "good "score" under the New SCI. Under the Old SCI, the Northwest Fork of the Loxahatchee received 14 "excellent" scores and 3 "good" scores. Under the New SCI, it received 2 "very poor" scores, 8 "poor scores" and 7 "fair" scores. It received no "good" scores based on 17 ratings. See Petitioners' Ex. 46B. A similar result, although not as dramatic as in the case of the Northwest Fork, applied to the North Fork of the Loxahatchee. Whereas it had received 8 scores of "excellent," 5 scores of "good" and only one of "poor" under the Old SCI, under the New SCI, it had 7 scores of "poor," 6 scores of "fair" and only one of "good." See id. Mr. Frydenborg did not conduct stream habitat assessments on the two forks of the Loxahatchee that served as reference streams because "[w]e were running out of time that day," (tr. 266) and because he felt he had sufficient data otherwise. The assertion is odd when one considers that Mr. Frydenborg and Ms. Espy conducted habitat assessments of all of the Nine Northern Tributaries, declared impaired by the Department. Dispatched to conduct habitat assessments in the wake of the challenge to the Proposed Rule, it seems that Mr. Frydenborg would have chosen to spend time on the Five Reference Streams rather than the Nine Northern Tributaries if time were an issue. Elaboration on Frydenborg Opinion It is Mr. Frydenborg's opinion that the Proposed TMDL is a valid number from the perspective of protection of the resources for a number of reasons. In his view, there "might be a potential issue with phosphorus when it gets above . . . 250 micrograms per liter . . . ." (Tr. 269) Nonetheless, he has observed levels of above 250 micrograms where no imbalance of flora and fauna occurred because of flow characteristics and prevention of light penetration by shading associated with canopy or dark water caused by tannins leaching from leaf litter. One such example is Flat Creek next to Torreya State Park. It always receives an "excellent" on the SCI and its phosphorus levels average 244. Another reason Mr. Frydenborg believes the Proposed TMDL to be protective is that "nutrients are so complicated. We don't have a real clear cause-and-effect relationship between . . . nutrient concentration in a stream . . . [and] imbalance." (Tr. 269) Mr. Frydenborg summed up his thoughts on the contribution that reducing phosphorus in the Nine Northern Tributaries would make: Well, I guess the better way to think of it would be is, if you were somehow magically able to reduce phosphorus in those areas to make it an exceedingly low amount . . . it's my professional opinion, due to the other modifications in those sites, with the exception of Mosquito Creek, that you would not see any improvements in biological health because they're already significantly stressed for these other factors. I think that's the best way to look at it . . . I'm not saying we shouldn't try our best to reduce the phosphorus in those systems . . . but . . . if we're able to reduce that phosphorus, I wouldn't expect to see an actual beneficial environmental effect. (Tr. 281-282) Mr. Frydenborg stressed that the Proposed TMDL is adequate because "it's similar to the reference conditions in that particular area." (Tr. 282), (emphasis added). Mr. Frydenborg also responded on behalf of the Department to Dr. Boyer's assertion that the 75th Percentile Approach required the use of reference streams identified in the 96 Stream Condition Index located in Sub-ecoregion 75D: the eastern flatwoods region that is on the eastern side of the state. This sub-ecoregion was described as "up in Orlando all the way south of Jacksonville, south of Clay County anyway, ... but only on the eastern side of the state." (Tr. 291) The Nine Northern Tributaries are located in the "very southern extent" of Sub-ecoregion 75D. South of them is another sub-region associated with the Everglades where there is "a paucity of streams . . . maybe even no natural streams . . . south of Lake Okeechobee for the original Stream Condition Index." (Tr. 292) "Non-metric multidimensional scaling" (tr. 290), a statistical tool, was used to analyze how predictive the sub- regions were in showing the differences in populations of the aquatic communities. Because of the lack of differences among certain sub-ecoregions, the analysis led to an aggregation of them with the result that the State could be divided into three bio-regions: "the Panhandle, the peninsula, and the northeast." Id. This analysis shows that there is no basis for using a particular sub-ecoregion. With respect to the water basin in which the Nine Northern Tributaries are located, "leav[ing] that immediate geographic basin for TMDL purposes" (id.) would lead to an evaluation of peninsular sites, that is, an evaluation of one of the three bioregions into which the State divides rather than an evaluation of any one sub-ecoregion. An evaluation of peninsular sites, is similar what the Department did in developing the TMDL for TP in the Nine Northern Tributaries. It took "the sites that are unimpaired in the new [re-calibrated] SCI and looked at the phosphorus levels there." Id. There are differences between the northern end of Sub-ecoregion 75 and the southern end climatologically. The main reason to reject limiting candidate streams for use in the Reference Stream Approach to those in Sub-ecoregion 75, however, is that it is more appropriate to use an aggregate of "the entire sub-region," that is, the Peninsula Bio-region. The bio- region includes the southern end of Sub-ecoregion 75 but does not include the northern end of Sub-ecoregion 75. The phosphorus levels of the peninsula, according to Mr. Frydenborg, have a 75th percentile of 243 ppb. Using Peninsular Florida streams to calculate a 75th percentile of TP contrasted dramatically with Dr. Boyer's approach. According to Dr. Boyer, the three approaches she recommended produced concentration levels of around 57 ppb ("historical" levels), 40 ppb (the 25th percentile of all reference streams in ecoregion XII) and 73.5 ppb (the 75th percentile of reference streams she chose in subecoregion 75d.12) Dr. Boyer would be comfortable with a "73.5 part" TMDL for TP in the Nine Northern Tributaries because of "the data behind it." (Tr. 126) Between Mr. Frydenborg's defense of the Proposed TMDL and Dr. Boyer's defense of 73.5 ppb using reference streams, there is no question that Dr. Boyer's is superior. Her use of reference streams in the same ecoregion as the Nine Northern Tributaries makes sense because those reference streams were minimally impacted. Mr. Frydenborg's attack on Dr. Boyer's choice of reference streams for the 75th Percentile Method shows a fundamental misunderstanding of the concept of reference streams. Mr. Frydenborg and the Department have chosen to use as reference streams, streams that are not minimally impacted but rather that are the least impacted in Peninsular Florida, an area heavily impacted when it comes to excess phosphorus. The Guidance Manual demonstrates that the Department either does not understand the type of streams to be used in the 75th Percentile Method and the 25th Percentile Methods or, for some reason, has confused them. The 75th Percentile Method uses reference streams, that is, streams that are minimally impacted or approximately ideal in natural biology. In contrast, in its employment of the 75th Percentile Method, the Department chose streams that were least impacted in a heavily impacted region. The 25th Percentile Method, on the other hand, uses streams that are both in reference and non-reference condition. Data from degraded streams may be used to calculate a proposed value under the latter method. The more degraded the streams and the greater the number of degraded streams used to produce data for the 25th Percentile Method, the lower that actual percentile used to propose a TMDL. If the data is from a sufficient number of degraded streams then the fifth percentile should be used to produce a TP value. In contrast, Mr. Frydenborg rejected the 25th Percentile Method because it might have used data from only excellent streams - streams the Department should have used in calculating the 75th percentile to propose a TMDL for TP in the Nine Northern Tributaries. In point of fact, the 25th Percentile Method, not designed to be limited to streams of excellent condition, would almost assuredly not use data confined to production from streams of excellent condition. The Lake Issue In enacting the Protection Statute, the Legislature directed that the Protection Program should be implemented through a variety of programs, that is, unlike the TMDL Act, the Protection Program should not be solely regulatory: This program shall be watershed-based, shall provide for consideration of all potential phosphorus sources, and shall include research and monitoring, development and implementation of best management practices, refinement of existing regulations, and structural and nonstructural projects, including public works. § 373.4595(1)(j), Fla. Stat. The intent of the Legislature that the approach of the Protection Program be a multi-faceted one is reiterated specifically with regard to phosphorus. Under the Protection Statute's subsection (3), entitled "LAKE OKEECHOBEE PROTECTION PROGRAM," which details the specifications for the implementation of the Protection Program, there is a specification with regard to phosphorus reduction: The Lake Okeechobee Watershed Phosphorus Control Program is designed to be a multifaceted approach to reducing phosphorus loads by improving the management of phosphorus sources within the Lake Okeechobee watershed through continued implementation of existing regulations and best management practices, development and implementation of improved best management practices, improvement and restoration of the hydrologic function of natural and managed systems, and utilization of alternative technologies fro nutrient reduction. The coordinating agencies shall facilitate the application of federal programs that offer opportunities for water quality treatment, including preservation, restoration, or creation of wetlands on agricultural lands. § 373.4595(3)(c), Fla. Stat. The Legislature made its intent clear that phosphorus reduction in the Lake is dependent on federal projects as well as the TMDL Program: It is the intent of the Legislature that the Lake Okeechobee Protection Program be developed and implemented in coordination with and, to the greatest extent practicable, through the implementation of the Restudy project components and other federal programs in order to maximize opportunities for the most efficient and timely expenditures of public funds. § 373.4595(1)(k), Fla. Stat. (emphasis added) These federal efforts include projects conducted by the United States Army Corps of Engineers. The Department's understanding from its reading of the Protection Statute is that it rely as much as possible on projects conducted by the United States Army Corp of Engineers in its efforts to reduce the phosphorus load in and to Lake Okeechobee. The Department's plan to reduce phosphorus loads, therefore, calls for reductions in phosphorus loading through TMDLs placed on the Nine Northern Tributaries and other tributaries to the Lake as well as through federal projects. Lake Okeechobee TMDL As a result of the 1999 Consent Decree between USEPA and Earthjustice, the Department established a TMDL for Lake Okeechobee in August, 2001. The TMDL set an "in-lake" target restoration goal of 40 ppb total phosphorus for Lake Okeechobee based upon an examination of "pre-impact" phosphorus concentration data. The data was from studies that used "chlorophyll a" as an indicator of algal biomass which in turn acted as a surrogate for excessive nutrient concentration, and studies that examined the algal response to in-lake phosphorus concentrations. Upon comparing the results of these analyses, the Department determined that the total annual phosphorus load that would meet the 40 ppb restoration goal was 140 metric tons (the "Lake Okeechobee TMDL"). The Lake Okeechobee TMDL includes 35 metric tons from atmospheric deposition. Excluding the 35 metric tons of atmospheric deposition load of total phosphorus leaves 105 metric tons as the maximum load that is allowed from surface water inflows into the lake. The September 16, 2003, report of the Department admitted into evidence as Petitioners' Exhibit 2 recognizes that the Proposed TMDL cannot be inconsistent with the Lake Okeechobee TMDL. It also claims that the Proposed TMDL is consistent with the Lake Okeechobee TMDL because the Proposed TMDL will only allow 19.05 metric tons of TP to enter the Lake, well below the 105 metric tons allowed from surface water inflows under the Lake Okeechobee TMDL : This TMDL is specifically designed to protect the designated uses of the water bodies within the S-191 watershed [the watershed in which the Nine Northern Tributaries are located]. However, the load from these water bodies, as tributaries to Lake Okeechobee, must also be consistent with the TP TMDL for Lake Okeechobee in order to be adequately protective of the designated uses of the lake. Based on the Lake Okeechobee TMDL documentation, the total load for water discharged to the lake from all tributaries must not exceed 105 tonnes [metric tons] on an annual average basis. To determine whether the concentration-based TMDL for the tributaries is consistent with the lake TMDL, the Department calculated the load from the tributaries using a concentration of 0.159 mg/L and an average discharge of 97,154 acre feet (the average flow for 1995- 2000). Using these numbers, the allowable load is 19.05 tonnes, which well below the allowable load to the lake. Petitioners' Ex. 2, pp. 6-7 In keeping with the legislative intent and the observations of the Department, the Proposed Rule requires that the Proposed TMDL be consistent with the TMDL for TP for Lake Okeechobee: "As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above." Proposed Rule, Section (2)(b). Under the TMDL Act, allocations of load may be between sources or basins so that the burden of reduction may fall on one source or basin more than on another: The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards . . . . § 403.067(6)(b), Fla. Stat. (emphasis added). In an August 2001 report entitled "Total Maximum Daily Load for Total Phosphorus Lake Okeechobee, Florida," prepared by the Department and submitted to the USEPA, it was reported that a restoration target of 40 ppb TP for the lake was suggested by certain studies. After discussion of the "different analysis methods" that "all encompass the 40 ppb concentration target," the report states that "if 40 ppb is met at the eight pelagic13 stations (which represent the mid-lake) we can expect total phosphorus concentrations of below 40 ppb in the near-shore during certain years." Petitioners' Ex. 13, p. 32 of 53. Petitioners interpret this to be the setting by the Department of a restoration target of "40 ppb in-lake." Petitioners' Proposed Recommended Order, p. 50. The Department conceded during hearing that "you do, in fact, need to achieve an average of 40 ppb [inflow concentration into the lake]." (Testimony of Mr. Brooks, tr. 358). The Department argued vigorously, however, that the Proposed TMDL at 159 ppb does not necessarily violate a target restoration for the lake of 40 ppb or an average inflow concentration of 40 ppb. This is because future treatment works, in the words of Mr. Brooks, "are going to, in fact, affect both concentration and volume delivered to the lake. Id. And depending upon where those go, those are going to have a very significant effect in terms of how you balance to achieve that overall 40." The issue is directly addressed by the Protection Statute. It requires the water management district in cooperation with other coordinating agencies and the United States Army Corps of Engineers to develop an implementation plan for Phase II of the Lake Okeechobee Construction Plan by January 1, 2004. See §.373.4595(3)(b)2., Fla. Stat. The implementation plan is required to: dentify Lake Okeechobee Construction Project facilities to be constructed to achieve a design objective of 40 parts per billion (ppb) for phosphorus measured as a long-term flow weighted average concentration, unless an allocation has been established pursuant to s. 403.067 for the Lake Okeechobee total maximum daily load. § 373.4595(3)(b)2.a., Fla. Stat. (emphasis added). Petitioners present evidence that the actual loading from the Nine Northern Tributaries would be 33.44 metric tons of TP per year because the Department's calculation failed to account for discharges from tributaries in certain sub-basins. Whether the annual load from the Nine Northern Tributaries is the higher number posited by Petitioners or the lower number of approximately 19 metric tons claimed by the Department, the load is substantially below the 105 allowed by the Existing Rule. Petitioners also claim that the Proposed TMDL, 159 ppb, almost four times the 40 ppb limit for average lake inflows, is invalid because it could not lawfully become effective until the Department has met its legal obligation to offset the Nine Northern Tributaries load with reductions from other sources so that the average load expressed as a concentration level meets the target of 40 ppb.
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issue is whether proposed rule 62-160.300(5)(c) is an invalid exercise of delegated legislative authority, as alleged in the Amended Petition for Rule Challenge (Petition) filed on October 17, 2017.
Findings Of Fact Background The Department is the agency charged with the responsibility of adopting quality assurance rules for the collection and analysis of water quality data submitted to the Department. § 403.0623(1), Fla. Stat. These standards have been codified in chapter 62-160. They are designed to "assure that chemical, physical, biological, microbiological and toxicological data used by the Department are appropriate and reliable, and are collected and analyzed by scientifically sound procedures." Fla. Admin. Code R. 62-160.110(1). Part III of chapter 62-160 addresses laboratory certification and procedures. The Legislature has mandated that when water quality data are used to determine the quality of drinking water or the effluent of a domestic wastewater facility, all laboratories generating such data for submission to the Department must hold certification from the Department of Health (DOH) under the Department of Health, Environmental Laboratory Certification Program (DOH ELCP). See §§ 403.863(7) and 403.0625(2), Fla. Stat. Although DOH is the state's environmental laboratory accreditation program body, the Department has rulemaking authority to determine what types of laboratory data require DOH ELCP certification. § 403.0623, Fla. Stat. Not every laboratory test requires certification for the Department to accept the resulting data. Certified laboratories must have approved Standard Operating Procedures (SOPs), a formalized, written set of instructions which are followed for sample collection and preservation. The SOPs are reviewed by the Department to ensure they provide sufficient laboratory quality assurance. Petitioners are among the more than 100 laboratories in the state that fall within the class of laboratories that must meet DOH ELCP certification standards. They provide testing services primarily for local governments, consultants, and commercial accounts. Petitioners take pride in the fact that they meet all federal and state standards for testing, their laboratories are owned and managed by professionals, and they have been successfully performing these services for decades. The dispute here centers on proposed rule 62- 160.300(5)(c), which allows non-certified "statutorily created volunteer monitoring organizations" to submit water quality data to the Department for certain purposes. Petitioners, who are in the business of generating environmental data to the Department, allege that if they are required to compete with a non-certified laboratory, it will "directly affect their ability to earn a living and will interfere with their contractual relationships." Currently, the only statutorily created volunteer monitoring organization in the state is the Florida LAKEWATCH Program (Lakewatch), an organization created in 2002 within the Department of Fisheries and Aquaculture of the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida. See § 1004.49, Fla. Stat. Petitioners' Operations Florida-Spectrum, located in south Florida, spends around $100,000 annually to keep its five laboratories properly certified. Around a third of its business is testing for municipalities, a third for industries (such as investor-owned utilities), and a third for consultants. It performs lake water sampling for three cities for the purpose of compliance monitoring, but the proposed rule does not allow a non-certified laboratory to submit data to the Department for this purpose. Flowers, located in the greater Orlando area, estimated its annual direct cost to remain certified is around $52,000.00. It provides testing services primarily for domestic waste water effluent and drinking water. Only five percent of its testing is in lakes. Although Benchmark did not provide its annual cost to be certified, more than likely it incurs a similar expense, as it performs water testing primarily for engineering firms and municipalities located along the west coast from Tampa to Naples. A very small percentage of work involves testing in lakes to determine compliance with drinking water standards. The Proposed Rule Existing rule 62-160.300(5)(e), in effect since 2002, allows the Department to waive the certification requirement for an entity that uses "[m]ethods approved for site-specific, limited-use purpose if such certification is specifically waived by the Department program for which the method will be used." The provision has rarely been used, and then "usually only [for] research projects directly funded by DEP." Pet'r Ex. 14, p. 2. The Department proposes to substantially revise existing rule 62-160.300, entitled Laboratory Certification, by adding new text, deleting language, and renumbering the revised provisions. Although the Notice proposed only a minor change to existing rule 62-160.300(5)(e), the Notice of Change deletes that provision in its entirety and proposes to adopt new rule 62-160.300(5)(c), which allows the Department to consider and use data generated by non-certified "statutorily created volunteer monitoring organizations." New paragraph (5)(c) provides that certification is not required for the following tests or analyses: (c) Methods used by statutorily created volunteer monitoring organizations, when the Department has reviewed and concluded that the organization's Standard Operating Procedures provide sufficient quality assurance requirements for Department purposes. The rule is designed to apply to an organization with a very small laboratory and a single purpose. Lakewatch's only purpose is to sample water quality in lakes, with an emphasis on total nitrogen, phosphorus, chlorophyll a, and water clarity. The IFAS laboratory has only "a couple of career staff." Lakewatch performs no sampling for municipalities, commercial accounts, or other entities typically served by certified laboratories. Section 1004.49 authorizes Lakewatch to "[t]rain, supervise, and coordinate volunteers to collect water quality data from Florida's lakes" and to "[c]ompile the data collected by volunteers." The organization consists of citizen volunteers (almost 1,500 as of May 2014), mainly lake residents, who take and hold water samples and then send them to be analyzed by the IFAS laboratory. The results are collected and maintained in a Lakewatch database coordinated by the IFAS. The testing results are forwarded to the Department for inclusion in various databanks. In somewhat unclear terms, a Department witness explained that the purpose of the rule is "to do routine housekeeping for aspects of the rule that [the Department] thought needed revising based on stakeholder input from all sectors." However, the Notice further explains that the new rule "provide[s] increased flexibility for approval of alternative methods," and it "clarif[ies] when [DOH] laboratory certification is not required, because substitute quality assurance requirements will apply." In addition, the Department points out that it has the responsibility of assessing all waters in the State, but lacks the resources to perform this task. At any one time, the Department estimates that Lakewatch is sampling the water in over 100 lakes, many of which are in remote areas that are not accessed by other laboratories. The acceptance of Lakewatch data will fill a gap in the Department's assessment role. Even when data are of lesser quality, they can be valid for some purposes. As a general rule, it is helpful for the Department to maximize the data available for review. Does the Rule Exceed the Grant of Rulemaking Authority? The Notice cites as rulemaking authority four statutes, including sections 403.0623 and 403.0625. Section 403.0623(2) authorizes the Department to "establish standards for the collection and analysis of water quantity, water quality, and related data to ensure quality, reliability, and validity of the data and testing results" and "to adopt rules to implement this subsection." Section 403.0625(1) authorizes the Department and DOH to "jointly establish criteria for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863." Petitioners allege the new rule exceeds the grant of rulemaking authority in section 403.0625(1) because the DOH did not participate in the drafting of the regulation. Because the rule does not create any standards for laboratory certification, DOH input is not required. The Department's routine practice is to informally collaborate with DOH only for issues that are specific to test methodology or topics related to DOH's scope of certification for environmental test methods. Petitioners also contend the rule exceeds the grant of authority in section 403.0625(2), which provides that only certified laboratories may submit water quality data to determine "the quality of the effluent of a domestic wastewater facility." However, this contention has been treated as an argument that the rule contravenes the statute and is addressed in the following section of this Recommended Order. Does the Rule Contravene the Law Being Implemented? The Notice states that the revisions to chapter 62-160 implement more than 20 statutes, including sections 403.0623 and 403.0625. At hearing, Petitioners asserted that Lakewatch volunteers have sampled water in the St. Johns River, which has package plants that impact both the river and the Green Swamp. They did not disclose the extent of such sampling in the river, and, its purpose. Petitioners incorrectly assume the purpose of the rule is to allow Lakewatch to continue to submit data from areas affected by domestic wastewater effluent, in violation of section 403.0625(2). Assuming that river samples were submitted to the Department, the proposed rule does not legitimize the submission of data for that purpose. Petitioners contend the proposed rule will contravene other Department rules which set general requirements for collection and laboratory methods, including minimum holding times. However, the proposed rule authorizes the Department to approve an alternate method or procedure for some methods used by the organization. Therefore, Lakewatch does not follow generally approved requirements for sample preservation. Rather, it follows approved alternate methods evaluated and approved by the Department. Likewise, Lakewatch relies on an approved limited-use method for chlorophyll extraction, rather than following the typical methods used by certified laboratories. Vagueness, Lack of Standards, and Unbridled Discretion The proposed rule requires an organization's data to be of "sufficient quality assurance" to meet Department purposes. Petitioners argue that by simply using the word "sufficient," rather than mandating that the data be "accurate and reliable," the rule gives the Department unbridled discretion in determining what level of assurance is required. However, this is a distinction without a difference. The Department's determination will be based on whether the laboratory procedures conform to the use of approved methods, sample preservation procedures, and recordkeeping and reporting procedures. See Pet'r Ex. 18. The Department will also consider whether the organization has the ability to produce valid data that can withstand scrutiny under the criteria in rule 62-160.670. Id. Depending on the purpose of the data, criteria in other rules will be applied to the approval of methods and acceptance of data. See, e.g., Fla. Admin. Code R. 62-160.330 and 62-160.670. In those instances when certification is not required, new rule 62-160.300(9) requires that the organization's laboratory "follow the relevant Department-approved methods as provided in Rule 62-160.320, F.A.C., and shall meet all other requirements for laboratories as provided in this Chapter." Coupled with the challenged rule, this change sets a floor for quality assurance in uncertified laboratories with approved SOPs. Therefore, a non-certified laboratory must have minimum requirements for method detection limits, reporting and documentation, preservation of samples, data validation, and procedures for coding data that do not meet quality control criteria. Given the different purposes for which data are submitted, and the variability of data quality objectives that must be achieved, the Department must necessarily have some level of flexibility and discretion. It would be impractical to include in the rule every potential circumstance that might arise during this assessment. In sum, the record supports a finding that there are adequate and definitive standards in place to ensure that the operating procedures of a non-certified laboratory are sufficiently reliable for the Department to accept the data. Use of Lakewatch Data Section 1004.49 provides that "[d]ata collected and compiled [by Lakewatch] shall be used to establish trends and provide general background information and shall in no instance be used in a regulatory proceeding." However, the term "regulatory proceeding" is not defined. Even though the law is almost 16 years old, the Department has not yet taken a formal position on how the term should be interpreted and generally decides this issue on a case-by-case basis. While the Department admits that the undefined term is a source of confusion, its practice is to never use Lakewatch data for enforcement action or permit compliance. On the other hand, the Department says the statute is "unclear" on whether Lakewatch data can be used for ambient water quality assessments and restoration plans, such as water listings and Total Maximum Daily Loads. Therefore, Lakewatch data have been used for trend analysis, background information, agency resource allocation, and the compilation of the planning list under the Impaired Waters Rule. The Department does not consider these uses to violate the statutory proscription. From 2013 until August 2017, the Department used Lakewatch data for some purposes that may have been inconsistent with section 1004.49. However, that practice has ceased, and the Department now uses Lakewatch data in a manner that it believes is consistent with the statutory directive. Petitioners argue that the improper use of data during the five- year period, by itself, is a sufficient basis to invalidate the rule. This contention is rejected. After a comparability study of Lakewatch and Department data was conducted by the Department in 2011-2012, the Department initiated a review of the Lakewatch SOPs. The SOPs have been periodically revised, the last time in 2016, to incorporate certain quality control measures recommended by the Department. Although Petitioners contend otherwise, the SOPs provide sufficient laboratory quality assurance for accepting data for trend analysis, setting priorities on monitoring plans, and general information. Petitioners' Substantial Interests Petitioners are concerned the Legislature will create other volunteer organizations and this will result in multiple organizations taking advantage of the new rule. They also fear the Department will amend the new rule to allow other non- certified organizations to submit data. These concerns are speculative in nature and without evidentiary support. Because Lakewatch services are free, Petitioners contend their customers will use Lakewatch volunteers rather than paying a certified laboratory for testing services. However, Petitioners did not identify any "contractual relationship" that will be interfered with by virtue of the rule, any existing customer that will move its business to Lakewatch, or more importantly, the percentage of their work, if any, that coincides with work being performed by the volunteer organization. In sum, the evidence does not support a finding that Lakewatch volunteers will compete for the services now provided by Petitioners, who pay substantial fees each year to remain certified. Petitioners posit that if the proposed rule is adopted, the term "regulatory proceeding" will be applied in such a way as to allow Lakewatch data to be accepted and used for a wide range of testing purposes, including regulatory proceedings. But this assumption is based on speculation, and current law prohibits the rule being applied in this manner. If Petitioners disagree with how the rule is applied, there are other remedies in chapter 120, including a requirement that a point of entry be given to third parties when an agency order is involved. The fact that Petitioners may not be notified every time the Department uses data from a volunteer monitoring organization is not a ground for invalidating the rule. Most of Petitioners' evidence at hearing questioned the reliability and accuracy of testing services by Lakewatch. Among other things, Petitioners contend Lakewatch uses volunteers with limited training and experience, its collection and preservation methods do not conform to acceptable professional standards, the Department has never audited the Lakewatch laboratory, and a 2011-2012 comparability study of Lakewatch data with Department data is flawed in many respects. To determine the validity of the rule, however, more on that story need not be told at this time.
Findings Of Fact Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development. George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW). The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area. A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation: Special Waters * * * Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91). * * * In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area. Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep. Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed. Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years. Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society. The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to 500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include: * * * An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; and An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. Additionally, Rule 17-302.700(4)(e) provides: An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion. It is undisputed that the EIS properly addressed the costs of implementation to the Department. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D) Both parties have invoked the plan amendments for their own purpose. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed. This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction. DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7) Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation. The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.
