The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to section 373.175, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. In the event a water shortage, is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions, as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
The Issue Whether Proposed Rule 62-302.540, as formally noticed for adoption by the Department of Environmental Protection on July 18, 2003, is an invalid exercise of delegated legislative authority?
Findings Of Fact The Everglades A vast expanse of solitude, the flow of whose waters is nearly imperceptible to the human eye; a matchless mosaic of shallow sawgrass marsh, wet prairies interspersed with tree islands, and aquatic sloughs; terra incognita prior to the arrival of the Native American predecessors and ancestors of today's Miccosukee Tribe; secluded terrain, yet a distinctive home to a broad diversity of wetland species including those that are threatened and endangered such as the wood stork, snail kite, bald eagle, Florida panther and American crocodile; exceptional habitat for extensive populations of wading birds; an ecosystem of utmost environmental importance highlighted by the commitment in recent years of prodigious federal, state, and regional resources devoted to, among other endeavors, ground- breaking scientific research and construction of mammoth projects for water management in furtherance of restoration and preservation; the principal and most significant subtropical freshwater peat wetland in North America: the tributes bestowed upon Marjory Stoneman Douglas' inimitable "River of Grass" are many. Among the accolades, one adjective stands out: "unique." Put simply, there is no ecosystem on earth like the Everglades. The Florida Legislature succinctly honored the immense watershed's one-of-a-kind nature in the opening paragraph of the 1994 Everglades Forever Act with the enactment of one sentence: "The system is unique in the world and one of Florida's greatest treasures." § 373.4592(1)(a), Fla. Stat. By this recognition of international prominence and incalculable import to the state of Florida, the Legislature reiterated that the Everglades are, indeed, irreplaceable. Oligotrophic and Phosphorus-limited The system that makes up the Everglades and its ecology was formed due to a number of factors described in the "Background" section of this Order, below. Among the most significant of the factors is that the system is oligotrophic: poor in one or the other (or a combination) of the nutrients necessary to sustain life. In the case of an ecologically healthy Everglades, the system is poor in the nutrient phosphorus. There is also a disproportionately low level of phosphorus in relation to the presence of other nutrients (nitrogen and potassium) so that the system is described as not only oligotrophic but "phosphorus limited," as well. Among the findings in the Everglades Forever Act, (the "EFA" or the "Act"), that refers to phosphorus is the following: The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. § 373.4592(1)(d), Fla. Stat. Section (4) of the Act, entitled "Everglades Program" contains a subsection devoted to "Evaluation of water quality standards." Its provisions include the direction to the Department and the District to complete research to "[n]umerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area[,]" § 373.4592(4)(e)1.a., Fla. Stat. The Class III narrative nutrient criterion (the "Narrative Criterion") is that "[i]n no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna." § 373.4592(4)(e)2., Fla. Stat. A criterion, furthermore, is set by the EFA at "10 parts per billion (ppb)," section 373.4592(e)2. (the "Default Criterion") if the Department does not by rule adopt a numeric phosphorus criterion for the Everglades Protection Area (the "EPA") by December 31, 2003. In response to the mandate of the EFA, the Department, in July of 2003, published its proposal for a rule that numerically interprets for phosphorus the Narrative Criterion (the "Proposed Rule.") The Proposed Rule Rule 62-302.540 is entitled "Water Quality Standards for Phosphorus Within the Everglades Protection Area." OR-1. As "specific authority" it lists Sections 373.043, 373.4592 and 403.061. For "law implemented" it lists Sections 373.016, 373.026, 373.4592, 403.021(11), 403.061, and 403.201, Florida Statutes. The Proposed Rule is the result of a decade-long process. The process involved "tens of millions of dollars worth of research . . . and . . . thousands of man-hours . . . worth of . . . data evaluations." (Tr. 1614) From the outset, the process for development of the Proposed Rule was transparent; all of the data and the analyses of the data continued to be made available to interested parties. Before the passage of the EFA, work had begun on an Everglades Nutrient Threshold Research Plan (the "Research Plan"). The Research Plan had been developed and adopted under the direction of the Department by a panel of scientists appointed by the Everglades Technical Oversight Committee (the "TOC"). The TOC, in turn, was the product of an agreement settling a suit by the federal government in federal court to require the state of Florida to enforce water quality standards in the Everglades (the "Settlement Agreement," discussed, below). In 1995, the Department created the Everglades Technical Advisory Committee (the "ETAC") to assist in the development of the phosphorus criterion and to ensure transparency. The ETAC consisted of representatives of the Everglades National Park (the "Park"), the Arthur R. Marshall Loxahatchee National Wildlife Refuge (the "Refuge" or "WCA-1"), the District, the Florida Game and Fresh Water Fish Commission, USEPA, the Army Corps of Engineers, the Miccosukee and Seminole Tribes, agricultural interests and environmental groups. In addition to the ETAC process, the Department coordinated a series of workshops and site visits involving research groups, external peer-reviewers, and interested parties starting with an initial workshop held by the District in February of 1995 and culminating in a 1998 Peer Review Report. From June 1996 through December 2001, the Department made 13 presentations to the Environmental Regulation Commission (The "ERC") detailing the Department's efforts to establish a numeric interpretation of the Narrative Criterion. These presentations culminated in the filing of a Notice of Proposed Rulemaking in December of 2001. The presentations were followed by a publicly noticed ERC rule approval hearing beginning in January of 2002. Continued over a series of 14 monthly ERC meetings (each a full day or two days), the hearing ended with ERC approval of Proposed Rule 62-302.540, Water Quality Standards for Phosphorus Within The Everglades, on July 8, 2003. Numerous stakeholders and special interests presented information to the ERC during the rule approval hearing process. These included the Tribe and Friends and the intervenors to this rule challenge proceeding. The record reflects that the process by which both the criterion was established and that led to the Proposed Rule was a long-term and deliberative public process with comment, input and criticism directed to the Department from a broad array of perspectives and interests. A Brief Summary In order to understand the contentions of the Tribe and Friends and the responses of the other parties, a discussion of the background that led to the Proposed Rule beginning with the formation of the Everglades and concluding with recent amendments to the EFA by the 2003 Florida Legislature is necessary. Following that discussion, the Proposed Rule will be described in more detail together with address of the issues. First, however, is the following brief summary of the Proposed Rule. The Proposed Rule contains nine sections. Section (1) articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area. It establishes, as the Proposed Rule's title reflects, water quality standards for phosphorus, that contain, as one element, the numeric interpretation of the Narrative Criterion. Section (2) bears a similarity with the Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, that contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Relevant to its initial finding, Section (2) sets forth the finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the [Everglades Protection Area] must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Section (3) of the Proposed Rule contains definitions. Among them is the definition of "Impacted Areas": "areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Section (4), of the Proposed Rule concerns two concepts: establishment of the phosphorus criterion, the "heart of the Proposed Rule" and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Section (5) of the Proposed Rule entitled "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" contains a complexity of subsections. Subsection (a) requires separate determinations in impacted and unimpacted areas in each of the four water bodies into which the EPA is divided: Water Conservation Area 1 ("WCA-1" or the "Refuge"), Water Conservation 2 ("WCA-2"), Water Conservation Area 3 ("WCA-3") and Everglades National Park (the "Park"). Subsection (b) governs achievement in the Park and the Refuge. Subsection (c) governs the achievement in WCA-2 and WCA-3. Subsection (d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the EPA and to prevent false positives. Subsection (e) governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions, both natural and man-induced, the Department believes not to be consistent with determining an accurate estimate of ambient water column total phosphorus. It excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Section (6) provides long-term compliance permit requirements for phosphorus discharges into the EPA. Section (7) sets forth moderating provisions designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA. There are two types of moderating provisions in the section. Subsection (a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (b) allows for discharges to be permitted that accomplish the purpose of "hydropattern restoration" under certain circumstances. Section (8), by reference, incorporates a single document: "Data Quality Screening Protocol, dated ." Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule is determined to be invalid under applicable laws or is disapproved by the U.S. Environmental Protection Agency (the "USEPA") under the Clean Water Act. Standing and/or Identification of the Parties The parties stipulated to the standing of the Tribe, Friends, New Hope and the Coop to initiate the proceedings in Case Nos. 03-2872RP, 03-2873RP, 03-2883RP, and 03-2884RP. The parties stipulated to the standing of U.S. Sugar to intervene in the consolidated proceeding with Intervenor- Respondent status. The parties stipulated to the standing of the South Florida Water Management District to intervene as a Respondent in the consolidated proceeding. The parties further stipulated to facts with regard to standing that identify the parties. These are contained in paragraphs 20, 21, and 27-43 under Tab 4 of the Pre-hearing Stipulation, at pages 65-71 of the stipulation. They are incorporated by reference. A summary of the identifications (repetitive of those incorporated by reference) follows. This summary in no way limits the facts incorporated by the reference to the Pre- hearing Stipulation. Miccosukee Tribe of Indians The Everglades has been the home of the Miccosukee Tribe for generations, and it is an integral part of their culture, subsistence, religion, historical identity and way of life. Members of the Tribe work, reside, and practice their culture and way of life in the Everglades Protection Area. The Tribe's land interests in the Everglades Protection Area include, without limitation, perpetual Indian rights; a perpetual lease from the state of Florida for the use and occupancy of substantial WCA-3A, which the state of Florida guarantees will be maintained in its natural state in perpetuity; aboriginal title of Tribal members to portions of the Everglades; and rights to traditional use and occupancy in Everglades National Park. Tribal members live in, use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. Friends of the Everglades Friends of the Everglades is a Florida based non- profit corporation founded in 1969 by Marjory Stoneman Douglas, a pioneer conservationist, recipient of the Presidential Medal of Freedom, and the author of the Everglades River of Grass. Mrs. Douglas formed this grassroots organization to educate the public about the importance of the Greater Kissimmee-Okeechobee- Everglades ecosystem, to protect the Everglades ecosystem from human activities that would impair its health and natural function, and to work for its restoration. Friends of the Everglades has approximately 3,500 members who use and value the Everglades for recreational and spiritual pursuits, including hiking, walking, bird watching, fishing and nature trips. Members of Friends use various sections of the Everglades Protection Area and want to protect and preserve these areas for themselves and future generations. The members of Friends of the Everglades use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. DEP The Department of Environmental Protection, is the state agency authorized, to adopt through the ERC water quality standards under Chapter 403. It is also directed by the Everglades Forever Act to adopt a numeric interpretation of the Narrative Criterion for the Everglades Protection Area. The DEP Secretary has rulemaking responsibility under Chapter 120, but must "submit any proposed rule containing standards to the [ERC] for approval, modification, or disapproval[.]" § 403.805, Fla. Stat. The ERC The Environmental Regulation Commission (the "ERC") is required to "exercise the standard-setting authority of the department under . . . section 373.4592(4)(d)4. and (e)." § 403.804, Fla. Stat. In exercising its authority, the ERC is directed to "consider scientific and technical validity, economic impacts, and relative risks and benefits to the public and the environment." Id. Sugar Cane Growers Cooperative of Florida The Cooperative is an agricultural marketing cooperative association formed and operating pursuant to Chapter 618, Florida Statutes. The Cooperative and its 54 member- farmers cultivate sugar cane and other crops in the Everglades Agricultural Area (EAA) in Palm Beach County, Florida. That cultivation involves the use and management of surface waters which are supplied to and ultimately released from their lands by way of the Central and Southern Florida Flood Control Project (the "C&SF Project") approved by the U.S. Congress over 50 years ago. South Florida Water Management District The District has been a party to the rulemaking that led to the Proposed Rule, actively participating in the presentation of testimony and written submissions. A significant portion of scientific data used to establish the phosphorus criterion in the Proposed Rule was predicated upon District staff research. In addition, the EFA mandates the District to obtain permits for all of its structures that discharge into the Everglades. In accordance with the EFA, the Phosphorus Rule sets the permitting requirements for the District's discharge structures. Accordingly, the Phosphorus Rule will impact the District's implementation of the Long-Term Plan and how it will operate its discharge structures. U.S. Sugar, New Hope and Okeelanta U.S. Sugar is a privately held agribusiness corporation with its principal offices in Clewiston, Florida. New Hope Sugar Company and Okeelanta Corporation are privately held agribusiness corporations with their principal offices in West Palm Beach, Florida. U.S. Sugar, New Hope, and Okeelanta all own farmland within the Everglades Agricultural Area (EAA). U.S. Sugar owns about 194,000 acres of farmland in Florida. Most of U.S. Sugar's, New Hope's and Okeelanta's farming operations occur in the EAA where they grow and processes sugar cane. The Challenges of the Tribe and Friends The Tribe and Friends described a unified position with regard to their separately-filed challenges that the Proposed Rule constitutes an invalid exercise in delegated legislative authority in the "position statement" section of the Pre-Hearing Stipulation filed by the parties: The [P]roposed Rule, first and foremost, fails to establish a numeric interpretation of the narrative nutrient criterion for phosphorus that would prevent an imbalance of the natural populations of aquatic flora and fauna in the Everglades Protection Area. The grounds upon which the Tribe and Friends are challenging the [P]roposed Rule . . . include, but are not limited to: distorted findings of fact; improper designation of impacted areas; improper use of a geometric mean to establish the criterion that will cause an imbalance of flora and fauna; improper merging of the numeric criterion with moderating and permitting provisions that will in fact negate the numeric criterion; improper measurement methodology that does not prevent imbalance or protect designated use; improper division of the Everglades Protection Area into impacted and unimpacted areas; allowance of an arbitrary and capricious method for analyzing data; allowance of hydropattern restoration with water above the criterion that will cause an imbalance of flora and fauna; adoption of the Long Term Plan as a moderating provision, which is really a license to pollute, and which will also result in an imbalance of flora and fauna; and an improper vesting of authority in the Department of Environmental Protection to change the Long Term Plan. Pre-Hearing Statement, pp. 7-8. Factual statements that are at issue in the view of the Tribe and Friends are listed in the Pre-Hearing Stipulation at pages 74 to 77. Distilled to its essence, the Tribe and Friends' claim that the Proposed Rule because of flaws, including the establishment of a numeric phosphorus criterion of for Class III waters in the EPA as "a long-term geometric mean of 10 ppb," Section (4) of the Proposed Rule, "does not prevent an imbalance to the natural population of aquatic flora and fauna." (Tr. 59) This essence is captured in two of the eight statements of ultimate facts in their petitions, (see paragraphs 19-26, pgs. 5-6 of the Petition in Case No. 03-2972RP): The proposed Rule will not in fact prevent an imbalance in the natural populations of aquatic flora and fauna in the Everglades Protection Area. The proposed Rule is not in fact a numeric interpretation of, or consistent with, the Class III narrative criterion for phosphorus which prohibits causing an imbalance in natural populations of aquatic flora and fauna. Id., at p. 5. The concerns of the Tribe and Friends were summed up in opening argument as falling under ten main points. For purposes of discussion, these ten categories may be titled as "1) Authority to establish a Water Quality Standard for Phosphorus and Merger of the Criterion with Achievability; Moderating Provisions and Permitting Provisions; 2) Inaccurate Findings; 3) Defensible Science and Consideration of Achievability and Economics; 4) The Impacted Areas Definition; The Phosphorus Criterion Does Not Protect Against Imbalance; Relationship of Criterion to the Park, Refuge, Unimpacted Areas, Impacted Areas; 7) Achievement Methodology; 8) Data Screening; 9) Creation of a Legislative Permit To Pollute Through the Year 2016; and, 10) Use of Moderating Provisions and the Long-Term Plan. (See Tr. 39-59) An understanding of the contentions of the Tribe and Friends and the responses of DEP, the ERC, the District, U.S. Sugar, New Hope and the Cooperative, requires a considerable amount of background, beginning with the historical Everglades. The Historical Everglades The Historical Everglades was part of one system that began at its northernmost with the chain of lakes at the headwaters of the Kissimmee River and extended downriver through Lake Okeechobee and southward across the interior of southern peninsular Florida to Florida Bay. Formed over a period of at least 5,000 years, the system reached a peak in the mid-19th Century. The system at that point in time (not long before the initiation of a series of man-made alterations that had profoundly negative environmental effects) is commonly referred to as the "1850 system." Most of the water that flowed in the Everglades over its millennia of formation was introduced through rainfall. The 1850 system, therefore, was ombrotrophic: one in which atmospheric deposition (rain) is the primary source of nutrients and water table recharge. The 1850 system contained a variety of habitats. A densely vegetated area immediately south of Lake Okeechobee (a zone of custard apple associated with abundant wildlife and immense bird rookeries) transitioned to elderberry, dense sawgrass, and then to less dense sawgrass. Cypress swamps stood on the western periphery, pine flatwoods on the eastern edge; ridge and slough areas dotted with tear-shaped tree islands aligned in the direction of southerly flow dominated the central region. At the southern end, freshwater entered the Shark River and Taylor sloughs and was carried by small rivers and through mangrove thickets at the southern tip of the Florida Peninsula to meet the salt waters of the sea. The presence of the tremendous numbers of birds and their rookeries in the area immediately south of Lake Okeechobee led to phosphorus concentrations in the soil in this "enriched custard apple zone" as high as 1,500 to 2,000 parts per million. The zone comprised slightly under 300,000 acres, about 10% of the approximately 3,000,000 acres in the historical freshwater Everglades. Lake Okeechobee Pulses A critical relationship existed between the lake and the areas of the historical Everglades further south. The enriched custard apple zone, the sawgrass marsh, the wet prairies and the aquatic sloughs received waters directly from Lake Okeechobee from time-to-time by means of gentle overflow. Sheet flows generated from the lake languidly pulsed southward in seemingly endless repetition interrupted only by drops in water levels that came with seasonal fluctuations. The flows were confined for the most part by ridge systems such as the Atlantic Coastal Ridge to the east and terrain that includes plateaus, the Immokalee Rise and Big Cypress Swamp at a higher elevation to the west. To a relatively slight extent, waters from the flows escaped eastward to the Atlantic or westward to the Gulf of Mexico. For the most part, the hydro-pulses, above the gently sloped peat and marl soils below, successively overran the southern interior of the peninsula that is South Florida to join the sloughs that carried them to the salt water of the seas connected to Florida Bay. Contributions to the System's Make-up On the inexorable journey southward, the slow-flowing waters were fed by the main source of Everglades flow: plentiful rain. The rains included the torrents from the inevitable tropical storms and hurricanes that were instrumental in creating the system as they blew across South Florida. Stressors such as fire, drought, and rare but occasional frosts, made additional contributions to the shaping of the ecosystem and its unique ecology. Aside from the rain-driven nature of the system, the lake-generated hydro-pulses and the seasonal fluctuations in water levels together with intermittent contributions by fire, drought, frost and torrential rain that shaped its ecology, there is another central premise concerning the formation and life of the Everglades. The system is poor when it comes to the nutrient with which this proceeding is concerned: phosphorus. Phosphorus in the Historical Everglades With the exception of localized areas associated with tree islands or because of fire or other natural occurrences such as an alligator hole, the phosphorus concentrations in the water column south of the enriched zone historically achieved homeostasis at or below an extremely low level: 10 parts per billion ("ppb"). The historic Everglades south of the enriched zone had concentrations of phosphorus in the water column that ranged from 5 to 8 ppb in slough habitats to a phosphorous level one or two ppb higher in the areas of dense sawgrass, that is, peaking at a level of 10 ppb homeostatically. An exception to these low levels of phosphorus in the historic Everglades south of the enriched zone is the tree island. Tree islands had higher levels attributed to the habitation of the islands by wildlife that translocated nutrients from the marsh to the islands. In the case of translocation by birds, translocation of phosphorus lowered the concentration of nutrients in the marsh fed on by the birds and increased it wherever birds congregated, especially in rookeries. Extremely low levels of phosphorus were an essential component of the health of the historical Everglades and its unique ecology. At the base of this phosphorus limited ecology, historically and today, is the periphyton community, described by Ronald Jones, Ph.D., and the Tribe and Friends' expert witness, as "the real key to the Everglades." (Tr. 2958) The Periphyton Base of the Everglades Ecosystem Today, periphyton accounts for 30% to 50% of the vegetative biomass of the Everglades and 70% to 80% of the daily productivity of the system. In a healthy Everglades ecology, periphyton are knitted together in formations referred to as periphyton sweaters or as "periphyton mats." A periphyton mat is composed of different microscopic life forms, predominately blue-green algae or cyanobacteria, followed by diatoms and green algae. The microbial organisms are held together by mucilage that they produce themselves. The majority of a periphyton mat (about 68%) is void of mucilage and the organisms, themselves. In the aquatic environment of the Everglades, therefore, this space is filled with water, which leaves 30% or so of the mat as organic material. Six percent of the organic material is composed of the cells of the microscopic cyanobacteria, diatoms and green algae. The remaining 94% of the organic material is mucilage, the substance that holds the cells together in a glue-like fashion. Mucilage is a direct result of the phosphorus-poor environment. It is essential to the survival of the periphyton cells because "in intimate contact with each other . . . they're able to make the most efficient use of the . . . resources" (Tr. 2982), particularly the most limited resource: phosphorus. When levels of phosphorus increase in the water column, periphyton mats fall apart. There is no longer a need for the cells to produce mucilage, an activity "expensive" (Tr. 2981) in carbon, as there is in a healthy Everglades ecology when limited phosphorus must be maximized by the periphyton communities. Today, periphyton mats continue to disintegrate at an alarming rate in the Remaining Everglades despite recent progress made in reducing the inflow of excessive amounts of phosphorus in discharges that comprise some of the water management practices of the District. Nonetheless, progress is being made toward a reversal of Everglades loss. In an October/November 2003 publication of the South Florida Water Management District, the District in an article entitled "Encouraging Signs for Everglades Recovery," reported that "[b]etween 1995 and 2003, the rate of cattail expansion in Water Conservation Area 2A . . . declined from 2,375 acres per year to 785 acres per year." Tribe/Friends Ex. 138. The District's publication explained why cattails, one indicator looked at by scientists "among multiple indicators to determine the condition of the Everglades," id., are a marker of poor ecological health in the Everglades: Cattails are a natural aquatic plant, typically found in wetland systems around the world, including the Everglades. In fact, it is an approved species for shoreline restoration projects in the state of Florida. Under historic conditions, the Everglades' low-nutrient levels kept the smattering of cattail plants in check. But cattail is an aggressive, opportunistic plant. Fueled by high phosphorus inflows from agricultural and urban areas, cattail began to bully its way into the Everglades landscape, out-muscling more desirable plants such as sawgrass and other vegetation which provide habitat for wildlife. Thickets of cattail form a dense mat, blocking sunlight and lowering dissolved oxygen levels needed by aquatic life below. They grow so close together that wading birds are unable to forage for food in the shallow marsh. Sustained deep water levels also give cattails a competitive advantage due to their ability to move oxygen from their leaves down to their roots. In the late 1980s and early 1990s, aerial vegetation mapping and field visits in a 104,000 acre portion of the Everglades known as Water Conservation Area 2A verified intense growth stands along major inflow points. This cattail explosion was visual documentation of changes in the Everglades habitat due to excess nutrients and became a rallying cry for water quality improvements. Id. While a slowing in the rate of cattail expansion is progress toward slowing the loss of the Everglades, an annual rate of 785 acres of cattail expansion is a serious threat to the Everglades that remain today. The Remaining Everglades The "remaining Everglades" is the roughly 50% or 1.6 million acres of the Everglades today left from the original 3,000,000 acres or so of the historical Everglades. The remaining Everglades is what remains of the system in the wake of the anthropogenic changes that began in the second half of the 19th Century. Anthropogenic Changes The initial man-made or "anthropogenic" changes to the Everglades began with the arrival of Hamilton Disston, a Philadelphia developer. The state deeded him land for the purpose of drainage or "re-claiming" of swampland. Under a contract entered in 1881 with the Board of Trustees for the Internal Improvement Fund as part of the first comprehensive drainage plan, Mr. Disston dug canals from Lake Okeechobee in directions both east and west. To the east, leading to the Atlantic Ocean, is the St. Lucie Canal. "[T]o the west is the Caloosahatchee--and its called a river, but it looks rather more like a canal if you . . . look at it today." (Tr. 1536) The effect of the two canals was to lower the level of Lake Okeechobee by several feet. Mr. Disston's efforts were followed by efforts by Governor Broward, directed by him personally, that implemented advice from the Army Corps of Engineers. The Corps had advised that converting the swampland adjacent to the lake into agricultural land would require flood control, irrigation systems and drainage. The Corps also had advised that reclamation of the narrow eastern edge of Everglades (now much of the developed Lower East Coast of Florida) would require a substantial levee on the coastal lands' western border and drainage ditches where small streams flowed from the Everglades to the Atlantic. As part of the activity recommended by the Corps, a set of four major canals was dug in a generally southeasterly direction: the West Palm Beach Canal, the Hillsboro, the North New River, and the Miami Canal. In the late 1920's, around 1926 and 1928, there were back-to-back hurricanes in South Florida. Damage was primarily south of the lake in the area now known as the Everglades Agricultural Area. The hurricanes "resulted in tremendous loss of life, and . . . widespread flooding in the area. In response, the Army Corps of Engineers built . . . Hoover Dike, . . . the dike that now [surrounds] the lake." (Tr. 1538) The dike renders the lake a contained, closely managed body of water. These developments altered the natural balance between water and soil in substantial parts of the historical Everglades. Drainage led to parched prairies, muckfires, the flooding of farms and communities, and salt water intrusion into the water supplies of the Lower East Coast of the state. HOUSE DOCUMENT No. 643, dated May 6, 1948 is a letter from the Secretary of the Army to the Congress. It transmitted, in turn, a letter from the Chief of Engineers, United States Army, submitting a comprehensive report to the Congress of the United States that pronounced concern about the Everglades. The document summarized, for example, the toll that water control changes had exacted on Everglades wildlife: Southern and Central Florida were originally one of the greatest natural habitats for fish, birds and game on the North American continent. The shores of Lake Okeechobee and the Everglades once afforded a refuge for thousands of water fowl and other birds which are now virtually extinct . . . In brief, it appears that large parts of the Everglades should be held and protected as conservation areas which would be ideal for preservation of wildlife. Coop. 9a, p. 36 (paragraph 48 of the Report of the District Engineer.) These facts added to the urgency of the need for conservation. But the concern led to further alteration disruptive to Everglades ecology. Authorized by Congress in 1948, the "Central and Southern Florida Project for Flood Control and other Purposes" (the "C&SF Project") implemented a comprehensive plan to reclaim wetlands for agricultural and urban development. The project's purposes included flood control, water supply for municipal, industrial and agricultural uses, prevention of saltwater intrusion, water supply for Everglades National Park, and protection of fish and wildlife resources. To take advantage of the fertile soils in the custard apple zone immediately south of the lake, the C&SF Project called for the creation of the Everglades Agricultural Area (the "EAA")4 to bring into agricultural production 500,000 acres. Other large portions of the Everglades have also been converted to agricultural use. The project was also intended to pump water south into interconnected water conservation areas in Palm Beach, Broward, and Dade Counties to facilitate the other purposes of the project. The C&SF Project includes 1,000 miles each of levees and canals, 150 water control structures, and 16 major pump stations. The extensive agricultural operations and considerable residential and commercial development that followed the initiation of the project are dependent on the maintenance of this highly controlled system of canals, levees and pumps, now operated by the South Florida Water Management District (the successor to the Central and Southern Flood Control District created by the state in response to the federal project.) The C&SF Project was largely complete by 1962 with the creation of works that facilitated man-made divisions of the historic Everglades located within the Everglades Protection Area (the "EPA"). The EPA The EPA is defined at Section 372.4592(2)(i). It consists of four divisions or water bodies whose segmentation has been facilitated by the C&SF Project works: three Water Conservation Areas and the Everglades National Park. Water Conservation Area 1 is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (it is referred-to in this order, therefore, interchangeably as the "Refuge," or WCA-1.) WCA-2 is further divisible into 2A and 2B and WCA-3 is further divisible into 3A and 3B. The fourth water body in the EPA is the Park. The Main Effects of the Anthropogenic Changes There are two main effects of the changes made by humans to the historical Everglades. The first is an issue of water quantity and flow. The hydrology of the system has been dramatically altered. What was once "broad, shallow sheet flow across the marsh," dictated by nature is now "a compartment- alized system with segmented flow" (Tr. 1539) managed to a highly significant degree by man. Hydropatterns have been altered in a number of ways that have resulted in major effects. The draining of the system has affected the water table. Water that had flowed through the peat, in addition to above the peat, keeping it wet, no longer does so in many parts of the Everglades. On the other hand, water impounded in the WCAs moved subsequently through canals and levees has made some areas, including relatively shallow areas, deeper. The custard apple zone has been drastically affected hydrologically; it no longer exists. Roughly in its place is the EAA. The EAA is 6 to 8 feet lower than the historic custard apple zone. In fact, the EAA is lower than the Everglades immediately to its south, precisely the opposite of the situation in the historical Everglades. Most of the soil is still present in the EAA, but because it has lost its hydric characteristic it is ten times denser than the soil found to the south. The soils density is another result of hydropattern disruption. The second effect is one of water quality. Drainage from the urban areas to the east and from the EAA have created water quality problems. Pesticides and herbicides have made their way into the Everglades. Both agricultural and urban land uses result in the release of excess nutrients, including phosphorus and nitrogen, from fertilizers. These excess nutrients are carried in stormwater runoff. They are also present in agricultural discharges. The runoff and discharges are ultimately pumped through water management district canals and facilities into the remaining Everglades. While pesticides, herbicides and nitrogen pose water quality problems, the preeminent water quality problem in the Everglades is phosphorus enrichment. For the 3 or 4 decades prior to the initiation of best management practices ("BMPs"), including those that employ stormwater treatment areas ("STAs") constructed in the last decade or so, the levels of phosphorus in the water column reaching the WCAs ranged from approximately 100 to 200 ppb. The introduction of excessive levels of phosphorus into the Everglades caused and continues to cause profound changes to its biology. Natural populations of aquatic flora and fauna adapted to the oligotrophic and phosphorus-limited system become displaced by species that thrive on the phosphorus rich waters pumped into the EPA and the phosphorus from these waters that settles out and makes its way into Everglades soil. In some areas of the EPA into which the Federal Project and the water management practices that have followed have pumped phosphorus-enriched water from the EAA, soil phosphorus concentration exceeds 500 parts per million. See areas designated in yellow on Coop Ex. 21 or in green on Coop Ex. 8E. These areas (defined by the Proposed Rule as "impacted"), for the most part, are on the periphery of the Refuge, WCA-2A (where the impacted areas extend deeply from the northeastern border into the interior of the conservation area), WCA-3A and WCA-3B. An exception occurs in the middle of WCA-3A along the Miami Canal which runs from Lake Okeechobee through the EAA and then across WCA-3 in a southeasterly direction. The impacted areas shown on Coop Ex. 8E comprise about 6% of the total 1.6 million or so acres of the freshwater portions of the Remaining Everglades. The conversion of a low nutrient or oligotrophic system to a high nutrient system is known as "eutrophication." One especially visible example of a nutrient-induced shift in biology is the displacement of sawgrass marshes with an invasive monoculture of pollutant-tolerant cattails. The oligotrophic nature of the system is the same today in areas of the Everglades that have not suffered the impacts of man. This determination is supported by the low nutrient content in Everglades peat and at interior marsh sites as determined by a recent study. Today, "a large body of evidence [citations omitted] indicates that . . . the primary limiting nutrient throughout the remaining Everglades" is phosphorus. DEP 23, Vol. 1, p. 4., but there is no gaseous form of phosphorus. The amount of phosphorus that comes directly from rain, therefore, is very low, "usually less than a part per billion." (Tr. 2765) Pollen, plant particles and dust tossed into the air in the normal course of events make up "dry fall." Dry fall contains phosphorus. Dry fall can drift into the waters of the Everglades but usually its components, including phosphorus, get deposited through rain on a localized scale. Dry fall, therefore, is another source of phosphorus in the Everglades. A major source of phosphorus in the Everglades today stems from discharges that are a part of a regime of water management practices conducted by the South Florida Water Management District. Discharges of water from urban and agricultural areas generally have contained phosphorus at levels significantly higher than occur naturally in the Everglades. Soils in the EAA and elsewhere subside through a process of inundation, drying out and oxidation. As soil oxidizes, concentrations of phosphorus are left behind. Rainfall produces stormwater runoff which carries with it the more concentrated phosphorus that eventually is pumped off of the agricultural fields and into the canals. In addition, fertilizers, plowing and burning in the EAA, all contribute to excess phosphorus entering the system. Critical Indicators of Impact and Imbalance On the basis of the testimony of Dr. Jones, impact and imbalance to aquatic flora and fauna caused by excessive phosphorus is determined by use of three critical indices: (1) water column concentrations; (2) soils; and (3) vegetation, with a particular emphasis on periphyton. Water column concentrations of phosphorus higher than background conditions contribute to higher soil concentrations by way of the phosphorus settling out of the water. So does compaction. As soils compact (as in the case of soils in the EAA) the soil gets heavier with more phosphorus per unit area. Compacted soils under water tend to leach phosphorus out in higher concentrations, a process referred to as "reflux." Since periphyton is composed of microscopic organisms, the initial impacts of phosphorus on periphyton are difficult to observe. Nonetheless change takes place in these microcosms in an early step of a chain of events described at hearing by Dr. Jones. The first step toward change in Everglades ecology due to the entry of excess phosphorus into the system occurs with an increase in total phosphorus in the water column by way of the introduction of phosphorus-laden discharges of water or reflux. The second step is a change in the microbial community, with the first indicator being decreased alkaline phosphotase production. The third and fourth steps, interchangeable depending on soil type, cross a threshold of visible change. The visible change takes place in the periphyton community (periphyton mats disintegrate); the other step is a total phosphorus increase detectable in the soils. The fifth step is an increase in the biomass because of increased growth. The increase in growth translates eventually into more litter and soil build up. The sixth step is the change in the composition of plant species that leads to an imbalance of flora and fauna. Imbalance in flora occurs in macrophytes ("plants we can see," Tr. 2940) with the loss of sawgrass. In the seventh step, cattails emerge. When cattails fill in wet prairies, an imbalance in fauna soon follows, the eighth step. Habitat is lost for wading birds and other organisms that had used the area resulting in a decrease of those organisms. This eight-step process culminates in visible destruction of Everglades ecology and ecology defined by low productivity, low biomass and low litter production. Most significantly, at the end of the process, the imbalance in Everglades aquatic flora and fauna is complete. Imbalance of Aquatic Flora and Fauna The Everglades Forever Act and the Proposed Rule do not contain a definition of "imbalance of aquatic flora and fauna." As demonstrated by Dr. Jones, the process of reaching the state of imbalance is a continuum. It begins with the introduction of excess phosphorus to the water column and is complete when wading birds and other fauna lose habitat because of the take-over and dominance of cattails. According to U.S. Sugar's witness, Donald M. Kent, Ph.D., an expert in wetlands ecology, imbalance in aquatic flora and fauna occurs when there is visible change in periphyton: "If periphyton just completely disappeared and didn't come back, or it changed from what we've considered a desirable natural species to something that was indicative of pollution, that would be imbalance." (Tr. 3934) These visible changes are also evident with regard to vascular plants, such as bladderwort that, as in the case of periphyton, is particularly sensitive to excess phosphorus. Visible changes to the periphyton community, such as disintegration of mats, and to bladderwort and other vegetation, coincide with changes in macroinvertebrates, such as insects, and fish. See Tr. 3947. In other words, once the continuum of impact has reached the point of visible change to periphyton and vascular vegetation, an imbalance in aquatic flora and fauna is relatively sure to occur soon. Dr. Kent's definition of "imbalance in the aquatic flora and fauna" is consistent with a definition of imbalance employed for the Park and the Refuge in the Settlement Agreement reached in litigation between the United States, the State of Florida and the South Florida Water Management District in the early part of the last decade. See findings, below. Phosphorus-laden waters discharged into the Everglades lead to another effect related to imbalance: phosphorus gradients that are man-made. Phosphorus Gradients Prior to localized phosphorus gradients produced by canal inflows with high phosphorus levels today, there was a historic phosphorus gradient in the Everglades. It existed before the man-made changes that cut Lake Okeechobee off from the rest of the 1850 system. The historic phosphorus gradient was manifest in the high levels of phosphorus that existed in the custard apple zone immediately south of Lake Okeechobee in comparison to the phosphorus levels south of this enriched zone. Today there are localized phosphorus gradients. They occur relatively close to the points of discharge of waters managed by the District where the waters flow into the EPA. Generally, the closer to a point of discharge the greater the concentration of phosphorus in the water column and the greater the soil concentration of phosphorus. As the flow of the phosphorus-laden waters continues downstream the concentrations in the water column and the soils tend to decrease. Florida and the United States Adopt Water Quality Laws Florida Water Quality Laws In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act." Ch. 67-436, Laws of Fla. This act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this 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 act empowered the Department to "develop . . . a grouping of waters 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. Coop Ex. 9, App. 4, at 1. 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). Surface waters in the WCAs and the freshwater portion of the Park are Class III waters. (See also Tr. 1568) "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28-5 (1968). See Coop Ex. 9, App. 4, at 1. The original water quality criteria were not required to be met uniformly throughout a given water body; rather, they were applied after an opportunity for mixture with the receiving water had been afforded. Fla. Admin. Code R. 28.5.05(1)(1968). See Coop Ex. 9, App. 4, at 5. Relief from Department rules was also allowed in certain circumstances. § 403.201, Fla. Stat. In 1978, effective March 1, 1979, the Department updated the water quality criteria for the different water use classes, and added a narrative nutrient criterion that applies to Class III waters, outside mixing zones: (20) Nutrients - in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 17-3.121 (1979). See Coop Ex. 9, App. 7, at 41 and 43. This is the same nutrient criterion language now found at Florida Administrative Code Rules 62-302.530 and 62- 302.530(48). The 1979 rules did not define the phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, nor has the phrase been subsequently defined by rule. The 1979 rules also added a new use category for waters of special recreational or ecological significance, known as "Outstanding Florida Waters" (OFWs), which included the Park and the Refuge. Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979). See Coop Ex. 9, App. 7 at 13-14. These waters are now included in the listing of OFWs at Florida Administrative Code Rule 62-302.700(9)(a) and (b). Under Florida Administrative Code Rule 62-302.700(1), "No degradation of water quality, other than that allowed in Subsections 62-4.242(2) and (3), is to be permitted" in OFWs. Pertinent to the issue in this proceeding, these OFW rules have remained in substantially the same form as they did in 1979. Florida Administrative Code Rule 62-4.242(2) is entitled "Standards Applying to Outstanding Florida Waters." Subsection (2)(a) of the rule prohibits permits from being issued "for any proposed activity or discharge within an [OFW], or which significantly degrades" an OFW, unless the permit applicant can affirmatively demonstrate that the proposed discharge is "clearly in the public interest" and that "existing ambient water quality . . . will not be lowered." Subsection (2)(c) of the rule defines "existing ambient water quality" as "the better quality of either (1) that which could reasonably be expected to have existed for the baseline year of an [OFW] designation or (2) that which existed during the year prior to the date of the permit application." Since the Park and Refuge were designated as OFWs when the OFW rules were adopted in 1979, the "baseline year" for the Park and Refuge was 1978-79, some 15 years after construction of the C&SF Project had segregated the Everglades in the units of the EPA and had begun its operations that redistributed natural water flows. The permitting rules further specify, at Rule 62- 4.242(2)(c), the following: The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if: The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and There is no alternative to the proposed activity, including the alternative of not Id. undertaking any change, except at an unreasonably higher cost. The 1979 revisions added a second policy to limit further degradation of Florida surface waters, at Florida Administrative Code Rule 17-3.041(3)(a) and (b)(1979). See Coop Ex. 9, App. 7 at 13-14. Known as the "antidegradation policy," the policy applies to both OFW and non-OFW waters and can now be found at Florida Administrative Code Rule 62-302.300, with implementing permitting requirements at Florida Administrative Code Rule 62-242. In addition to establishing permitting criteria for discharges to OFWs, as noted above, the Rule also allows for discharges to other waters (which would include WCA 2 and WCA 3) that cause water quality degradation "if necessary or desirable under federal standards and under circumstances that are clearly in the public interest[.]" See Fla. Admin. Code R. 62-4.242(1)(listing various factors for determining what constitutes "clearly in the public interest"). The rules also articulate policies "to limit the introduction of man-induced nutrients," especially to low nutrient waters, to prohibit new violations of water quality standards, and to limit degradation below designated uses. Fla. Admin. Code R. 62-302.300(13)-(18). See also Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979); SCGC Ex. 9, App. 7 at 2. In its 1979 rewrite of the state's water quality standards, the Environmental Regulation Commission (the "ERC") recognized that Florida's water body use classifications and the associated water quality criteria might not be appropriate for part or all of a given water body. Therefore, in the same rule that contained the antidegradation policy, the ERC approved a special set of provisions as a substantive part of Florida's water quality standards. It was understood that "the implementation policies and procedures [of these new rules] . . . will govern the manner in which the proposed water quality standards are applied." Written Statement of the Facts and Circumstances Justifying the Proposed Amendments, p. 2, filed with the Secretary of State on August 18, 1978. Coop Ex. 9, App. 10. Known as "moderating provisions," these special "implementation policies and procedures" remain an integral part of Florida's "water quality standards." The ERC's 1979 rationale for "moderating provisions" continues today in substantially the same language as a key feature of DEP rules: 1. The Department's rules that were adopted on March 1, 1979, regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and 2. The mixing zone, [and] site specific alternative criteria . . . provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, [and] natural background . . . . . . . [T]he continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideration environmental, technological, social, economic, and institutional factors. The companion provisions of Chapters 17-4 and 17-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the states comprehensive program for the control, abatement and prevention of water pollution. Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above, nor determined that they are attainable as generally applicable water quality standards. Fla. Admin. Code R. 62.300.200(10). See also Fla. Admin. Code R. 62-4.249 (providing for ERC review "at the earliest opportunity" if a moderating provision is invalidated). Moderating provisions, as are "water quality criteria," are constituents of "water quality standards" as shown in Florida Administrative Code Rule 62-302.200 (29) and (30), which currently defines the terms as follows: "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing the quality of water that supports the present and future most beneficial uses. "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating provisions contained in this Rule and in F.A.C. Rule 62-4, adopted pursuant to Chapter 403, F.S. Thus, a water quality standard is not necessarily a simple number. For over a quarter of a century a water quality standard has been a system of regulation, with four separate components that include classified uses, water quality criteria, an antidegradation policy, and moderating provisions. One final aspect of state water quality standards is pertinent to these proceedings. The term "net improvement," which appeared first in the original EFA at Section 373.4592(4)(e)3., was introduced into Florida law in 1984 as part of the Warren K. Henderson Wetlands Protection Act, Ch. 84- 79, Laws of Fla., and was originally codified at Section 403.918(2)(b), as part of the Act's dredge and fill permitting criteria. In 1993, when it established the environmental resources permitting program in Chapter 93-213, Laws of Florida, the Legislature transferred "net improvement" to Section 373.414(1)(b)3. The language has remained essentially the same: If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. ii. The Federal Clean Water Act The Federal Water Pollution Control Act of 1972 (now known as the "Clean Water Act" or "CWA") established a comprehensive federal water pollution program to further its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's water." 33 U.S.C. § 1251(1)(2002). It declared a national goal, "wherever attainable," to achieve "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Id. The CWA assigned to the States the primary role in establishing water quality standards. Id. § 1313. See also Chevron USA, Inc. v. Hammond, 726 F.2d 483, 489 (9th Cir. 1984). The United States Environmental Protection Agency (the "USEPA" to distinguish it from this order's reference to the Everglades Protection Area as the "EPA") has the duty to then review State water quality standards for approval under the CWA. 33 U.S.C. § 1313. Like Florida's system, USEPA regulations explain that a "water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria to protect the uses." 40 C.F.R. § 131.2. In a manner similar to Florida's rules, federal water quality laws also clearly distinguish between "water quality criteria" and "water quality standards": The word "criterion" should not be used interchangeably with, or as a synonym for, the word "standard." The word "criterion" represents a constituent concentration or level associated with a degree of environmental effect upon which scientific judgment may be based. As it is currently associated with the water environment it has come to mean a designated concentration of a constituent that when not exceeded, will protect an organism, an organism community, or a prescribed water use or quality with an adequate degree of safety. A criterion, in some cases, may be a narrative statement instead of a constituent concentration. On the other hand, a standard connotes a legal entity for a particular reach of waterway or for an effluent. A water quality standard may use a water quality criterion as a basis for regulation or enforcement, but the standard may differ from a criterion because of prevailing local natural conditions, such as naturally occurring organic acids, or because of the importance of a particular waterway, economic considerations, or the degree of safety to a particular ecosystem that may be desired. (Citations omitted.) National Resources Defense Council, Inc. v. USEPA, 770 F. Supp. 1093, 1100 (E.D. Va. 1991)(quoting from USEPA guidance), aff'd, 16 F.3d 1395 (4th Cir. 1993). The CWA requires states to periodically review and update their water quality standards. Such revisions must be submitted to USEPA for review to ensure that they contain designated uses of the waters and water quality criteria for those waters needed to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act. 33 U.S.C. § 1313(c)(2)(A). The practicality of water quality controls is also relevant under the CWA. Recognizing that use attainability (or criterion achievement) can be precluded under certain conditions, USEPA regulations provide that States (or Indian Tribes) "may, at their discretion, include in their standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances." 40 C.F.R. § 131.13. See SCGC Ex. 9, App. 10. USEPA regulations specify six independent situations where states may justify the grant of relief via rule or permit for specific discharges or entire water bodies (or portions thereof). 40 C.F.R. § 131.10(g). States and Tribes are given such regulatory flexibility when any of the following factors is present: Naturally occurring pollutant concentrations prevent the attainment of the use; or Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more damage to correct than to leave in place; or Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in attainment of the use; or Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic like protection uses; or Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. Id. In essence, these USEPA rules have found circumstances where the inclusion of moderating provisions in state and tribal water quality standards is appropriate. Background Levels of Phosphorus Today Background levels of phosphorus in the four water bodies in the EPA vary. Everglades National Park, the least-impacted and most pristine section of the EPA, has an historic background level of phosphorus that varied between 5 to 8 eight ppb. Today, background levels have the same range during the wet season (the summer months to late fall). In the dry season, phosphorus levels can be anywhere from 8 to 13, with some instances of very high numbers in isolated pools where fish congregate when the system has dried down (in February and late winter) and water levels decrease. Everglades National Park is an Outstanding Florida Water (OFW). Fla. Admin. Code R. 62.302.700(1)(9). That designation offers special protection that is consistent with the existing ambient water quality at the period of designation. Background levels in the Park are consistently lower than background levels in the water conservation areas. Background concentration levels of phosphorus in the water column are not uniform in the Refuge, Water Conservation Area-1. The perimeter canal has significant impacts from nutrients. In contrast, the interior of WCA-1 is pristine and contains uniform levels of phosphorus. The interior part of WCA 1 has a background level of phosphorus in the water column of between 5 and 9 ppb. WCA-1 is perched. The perched effect has been exacerbated by the drainage and canals placed around the Refuge. The Refuge is an OFW. That designation offers special protection consistent with the existing ambient water quality at the period of designation (1978, 1979). Historic levels of phosphorus in WCA-2, divisible into WCA 2A and WCA 2B, probably existed in the range of 5 to 8 ppb. Although today the background levels in some areas are still in this range, there are other indicators of impact. Measurements of the enzyme alkaline phosphatase can be made that indicate change not susceptible to visible detection. Bacteria produce this enzyme when there is an absence of phosphorus. In an oligotrophic situation, the bacteria produce a great deal of this enzyme, which allows them to cycle phosphorus more efficiently. Where the levels of the enzyme are depressed, it indicates higher levels of phosphorus. Conversely, where the levels of alkaline phosphatase are high, the more oligotrophic the system. Another way to determine impact is to measure the phosphorus levels in the tissue concentrations of the periphyton itself. In WCA 2A, the periphyton has slightly higher phosphorus tissue concentrations than elsewhere in the Everglades. Much of WCA-2A suffers from excess phosphorus at some level based on levels of alkaline phosphatase and examination of the periphyton community. Water Conservation Area 3 can be divided into three distinct hydrological areas: WCA-3A North, WCA-3A South, and WCA-3B. WCA-3A is northwest of the L-67 canal; WCA-3B is south east of the canal. WCA-3A can be divided into WCA-3A North and WCA-3A South, because Alligator Alley, a roadway, separates the two and constricts water flow. There are different background levels of phosphorus in WCA-3A North and South. Areas in WCA-3A show impacts along the canals and inflow points. WCA-3A North has a slightly higher phosphorus concentration than WCA-3A South. There are also nutrient impacts along the Miami Canal. Background levels of phosphorus in WCA-3A, north of Tamiami Trail, are around 7 to 8 ppb. Most areas of WCA-3A South are pristine, as shown by the presence of intact periphyton mats. Exceptions exist along the canals and along Tamiami Trail, as indicated by cattails and altered native species. The vegetation in WCA-3B is mostly eleocharis, periphyton and utricularia (bladderwort). All three of these vegetative species are indicative of healthy Everglades ecology. While the periphyton mat is the key to Everglades health, the presence of utricularia offers a different indication of the health of the ecosystem. It is "a carnivorous plant . . . characteristic of . . . oligotrophic environments because . . . [utricularia] have to get their nutrients by . . . eating other organisms [rather than from the water or soil]." (Tr. 2836) The current background levels of phosphorus in the water column in WCA-3 are from 5 to 8 ppb. The Federal Lawsuit and the Settlement Agreement In 1988, the United States sued the South Florida Water Management District (the "District") and the Department of Environmental Regulation ("DER"), the predecessor to the Department of Environmental Protection. Among the allegations in the complaint, the federal government alleged that the District's pumping of phosphorus-rich water into the Everglades National Park and Loxahatchee Wildlife Refuge resulted in violations of State water quality standards. See generally United States v. South Fla. Water Management District, 847 Supp 1567 (S.D. Fla. 1992). The federal government further alleged that DER and the District had failed to take appropriate regulatory action to prevent water quality violations within the Park and the Refuge. As the litigation proceeded, the Florida Legislature in 1991 passed the Marjory Stoneman Douglas Everglades Protection Act, codified as Section 373.4592 (re-named as the Everglades Forever Act in 1994) to address concerns raised by the federal government. In July of the year in which the Act passed, the federal and state parties settled the litigation initiated three years earlier. The "Settlement Agreement" set forth a commitment of the parties to restore and maintain water quality in the Park and the Refuge. Among other matters, the Settlement Agreement envisions a remedial plan in which the District agreed (a) to adopt a regulatory program that requires EAA interests to implement on-farm best management practices ("BMPs") to reduce phosphorus in stormwater running off their lands and (b) to construct over 35,000 acres of publicly owned STAs within the EAA to further reduce phosphorus in waters prior to discharge into the Everglades. The Settlement Agreement set forth a definition of "Imbalance in natural populations of aquatic flora and fauna" in paragraph 1., the "Definitions" section of the agreement: "Imbalance in natural populations of aquatic flora and fauna" and "imbalance of flora and fauna" shall have the meaning in Florida Administrative Code Rule 17-302.560: "Class III Waters - Recreation, Propagation and Maintenance of Healthy, Well-Balanced Population of Fish and Wildlife. (19) Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna." Imbalance includes situations when nutrient additions result in violation of other standards contained in Chapter 17-302 as defined in Rule 17.302.510(3)(j). In the case of the Park and Refuge, imbalance specifically shall include nutrient additions that result in, but are not limited to, replacement of native periphyton algal species by more pollution-tolerant algal species, loss of the native periphyton community or, in advanced stages of nutrient pollution, native sawgrass and wet prairie communities giving way to dense cattail stand or other nutrient-altered ecosystems, which impair or destroy the ability of the ecosystem to serve as habitat and forage for higher trophic levels characteristic of the Everglades. Numerical interpretation of imbalance shall specifically include an array of indices to measure sensitivity of the ecosystem to small changes in nutrients, such as nutrient cycling processes and the basic components of the Everglades ecosystem, including periphyton and other sensitive indicators of nutrient enrichment. Tribe/Friends 164, (Exhibit B), p. 3, 4 (emphasis supplied). The specific inclusion in the definition of "imbalance" in the Settlement Agreement of "replacement of periphyton algal species by more pollution-tolerant algal species [and] loss of the native periphyton community . . . " applies to the Park and the Refuge. The definition of "imbalance" to include periphyton disruption and loss does not apply to WCA-2 or WCA-3. The Settlement Agreement also drew a distinction between "interim concentration limits" set for the Park and "interim concentration levels" set for the Refuge on both an interim and long-term basis: "Interim concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 1997 October 1, 2003, as determined in Appendix A. "Interim concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 1997 February 1, 1999, as determined by Appendix B. "Long-term concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 2002 December 31, 2006, as determined by Appendix A. "Long-term concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 2002 December 31, 2006 as determined by Appendix B. Id., p. 4. Since the use of "geometric mean" in the Proposed Rule has been placed at issue by the Tribe and Friends, it is notable that the Settlement Agreement employs a geometric mean to measure concentration levels of the Refuge as a water body at interior marsh stations. In contrast, a geometric mean is not employed by the Settlement Agreement in the measurement of concentration limits in the Park since by the agreement's definition "limits" (unlike "levels") are not applicable to ambient water quality but are applicable rather to discharges. Appendix A of the Settlement Agreement establishes the interim and long-term discharge limits for waters entering the Park at designated locations: Phosphorus limits apply to flow-weighted - mean concentrations computed on an annual Water Year basis, with data reported and calculated on a monthly basis. To account for hydrologic variations in Shark River Slough, the limits vary with the previous 12-month's total flow in each basin. The long term limit for Taylor Slough and the Coastal Basin is fixed and does not vary with the flow. The limits represent the 10% rejection level of the observed flow- weighted-mean concentration at a given total annual flow, adjusted to a baseline time period of March 1, 1978 to March 1, 1979 for Shark River Slough (OFW baseline). The baseline time period for the Taylor Slough and Coastal Basins is Water Year 1984. Compliance with these limits is expected to provide a long term average flow-weighted mean inflow concentration of approximately 8 ppb for the Shark River Slough Basin and 6 ppb for the Taylor Slough and Coastal Basins. Approximate values are as follows: Dry Year Wet Year (117 Kac-ft/yr) (1061 Kac-ft/yr) Shark River Slough - Interim Limits Flow-Weighted Mean < 14 ppb < 9 ppb Shark River Slough - Long Term Limits Flow-Weighted Mean < 13 ppb <8ppb Taylor Slough & Coastal Basins - Long Term Limit is 11 ppb. Tribe/Friends 164, Appendix A, at A-2 to A-3. Appendix B to the Settlement Agreement establishes interim and long-term levels for waters within the Refuge at designated locations. The interim marsh concentration levels are based upon a 14 station geometric mean of between 8 and 22 ppb, based upon water stage levels, and the long-term levels range from 7 to 17 ppb, adjusted to a baseline time period of June 1978 to June 1979. This baseline starts and ends three months after the baseline used for OFWs. Compliance with the long-term Park "limits" is to be determined based on the flow-weighted means of monitoring data collected at specified structures discharging into the Park. Compliance with the long-term Refuge "levels" is to be determined based on the geometric means of monitoring data collected at a network of 14 specified stations located in the interior marsh of the Refuge. The long-term limits for the Park are necessary to satisfy the OFW Rules. In the case of the Refuge, the levels were derived to depict the existing ambient water quality that existed as of the 1978 time frame that corresponds to the OFW baseline. Appendix B further provides that the "Class III standard" applies if a Technical Oversight Committee (the "TOC" established in the Agreement) determines that it is lower than the 14-station geometric mean. Appendix B states "[t]he current control program, consisting of on-line STAs and BMPs . . . is designed to achieve a long-term average annual flow-weighted concentration of 50 ppb for each discharge to the Refuge and WCAs from the EAA." Tribe/Friends 164 at B-2. If the interim, or lower of the long- term Refuge levels or Class III criteria are not met with the current control program, the state is directed by agreement to "require additional components to be added . . . to meet a maximum annual discharge limitation of 50 ppb for discharges into the Refuge from the EAA." Id. More intensive management of the STAs alone will not suffice to satisfy the requirement for additional components. A range of such components includes more intensive management, but also includes increased STAs acreage, a stronger regulatory program or a combination of the three. If the lower of the Class III or long-term levels is not met by December 31, 2006, and the 50 ppb maximum annual discharge limit is being met at all inflow structures into the Refuge from the EAA, the TOC is required to "recommend a lower maximum annual discharge limits for the structures to be enforced by the [state]." Id. at B-4. The Definitions section of the Settlement Agreement states that "'Class III water quality standards' shall have the meaning set forth in Florida Administrative Code Chapter 17- 302." Tribe/Friends 164, p. 2. With regard to research and monitoring, the Settlement Agreement provided, in part, Several aspects necessary to achieve compliance with this Agreement must be defined by additional research. The research objectives are to: Numerically interpret the narrative Class III nutrient water quality criteria (i.e., the nutrient levels which cause an imbalance of flora and fauna in the units of the EPA); and Assess current and continuing responses of the EPA to nutrient input levels resulting from the efforts to achieve interim and long-term concentration limits and levels. Tribe/Friends 164, pp. 15-16. In its 1992 consent decree approving the Settlement Agreement, the federal district court emphasized that "the agreement is not self-executing, but rather is subject to Florida's [Administrative Procedure Act]." South Fla. Water Management Dist., 847 F. Supp. at 1570. The federal and state parties agreed to propose the substantive requirements of the agreement for finalization in the state administrative process, including the Park limits and Refuge levels (and the numeric interpretation of the Class III criterion). Id. at 1572. "The Agreement does not predetermine the outcome of any state proceedings required under Chapter 120 of the Florida Statutes . . . . The Agreement requires the District and DER to fulfill their obligations under existing state law." Id. The Everglades Forever Act In 1994, after a renewal of litigation as a result of attempted implementation of the requirements of the Settlement Agreement and the Marjory Stoneman Douglas Everglades Protection Act, the Florida Legislature enacted the Everglades Forever Act (the "EFA"). Findings and Intent The EFA sets forth extensive "Findings and Intent" in its opening paragraphs. Among those are the following: (a) The Legislature finds that the Everglades ecological system not only contributes to South Florida's water supply, flood control, and recreation but serves as the habitat for diverse species of wildlife and plant life. The system is unique in the world and one of Florida's greatest treasures. The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution and timing of flows, and, therefore, must be restored and protected. * * * . . . The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. . . . the Everglades ecosystem must be restored both in terms of water quality and quantity. § 373.4592(1), Fla. Stat. (Emphasis supplied) The Everglades Program and the Everglades Construction Project The EFA codified and expanded the phosphorus reduction program of the Settlement Agreement by adoption of the Everglades Program. See § 373.4592(2)(h), (4)(a) and (4)(f), Fla. Stat. The Everglades Program includes: (a) implementation of "best management practices," defined in section 373.4592(2)(b), (or "BMPs") and the Everglades Construction Project ("ECP") defined in Section 373.4592(2)(g); and (b) a comprehensive program and projects to improve and restore water supply and hydroperiod. § 373.4592 (4)(a),(b), and (f), Fla. Stat. The ECP "represents the largest environmental cleanup and restoration program of this type ever undertaken." § 373.4592(1)(h), Fla. Stat. The ECP was targeted to achieve a 50 ppb, flow-weighted mean discharge concentration. The Everglades Agricultural Privilege Tax The EFA funded the ECP, in part, by creating an Everglades Agricultural Privilege Tax assessed annually: for the privilege of conducting an agricultural trade or business on: All real property located within the EAA that is classified as agricultural . . .; and, [certain leaseholds or other interests in real property.] § 373.4592(6), Fla. Stat. Direction to DEP and Rule-making The EFA directed DEP and the District to undertake research to numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area and to evaluate water quality standards applicable to the EPA and EAA canals. The precise language of the direction is: Evaluation of water quality standards.-- The department and the district shall employ all means practicable to complete by December 31, 1998, any additional research necessary to: Numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area; and, Evaluate existing water quality standards applicable to the Everglades Protection Area and EAA canals. § 373.4592(4), Fla. Stat. This direction led DEP to conduct rulemaking in conjunction with the ERC to establish a "phosphorus criterion" for the EPA that interpreted the Act's narrative criterion. The Narrative Criterion Limited to Everglades phosphorus, the Narrative Criterion in the EFA replicates to an extent the "narrative nutrient criterion" in Florida Administrative Code Rule 62- 302.530(49)(b): In no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The Narrative Criterion of the Act is quite similar; both it and the "narrative nutrient criterion" in the Proposed Rule prescribe that in no case shall there be alterations allowed so as to cause imbalance in natural populations of aquatic flora and fauna. As stated earlier neither the EFA nor DEP rules define the terms "imbalance" or "natural populations of aquatic flora and fauna." The EFA directs, however, that the criterion "shall not be lower than the natural conditions of the [EPA]" and that it "shall take into account spatial and temporal variability." § 373.4592(4)(e)2., Fla. Stat. The difference between the two criteria - one in the existing rule governing all nutrients, the other in the EFA and carried forward in the Proposed Rule - is one of limitation; the term "nutrient concentrations" in the existing rule is replaced with "such phosphorus criterion" in the Act and the term "body of water" is replaced with "waters in the Everglade Protection Area": In no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. § 373.4592(4)(e)2, Fla. Stat. The Narrative Criterion is central to this case and the dispute between the Miccosukee Tribe and the Friends of the Everglades on one side and the rest of the parties to this Proposed Rule Challenge on the other. The case of the Tribe and Friends draws much of its force from the clarity and power of the Legislature's choice of the Narrative Criterion's first three words, "[i]n no case." This proscription, absolute on its face, is the introduction to the Narrative Criterion's mandate that the phosphorus criterion not allow waters in the EPA to alter the natural balance of flora and fauna. The power and clarity of the Narrative Criterion is at the base of the criticism of the Proposed Rule by the Tribe's witness Colonel Terry L. Rice, (US Army ret.). The Testimony of Colonel Rice The Tribe opened its case by calling Terry L. Rice, Ph.D., a retired colonel in the U.S. Army and a former Commander of the Army Corps of Engineers District headquartered in Jacksonville. The Corps District once under the command of Colonel Rice is composed of Florida, Puerto Rico and the Virgin Islands. Colonel Rice's Ph.D. is in Water Resources Engineering--Hydraulics and Hydrology. He is a registered professional engineer in Florida and several other states. He has numerous other credentials, including an M.S. from the University of Illinois, and a B.S. from the United States Military Academy at West Point. He has been a Senior Service College Fellow at the Walsh School of Foreign Service at Georgetown University, and is both an Honor Graduate of the Command and General Staff College at Fort Leavenworth and a Graduate of the Department of State's Foreign Service Institute. Colonel Rice's many credentials, his high-level training and the depth of his experience nationally and internationally are strikingly impressive. They serve as his qualifications for the fields of expertise in which he was accepted in this case (hydrology, water resources engineering and regulatory and permitting issues as related to Everglades restoration) and, moreover, bolster his credibility as a witness. Of particular relevance to this case is that from August of 1994 to October of 1997, Colonel Rice while a District Commander for the Corps was responsible for projects and planning to enhance flood control, navigation, shore protection and environmental restoration in the Corps District that contains the state of Florida. During this period of his distinguished military career, the Corps was directed to develop the Comprehensive Everglades Restoration Plan ("CERP"). For Colonel Rice this meant that "Everglades restoration was his top priority." Tribe 169. He arrived in Jacksonville at the Corps' District headquarters in 1994, three months after the EFA was passed, a moment described by Colonel Rice as "the crucible of . . . this . . . coming together." (Tr. 72) Colonel Rice's responsibility was to steer the development of CERP. Among the projects he was involved in were: the modified water deliveries project coming out of the 1989 act, a major restoration project, still not done; the C-111 restoration; the Kissimmee Restoration, which I'm happy to say, is moving along very well. Something I think we're all proud of; and the Everglades Restoration Project. (Tr. 72-3) This required that Colonel Rice permit under the Clean Water Act construction of the STAs so the water management district would be allowed to fill the Everglades in which they would be constructed. In the midst of Colonel Rice's being in charge of CERP, the Governor of Florida established the Governor's Commission for Sustainable South Florida to oversee CERP from the state's perspective. At roughly the same time, the Secretary of the United States Department of Interior established the South Florida Ecosystem Task Force to oversee CERP at the federal level. Colonel Rice served the Assistant Secretary of the Army for Civil Works as his representative on the federal task force and served on the Governor's Commission as well. The work of these two groups, much of it under the guidance of Colonel Rice and the Corps, culminated in a consensus on CERP. Colonel Rice's leadership in the formulation of CERP has been a tremendous accomplishment reflected in its recognition in all three branches of the federal government. He has received a letter of commendation from the White House for his work on Everglades Restoration. He has testified before Congress about it and a report on his efforts has been read into the Congressional Record. On several occasions, Colonel Rice has testified before Judge Hoeveler in the litigation over the Everglades initiated in 1989. His testimony has been in regard to issues related to water quantity, water quality, use of a geometric mean, interpretation of the Settlement Agreement, the STAs and the 404 program under the Clean Water Act. Colonel Rice's opinion is that the Proposed Rule does not protect the Everglades. He believes that the various components of the Proposed Rule when taken together "overwhelm the resource." (Tr. 153) Objection was made to Colonel Rice's opinion on the basis that it was beyond the scope of his expertise. The objection was overruled. It was concluded that while not a wetlands ecologist, Colonel Rice was qualified nonetheless to render his opinions in light of all of his qualifications, particularly the depth of his experience in Everglades issues. Colonel Rice criticized the Proposed Rule on a number of different grounds. Among them is that by employing a geometric mean for the phosphorus criterion, the rule "skews data low" (Tr. 155), in such a way as to allow phosphorus discharge that will not protect the Everglades. He also faulted achievement methodologies employed by the Proposed Rule and data exclusion. Furthermore, he criticized its allowance of discharging phosphorus water into areas that were not impacted by phosphorus if a net environmental benefit accrued by virtue of hydropattern restoration. Within each set of Colonel Rice's criticisms, there were a number of different faults he found with the Proposed Rule. He criticized some of the data exclusion provisions in subsection (e) of Section (5), "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" of the Proposed Rule. For example, he testified that words "flood" and "drought" in the subsection are not defined. The lack of definition, in his view, confers unbridled discretion on DEP to exclude data. Since water levels are the subject of water management practices by the District, moreover, Colonel Rice fears that floods and drought in the Everglades could be manmade, thus allowing manmade manipulation of data exclusion. Furthermore, he questioned the subsection's exclusion of data related to "authorized restoration activities," one of the "temporary" human activities listed in paragraph (5)(e)4., of the Proposed Rule. He assumed that the term related to all of the projects under CERP and stated that while CERP will cause permanent impacts, there will be periods of construction and stabilization with regard to CERP projects that will cause impacts temporarily. Colonel Rice also questioned the exclusion of data under paragraph (5)(e)5., of the Proposed Rule that related to samples taken when hydrologic conditions were outside the range that occurred during the time period used to set the numeric criterion (the "period of record") on the basis of the Proposed Rule's lack of a definition of the period of record. The evidence demonstrates, as discussed below, that the period of record for establishing the numeric phosphorus criterion is 1978-2001.5 Colonel Rice questioned the allowance of hydropattern restoration using phosphorus-rich waters to achieve what might appear to provide immediate improvement on the basis of the concept of "resilience." Overly dried areas suffer impacts from the lack of hydration. "But when you add water back, [the impacted area] comes back to life fairly rapidly." (Tr. 163) That is, areas that suffer impacts for lack of water retain short-term resiliency. In contrast, phosphorus does not leave once it permeates the soil. "So when it comes to the standpoint of resilience, it only becomes prudent to make sure you've got clean water before you rehydrate." Id. Rehydration beforehand, with phosphorus-rich waters, results in "losing something you're not going to gain back in a reasonable amount of time." (Tr. 163) In other words, pollution of the water column in the Everglades with phosphorus and deposits of the phosphorus into the soil renders the area formerly unimpacted by phosphorus but impacted by disruption of hydropatterns or lack of water much less resilient and much less capable of achieving recovery in a reasonable amount of time. One of Colonel Rice's criticisms related to a moving front of degradation visible in its last stage by the advancement of cattails, the "tombstones on the grave of the Everglades." (Tr. 333) Indeed, it was proven that phosphorus enrichment in the EPA is causing a moving front. Colonel Rice offered a solution. Instead of measuring ambient water quality, that is, the quality of the water body as a whole, Colonel Rice suggested that a phosphorus criterion should be established at the points of discharge, that is, "in the water as it flows into the Everglades." (Tr. 335) He further suggested that the criterion should be a concentration of 10 ppb. There is little question from this record that Colonel Rice is correct that if the water flowing into the Everglades had a phosphorus concentration of 10 ppb, the phosphorus in the inflows of water would not cause an imbalance of the natural populations of aquatic flora and fauna. Despite the fact that Colonel Rice is not a wetlands ecologist, his opinions, given his outstanding qualifications, and his integral involvement with the Everglades as a District Commander in the Army Corps of Engineers, the entity that has had such a huge hand in the Everglades over the years and which now has such a central role in the restoration and preservation of the Everglades, are weighty ones. Colonel Rice's opinion that the Proposed Rule is not protective of the resource is the equivalent of stating that it allows the discharge of phosphorus that will create an imbalance of the natural flora and fauna, contrary to the Narrative Criterion. The ultimate issue in this case, however, is not limited to just whether the Proposed Rule interprets the Narrative Criterion appropriately. The ultimate issue in this case, is whether the Proposed Rule is an invalid exercise of delegated legislative authority, a determination that depends on an understanding of the all of the legislation that is at issue. Indeed, it depends on an understanding of the EFA as a whole. Beyond the Narrative Criterion, there are several aspects of the EFA that must be taken into account before the determination that this case requires is made. Those aspects, in other provisions of the EFA, include amendments enacted in 2003 immediately prior to the publication of the Proposed Rule. For example, Colonel Rice testified that "net improvement" in the Everglades would mean when cattails start to recede. The term "net improvement" in the EFA quite plainly refers to an improvement in water quality. Water quality could improve in an impacted area but not enough to cause cattails to recede. Thus, Colonel Rice's definition of "net improvement" is at odds with the EFA's use of the term. In short, there are provisions aside from the Narrative Criterion in the EFA that directly or indirectly authorize aspects of the Proposed Rule with which Colonel Rice finds fault. Other Provisions of the EFA The EFA requires the Department to establish discharge limits in permits using the "relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area." § 373.4592(4)(e)3., Fla. Stat. The Department is charged with determining ambient water quality based on the phosphorus discharges just as it does in the application of water quality standards generally in bodies of water in Florida other than the EPA. These limits must be set at a level "necessary to prevent an imbalance in the natural populations of aquatic flora and fauna" and "to provide a net improvement in the areas already impacted." Id. Again, the EFA charges the Department with the approach the Department has used for many years in its application of water quality standards. Compliance with the rule is to be based on a long- term geometric mean of phosphorus concentration levels at representative sampling stations "to assure" that the EPA "is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted." Id. Furthermore, Id. Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of the receiving waters in the [EPA . . .]. For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively, of the settlement agreement dated July 26, 1991, entered in case No. 88-1886-Civ-Hoeveler, United States District Court for the Southern District of Florida, that recognizes and provides for incorporation of relevant research. The EFA was amended by two session laws passed in 2003. The amendments were described at hearing by Frank Nearhoof, DEP's Administrator of Water Quality Standards and Special Projects Program. The program is responsible for a broad range of technical and regulatory activities under the EFA, CERP Regulatory Act and the Lake Okeechobee Protection Act. Mr. Nearhoof was accepted as an expert in Everglades ecosystem; the Everglades Forever Act; water quality data evaluation, including the statistical evaluation of data; and the establishment and implementation of water quality standards. The amendments were also described by Gary Goforth, Ph.D., Consulting Engineer with the Water Resources Management Group in the District. The 1994 EFA implemented BMPs and STAs to reduce phosphorus concentrations in the water column to 50 ppb. It also called for research to permanently establish a phosphorus criterion that would, in all likelihood, establish a number lower than 50 ppb. By 2003, enough was known as the result of experience with BMPs, the STAs and research "to implement a second phase of technology." (Tr. 1566) The EFA as amended in 2003 called for the implementation of this second phase and made four basic changes described by Mr. Nearhoof at hearing: long term plan [was put in place], which basically builds on the initial Everglades Construction Project, and adds certain modifications to the various STAs to enhance their treatment effectiveness. It . . . provided funding . . . of 450 million dollars . . . to build those enhanced features. . . . [I]n recognition that we're . . . setting a low criterion . . . , and that our technology [isn't] quite [sufficient] yet, it . . . put in place a relief mechanism to deal with that technological limitation ... -- the net improvement moderating provision. . . . And it also added another moderating provision for rehydration . . . of unimpacted areas . . . in the sense that they're unimpacted by phosphorus, [although] hydrologically impacted. And that's the provision that's been discussed that . . . under certain circumstances could allow [rehydration] even though the water may be less than perfect at that point in time. (Tr. 1566-1568) The EFA as amended in 2003 also requires the District to implement "without delay" and to periodically revise the Long-Term Plan, which is defined as "the district's 'Everglades Protection Area Tributary Basins Conceptual Plan for Achieving Long-Term Water Quality Goals Final Report' dated March 2003, as modified herein." § 373.4592(2)(j), Fla. Stat. The Long-Term Plan contemplates three enhancements to the state's current phosphorus control program and a demonstration project for an approach claimed to be effective with regard to phosphorus reduction. First, the District will install a series of interior levees and water control structures in the STAs that will increase their ability to move water uniformly through the treatment areas, thereby increasing phosphorus uptake. Second, portions of the existing cattail populations in the STAs will be converted to submerged aquatic vegetation (SAV). (Research has shown that combined cattail and SAV operations perform better than cattail alone.) Third, the District will refine the operations of the STAs in order to better balance hydraulic load and nutrient for each of the treatment cells between which the water is moved. Fourth, the District will conduct a large-scale demonstration project to explore the viability of periphyton-based stormwater treatment areas ("PSTA"), a technology claimed to allow further reduction in phosphorus levels. The demonstration project was described by Gary Goforth, Ph.D., at hearing: [W]e will be building a . . . demonstration project in STA-3/4. It will be [in] . . . one of the downstream cells of STA-3/4. * * * The total area devoted to the demonstration[] [is] 400 acres. There's a 200-acre upstream portion that'll be entirely SAV. And then downstream . . . there'd be roughly a 100-acre PSTA cell, and then a 100-acre SAV cell side-by-side. (Tr. 3800-3801) The results of the PSTA cell phosphorus reduction will be compared to the results of the SAV cell to determine if PSTA is a superior technology, as claimed, for phosphorus reduction by means of stormwater treatment areas. The Long-Term Plan also contemplates coordination with the $8.1 billion Comprehensive Everglades Restoration Plan ("CERP"). CERP is a conceptual plan intended to modify and replumb the C&SF Project to rectify water resource problems caused by the Project. It addresses water quality, water quantity, timing of water deliveries and the distribution of water flows. With a 50-year planning horizon (until 2050), CERP calls for full implementation by the year 2036. There are several CERP projects that will require direct coordination. For example, CERP includes a project that will divert water from the C-11 basin (which presently pumps water into the Everglades from the S-9 pump station), south and away from WCA-3, in order to eliminate the basin as a source of phosphorus. The project will render obsolete an STA that had been planned for western Broward County. The District, therefore, is implementing source controls in the interim so as to obviate redundant costs. Computer modeling of the Plan's pre-2006 strategies predicts phosphorus levels in discharges from the STAs at a geometric mean of 10 to 14 ppb. In the event the phosphorus criterion is not achieved by January 2007, however, the Long- Term Plan sets forth additional control measures to be evaluated and implemented if necessary. In addition to the provisions relative to the Long- Term Plan, the EFA as amended in 2003 allows a Department rule adopting a phosphorus criterion to include "moderating provisions," not to extend beyond December 2016 without further legislative authorization: The Department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to the impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with the anti- degradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592(4)(e)2., Fla. Stat. EFA Requirement for Research and Monitoring The EFA also required establishment of an extensive research and monitoring program to serve as the scientific foundation for the phosphorus criterion rulemaking and related efforts. § 373.4592(4)(d), Fla. Stat. As part of that program, the EFA required the District to conduct annual workshops and to file annual peer-reviewed status reports on the research and monitoring efforts with the Governor and the Legislature. § 373.4952(4)(d)5., Fla. Stat. Besides the EFA, the reports address a number of different requirements in law. In fact, they contain "over 40 different legal mandates and permit reports . . . under one cover" (Tr. 3429) and so are referred to as the Everglades Consolidated Reports. See, e.g., District 16, the 2003 Everglades Consolidated Report. Post-EFA Events In the wake of the enactment of the EFA and the acceptance of the Settlement Agreement a number of events occurred relevant to these proceedings. The EFA phosphorus criterion research program and external peer-review process were implemented and documented. See 2003 Everglades Consolidated Report, Executive Summary, DEP Ex. 24. The USEPA issued technical guidance on state water quality standards and also on how Florida should go about establishing the numeric interpretation for the narrative nutrient criterion for the Everglades. Modifications to conform the Settlement Agreement to the EFA were proposed by the settling parties in 1995. They were approved by the federal court in 2001. See DEP Ex. 13. The primary changes included increases of the number and sizes of the STAs and an extension from July 1, 2002 until December 31, 2006, of the deadline for meeting the long-term limits for the Park and for meeting the lower of the Class III standard or long-term levels for the Refuge. In August of 1994, the USEPA updated its Water Quality Standards Handbook ("USEPA WQS Handbook"). See Coop Ex. 9, substitute App. 13 (filed January 15, 2004). The USEPA WQS Handbook makes clear that state relief procedures that are a part of their water quality standards "must be consistent with the requirements of 40 CFR 131." Id. at pp. 5-12. See 40 CFR § 131.13 ("States may, at their discretion, include in their State standards, policies generally affecting their application and implementation.") USEPA will continue to approve state- granted relief if, among other things, "the State demonstrates that meeting the standard is unattainable based upon one or more of the grounds outlined in 40 CFR 131.10(g) for removing a designated use." See Coop Ex. 9, substitute App. 13 (filed January 15, 2004) at pp. 5-12. In 1997, while the state's research and phosphorus reduction programs were underway, the Tribe adopted water quality standards for "all Tribal Reservation Surface Waters." ("Tribe Standards"). Miccosukee Tribe of Indians, Water Quality Standards, Dec. 19, 1997. See US Sugar Ex. 11. Tribe Standards allow for moderating provisions in the form of variances or mixing zones (id. at 24-27), where the discharger demonstrates, among other things, "that meeting the standard is currently unattainable based on one or more of the grounds outlined in 40 CFR § 131.10(g) from removing a designated use." Id. at 24, 30. Development of the Proposed Rule The EFA Mandate re: a Numeric Phosphorus Criterion In addition to the Department's rulemaking authority set out in Section 403.061(7), allowing the Department to implement Chapter 403 as a whole, Chapter 373 includes an analogous provision. Section 373.043 states that the Department has the authority "to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter," referring to Chapter 373 which includes the EFA. Lest there be any confusion on the point, the EFA mandate to adopt a numeric interpretation of the Narrative Criterion is set out under Section 373.4592(4)(e), entitled, "Evaluation of water quality standards." In keeping with the nature of the phosphorus criterion as an element of a water quality standard, moreover, the Proposed Rule is entitled, "Water Quality Standards for Phosphorus Within the Everglades Protection Area." Development of the Criterion The development of the phosphorus criterion is well documented. See DEP Ex. 24, Chapter 5; DEP Ex. 23, Everglades Phosphorus Criterion Technical Support Document, Parts I-III. A number of different groups provided research, some of which preceded the EFA, that contributed to its development. The District had been conducting research for some time, "some of their publications go back into the 70's." (Tr. 1582) Duke University Wetlands Center conducted research in the Everglades, some of which was intended to be useful for Department rulemaking with regard to phosphorus. Florida International University also conducted research useful to the Department. In the meantime, the Settlement Agreement was entered and approved by the federal court. The agreement called for a Technical Oversight Committee (the "TOC"). See Definition R., p. 6, of the Settlement Agreement in DEP Ex. 13. Paragraph 18 of the Settlement Agreement required that each of five persons, the Superintendent of the Park, the Manager of the Refuge, the Secretary of the Department, the Executive Director of the District and the District Engineer, Jacksonville District, U.S. Army Corps of Engineers, appoint one technical representative to the TOC. Among the purposes of the TOC was to "plan, review and recommend all research, monitoring, and compliance, conducted pursuant to the terms of this agreement . . . ." DEP Ex. 13, paragraph 18, p. 26, of the Amended Settlement Agreement attached to the Omnibus Order. The TOC also "was set up to assure that technical issues were going to be addressed in an open, deliberative forum." (Tr. 3425) TOC nominated four participants to develop a threshold research plan under the direction of Dr. Landon Ross, the Department's chief biologist at the time. Two of the four working under Dr. Ross' direction were federal nominees, Dr. David Lean and Dr. William Walker; two were state nominees, Dr. Robert Wetzel and Dr. Kenneth Reckhow. Convened under the direction of Dr. Ross, the four produced a formal technical document: the Everglades Nutrient Threshold Research Plan (the "Research Plan", sometimes referred to as "Lean, et al.," because the name of Dr. Lean is listed first on the formal document). Not only was the Research Plan developed with federal and state input, but its results were reported annually in the Everglades Consolidated Report. They were, moreover, subject to and approved by an annual peer review conducted as part of the document's preparation. The methods of the process, the reporting of its results and the ensuing peer review led witnesses at hearing, including Dr. Garth Redfield, Chief Environmental Scientist for the District, to conclude that the criterion and its achievement methodology were protective of the Everglades aquatic flora and fauna, and were developed in accordance with accepted scientific practices. One of the Tribe and Friends' criticism of the methodology for deriving the phosphorus criterion, presented through David Parkhurst, Ph.D., is that it ignores mass balance, a concept which assists in the measurement of the net amount of phosphorus left in a water body after the calculation of the flow of phosphorus into and out of the water body. Indeed, an initial question was whether the research should address the mass of phosphorus entering the Everglades. In conjunction with an Everglades Technical Advisory Committee ("ETAC"), "all of the scientists that were actively working in the area," (Tr. 1591) were convened. A peer-review group of three outside scientists were impaneled to review the question as well. While it was determined that the system responds to both mass and concentration, the consensus was that it was both easier and better to conduct research on the basis of the concentration levels of phosphorus in the waters of the Everglades. One reason that it was decided not to conduct research on load is that in order to determine load, "you'd have to know the flow." (Tr. 1595) Flow is easily calculated as it comes through structures, that is, at the point of discharge. It is not easily calculated in the marsh where flow is so slow. "[Flow] isn't a calculable number in the middle of [Everglades] marsh typically." (Tr. 1597) Moreover, because of the Legislature's policy choice to regulate phosphorus in a water quality standard for ambient water quality rather than at the point of discharge, it makes more sense to approach the problem from a concentration level perspective. The calculation of load is also complicated by the necessity to know both the "flow in" and "flow out." This calculation is further complicated by seepage, "surface water that's going into the ground . . . ." (Tr. 1598), precipitation, dry fall, and the effect of evaporation. At bottom, regardless of whether concentration levels or load was examined, the purpose of the Research Plan was to determine a threshold at which a departure from natural flora and fauna occurred such that there was imbalance. It was determined that the research toward a threshold at which imbalance occurs should focus on concentration levels in the ambient water. The Three-prongs of the Research Plan The Research Plan recommended a three-prong approach consisting of (1) field transect monitoring along existing man- made nutrient gradients; (2) dosing experiments; and (3) laboratory experiments. Research performed by the South Florida Water Management District included all three approaches suggested by the panel under the Research Plan. Additional research efforts included those of the Duke University Wetland Center, Florida International University, and the USEPA's Regional Environmental Monitoring and Assessment Program (REMAP). Throughout the process of developing the Proposed Rule, the Department solicited feedback from interested parties through the TOC and an ETAC, convened by the Department specifically for that purpose. While valuable to understanding imbalance, the mesocosm and laboratory studies were not used directly to derive a numeric phosphorus criterion. As explained in the 2003 Everglades Consolidated Report (the "2003 Report"): While the District's mesocosm and laboratory studies provide much information about how and why the biological changes occur, they were not designed nor intended to be used to derive a numeric criterion. (District Ex. 16, p. 5-6) That left the transect monitoring as the main approach that had been recommended by the Research Plan. It is described in the 2003 Report: [DEP's] efforts to derive a numeric P [Phosphorus] criterion relied primarily on data collected by the District along a series of transects traversing existing phosphorus gradients in each portion of the EPA (WCA-2, the Refuge, WCA-3 and ENP [the Park]). [DEP] relied heavily on the gradient transect studies during the derivation of the P criterion due to their distinct advantages over experimental studies. Because some areas within the EPA have received elevated levels of phosphorus- rich runoff for as long as 40 years, [DEP] had an excellent opportunity to study what had happened to the natural biological communities in the marsh as a result of long-term P enrichment. Id. Whatever the outcome of the threshold research with regard to a numeric concentration level expressed as a geometric mean or as some other measure of central tendency that constituted a threshold of imbalance, DEP did not use a numeric expression of a threshold to derive the numeric phosphorus criterion. In adopting its ultimate approach, DEP's hypothesis was not a threshold hypothesis. (See Tr. 3288) Rather than asking the question at what long-term geometric mean level of phosphorus concentration does imbalance occur, DEP asked the question at what long-term geometric mean of phosphorus concentration is balance maintained. In other words, the approach was not a "threshold approach." (See Tr. 3288) Instead of using a threshold point at which imbalance occurs as a beginning point in setting the numeric criterion (see the discussion of confidence intervals, below), DEP set out find the central tendency of water column concentrations of phosphorus in which "reference conditions" were maintained. Reference conditions are conditions in which there is no imbalance. This approach, which "switches" (id.) a threshold hypothesis had ramifications, as explained below, for whether DEP should move downward in value from the geometric mean revealed by the data in deriving the criterion (the direction militated by a threshold approach if there was to be any movement away from the data's geometric mean) or upward in value (the direction taken by DEP since the approach determined a geometric mean at which there was no imbalance.) The site of the reference conditions, also as explained more fully below, was in the same general area (identified by DEP as "minimally impacted") in which gradient transect threshold research was conducted. Unlike the transects which crossed from unimpacted soils into impacted soils, however, the reference sites were in unimpacted soils only. Ultimately, analysis of the data collected from specific "reference sites" in a "minimally impacted" area of WCA-2 was used to establish the numeric phosphorus criterion. This methodology for establishment of the numeric phosphorus criterion is referred to by DEP as the "reference site" approach. Reference Site Approach The 2003 Report describes the "reference site" approach, its scientific acceptance and the basis for its use: [DEP] employed a "reference site" approach during the evaluation and analysis of the District gradient transect data. The use of reference sites to evaluate biological integrity, establish restoration goals and develop water quality criteria has become standard practice [citations omitted] since the USEPA issued an explicit definition of "biological integrity" in 1982 that incorporated the concept of reference sites [citation omitted]. [DEP] used the reference site approach during the development of a numeric P [phosphorus] criterion for the EPA based on maintaining balanced populations of natural flora and fauna (reference conditions) because of its widespread acceptance, the existence of long-term manmade P gradients in the EPA, and the type of biological response characteristic of P enrichment. Id. Figure 5-1 on page 5-8 of the 2003 Report (admitted into evidence as an excerpt from the report, DEP 24A) is a sediment contour map. The sediment contours provide phosphorus concentrations in milligrams per kilogram in the upper 10 centimeters of sediment. The map shows the locations of transect monitoring sites established across a phosphorus gradient in WCA-2A. The gradient extends from the source of phosphorus enrichment (points where phosphorus-rich waters are discharged, also termed as "canal inflows") into an area in which imbalance caused by phosphorus enrichment was not visible, described in the 2003 Report as "not impacted." District Ex. 16, p. 5-6. Some of the contours are designated with numeric values of milligrams per kilogram. They range from a high of 1600 mg/kg to a low of 400 mg/kg. There are two transects on the WCA-2A site, an "E" transect and an "F" transect. The E transect shows five transect stations labeled E1 through E5 and a sixth station labeled E0, at the point of the canal inflow. Similar labeling occurs with regard to the F transect with six stations. The higher the station number the farther away it is from the point of discharge so that E5 and F5 are the transect stations that are the farthest from the source of the phosphorus and E0 and F0 (the "0" being a zero) are the stations at the point of discharge or inflow. There are also three other stations on the map identified as U1, U2 and U3. Stations U1, U2 and U3 are farther away from the canal inflows than are E5 and F5. Based on preliminary data analyses and field observations, Stations U1, U2 and U3 were designated as initial "reference" sites, that is, sites that exhibit reference conditions, conditions in which balanced populations of natural flora and fauna are maintained. Consistent with the aim of the Research Plan to establish a phosphorus threshold, the purpose of collecting and analyzing data at the transect stations was to determine where along the transects imbalance had occurred, that is to establish a tipping point or a threshold of imbalance. Multiple measures of the periphyton, macroinvertebrate and macrophyte communities in WCA-2A, along with measure of ecosystem function, were examined. These included the loss of the more sensitive assemblages of organisms such as calcareous periphyton mat, the dominance of more nutrient tolerant organisms, the loss of open water habitat critical to fish and birds, and depressed dissolved oxygen levels. Analyses of the data consisted of multiple statistical tests (including cluster and change point analyses). This allowed DEP to use a weight-of-evidence approach that factored all the analyses into the determination of where along the transects an imbalance occurred. For WCA-2A, the statistically significant changes in the structure and function of the various biological communities generally occurred on the E transect at a point between E4 and E5 and on the F transect at a point between F4 and F5. As one would expect, the farther away from the canal inflow of the phosphorus-rich waters, that is, the farther along the gradient from the point of inflow, the less the impact6 generally. The change generally occurred between 7 and 8 km downstream of the inflows, a point between E4 and E5 on the E transect and between F4 and F5 on the F transect. The 2003 Report makes it clear that the ultimate purpose of the analyses was not to determine a threshold of imbalance from which a numeric phosphorus criterion would be derived but to determine which stations, if any, on the transects were in waters that would support a balance of flora and fauna: The purpose of these analyses was not to derive a phosphorus threshold, but to delineate the sites impacted by P [phosphorus] enrichment from those that are biologically similar to the initial reference sites and could thus be used to derive a long-term P criterion. Id. at 5-7. To re-phrase, "[t]he results of the analyses were used to determine which sites along the gradient are minimally impacted by [phosphorus] enrichment and could therefore be incorporated into a set of reference sites." Id. The ultimate aim, then, was not to determine a threshold value but to determine which of the transect stations could be joined with U1, U2 and U3 to form a set of reference sites. Based on the analyses of the transect data, it was determined that Stations E5 and F5 were not only stations below the gradient where the threshold of imbalance occurred and stations where balance was maintained but that they were biologically similar to the initial references sites, U1, U2 and U3. A single group of reference sites were then formed consisting of these five stations: E5, F5, U1, U2 and U3. After the set of reference sites was established, ambient phosphorus regimes at the sites were used to statistically derive a numeric phosphorus criterion. The Department analyzed the annual median and geometric mean total phosphorus concentrations for the reference sites. Reviewing data from WCA-2A and WCA-1, the Department calculated arithmetic and geometric means and statistical confidence intervals looking at a number of reference periods and locations: 1978 to 2001 and 1994 to 2001 in WCA-2; 1996 to 2001 in WCA-1. The Tribe and Friends attack the reference site approach used by the Department on a number of bases. With few exceptions (criticisms by way of Dr. Jones' testimony, such as that comparison with data collected before 1995 should not be used because data collection was better after 1995 or that use of data from reference sites in WCA-2, an area that does not represent the least impacted portion of the EPA, should not have been used), the attack is based on cross-examination of witnesses who testified in favor of the reference site approach. One such example concerns the Tribe and Friends' assertion that the phosphorus criterion was not selected on the basis of dosing studies, the most common method, as the state concedes, see Tr. 1901, for scientifically determining the threshold effect of a "toxin." Id. With regard to whether dosing studies are the method of choice for determining the threshold effect of all substances, however, Mr. Nearhoof was not sure. With regard to nutrients, such as phosphorus, his answer was that dosing studies, while an acceptable way of evaluating threshold effects, were not necessarily the method of choice: [T]he State of Florida . . . in this exercise [the reference site approach for determining the phosphorus criterion] is way ahead of the nation or the world, for that matter in having done what we've done. I don't think anybody else around has replicated anything remotely like this. So I don't know that there is a common way for that. (Tr. 1901) The results of dosing studies conducted by Dr. Jones (about which Dr. Jones was not allowed to testify because of the Tribe's refusal to disclose documents and data in discovery) had been recently received by DEP but there had not been time to review them in detail. Furthermore, dosing studies were conducted by Duke University, were "corroborative" (Tr. 1904) of the results of the reference site approach used to set the phosphorus criterion. The Tribe also stresses that only five stations in WCA-2, an impacted body of water, were used to establish a criterion that applies to all of the Everglades. The preponderance of the evidence is that five stations were adequate for establishing a set for sites that exhibited reference conditions, particularly given the relationship of two of the stations (E5 and F5) to the transect monitoring studies and the evidence that they were at sites that exhibited reference conditions close to phosphorus gradients and the moving front of advancing cattails. A weighing of the testimony on cross-examination, the use of documents, and the minimal direct examination used to attack the reference site approach against the direct and re- direct testimony of witnesses in support of the approach, leads to the conclusion that, by a preponderance of the evidence, the reference site approach is rational. It is, moreover, scientifically appropriate, reasonable and supported by logic or necessary facts. The Tribe and Friends' attack on the reference site approach fails. The reference site approach yielded data and analysis that was but one step toward establishment of the phosphorus criterion. There were a number of other steps. In the next of the preliminary steps, central tendencies of annualized data that related to stations in either the Refuge or WCA-2A were determined and expressed as geometric means, arithmetic means or both. (For example, see DEP/ERC 17, which provides a summary expressed in both a geometric and an arithmetic mean for WCA-2A for the years 1978-2000, with the exclusion of data for the years 1984, 1985 and 1992 when too little data was collected). A summary of total phosphorus concentrations measured at the five reference sites in WCA-2A appears in Table 5-1 of the 2003 Report in several sets: for individual years from 1978 to 2001; as a summary of the years 1994-2001 and as a summary of the years 1978-2001. A summary of total phosphorus concentrations measured at five stations in the Refuge from 1996 to 2001 appears in Table 5-2 of the 2003 Report. Other steps followed in the derivation of the numeric criterion. These appear in Table 5-3 of the 2003 Report. See the findings related to Table 5-3, including the application of a confidence interval, the selection of the upper limit in the interval, together with a rounding of that limit up to 10, discussed below. These will be explained in the discussion below that relates to Section (4) of the Proposed Rule. Other steps followed as well in the development of the Proposed Rule. Development of the Proposed Rule On July 20, 2001, the Department published a Notice of Rule Development in the Florida Administrative Weekly. The notice announced rule development to establish a numeric phosphorus criterion for the Everglades Protection Area, via the amendment of Rule 62-303.530 (Table: Surface Water Quality Criteria) and creation of Rule 62.302.540 (Water Quality Standards for Phosphorus Within the Everglades Protection Area). Pre-Hearing Stipulation, Ex. 4, No. 4. The parties stipulated to a series of publications of notices and continuances of hearings before the ERC that led to ERC approval of a proposed rule during the July 8, 2003, meeting. Id. at 5-7. During the interim, the ERC held numerous public meetings to consider testimony and other evidence in support of DEP's rule as proposed at that point. ERC considered evidence in support of Lower Cost Regulatory Alternatives submitted by other entities, including the Cooperative, that proposed adoption of a higher numeric phosphorus criterion in impacted areas than in unimpacted areas. On July 18, 2003, the Department published a Notice of Change on the Department's Official Internet Noticing Site, pursuant to Section 120.551, which included the rule as approved by the ERC and announced the availability of a Statement of Estimated Regulatory Costs ("SERC"). Id. at 9. On July 25, 2003, the Department published a second Notice of Change on the Department Official Internet Noticing Site, pursuant to Section 120.551. The notice corrected a scrivener's error in the Notice of Change as published on July 18, 2003. Id. at 10. Issues Related to the Proposed Rule Section (1) Purpose and Scope Section (1) of the Proposed Rule articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area but establishes, as the title reflects, water quality standards for phosphorus within the EPA. There is no disputed issue of fact or law as to Section (1) of the Proposed Rule. Section (2) Findings The Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Section (2) of the Proposed Rule is similar. It sets forth findings relevant to the initial finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the EPA must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Petitioners assert the factual inaccuracy of the sentence in Subsection (2)(b) that "Stormwater Treatment Areas (STAs) have reduced phosphorus concentrations to less that the goal of 50 ppb established in the Everglades Forever Act." The assertion is based on Table 4A-1 of the draft 2004 Everglades Consolidated Report. See Tribe/Friends Ex. 120, p. 2. The Table is a Summary of Stormwater Treatment Area (STA) hydrology and total phosphorus (TP) removal for Water Year 2003. For "Flow-weighted mean Outflow TP (ppb)" the table shows values for STA-1W, STA-2, STA-5 and STA-6 of 53, 17, 136 and 26 respectively; for All STAs, the table lists a value of 54. Two of the STAs for Water Year 2003, therefore, were in excess of 50 ppb and STA-5, in particular, was 172% above 50. There is, therefore, a basis for the Tribe/Friends' assertion. In support, their witness, Colonel Rice, after review of the table, concluded that "the most recent information published . . . [shows] that the finding is . . . not really being met." (Tr. 177) Mr. Nearhoof conceded that in the most "recent period," that is, as the Water Year 2003 data is reflected in Table 4A-1 of the Draft 2004 Consolidated Everglades Report, the total phosphorus levels have "crept back up a bit . . . ." (Tr. 2048) Considering the entire time the STAs have been operational (since 1994 for some and 1999 for the others), however, the range of total phosphorus flow-weighted mean outflow "has been generally down [to] . . . 20 to 30 part[s] per billion . . . ." Id. The long-term average of total phosphorus "flow-weighted mean outflow," therefore, has been below 50 parts per billion. Mr. Nearhoof's testimony is confirmed by the statement in the summary of "Chapter 4A: STA Performance and Compliance" of the Draft 2004 Everglades Consolidated Report that: "As of the end of Water Year 2003, the four operational STAs combined have reduced total phosphorus concentrations to about 40 parts per billion (ppb)." Tribe/Friends Ex. 120, p. 1. Petitioners also took issue with a portion of Subsection (2)(g) of the Proposed Rule: "[a]chievement of water quality standards for water quality projects required under the Everglades Forever Act can be most effectively and efficiently attained when integrated with CERP projects." The contested sentence in Subsection (2)(g) is similar to Section 373.4592(3)(c): It is the intent of the Legislature that implementation of the Long-Term Plan shall be integrated and consistent with the implementation of the projects and activities in the congressionally authorized components of the CERP so that unnecessary and duplicative costs will be avoided. Nothing in this section shall modify any existing cost share or responsibility provided for projects listed in s. 528 of the Water Resources Development Act of 1996 (110 Stat. 3769) or provided for projects listed in s. 601 of the Water Resources Development Act of 2000 (114 Stat. 2572). The Legislature does not intend for the provisions of this section to diminish commitments made by the State of Florida to restore and maintain water quality in the Everglades Protection Area, including the federal lands in the settlement agreement referenced in paragraph (4)(e). The "Long Term Plan" details the South Florida Water Management District's overall approach to achieving water quality goals in the Everglades Protection Area. DEP Ex. 25. See also § 373.4592(2)(j), Fla. Stat. Dr. Gary Goforth, the Chief Consulting Engineer for the Water Management District's Water Resources Management Group, detailed the importance of integrating water quality enhancement with CERP projects to avoid unnecessary and redundant costs with the following example: [T]he C-11 West basin . . . discharges water to the Everglades from . . . the Weston Area [near] Fort Lauderdale . . . That . . . basin has several CERP projects associated with it . . . that will reduce significantly the amount of water that eventually goes into the Everglades. So if we're to design and build a project that treats all of the water that presently goes through S-9, within just a very few years, that project would be unnecessary since the CERP project is going to be diverting virtually all of that water away from the S-9 pump station. (Tr. 3807) Dr. Goforth went on to explain that the practical impact of lack of coordination would be spending several hundred million dollars unnecessarily. Once CERP is implemented, moreover, there would be impoundments to assist in meeting water supply needs and diversion of the rest of the water southward. Ultimately, there is nothing about the Findings section as challenged in this proceeding that would support a determination of invalidity. Section (3) Definitions The Tribe and Friends challenge the definition of "impacted areas" in Subsection (3)(d) of the Proposed Rule. "'Impacted Areas' shall mean areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Soils are reservoirs of recent history, "so they do give . . . a longer term picture of what's going on in the system." (Tr. 3517) Dr. Jones believes soil "to be a very good indicator if used properly." (Tr. 3099) He has published papers with soil concentrations as a basis for demonstration of impacts to the Everglades. Nonetheless, he does not believe the Proposed Rule uses soil properly to determine impact because of the use of a single level of 500 mg/kg phosphorus concentration as a measure of impact, no matter what the soil type. Colonel Rice joined Dr. Jones in the criticism of the use of a single concentration level in soils because of soil type variability in the Everglades. North of the Tamiami Trail, that is north of the Park, the soil in the Everglades is predominantly peat. South of the Trail, it is a mixture of peat and marl and then becomes calcitic. For each of the soil types, Dr. Jones and Colonel Rice believe a different level of phosphorus is required to determine impact. The soil south of the Trail, moreover, may be more marl than peat or more peat than marl. Depending upon whether the mixture is more peat or marl, Dr. Jones would ascribe different concentration levels of phosphorus in the soil to determine whether there had been impact. Furthermore, there are other indicators, in the opinion of Dr. Jones and Colonel Rice, that should be considered to determine impact: phosphorus in the water column, dissolved oxygen levels, and changes in flora and fauna, particularly in the periphyton communities. Dr. Garth Redfield, on behalf of the District and disclaiming any depth of expertise in soils, conceded that in addition to soil the use of appropriate indicators other than soil would provide more information and so "could" (Tr. 3599) yield better accuracy. But his opinion as a scientist and expert in Everglades ecology is that the definition is reasonable since it was the product of careful deliberation at public workshops by experts from DEP, the District and other groups. Among those experts was Mr. Nearhoof. Mr. Nearhoof did not address directly the opinions of Dr. Jones and Colonel Rice that soil alone should not be used to determine impact. He did testify, however, that soil phosphorus tends to be a more stable and consistent parameter than surface water total phosphorus (one of the other indicators advanced by Dr. Jones) because soil integrates the effect of variability. Soil isopleths are consistent and stable and better able to define an impacted area than water column concentrations, which vary to a greater extent. The Department points out in its proposed order, moreover, that Section (5) of the Proposed Rule, which sets forth the method for determining the achievement of the numeric phosphorus criterion in areas of the EPA deemed impacted, states in its last sentence: Notwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and the annual geometric mean is less than or equal to 15 ppb. While this statement does not meet directly the criticism of Dr. Jones and Colonel Rice, it demonstrates that soils are not always the sole determinative parameter as to whether an area is impacted. Ambient water quality dictates that an area that would be classified as impacted based on a soils analysis be classified as unimpacted if ambient water quality data under the Proposed Rule so dictates. Finally, to the extent that impacted areas have a relationship with imbalance of aquatic flora and fauna, DEP 24A (Figure 5-1 in the 2003 Everglades Consolidated Report) and the discussion, above, concerning the reference site approach demonstrate that the threshold of visible imbalance in the location of the gradient transect monitoring sites in WCA-2 occurs where concentrations of phosphorus in the upper 10 cm of soil are somewhere between 400 mg/kg and a level above 600 mg/kg. The F5 station is located between contour lines marked 400 and 600. The E5 station is close to a spot that is below 400 mg/kg. It may be concluded that it is at a spot that is below 500 mg/kg. The F4 station is in an area that is between a 600 mg/kg contour and an 800 mg/kg. So is the E4 station. The points of imbalance determined by the transect studies in WCA-2, therefore, lends support to the definition of an impacted area as one whose phosphorus soil concentrations in the upper 10 cm exceed 500 mg/kg., that is, at a spot that is between the E5 and E4 stations (somewhere between 400 mg/kg and above 600 mg/kg) on the E transect and between the F5 and F4 stations (somewhere between a 400 to 600 mg/kg value and a value above 600 mg/kg) on the F transect. A weighing of the evidence leads to the conclusion that the Department by a preponderance of the evidence has proven that the definition is valid. Section (4) Phosphorus Criterion Section (4), of the Proposed Rule, concerns two concepts: establishment of the phosphorus criterion and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Establishment Establishment of the criterion is at the "heart" of the Proposed Rule. It is a numeric interpretation of the Narrative Criterion and, if adopted timely, avoids the statutory imposition of the Default Criterion. The numeric criterion of the Proposed Rule differs in specificity from the Default Criterion in the statute. The Default Criterion is silent as to whether the criterion shall be an "arithmetic" or "geometric" mean or some other statistical or non-statistical measure of concentration of a water body based on multiple sampling events such as "mode," "median," or "harmonic mean." Unlike the Default Criterion in the statute, the Proposed Rule specifies that the phosphorus criterion "shall be a long-term geometric mean of 10 ppb " The Department, supported by the other parties opposed to Petitioners, justifies the use of a "geometric mean" in the Proposed Rule's establishment of the criterion on a number of bases. For one, subsection (4)(e) of the EFA, "Evaluation of water quality standards," the very subsection of the EFA that mandates adoption of a "Phosphorus Criterion Rule," also mandates that compliance with the criterion be based upon a long-term geometric mean of concentration levels: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving waters in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. § 373.4592(4)(e)3, Fla. Stat. (Emphasis supplied) For another, a long-term geometric mean of concentration levels is a conventional way of determining numeric criteria, elements in water quality standards that govern ambient water quality, as well as compliance with the standards. If the Tribe and Friends' opponents are correct, that the statutory language with regard to "long-term geometric means" and "water quality standards" defeat a determination that the Proposed Rule constitutes an invalid exercise of delegated legislative authority on the basis of its use of long-term geometric mean in establishment of the criterion, then there is no need to find facts with regard to the criticism. Even if the other parties are correct, however, there is relevance to the criticism because it relates to Colonel Rice's opinion that a number of factors in the Proposed Rule allow a greater amount of phosphorus to enter the Everglades (use of a long-term geometric mean being only one of them) that when taken alone or together contravene the statute's Narrative Criterion. Statutory language aside, the Department and the other parties vigorously responded to the criticism at hearing by offering justification for the use of a long-term geometric mean. Findings of fact are also made with regard to the response. Criticism of the Use of a Geometric Mean In statistics textbooks when the word "mean" without a descriptor is used, it refers to the arithmetic mean. "Arithmetic mean" is also a term used interchangeably with "average" as in the average of a number of different values. An arithmetic mean accurately describes the average concentration levels of substances in a number of samples of water whose concentration levels vary. A geometric mean accurately describes the central tendency of concentration levels in samples of water whose data set exhibits a log normal distribution. A mean is one of several methods of expressing a measure of "central tendency," a central value around which less frequently observed high and low values fluctuate. (Other methods of expression of central tendency of a data set include modes and medians. Means, moreover, are not limited to geometric and arithmetic means, there is also a harmonic mean that is an expression of central tendency.) Because "central tendency" may be expressed by several methods, Dr. Ian McKeague, DEP's expert statistician, referred to it as a term that is not well-defined and that has a flexible meaning. (See Tr. 652) "[Central tendency] . . . in a vague sense . . . represent[s] . . . the center of a . . . collection of measurements or a distribution." Id. Which method of expression is most appropriate depends on characteristics of the data set or measurements it describes. For data sets that are log-normally distributed, the more statistically appropriate and preferred expression of central tendency is a geometric mean. "Arithmetic means" are determined by adding a series of values (or data points) and dividing the sum by the number of values (or data points). Using three numbers, an arithmetic mean would be arrived at by this formula: a + b + c = d; d/3 = the arithmetic mean In the formula, three values (a, b, and c) are added to reach a sum (d). The sum is then divided by the number of values (3) to calculate the arithmetic mean of the three values. To use numbers, by way of example: 1 + 4 + 16 = 21; 21/3 = 7. The arithmetic mean of the three numbers, "1, 4 and 16" is "7." A "geometric mean" is "the antilog of the mean logarithm of a set of numbers, or equivalently, the nth root of the product of n numbers." Tribe/Friends Ex. 46. The formula for calculating a geometric mean of three numbers is: x (b) x (c) = d; the cube or 3rd ? (in this example, the 3rd root is taken because it employs three values) of d = the geometric mean. The value "a" is multiplied by the value "b" which is multiplied by the value "c." The product of the three is "d." The cube root or "3rd root" is taken of d because there are three values in the data set. The cube root of "d" is the geometric mean. To use the same numbers as used in the example of an arithmetic mean, above: 1 x 4 x 16 = 64; the cube root or 3? of 64 = 4. For all practical purposes, the geometric mean of a data set is always lower than the arithmetic mean of the same data set. (Geometric means and arithmetic means will be the same when the data points are equal, an event that in the real world of water sampling almost never occurs. See Tr. 244.) In the examples used above, for instance, the geometric mean of the data points with values of 1, 4 and 16 is "4," a number lower than "7," the geometric mean for the same data points. A geometric mean of samples of concentration levels of a substance in water may bear little resemblance to physical reality. (Dr. Parkhurst, at page 449 of the transcript, testified that the geometric mean "has no physical meaning whatsoever." It is accepted that a geometric mean may have no physical meaning in some cases. But the testimony that it never has physical meaning is rejected as an overstatement in light of other testimony of record.) This point was made by Colonel Rice with an example similar to an example employed by Dr. Parkhurst in his paper admitted into evidence as Tribe/Friends 46: Arithmetic Versus Geometric Means for Environmental Concentration Data, Parkhurst, Environmental Science and Technology/News, Feb. 1, 1998, p. 92A. Colonel Rice referred to two jars of equal volumes of water, one of which contained one arsenic unit and the other of which contained 100 arsenic units.7 The arsenic concentration of the first bottle is one unit per bottle; the concentration of the second is 100 units per bottle. Pouring the two bottles together into a container double the size of the jars would yield a concentration of 50.5 units per the bottle volume. This concentration would be the same as the arithmetic mean of the two original bottles: 1 + 100 = 101. The sum of the two data points (101) divided by the number of data points (2) equals 50.5. In Colonel Rice's example, the geometric mean would be 10, a number far lower than the actual concentration expressed by the arithmetic mean of 50.5. The geometric mean would be calculated by multiplying the values of the two data points: 1 x 100 to equal 100. The square root or 2? (taken because there are two data points) of 100 equals 10. The example is cited because it so clearly illustrates several characteristics of geometric means versus arithmetic means. The example is problematic, however, when applied to the methodology used to derive the numeric phosphorus criterion and the achievement methodologies in the Proposed Rule. Neither the derivation nor the achievement methodologies are the result of taking two containers or "buckets" as they were referred to by a critic of Colonel Rice's testimony, and pouring them together. The derivation and the achievement methodologies involve taking many samples at number of stations over time. A comparison of the examples of Colonel Rice and Dr. Parkhurst shows another property of comparison between arithmetic mean and geometric mean. The greater the variability among data points in the data set used to calculate the arithmetic and geometric means, the greater the difference between the two. One reason that the geometric mean of a set of data points of concentration levels of substances in water may bear little resemblance to the actual concentration level of water is that the geometric mean discounts large values. It does so, moreover, without knowing the cause of the high value and without a conscious choice to exclude it for a justifiable reason. For example, a high value could be due to a high discharge of phosphorus that could cause degradation. On the other hand, a station from which a sample is taken could have become contaminated by a nearby alligator hole, a localized event that would justify exclusion of the sample's data because it has little, if anything, to do with phosphorus discharge into the EPA. Another problem with the use of a geometric mean is that it can reverse the appropriate way in which a set of data is to be regarded if there is much greater variability in one set than in another. An example was testified to by Dr. Parkhurst and appears at page 50 of the Tribe/Friends proposed recommended order. Assume that the values represent parts per billion of phosphorus in samples of Everglades water: Data Set A Data Set B 2, 20 10, 11 Total Value=22 Total Value = 21 Arithmetic Mean = 11 Arithmetic Mean = 10.5 2 + 20 = 22; 22/2 = 11 10 + 11 = 21; 21/2 = 10.5 Geometric Mean = 6.32 Geometric Mean = 10.49 2 x 20 = 40; 2?40 = 6.32 10 x 11 = 110; 2?40 = 10.49 In Data Set A, the concentration, as reflected by the arithmetic mean, is higher than in Data Set B: 11 ppb versus 10.5 ppb. Yet, the geometric mean of Data Set A (6.32) is lower than the geometric mean of Data Set B (10.49). The reversal is due to the higher variability in Data Set A (a difference of 20 between 2 and 22) than in Data Set B (a difference of only 1 between 10 and 11). Support for Use of a Geometric Mean The true long-term concentration of a chemical constituent within a water body cannot ever be known precisely. Part of the problem is the enormous variability in ecological systems. As Dr. Coleman explained, "there is enormous variability in ecological systems, whether they're marine, arctic, freshwater, terrestrial, any system. And a high degree of variability means that there's an enormous amount of uncertainty." (Tr. 1012) The true long-term concentration of a chemical constituent of a water body, therefore, must be estimated from a set of samples. Frequency distribution, a characteristic of data, can be plotted by preparing a graph with values of the parameter on the horizontal or x-axis and the observed frequencies of these values on the vertical or y-axis. As plotted, the data points in a data set may exhibit a normal distribution on the graph: the distribution of data points starts out low, rises to a central but rounded peak, and then returns to smaller values. Plotted on a graph, the result is a bell-shaped curve. Data points showing concentration of chemical constituents in water, and environmental data in general, often exhibit log-normal distribution rather than normal distributions. A log-normal distribution differs from a normal distribution in that instead of resulting in a bell-shaped curve, it results in a right-skewed or long-tailed distribution: the right end of what would have been a bell curve (where higher values are represented) is pulled to the right. A log-normal distribution may have an extremely long tail skewed to the right of the graph when there are infrequent but very high valued data points. In the case of phosphorus concentrations in a water sample, a long-tail would be created by rare but high level of concentrations in samples. When Department staff plotted the data used to establish the numeric phosphorus criterion, the data set demonstrated characteristics more closely approximating a log- normal distribution than a normal distribution. The data set only "approximated" a log-normal distribution because "an actual log-normal distribution is a . . . hypothetical construct." (Tr. 1633) When it comes to plotting data from sampling events "there is no perfect log normal distribution." Id. But the data collected by DEP "clearly, and very demonstratively, are . . . log-normally distributed [as opposed to normally distributed]." (Tr. 1634) Certain statistical parameters are appropriate for use with log-normally distributed data. One of them is the geometric mean. As Dr. Ian McKeague, the Ralph A. Bradley Professor of Statistics as Florida State University, testified in answer to the question "[w]hen might a geometric mean be used in statistics?" (Tr. 645): Especially when you're dealing with distributions that are called long-tailed. For example, log-normal, where there's . . . an area with central tendency, and then there's a long tail, as you see in a log normal -- typically -- very often found . . . in environmental data. Id. There is no statistical reason one would ever use an arithmetic mean as a measure of central tendency, given data demonstrating a log-normal distribution. While a geometric mean discounts high values, an arithmetic mean, on the other hand, may be too influenced by high values if the aim is to find central tendency. A high value, especially if data points are few, will raise the arithmetic mean substantially. In particular, in the case of data that exhibits a log-normal distribution, the arithmetic mean might be significantly removed from point of central tendency if there were some data point that was unusually high in relation to the remainder of the data. It was statistically appropriate, therefore, that a geometric mean be used in establishment of the phosphorus criterion. Furthermore, as testified to by Dr. McKeague, it would be statistically inappropriate to mix parameters in a single endeavor such as for protecting the Everglades from imbalance by derivation of a criterion and assessing compliance. In other words, it would not be appropriate to use an arithmetic mean to derive the criterion and then a geometric mean, as required by the EFA, to assess compliance. These opinions of Dr. McKeague were supported by Dr. Sielken. Natural systems such as the Everglades are subject to significant spatial and temporal variation. When taking water samples across a network of monitoring stations, water column total phosphorus concentrations will most certainly vary spatially from station to station or temporally from sampling event to sampling event at the same station. Seasonal changes, localized disturbances and extreme climatic-related events like fire, flood or hurricane increase variability. Phosphorus concentrations measure in samples of water taken from the Everglades, therefore, may range from relatively small to relatively large. Still they tend toward a central value characteristic of phosphorus concentration in most of the Everglades most of the time, a determination of which is the aim of water quality standards concerned with ambient water quality. Application of the geometric mean to a data set demonstrating a log-normal distribution results in a more accurate estimate of the true central tendency of the population of measures and therefore a more accurate estimate of the concentration of water column total phosphorus in the areas sampled over most of the time. The Tribe and Friends suggest that an arithmetic mean should be used for establishment of the phosphorus criterion. Since compliance with the criterion by use of a geometric mean is mandated by the EFA, however, using an arithmetic mean for establishment of the criterion would amount to a mixture of statistical parameters. Mixing statistical parameters is "not . . . natural . . . statistically. It's not appropriate . . . one tells . . . little about the other." (Tr. 668) An arithmetic mean, moreover, has its own problem that accompanies its virtue of taking into account all values including rare but very high ones. If a high value is due, for example, to airboat traffic near the sampling site that has stirred up the sediment and caused a high reading due to reflux and the sample has escaped screening, it is justifiable to exclude it because of limitations on data collection.8 (See findings, below). An arithmetic mean would not exclude this high value when it should be excluded. The Numeric Value In addition to the decision to describe the phosphorus criterion in terms of a long-term geometric mean, DEP also had to establish a numeric value. There were several steps in the process of deriving a numeric value that followed the selection of the references sites. Means, both arithmetic and geometric, of reference conditions at individual reference sites and at all reference sites taken together are reflected in DEP/ERC Ex. 17 and several other exhibits that contained Table 5-3 of the 2003 Everglades Consolidated Report. The 2003 Everglades Consolidated Report was admitted into evidence in its entirety as District Ex. 16. (It bears an exhibit label marked "WMD 16.") Table 5-3 on page 5-14 of the report is entitled, "Comparison of results of phosphorus criterion derivation for WCA-2A and WCA-1 using several methods and data sets." The Table was also admitted into evidence as an excerpt from the 2003 Everglades Consolidated Report both as Tribe and Friends Ex. 119-B and as DEP Ex. 24B. Conclusions were drawn from the Evaluation of WCA-2A and Refuge Data as reflected in the 2003 Everglades Consolidated Report. These conclusions appear at page 5-13 and page 5-14 of the 2003 Everglades Consolidated Report. In these conclusions appears the following sentence: "Based on EFA requirements, the annual geometric mean TP [total phosphorus] concentrations are used to characterize the P [phosphorus] regime in the minimally impacted areas of the Refuge and WCA-2A." WMD Ex. 16, p. 5-13 (emphasis supplied). Table 5-3 contains a column entitled "1978-2001 Reference site data minus three years with less than four measurements." (It was appropriate to delete the data from the three years referenced because there was not enough of it.) It has essentially three columns. The first bears the heading "Central Tendency of Annual Geometric Means" and is divided into "Measure" and "Value." The second bears the heading "95% Confidence Interval (Mean with the sign for 'plus or minus')." The third bears the heading "Upper Limit." In the column referred to in paragraph 5., above, adjacent to "Mean" (as opposed to "median") is shown a Central Tendency of Annual Geometric Means Value of 8.51. This number, 8.51, is the geometric mean of reference conditions, a description of central tendency in all of the reference sites at which there was no visible imbalance. The Department chose 8.51 as a starting point from which to derive the numeric phosphorus criterion. The Department then employed another statistical tool in the derivation of the criterion: a confidence interval. After determination of the interval, DEP chose the upper limit in the interval and then rounded that number to 10, as explained below. Determining long-term geometric means of reference conditions that exhibit balance, rather than seeking a threshold of imbalance (which, in essence, "switches" the hypothesis, tr. 3288) had an impact on the derivation of the numeric criterion. The approach allowed DEP to raise the numeric value from the long-term geometric mean revealed by the data rather than to lower it as would have been the usual process had the geometric mean been associated with a threshold of imbalance. Confidence Intervals and Limits Even with relatively large data sets used to derive a value, the analysis of the data and the calculations used to determine the value rarely, if ever, results, in certainty that the value produced by the data is absolutely correct. To provide a level of confidence about the parameter sought to be derived, DEP resorted to a confidence interval. A mathematical characteristic derived from a data set, the confidence interval is an expression of the probability that the true value (in the case of the Proposed Rule, the "true" value reflecting reference conditions or balanced populations of flora and fauna) is within a statistical range or interval. A confidence interval, therefore, is a statistical tool that provides probabilities of confidence that the parameter sought is captured within the range of values within the interval. Confidence intervals are expressed in terms of percentage. The percentage values may vary. For example, in setting toxin thresholds a confidence interval of 75% is sometimes used. (The evidence indicated that percentages of confidence between 90 and 99% are most common.) With regard to derivation of the phosphorus criterion, a 95% confidence interval was applied. It was scientifically sound to apply a 95% confidence interval. Such a broad interval is commonly applied in exercises of the type undertaken that led to the Proposed Rule. The 95% interval as reflected in Table 5-3 and DEP/ERC Ex. 17 was 8.51 plus or minus 1.03 or an interval that spanned from its lowest value to its highest value a total of 2.06 units. There is a 95% probability that the true value of the geometric mean of phosphorus levels under reference site conditions, therefore, will fall between 7.48 and 9.54 ppb, that is, in a range 1.03 above and below the annual geometric mean of 8.51. At the same time, there is a 2.5% confidence level that the true value is above the interval and a 2.5% confidence level that the true value is below the interval or a total confidence level of 5% that the true value is outside the interval. The lowest number in a confidence interval is referred to as the "lower confidence limit" or the "lower limit"; the highest number in the interval as the "upper confidence limit" or "upper limit." Using the geometric mean of 8.51, the lower confidence limit of the 95% confidence interval is 7.48 (8.51 minus 1.03). The upper confidence limit is 9.54, or as shown on the table, 9.55 (due to a rounding error, perhaps, or decimals beyond the 9.54 not expressed on the chart exhibiting the data analysis.) The upper limit will be referred to, therefore, as 9.55 as reflected on the table. In its process of deriving the numeric phosphorus criterion, the Department selected the highest number or the upper confidence limit within the 95% confidence interval revealed by its data: 9.55. The Department chose the upper confidence limit on the basis that the substance tested for is a nutrient and on the basis that the 8.51 number derived from the data reflected reference conditions of balance rather than a threshold of imbalance. Had the substance been a toxin, DEP, in all likelihood, would have determined a threshold of response inimical to human health and then selected the lower limit because when it comes to toxins, any error that might be made should favor human health. Dr. Parkhurst criticized the selection by DEP of the upper confidence limit. He explained that protection of the resource would be accomplished more likely by selecting the geometric mean (8.51) than the upper limit or even more surely by selecting the lower limit (7.48). Selection of the upper confidence limit, in his words, "is protecting the polluter essentially." (Tr. 501) During his testimony, Dr. Parkhurst was asked if an upper limit was used to set the criterion in the Proposed Rule. He answered in the affirmative "on the basis of three pieces of information" (tr. 501): In my deposition, I talked about a recent article in a journal of the American Statistical -- Statistical Association called Chance. It's a paper by two authors, the last names are Q-i-a-n and L-a-v-i-n-e. That paper says in it that the DEP set its criterion of 10 by finding a best estimate of central tendency of the geometric mean to be 8.5, and then they used the upper limit of that, which was 10, to set the criterion. That's one piece of information. The second piece of information is that several of the depositions that I've read by DEP, and other people, said that they had used confidence intervals in this way. And thirdly, Table 5-3 of the 2003 Consolidated Everglades Report shows that that's being done. (Tr. 501-502) Dr. Parkhurst was then asked questions about Table 5-3. After being shown Table 5-3 at hearing, the following question and answer occurred during Dr. Parkhurst's testimony: Q. Now, what does this table tell you about the upper confidence limit? A. What it tells me is totally consistent with what Qian and Lavine said, mainly that the central tendency of the annual geometric mean, which is another way of saying, in some sense, the best estimate of what the geometric mean would be at these threshold spots, was 8.51. (Tr. 503) Objections to this testimony on the basis of its being beyond the witnesses' expertise were overruled. (Tr. 504- 506) No objection to Dr. Parkhurst's testimony about Table 5-3 was made contemporaneous with the testimony, but during cross- examination, the District moved to strike the testimony about Table 5-3 on the basis of surprise. (Tr. 555) The motion was granted. But it was also made clear that Dr. Parkhurst's testimony about the confidence interval independent of reference to Table 5-3 was not stricken. See Tr. 574. That testimony, based on the two sources other than Table 5-3, concluded that after applying a confidence interval to a geometric mean of 8.5, an upper limit was chosen to reach the criterion's number of 10. (See Tr. 501) During DEP's case Table 5-3 was introduced into evidence as DEP Ex. 24B and discussed. A table that contained the precise information in Table 5-3 that was discussed by Dr. Parkhurst was also introduced into evidence by DEP and admitted, DEP/ERC Ex. 17. It contains more information than Table 5-3 in that it "is a cross comparison of the . . . use of the arithmetic mean versus the use of geometric mean for the derivation of the criterion." DEP/ERC Ex. 17 reveals that the "Mean + 95% Confidence Interval" for "All Reference Sites" expressed as a geometric mean is 9.55; as an arithmetic mean, it is 12.50. Like Table 5-3, DEP/ERC Ex. 17 shows a geometric mean for all reference sites as being 8.51, and the addition of a 95% confidence interval of 1.03 above the 8.51 to arrive at an upper limit of 9.55. Selection of the upper limit in the 95% confidence interval did not conclude DEP's process in producing the ultimate number for the criterion. DEP rounded the 9.55 up so that the process finally yielded a numeric phosphorus criterion as a geometric mean of 10. The rounding up was also criticized by Dr. Parkhurst: [I]nstead of using their best estimate of what the geometric mean would be at these reference sites, [DEP has] used a value that's a whole unit higher than that. . . . [I]n fact, they've . . . rounded . . . up to 10. . . . [W]hat's happened is [DEP] changed the best estimate of 8.5 to a geometric mean of 10. (Tr. 504) . . . By using that value, [DEP is] underregulating and overprotecting [the discharger of phosphorus.] As found above, the threshold approach would not have supported the selection of the highest number in the 95% confidence interval that surrounded the geometric mean revealed by the data. But as DEP made clear, the numeric criterion was not derived on the basis of a threshold approach. It was derived from a reference site approach. The Department sought a value from reference site conditions, conditions at which imbalance was sure not to occur. Had a threshold of imbalance been the parameter sought in the calculations, "you'd be concerned with the lower confidence [limit]." Id. Selection of the highest number in the 95% confidence interval (9.55) that surrounds the geometric mean (8.51) and then rounding that number up to 10 achieves another purpose besides deriving a numeric value which is a component of an interval within which balance is sure to occur. It also helps to ensure that a value in excess of 10 ppb reflects a true exceedence of the criterion and not just expected variability around the long-term geometric mean. See Respondent's Proposed Order, p. 40. In other words, the selection of the upper limit in the confidence interval and the rounding of that number to 10 helps to avoid false positives. (See Tr. 1711-1714) U.S. Sugar, New Hope, and the Coop directly confront Dr. Parkhurst's suggestion that the upper limit in the 95% confidence level should have been replaced by the geometric mean revealed by the data or the lower limit in the 95% confidence interval: Setting the criterion at the population geometric mean would result in at least a 50% chance that the actual long-term geometric mean of unimpacted sites would be above the criterion. [Citations omitted.] Setting it at the lower confidence limit would be even more improper. That would result in a 95 percent chance that the unimpacted reference sites would be above the criterion over the long-term, with no actual change having occurred at the sites that the Department identified as unimpacted. (Proposed Final Order submitted by U.S. Sugar, New Hope and the Coop, p. 90) This argument again raises avoidance of false positives as a justification for selecting the upper limit of the 95% confidence level and then rounding that number to 10. The argument is correct as far as it goes but there is another half to the story: the effect on false negatives. The record does not reveal whether DEP determined a precise geometric mean of the threshold of imbalance. But it may be inferred that it is a long-term geometric mean with a value above 8.51. It is clear from the record, therefore, that setting the numeric criterion at the geometric mean of 8.51, rather than at 9.55, the upper limit of a 95% confidence interval, would result in a greater avoidance of false negatives. Setting the numeric criterion at the lower limit of the confidence interval provides even more assurance that false negatives (reports of no imbalance in sites that do not have balanced populations of flora and fauna) do not occur. An understanding of the full picture proves Dr. Parkhurst's point. It is desirable, of course, to avoid false positives. There is a caution in the EFA, moreover, that the criterion "shall not be lower than the natural conditions of the Everglades Protection Area," paragraph (4)(e)2. of the EFA, a warning not to set the numeric criterion too low. But there is no caution in the EFA that a percentage of false positives are to be avoided within some acceptable range of costs. In contrast to the lack of language in the EFA concerning the avoidance of false positives stands the Narrative Criterion. The goal of the Narrative Criterion, after all, is to ensure that phosphorus-rich waters discharged into the EPA do not cause an imbalance in flora and fauna. It favors, therefore, the avoidance of false negatives over the avoidance of false positives. Avoidance of false positives is not a basis for establishment of the numeric phosphorus criterion. Furthermore, moving away from the geometric mean established by the data in a direction that provides less certainty that false negatives will be avoided threatens contravention of the Narrative Criterion. There are bases other than avoidance of false positives in the record, however, for why a geometric mean of 10 does not contravene the Narrative Criterion. Other Bases Mr. Nearhoof offered the first basis. In addition to the geometric mean of 8.51 that led to an upper limit of 9.55, there are seven other upper limits expressed as either a mean or a median for four different data sets on Table 5-3 of the 2003 Everglades Consolidated Report. Three of the data sets are for Water Conservation Area 2A: "1994-2001 References site data"; "1978-2001 Reference site data [that includes data from the period for Station U3]"; and "1978- 2001 References site data minus three years with less than four measurements." The fourth data set is for Water Conservation Area 1: "1996-2001 Reference site data." See DEP Ex. 24A. In addition to the upper limit of 9.55 already discussed for the 1978-2001 Reference site data that excludes data for three years, upper limits of 95% confidence intervals around central tendencies expressed as means and medians for each of these data sets are 8.69, 8.77, 10.57, 9.42, 9.25, 10.08, and 10.00. The overall average result reflected on the table, of the upper limits is 9.54. Including the 9.55 value used by DEP in the derivation of the criterion, two of the values on the chart are above 10, one is exactly 10, three are between 9 and 10 and two are below 9. Mr. Nearhoof offered DEP's evaluation of all of these values: . . . [W]hen you do all of those calculations, that number essentially bounces all around 10. . . . [T]hat's exactly why we concluded that 10 was the number. And I think we clearly documented that on all of our technical documents. We could probably collect data for another decade and calculate this several different ways, and it's going to continue to bounce around 10. We, therefore, chose the simple means . . . of adopting the 10. (Tr. 1667) These upper confidence levels, however, as detailed by Dr. Parkhurst, suffer from the same problem as the one selected: their use reduces the risk of false positives but increases the chance of false negatives. The better basis offered by Mr. Nearhoof is that other studies were corroborative that a long-term geometric mean of 10 would be protective. For example, the lower confidence levels of studies that sought to establish thresholds, such as a study conducted by the Duke University Wetland Center, yielded a number around 10. (See Tr. 1671 and 1903) The Coop and New Hope offered testimony from Sujoy Roy, Ph.D., and Robert Sielken, Ph.D., that the long-term geometric mean of 10 was a highly conservative number and that a threshold of imbalance was likely to be at a much higher number. On the basis of an independent analysis of DEP's water quality and biological data, Dr. Roy recommended that a 30 ppb standard be adopted for impacted areas and an annual geometric mean of 16 ppb for unimpacted areas be adopted, the lower end of what he believed to be the threshold of imbalance. In his view, these levels would have been adequate to sustain fish and wildlife in the Everglades. (Tr. 1235) Conspicuous by its absence from his testimony is a reference to protection of flora, in general, and periphyton mats, in particular. Aside from the lack of mention of the effect on flora and periphyton, Dr. Roy's opinion that a long-term geometric mean of 10 ppb is a highly conservative value is rejected because his numbers are too much at variance with other evidence of record. Dr. Sielken testified before the ERC in the hope of convincing it and DEP that the numeric criterion, expressed as a geometric mean, should be at a number higher than 10, which in turn would raise the numbers in the Four Part Test. His calculations, based on a different analysis than that employed by DEP, led him to the opinion that the numeric phosphorus criterion in the Proposed Rule is too conservative and will lead to an excessive number of false positives. Dr. Sielken's calculations utilized a "prediction" interval instead of the confidence interval used by DEP. His calculations lead to the conclusion that, from a reference site approach, a geometric mean of 13 would be a more appropriate number than 10. Again, such a number would reduce false positives but any reduction in false positives by bumping the number up carries with it an increase in false negatives. The more the number is raised from the geometric mean DEP calculated, the greater the threat of contravention of the Narrative Criterion. Donald M. Kent, Ph.D., was accepted as an expert in wetlands science and wetlands ecology. Dr. Kent cited an example in which periphyton disappeared in WCA-2A but then reappeared. (See Tr. 3932) The example contradicts any implication to be taken from the chain of events described by Dr. Jones, that imbalance in flora and fauna inevitably occurs once the step is reached where periphyton mats disintegrate. Nonetheless, Dr. Kent's opinion is that imbalance in flora and fauna occurs when periphyton completely disappears and change is visible among vascular plants. He explained at hearing: . . . I found that periphyton and bladderwort were particularly sensitive, and seemed to be the first -- first change that was evident . . . in the field when the phosphorus levels got too high Another reason is that . . . macroinvertebrates . . . insects and so forth, and . . . fish, those changes seem to be coincident with . . . major changes in vegetation. (Tr. 3947) There is no need to "look[] at whether the number of insects is changed, or the number of fishes . . . ." (Tr. 3948) Once change is observed in bladderwort or permanent change in periphyton, imbalance in flora and fauna will follow. Dr. Kent's opinion is that there is a range at which periphyton and bladderwort become imbalanced because of phosphorus in the water column. A summary of data provided by DEP, the District and Duke University demonstrated that "naturally occurring periphyton was imbalanced at anywhere from 14 to 27 parts per billion." (Tr. 3951). That the number "14" is the low end of a range at which imbalance of periphyton occurs is revealed by his testimony and U.S. Sugar Ex. 4A. Dr. Kent, moreover concluded that "15 [is] a nice safe place" (tr. 3959) for the numeric phosphorus criterion. Dr. Kent's work validates DEP's determination that balance will be maintained if there is compliance with a long-term geometric mean of 10. Dr. Kent concluded that compliance with the numeric phosphorus criterion would not allow waters in the EPA to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. While DEP did not give a number at which imbalance would occur, the reference sites were in areas that were minimally impacted and close to impacted areas. Thus, DEP's number at which balance is maintained must be relatively close to a number at which imbalance occurs. Unlike Dr. Roy, Dr. Kent's numbers for imbalance are relatively consistent with DEP's conclusion based on maintenance of balance. Dr. Kent was not the only wetlands ecologist to testify that the Proposed Rule's establishment of the numeric phosphorus criterion as a long-term geometric mean of 10 will not cause imbalance. Other witnesses accepted as experts in wetlands ecology or Everglades ecology who offered the same ultimate opinion were Dr. Redfield and Environmental Administrator Frydenborg. Furthermore, Mr. Nearhoof, experienced in Everglades issues, offered the same opinion. In contrast, no wetlands ecologist testified that the Proposed Rule will cause an imbalance. The only wetlands ecologist offered by the Tribe and Friends was Dr. Jones. He was precluded from testifying about any criticism of the Proposed Rule on the basis of the pre-hearing ruling discussed in the Preliminary Statement of this order because of the Tribe's refusals with regard to discovery. After DEP, the District, U.S. Sugar, New Hope and the Coop had rested their cases-in-chief, the Tribe and Friends re- called Colonel Rice. The questions asked of Colonel Rice concerned DEP Ex. 19 which consisted of charts related to total annual inflows, annual average stage and total annual rainfall in WCA-2 and WCA- His testimony did not relate to any of Mr. Nearhoof's testimony or Dr. Kent's testimony as other bases for why a long- term geometric mean of 10 was appropriate for the Proposed Rule's numeric phosphorus criterion. Choosing to rely on the evidence presented in the opening phase of the hearing when the Tribe was required to go forward, the Tribe and Friends did not present any further evidence in response to the opinions offered by Dr. Kent, Dr. Redfield, Mr. Frydenborg and Mr. Nearhoof with regard to the numeric phosphorus criterion. In the final analysis, Colonel Rice's opinion that the Proposed Rule's numeric phosphorus criterion will lead to imbalance, must be weighed in the context of the entire record and against the opinions of three wetlands or Everglades ecologists and Mr. Nearhoof, an expert with a depth of experience in Everglades issues. As weighty as Colonel Rice's opinion may be, it is outweighed by the opinions of others. Achievement The Proposed Rule requires that achievement of the phosphorus criterion take into account deviations above the long-term geometric mean of 10 ppb if attributable to any of three categories of events: (1) the full range of spatial and temporal variability; (2) statistical variability inherent in sampling and testing procedures; or (3) higher natural background conditions. Achievement is to be determined by the methods in Subsection (5) of the Proposed Rule. Section (5) Methods for Determining Achievement of the Criterion in the Everglades Protection Area The Proposed Rule sets forth the methods for achievement for both impacted and unimpacted areas. Water Bodies The methods used depend on the "water bodies." The Proposed Rule lists the four "water bodies" into which the EPA is divided: Water Conservation Area 1 (the Refuge), Water Conservation 2, Water Conservation Area 3, and Everglades National Park. Subsection (5)(b) governs achievement in the Park and the Refuge. Subsection (5)(c) governs the achievement in WCA-2 and WCA-3. Achievement in the Park and the Refuge Subsection 5(b) tracks closely the language of Section 373.4592(4)(e)3: For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively of the [Settlement Agreement], that recognizes and provides for incorporation of relevant research. The Proposed Rule adds a caveat. Should the Settlement Agreement be rescinded or terminated, achievement of the criterion is to be assessed as in the remaining portions of the Everglades. For the Refuge, paragraph (5)(b)1., of the Proposed Rule states that: The Department shall review data from the interior marsh stations established pursuant to Appendix B of the Settlement Agreement and will determine that the criterion is achieved if the Department concludes that average phosphorus concentrations at interior marsh stations will not result in a violation of the total phosphorus concentration levels established for the interior marsh stations using the methods set forth in Appendix B. In addressing discharges into the Refuge, the paragraph applies the concept of "technology based effluent limitations" or "TBELs." Phosphorus concentrations within the inflows to the Refuge that are above the average for the interior marsh stations will not be considered a violation of the numeric criterion--even if they exceed the average phosphorus concentrations for the interior marsh stations--so long as they meet the TBEL established for the discharge. In Section 373.4592(3)(b) of the EFA, the Legislature concluded that the Long-Term Plan provides the best available phosphorus reduction technology ("BAPRT"). The TBEL provision of the paragraph recognizes the possibility that discharges into the Refuge may exceed the numeric criterion even when complying with a TBEL derived from applying the BAPRT. While discharges exceeding the criterion but satisfying a TBEL may not be considered violations, the TBEL provision does not eliminate the requirement to assess achievement applying Appendix B of the Settlement Agreement as set out in the first provision of the paragraph. In fact, as explained by Everglades TOC Chair Garth Redfield, the Settlement Agreement calls for long-term phosphorus limits of 7 ppb (measured as a geometric mean), below the proposed numeric criterion of 10 ppb applicable elsewhere in the EFA. Assessing achievement of the numeric phosphorus criterion in the Park, as directed by the EFA, is based upon the limits established in Appendix A to the Settlement Agreement. Because of the influence of specific discharge structures, assessment is related to flow in the Park with long-term phosphorus levels set at 8 ppb as a flow-weighted mean. Achievement in WCA-2 and WCA-3: The "Four Part Test" For those parts of the EPA not falling within the Park or Refuge (WCA-2 and WCA-3), Section 373.4592(4)(e)3., states in pertinent part: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving water in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. (Compliance with the Proposed Rule cannot be determined, obviously, until the stations are set and they are not yet set.) The achievement methodology for "unimpacted areas" is contained in paragraph (5)(c)1., of the Proposed Rule; for "impacted areas" in paragraph (5)(c)2. There are two differences between the methodologies for unimpacted areas and impacted areas. First, "[a]chievement of the criterion in unimpacted areas in each WCA shall be determined based upon data from stations that are evenly distributed and located in freshwater open water sloughs similar to the areas from which data were obtained to derive the phosphorus criterion." Paragraph (5)(c)1., of the Proposed Rule. There is no requirement that the stations in impacted areas be in sloughs similar to the areas from which data were obtained to derive the criterion. Second, with regard to impacted areas, "[i]f . . . limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (7) [of the Proposed Rule] . . . are met." Subparagraph (5)(c)2., of the Proposed Rule. No clause providing such an escape from compliance with achievement of the criterion is applicable to unimpacted areas. Discussed earlier in this order with reference to the definition of "impacted area" based on soils, there is one more clause that is not part of the "Four Part Test" applicable to both unimpacted areas and impacted areas. It is the final sentence in the paragraph (5)(c) of the Proposed Rule: "[n]otwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and annual geometric mean is less than or equal to 15 ppb." The remainder of the Proposed Rule's section on the achievement methodologies in WCA-2 and WCA-3 contain the Four Part Test applicable in both unimpacted and impacted areas. Each of the four parts of the test must be met for there to be achievement of the criterion except that: Consistent with subsection (4) above, exceedences of the above provisions shall not be considered deviations from the criterion if they are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Paragraphs (5)(c)1., and 2., of the Proposed Rule. The first part of the test is the primary achievement test. It converts the "long term" geometric mean mandated by the statute for achievement of the criterion to a "five year" geometric mean: "[both impacted and unimpacted areas] of the water body will have achieved the criterion if the five year geometric mean is less than or equal to 10 ppb." See paragraphs (5)(c)1., and 2., of the Proposed Rule. To protect against imbalance, since a "long term" geometric mean of "five years" is employed in the first part of the Four Part Test, three additional provisions (Parts 2, 3 and 4 of the Test) must be met. The second, third, and fourth parts of the Four Part Test, therefore, are backstops to ensure achievement of the narrative criterion and to protect the resource. Part 2 of the Four Part Test or "the three of five" test, see DEP Proposed Order, p. 44, is that "the annual geometric mean averaged across all stations is less than or equal to 10 ppb for three of five years[.]" Subparagraphs (5)(c)1., a., and 2.,a., of the Proposed Rule. Part 3 of the Four Part Test or "the one-year 11" test, id., is that "the annual geometric mean averaged across all stations is less than or equal to 11 ppb[.]" Subparagraphs (5)(c)1.,b., and 2., b., of the Proposed Rule. Part 4 of the Four Part Test or "the one-year 15 test," is that "the annual geometric mean at all individual stations is less than or equal to 15 ppb. Individual station analyses are representative of only that station." Colonel Rice criticized the Four Part Test based on its discounting of high values by use of a geometric mean as the measure of central tendency and the manner in which the test takes into account spatial and temporal variability. He offered an example of 99 stations in pristine areas and one in an area with concentration readings of 200 ppb in which degradation was occurring. The example was hypothetical, since it is not known "where they're going to be finally . . . ." (Tr. 251) The degradation "would be masked as far as this compliance methodology goes." Id. Whatever validity Colonel Rice's criticism has with regard to protection of the resource ultimately, the Four Part Test follows the statute. It employs a "long-term" geometric mean, as mandated by the EFA, in its primary step, the first part of the test, when it calls for achievement "if the five year geometric mean is less than or equal to 10 ppb." Subsections (5)(c)1., and 2., of the Proposed Rule. It accounts, moreover, in Part (3) of the test, the "one-year 11" provision, for spatial variability as required by the EFA, when it calls for an annual geometric mean "across all stations," subparagraphs (5)(c)1., b. and 2.,b., of the Proposed Rule. And, in Part (2) of the test, the "three of five" provision, it accounts for temporal variability as required by the EFA when it calls for a geometric mean at a level "for three of five years." Subparagraphs(5)(c)1.,a., and 2.,a., of the Proposed Rule. Adjustment of Achievement Methods Subsection (5)(d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the Everglades and to prevent false positives. Data Screening Subsection (5)(e) of the Proposed Rule governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions not consistent with determining an accurate estimate of ambient water column total phosphorus. Data excluded under subsection (5)(e) are not discarded under the Data Quality Screening Protocol referred to in paragraph (5)(e)2. "[I]t's extremely important [that what is done] with any data set is clearly documented " (Tr. 2220) The purpose of such documentation is transparency "so that all interested parties can determine what [DEP] is doing and why . . . ." Id. To that end, the Data Screening Protocol, which is incorporated by reference in Section (8) of the Proposed Rule requires that "[t]he [Department/District] shall note for the record any data that are excluded and provide any details concerning the reasons for excluding those data." (Tr. 2220) It is proper to exclude data when a sample is not representative of the ambient total phosphorus concentrations in the EPA because of variability both within the Everglades system, itself, and variability outside the system that is associated with the methods of data collection and measurement. An explanation was offered at hearing by Russell Frydenborg, a DEP Natural Science Manager. Mr. Frydenborg has considerable relevant experience with the State over many years that, among many aspects, involves the assurance of scientific quality. Mr. Frydenborg explained that in addition to the natural variability in the Everglades environment caused by rainfall, biological and seasonal changes and the like, there is also variability associated with measurement due to error. For example, tap water has significantly higher levels of phosphorus than does the natural background water of the Everglades. It is not unusual for tap water to have a range between 40 and 80 micrograms of phosphorus per liter (40 to 80 ppb). Tap water used to rinse measurement gear will leave a residue of phosphorus. The contamination of equipment such as bottles by phosphorus residue left after rinsing will produce artificially high levels of phosphorus in samples. Data obtained by means of contaminated equipment must be excluded. Subsection (5)(e) excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Paragraphs (5)(e)1., and 2., address measurement error. Paragraph (5)(e)1., requires the exclusion of data that fails to comply with the Chapter 62-160, the Department's Quality Assurance Rule (the "QA Rule.") The purpose of the QA Rule is to assure that data used by the Department are appropriate and reliable, and collected and analyzed by scientifically sound procedures. The QA Rule encompasses a comprehensive quality assurance program that addresses quality control in the field and the laboratory. Paragraph (5)(e)2., excludes data if it fails to meet the Department's "Data Quality Screening Protocol," developed as part of the criterion development process to address quality assurance concerns of particular importance when sampling phosphorus in the water column. For example, the protocol requires that water samples not be taken from sites less than 10 centimeters in depth. See DEP Ex. 21. Attempting to sample in such shallow waters (less than four inches) may disturb nutrient rich floc that would contaminate the sample and result in artificially high total phosphorus concentration. Paragraph(5)(e)3 excludes data "collected from sites affected by extreme events . . . until normal conditions are restored . . . ." Examples of such events are listed: "fire, flood, drought or hurricanes . . . ." While all "extreme events" are not listed, all that are listed are events associated primarily with the Everglades system itself, that is, they are events associated with natural phenomena that contributed to the formation of the Everglades and the maintenance of its phosphorus-limited status. (It is possible, however unlikely, that drought or flood today could be caused by water management practices. Changes in water levels caused by water management practices, moreover, are covered by paragraph (5)(e)5.) Fire, flood, drought and hurricanes are extreme natural conditions. It is known that they will occur in the future but it is difficult to predict precisely when. It is possible to design a sampling regime that would capture spatial and temporal variability caused by these natural events. As a practical matter, however, the Department and District are limited physically and fiscally as to the number of quality samples that can be properly taken in any one year. It is the Department's position, therefore, that the effects of such natural phenomena, all influences that contributed to the formation and continue to contribute to the health of the Everglades, must be screened from consideration. The Department is comfortable with the screening because the data that is not screened is from water samples that have integrated the effects of extreme events so that, in the end, data related to the long-term impact of the events is not screened, only data related to the short-term impact of the events. Felecia Coleman, Ph.D., is a member of the Best Available Science Committee of the National Research Council, an arm of the National Academy of Sciences. She was accepted at hearing as an expert in principles of scientific method. Scientific disciplines have their own methodologies that vary. The underlying principles of the scientific method are the same, however, for all the disciplines. It is not good scientific method, in Dr. Coleman's opinion, to exclude data related to fire, flood, drought and hurricanes from calculations to determine achievement of the criterion in the Everglades. While they are events that are extreme in the Everglades, they are also events that are normal in the Everglades and produce significant effects on the Everglades' ecological system. To exclude them, then in Dr. Coleman's opinion, fails to take into account spatial and temporal variability in the system due to these events that occur in all parts of the Everglades from time-to-time. The Department argues just the opposite. To reach the objectives of sampling strategies intended to assure the collection of "representative" samples within a routine natural variability or hydrologic cycle, extreme event data must be excluded. Representative conditions, moreover, reflect the integration of the effects of extreme events over time, thereby taking into effect the temporal variability of the system. The concept of "representation" takes into account the practical consideration in support of the screening of extreme events: the Department cannot obtain sufficient data to account for variability caused by untold combinations and permutations of extreme events. Failing to screen the variability or "noise" caused by such events, moreover, would result in excessively high estimates of total phosphorus concentrations. To include data taken when the water was under the short-term influence of the extreme event would skew the data high because not enough samples could be taken when the waters sampled were not under the short-term influence of the extreme event to off-set the impact of the event in a fair way so as to produce results that were representative. Paragraph (5)(e)4., requires the exclusion from assessment calculations of data affected by localized disturbances whether natural or caused by humans. As in the case of extreme events, the Proposed Rule lists some of these disturbances: airboat traffic, authorized restoration activities, alligator holes and bird rookeries. The former two are human activities; the latter two, natural. In common, all are "localized" rather than tending to be system-wide like the listed extreme events. Future physical disturbances from airboat traffic and alligators will suspend sediment and flocculent organic material that contains phosphorus from discharges that occurred prior to the Proposed Rule. A spike in the total phosphorus concentration for a sample taken at the disturbed location may contribute to an indication that the criterion has not been achieved. The same is true of samples heavily influenced by organic waste, a concentrated source of phosphorus, produced in bird rookeries. Temporary restoration activities may suspend nutrient-laden floc and sediment as well causing artificially high phosphorus concentrations not reflective of typical ambient conditions. Samples taken in the wake of these localized activities are not representative. Just as in the case of extreme event data, if a sampling regime of sufficient magnitude to properly take into account for such short-term and random variability were theoretically possible so as to produce results representative of typical conditions, neither the Department nor the District has the resources to implement such a program. Without a sufficient number of samples, data influenced short-term by localized activity will skew the data too high. And, in the end, samples taken that are not influenced short-term by the localized activities will have integrated the effects of the activities over the long-term. Paragraph (5)(e)5. of the Proposed Rule requires the exclusion of data from assessment calculations from years when hydrologic conditions are outside the range that occurred during the period used to set the phosphorus criterion. Examples of such conditions are given in the Proposed Rule: rainfall amount, water levels and water deliveries. The period used to set the criterion is not defined, but conditions during the development of the criterion reflected a broad range of conditions such that this provision would rarely by employed. In the unlikely event an extreme in water quantity covered by paragraph (5)(e)5. occurred, data collected under such conditions would not reflect normal ambient conditions. Section (6) Long-Term Compliance Permit Requirements for Phosphorus Discharges into the EPA Permits for discharges into the EPA are addressed in Subsection 373.4592(4): The department shall use the best available information to define relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area. The department or the district shall use these relationships to establish discharge limits in permits for discharges into the EAA canals and the Everglades Protection Area necessary to prevent an imbalance in the natural populations of aquatic flora or fauna in the Everglades Protection Area, and to provide a net improvement in the areas already impacted. During the implementation of the initial phase of the Long-Term Plan, permits issued by the department shall be based on BAPRT and shall include technology-based effluent limitations consistent with the Long-Term Plan. § 373.4596(4)(e)3., Fla. Stat. See also, § 373.4592(10), Fla. Stat. Section (6) of the Proposed Rule, entitled "Long-Term Compliance Requirements for Phosphorus Discharges into the EPA," sets forth an initial requirement in subsection (6)(a), that an applicant for a permit to discharge into the EPA provide reasonable assurance that the discharge will comply with state water quality standards as set forth in the section. Subsection (6)(b) sets forth three conditions, under any of which, discharges will be deemed to be in compliance. The first is that phosphorus levels in the discharges will be at or below the criterion. This condition is independent of ambient water quality. It refers to phosphorus levels of the discharged water at the point of discharge. If such a level meets the criterion, the level in the ambient water body (provided it was lower than the level in the discharge prior to discharge) will remain lower than the level in the discharged water. The second is that discharges will not cause or contribute to exceedences of the criterion in the receiving waters, the determination of which will take into account the phosphorus in the water column that is due to reflux. The "cause or contribute" analysis is not unique to the permitting of discharges to the EPA but a longstanding concept routinely applied in the Department's permitting of wastewater discharges. If a discharge contains a pollutant in concentrations in excess of the ambient criterion, but the discharge of the pollutant is accommodated by the system such that no exceedence of the criterion occurs in ambient waters, then the discharge has not caused or contributed to a violation of the criterion or that standard of which the criterion may be a part. If an exceedence occurs, but it is not the result of the phosphorus in the discharge but rather caused by reflux--the biogeochemical release of phosphorus into the water column from the sediment stirred by the discharge--the discharge would also be said not to have "caused or contributed to" the exceedence of the criterion. Phosphorus discharges may also exceed the phosphorus criterion, under paragraph (6)(c)3, if they comply with moderating provisions set forth in Section (7) of the Proposed Rule. Moderating provisions are a type of relief mechanism whereby the permit applicant is not held to strict compliance with the applicable standard or criterion if a variety of alternative conditions are met. Under subsection (6)(d), discharges into the Park and Refuge must not result in a violation of the concentration limits and levels established for the Park and Refuge in Appendices A and B, respectively, of the Settlement Agreement as determined through the methodology set forth in Section (5). Closely tracking statutory language, subsection (6)(d) of the Proposed Rule states that discharge limits from permits allowing discharges into the EPA shall be based upon TBELs established under BAPRT and shall not require water quality based limitations ("WQBELs") through the year 2016. Section (7) Moderating Provisions Subsection (7)(a) sets forth a moderating provision for impacted areas within the EPA. Moderating provisions are designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA and are specifically allowed by the EFA as the result of legislative amendment enacted in 2003: . . . The department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with antidegradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592((4)(e)2., Fla. Stat. There are two types of moderating provisions in the section. Subsection (7)(a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (7)(b) allows for discharges to be permitted that accomplish for purposes of "hydropattern restoration" under certain circumstances. To be permitted under (7)(a), the applicant must meet two criteria. First, the permittee must demonstrate that BAPRT will be implemented that includes a continued research and monitoring program designed to reduce outflow concentrations of phosphorus. Paragraph (7)(a)1 of the Proposed Rule. Second, the applicant must demonstrate that the discharge will be into an impacted area. The subsection states that the "Long-Term Plan" shall constitute BAPRT consistent with the Legislature's declaration in Section 373.4592(3)(b): The Legislature finds that the Long-Term Plan provides the best available phosphorus reduction technology based upon a combination of the BMPs and STAs described in the Plan provided that the Plan shall seek to achieve the phosphorus criterion in the Everglades Protection Area. Consistent with the Legislative finding, the subsection states, "[t]he planning goal of the Long-Term Plan is to achieve compliance with the criterion . . . ." Paragraph (7)(a)3., of the Proposed Rule. As part of the permit review process, moreover, the Department will review the Process Development and Engineering component of the long-term plan and determine if changes are needed to comply with the Proposed Rule, including the numeric criterion. Any changes the Department deems necessary "shall be incorporated through an adaptive management approach." Id. Under subsection (7)(b), discharges that cause relevant ambient concentrations in excess of the criterion may be allowed for hydropattern restoration in unimpacted areas if three conditions are met. First, the permittee must implement BAPRT under sub-paragraph (7)(a)1.a. Second, the environmental benefits of hydropattern restoration must clearly outweigh potential adverse effects in the event phosphorus levels in the discharge exceed the criterion. Third, the discharge must comply with the Department's long-standing antidegradation requirements. Section (7)(c) declares that the Proposed Rule's moderating provisions do not pre-empt other moderating provisions. Section (8) Document Incorporated by Reference A single document is referenced for incorporation into the Proposed Rule: "Data Quality Screening Protocol, dated ." Section (8) of the Proposed Rule. Although the Proposed Rule does not identify the Data Quality Screening Protocol by date, a protocol was adopted by the ERC. It was made available to the public electronically via the Department's website "by PDF file on the site dated March 21, 2003." (Tr. 3358) The protocol adopted by the ERC and made available to the public is the protocol about which testimony was taken at hearing. The date was left blank with the intention of filling it in with the effective date of the Proposed Rule once that date becomes known. Section (9) Contingencies Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule: (a) is determined to be invalid under applicable laws; or (b) is disapproved by the U.S. Environmental Protection Agency under the Clean Water Act . . . ." Section (9) of the Proposed Rule.
Findings Of Fact Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute: The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD. There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51. The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51. The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen. Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content. The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas. There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter. There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and scientific data is needed to determine the safe level of nutrients in this area. The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community. The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question. A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
Recommendation Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made: It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A. It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected. It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit. Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A. 601 Flagler Drive Court Post Office Drawer E West Palm Beach, Florida 33402 John Wheeler, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida =================================================================
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
Findings Of Fact The Petitioner is the owner of five acres of undeveloped real property in Henderson Creek Basin, Naples, Collier County, Florida. The property is dominated at the tree canopy level by medium-sized cypress. The mid-story plant association is made up of a varying mix of wax myrtle, dahoon holly, seedling cypress, and a lesser amount of slash pine. Hypercium, stillingia, poverty grass, and xyris are the major components of the ground cover. In the vicinity of the proposed homesite, the ordinary mean water depth averages 2-4 inches, as indicated by the water marks on the stems of cypress, stillingia, and cypress knees. Based upon the dominant vegetation, the project site is within the jurisdiction of the Respondent for the regulatory purposes set forth by law. The Petitioner intends to build a house on the property for his personal use. In order to construct the residence, the Petitioner applied to the Respondent for a dredge an fill permit. In the application,, the Petitioner seeks a permit which would allow him to place 1,200 cubic yards of sand fill over a .17 acre area of the submerged land. The proposed location for the housepad, septic tank and drainfield is the center of the five acre parcel. This is the predominant area in which the Petitioner seeks to place the fill. A large portion of this part of the property is low and consists of wetlands. The project, as it is designed in the permit application, does not provide the Respondent with reasonable assurance that the applicable water quality standards for the geographical area will continue to be met. In fact, the proposal demonstrates that a violation of the standards will occur. The Petitioner recently cleared 14,340 square feet of the wetlands in the proposed homesite area. The cypress trees which ware removed acted as a pollution filtration system and aided in the cleansing of the standing waters on site. These waters eventually percolate down to the aquifer to become an important source of fresh water for the state. Without the trees, the water will lose an important aid in the natural purification process. In addition to the adverse impact on water quality, the project will interrupt the natural water flow and filtration which has historically occurred when the water located in the low wetland area on the property has overflowed and eventually run into Henderson Creek. The Respondent is required to consider this natural condition in its determination as to whether or not a permit should be issued. The Respondent has indicated that certain changes should be made to the project in order to make it eligible to receive a permit. The Respondent suggested that the Petitioner relocate the fill area for the house pad eighty- five feet to the west of the proposed site. The septic tank and drainfield should be moved one hundred and ten feet to the west. The drive should be reduced to a single lane which leads directly to the housepad. In addition, three culverts should be placed under the drive. The purpose of these modifications would be to minimize the impact of the project on the wetland site. The movement of the project away from the cypress area would minimize the damage to water quality that would occur if the septic system were placed in the wetlands. If the design for the lane and driveway were modified, the harm to the natural sheet flow of the water through the area on its route to the creek would be greatly reduced. Another suggested modification was to remove exotic vegetation which has been planted or which has begun to dominate in some areas because of the clearing of the property which took place before and after the Petitioner purchased the property. The Respondent also seeks a construction plan from the Petitioner which demonstrates that the fill areas will be adequately stabilized and that turbidity will be controlled during construction. The final modification suggested by the Respondent was for the Petitioner to place a deed restriction on the property which would protect the planting areas and the remainder of the wetlands on the site. The Petitioner's expert, Gary L. Beardsley, has recommended that the proposed circular entrance driveway be eliminated and that a single and straightened lane be substituted its place. He further recommended that one 12" diameter culvert should be installed under the lane near the housepad in order to facilitate or equalize any sheet flow on the downstream side. This recommendation is made to substitute for the agency's proposal that three culverts be placed under the straightened lane. In addition, the Petitioner's expert recommended that the septic drainfield be moved 30 feet westward to reduce the fill slope requirements by abutting the house and septic fill pads. The Petitioner should also be required to replant 5,265 square feet of wetland area that he cleared on site with the approval of the Collier Natural Resource Management Department, but without the approval of the Respondent. The Petitioner has not agreed to any of the proposed modifications, including those proposed by his own expert. The Respondent's request for a deed restriction is not necessary to the agency's regulatory function. There was no reason for the request presented at hearing by the agency.
The Issue In summary, the issues for decision in this case are: (1) Whether in pari materia rule provisions in Chapter 5B-58, Florida Administrative Code, which define and make operative the term "exposed" to citrus canker disease, together constitute an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes; and (2) Whether the Department's policy of removing so-called "exposed" trees located within a 1900-foot radius of infected trees is an unpromulgated rule-by-definition in violation of Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Citrus Canker Background Citrus canker is a bacterial disease that afflicts citrus plants, attacking their fruits, leaves, and stems and causing defoliation, fruit drop, and loss of yield. The disease also causes blemishes on the fruit and loss of quality, which negatively affect marketability, and it can be fatal to the plant. Citrus canker spreads in two ways. First, it can be transmitted through human movement, since the bacteria can, for example, attach to the equipment and clothing of lawn maintenance workers. Second, citrus canker can spread from an infected citrus tree to a previously uninfected citrus tree by wind-driven rain. The Department is the state agency charged with the responsibilities of eradicating, controlling, and preventing the spread of citrus canker in Florida. Although the events that have led to the instant dispute began in 1995 when the Department detected Asian strain citrus canker in Miami-Dade County near the International Airport, the Department’s earlier experience with an outbreak of the disease in the 1980’s sheds light on its recent actions; as well, these past events illuminate a presently-relevant legislative enactment, namely, Section 581.184(2), Florida Statutes. Briefly, in September 1984, the Department’s field inspectors discovered a bacterial plant disease in Ward’s Citrus Nursery. Samples were sent to the U.S. Department of Agriculture (“USDA”) for analysis, and the federal agency mistakenly identified the bacteria as Asian strain citrus canker. On October 16, 1984, the Secretary of the USDA declared an extraordinary emergency in the State of Florida because of citrus canker. See generally Chapter 89-91, Laws of Florida; see also Department of Agriculture and Consumer Services v. Polk, 568 So. 2d 35 (Fla. 1990). Then-Governor Bob Graham summoned the legislature to convene on December 6, 1984, in special session to consider, among other things, “[l]egislation relating to the research and eradication of citrus canker, indemnification for certain private losses relating to citrus canker eradication, and consideration of supplemental appropriations relating to citrus canker.” 1995 Laws of Florida, Vol. I, Part One, pg. xix. During the special session, the legislature enacted an appropriations bill that made funds available for inspection, control, and eradication of citrus canker, and for financial assistance to persons suffering losses because of citrus canker. See Chapter 84-547, Laws of Florida. Meantime, the Department, working with the USDA, began implementing a joint federal-state citrus canker eradication program (from which the federal government later would withdraw in March 1986 due to inadequate funding). See Chapter 89-91, Laws of Florida. The Department promulgated extensive and detailed rules governing this program. These rules, set forth in Chapter 5B-49, Florida Administrative Code, took effect on March 6, 1985. Included within these rules were provisions requiring the destruction of certain commercial plants located within 125 feet in every direction from an infected plant. The legislature’s interest in the apparent citrus canker emergency continued beyond the December 1984 special session. During the 1985 regular session, it passed a bill that enhanced the Department’s powers to respond to the perceived citrus canker threat. See Chapter 85-283, Laws of Florida. Most important to this case, the following year, 1986, the legislature enacted a law that directed the Department to “adopt rules specifying facts and circumstances that, if present, would require the destruction of plants for purposes of [stopping the spread] of citrus canker in this state.” See Chapter 86-128, Laws of Florida. This rulemaking directive, which took effect July 1, 1986, is currently codified in Section 581.184(2), Florida Statutes. The Department responded promptly, publishing proposed revisions to Chapter 5B-49, Florida Administrative Code, in the September 5, 1986, Florida Administrative Weekly. These proposed rules, which took effect March 4, 1987, provided clearer, more comprehensive regulations in the form of a Florida Citrus Canker Action Plan, which was incorporated by reference into the rules. As it turned out, the strain of citrus canker found in Ward’s Citrus Nursery was not the virulent Asian strain after all, but a nonaggressive and less dangerous type of canker later dubbed Florida Nursery strain. See Chapter 89-91, Laws of Florida. After the putative emergency had ended, the Department repealed the remaining provisions of Chapter 5B-49, Florida Administrative Code, effective November 29, 1994. The Current Crisis In 1995, when the Department detected Asian strain citrus canker in Miami-Dade County, it quickly became alarmed that the disease could spread to commercial citrus groves, and accordingly implemented a new Citrus Canker Eradication Program (“Eradication Program”) to eradicate and prevent the spread of citrus canker to other parts of the state.1 Since the initial detection in Miami-Dade County in 1995, the Department has found citrus canker in six additional Florida counties: Hillsborough, Manatee, Hendry, Collier, Broward, and Palm Beach. At the time of the 1995 outbreak, the Department’s policy and practice was to destroy each “infected” tree and all “exposed” trees, the latter which the Department, following historical precedent, then considered to be all citrus trees within a 125-foot radius of an infected tree. In November 1995, the Department commenced rulemaking to adopt regulations governing the Eradication Program. Initially taking effect January 17, 1996, the Department’s citrus canker rules, found in Chapter 5B-58, Florida Administrative Code, have since been amended and revised from time to time. The Department, however, did not adopt its 125-foot radius policy as a rule, then or ever. The primary methods for eradicating and controlling the spread of citrus canker pursuant to the Eradication Program are the prevention of spread by human means and the prevention of spread from infected trees to uninfected trees by wind-driven rain. Chapter 5B-58, Florida Administrative Code, contains numerous, detailed provisions designed to prevent human spread of citrus canker bacteria. Petitioners do not challenge these provisions. The Department also seeks to prevent the spread of the bacteria by removing trees that can host the bacteria. To that end, the Department cuts down two separate categories of trees. The removal of these trees, defined as “infected” or “exposed” to citrus canker, is foundational to the Eradication Program. “Infected” trees are defined in the rule as being trees that harbor the citrus canker bacteria and express visible symptoms. See Rule 5B-58.001(1)(i), Florida Administrative Code. The Rule’s definition of “infected” is substantially the same as the statutory definition of the term “infected or infested,” which is located in Section 581.184(1)(a), Florida Statutes. The Department’s current policy, as expressed in Rule 5B-58.001(5), is that “[a]ll citrus trees which are infected or infested shall be removed.” Pursuant to this policy, the Department is removing every infected tree it finds. Petitioners do not challenge the Department’s policy decision to remove all infected trees. The second category of trees removed by the Department comprises those it defines as “exposed.” In Rule 5B-58.001(h), the Department has defined “exposed” trees as being those that are without visible symptoms of citrus canker but which have been “[d]etermined by the department to likely harbor citrus canker bacteria because of their proximity to infected plants or probable contact with [sources of human spread].” It is the Department’s policy regarding the removal of “exposed” trees that is at the core of Petitioners’ challenge. In Section 581.184(3), Florida Statutes, the Department is given authority to remove healthy trees——that is, trees that are neither infected, nor exposed, nor suspected of being exposed——to create a citrus canker host-free buffer area to “retard the spread of citrus canker from known infected areas.” Unlike trees that are destroyed on grounds of infection or suspected exposure to infection, however, trees removed from a rule-designated buffer area are considered valuable property, and their owners must be paid “subject to annual legislative appropriation.” Id. It is undisputed that the Department is not removing any trees under its authority to establish buffer zones. The “1900-Foot Radius Policy” Despite the Department’s efforts in the early years of the citrus canker outbreak discovered in 1995, the disease continued to spread into other parts of Miami-Dade County and into Broward County. In 1998, the Department commissioned Dr. Timothy R. Gottwald, a plant pathologist with the USDA, to conduct a study that would measure the distances that citrus canker could spread in South Florida. The objectives of the study, which commenced in August 1998, included: determining the amount of citrus canker spread from bacterial hosts (foci of infection); (b) examining the spread resulting from normal and severe weather events; (c) evaluating whether the Department’s then-current use of the 125-foot radius for defining and destroying “exposed” trees was adequate to control spread; and (d) providing, if necessary, evidence for any adjustment of the radius distance. By December 1998, before his report was completed, Dr. Gottwald’s data were sufficiently conclusive that he was able to present his study in Orlando to a group of Department officials, scientists, and citrus industry representatives. As Dr. Gottwald testified during the trial in Broward County circuit court, at that meeting in December 1998, the group reviewed his data and “came to a consensus . . . that we’re using 1,900 feet,” meaning that all trees within a 1900-foot radius of a diseased tree should be destroyed to prevent the further spread of citrus canker. A few months later, Dr. Gottwald presented his study to the Citrus Canker Risk Assessment Group (the “Risk Assessment Group”).2 A creature of the Department, the Risk Assessment Group, as defined in Rule 5B-58.001(1)(e), Florida Administrative Code, is a committee composed of knowledgeable scientists and regulatory officials that makes recommendations for the control and eradication of citrus canker; the Director of the Division of Plant Industry appoints its members.3 Dr. Gottwald persuaded the Risk Assessment Group to recommend that a 1900-foot zone be employed. Accordingly, in May 1999, the Risk Assessment Group recommended to the Department that all “exposed” trees, i.e. all trees within 1900 feet of an infected tree, should be destroyed in order to eradicate citrus canker. Dr. Gottwald completed his preliminary report on or about October 13, 1999. Although the title of his report describes it as a draft, Dr. Gottwald’s cover letter to the Department assures that the “data will not change, so for regulatory purposes this report may be useful for planning eradication/disease suppression activities.” In December 1999, then-Commissioner Bob Crawford approved the previous recommendation of the Risk Assessment Group, adopting on behalf of the Department a policy to remove citrus trees within 1900 feet of infected trees beginning January 1, 2000. This new policy was a bold and aggressive step——breathtaking in scope——that significantly ratcheted-up the Department’s eradication efforts. To grasp its magnitude, consider that the 1900-foot radius policy entails a swath of tree destruction that encompasses approximately 262 acres for each infected tree found. The science underpinning the 1900-foot radius policy has not changed materially or become more refined. After December 1999, any scientific or technical data received by the Department has served to confirm or provide additional support for the decision to adopt the 1900-foot radius policy. The parties disagree about——and the evidence is somewhat in conflict concerning——the substance of the Department's 1900-foot radius policy. Petitioners urge that the policy has two facets: (1) it determines which trees are deemed “exposed”; and (2) it dictates that all trees so identified shall be removed. Both aspects of the Department’s policy, as Petitioners describe it, can be conflated into a single statement: All trees within 1900 feet of an infected tree shall be removed. Petitioners acknowledge that the Department has, in a very few instances in commercial grove settings, spared some trees within the 1900-foot radius, but they maintain that the few exceptions which have been made do not alter the essentially mandatory nature of the Department’s removal policy as it relates to "exposed" trees. The Department counters that its policy is less rigid than Petitioners would have it. While admitting that the 1900-foot radius policy determines which trees are considered “exposed,” the Department denies that all trees so identified must be removed. Instead, claims the department, the 1900-foot radius establishes a bright-line starting point that may be adjusted outward or inward based upon the recommendations of the Risk Assessment Group. The greater weight of the evidence establishes that Petitioners have correctly summarized the Department’s policy. In public statements, such as press releases, in actual practice, and through the sworn testimony of its officials, the Department has made clear that its policy is, in fact, to remove all trees within 1900 feet of an infected tree, barring extraordinary circumstances that have presented only occasionally in commercial grove settings (and never, to date, in noncommercial or residential settings). Indeed, the general applicability, widespread implementation, and public articulation of the Department’s policy are such that three district courts of appeal have described its essence in terms substantially similar to Petitioners’ allegations: “Trees are deemed exposed if they lie within a 1900-foot radius of an infected tree.” Sapp Farms, Inc. v. Florida Department of Agriculture and Consumer Services, 761 So. 2d 347, 348 (Fla. 3d DCA 2000). “The Citrus Canker Risk Assessment Group has determined that in order to assure at least 99% eradication, all trees within 1900 feet of a canker-infested tree must be destroyed.” State v. Sun Gardens Citrus, LLP, 780 So. 2d 922, 924 (Fla. 2d DCA 2001)(emphasis added). “On January 1, 2000, Commissioner Bob Crawford adopted the recommendation of the task force [that the Department adopt a policy to destroy trees within a 1900 foot radius of a diseased tree in order to eradicate citrus canker] and the 1900 foot buffer zone policy became effective.” Florida Department of Agriculture and Consumer Services v. City of Pompano Beach, 2001 WL 770096, *2 (Fla. 4th DCA July 11, 2001). In addition, the legislature described the Department’s policy indirectly in a statement of legislative findings made during the year 2000 regular session: “WHEREAS, the Third District Court of Appeals [sic], in Sapp Farms, Inc., v. Florida Department of Agriculture and Consumer Services, DCA Case No. 3D00-487, held that citrus trees within a certain radius of infection (originally thought to be 125 feet but now scientifically determined to be at least 1,900 feet) necessarily harbor the citrus canker bacteria and thus are diseased and have no value . . . . ” Chapter 2000-308, Laws of Florida, at pg. 3226 (emphasis added).4 Thus, a preponderance of evidence persuasively establishes that the Department adopted a policy of general applicability in December 1999 that took effect on January 1, 2000, and has been applied consistently since that time. A succinct and accurate expression of that policy, taking into account the relatively remote but nevertheless unexcluded possibility that adjustments might be made in exceptional situations in accordance with recommendations arising from the risk assessment process, emerges clearly and convincingly from the evidence as follows: All trees located within a 1900-foot radius (the "Presumptive Removal Zone") of any infected tree shall be removed; provided, however, that the Commissioner, after taking into consideration the recommendations of the Risk Assessment Group, may determine that some or all of the trees within the Presumptive Removal Zone need not be destroyed if such tree(s), which will be specifically identified by the Department, do not pose an imminent danger in the spread of the citrus canker disease. This agency statement will be referred to hereinafter as the "PRZ Policy."5 The Department’s Proposed Rule Revisions Shortly before the final hearing of this matter, the Department initiated rulemaking to amend the existing provisions of Rule 5B-58.001, Florida Administrative Code. The rule amendments proposed by the Department (the “Proposed Amendments”), if adopted, would, among other things: Replace the existing definition of “exposed” found in Rule 5B-58.001(1)(h) with a new definition for the term “exposed to infection” and substitute the newly-defined term “exposed to infection” in place of “exposed” wherever the latter appears in the existing rule. The new definition of “exposed to infection” would be identical to the definition of the same term found in Section 581.184(1)(b), Florida Statutes;6 and Define the phrase “citrus trees harboring the citrus canker bacteria due to their proximity to infected citrus trees,” which is the determinative component of the proposed definition for the term “exposed to infection,” to mean citrus trees located within 1900 feet of an infected citrus tree. The effect of these revisions would be to specify that the Department considers all trees within 1900 feet of an infected tree to be, by definition, “exposed to infection” and subject to removal. Critically, however, the Proposed Amendments do not specify the Department’s policy of general applicability, which exists in fact and has been in effect since January 1, 2000, that all trees within the 1900-foot-radius removal zone shall be destroyed except those, if any, designated by the Commissioner of Agriculture as not posing an imminent danger in the spread of the citrus canker disease. Pursuant to Section 120.54(2), Florida Statutes, a Notice of Proposed Rule Development with respect to the Proposed Amendments was published in the Florida Administrative Weekly on July 6, 2001. Thereafter, on July 20, 2001, the Department caused to be published a notice of proposed rulemaking concerning the Proposed Amendments pursuant to Section 120.54(3), Florida Statutes. As of the date of the final hearing, the Department had scheduled a workshop on the Proposed Amendments to be held in Broward County on Tuesday, July 24, 2001. The Department is currently engaged in the rulemaking process with respect to the Proposed Amendments both expeditiously and, as far as the record in this case shows, in good faith. For reasons that will be discussed in the following Conclusions of Law, however, the Proposed Amendments do not “address” the PRZ Policy as that term (“address”) is used in Section 120.54(1)(a)1.c., Florida Statutes. About the Challengers As set forth more particularly below, Petitioners and Intervenors each own residential or noncommercial citrus trees in Broward or Miami-Dade County that are located within a citrus canker quarantine area and hence are immediately subject to the Department’s PRZ Policy.7 Petitioner Broward County owns a noncommercial citrus grove that is situated in a residential area and lies within 1900 feet of other citrus trees. Broward County owns other residential citrus trees as well, including trees within 1900 feet of infected citrus trees. Petitioner City of Plantation owns at least one “exposed” citrus tree that the Department has earmarked for destruction through the issuance of an IFO. Intervenors John and Patricia Haire own several “exposed” residential citrus trees in Broward County; they have received an IFO notifying them that all such trees will be removed. Intervenor Dr. Melvyn Greenstein owns residential citrus trees in Miami-Dade County that the Department has deemed “exposed.” He, too, has received an IFO giving notice that his “exposed” citrus trees will be removed. CONCUSIONS OF LAW The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.56, 120.569, and 120.57(1), Florida Statutes. Standing The Department contends that Petitioners Broward County and Pompano Beach lack standing to maintain this proceeding because, according to the Department, they have failed to prove that they are “substantially affected” by the challenged agency statement. See Section 120.56(4)(a), Florida Statutes (“Any person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a).”). In particular, the Department argues that these Petitioners have failed to demonstrate that they are subject to a real and sufficiently immediate injury-in-fact as a result of the alleged statement, namely, the PRZ Policy. The burden rests on Petitioners to prove their respective rights to maintain this action. To show that they are “substantially affected” by the alleged rule-by-definition, each Petitioner must establish: (a) a real and immediate injury-in-fact; and (b) that the interest invaded is arguably within the zone of interests to be protected or regulated. E.g. Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 2000). The Department does not dispute that the property interests asserted by these Petitioners are within a protected “zone of interests,” and it is concluded that they are. To satisfy the injury-in-fact element, “the injury must not be based on pure speculation or conjecture.” Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). These Petitioners have carried their burden on this issue. Each owns trees within a citrus canker quarantine area in Broward County. Clearly, under the Department’s PRZ Policy, Petitioners’ trees are presently located within a potential path of destruction, even if these trees have not already been targeted for removal, and even if they do not all lie within 1900 feet of an infected tree. The threat of danger to these trees——indeed all citrus trees in a quarantine area——is neither speculative nor conjectural but rather real and immediate. Without question, Petitioners and Intervenors have standing to maintain this proceeding. The Existing Rules Section 120.56(1)(a), Florida Statutes, provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." The burden is on the challenger to show that an existing rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. See Cortes v. State Board of Regents, 655 So. 2d 132, 136 (Fla. 1st DCA 1995). The phrase "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as "action which goes beyond the powers, functions, and duties delegated by the Legislature." The statute then enumerates seven alternative grounds, upon any one of which a rule must be invalidated: The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.; The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.; The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; The rule is arbitrary or capricious; The rule is not supported by competent substantial evidence; or The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. In addition to these grounds, the statute provides general standards "to be used in determining the validity of a rule in all cases." Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 597-98 (Fla. 1st DCA 2000). Contained in the closing paragraph of Section 120.52(8), Florida Statutes, these general standards consist of the following: A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute. See also Section 120.536(1), Florida Statutes (reiterating these general standards regarding rulemaking authority). Plainly, a grant of rulemaking authority, while essential, is not enough, without more, to authorize a rule. Rather, as summarized by the first district, the general rulemaking standards make clear that "authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute." Save the Manatee Club, 773 So. 2d at 599. "Either the enabling statute authorizes the rule at issue or it does not[, and] this question is one that must be determined on a case-by-case basis." Id. Here, the legislature has vested the Department with rulemaking authority through several statutory grants, ranging from the broadest permissible warrant (Section 570.07(23), Florida Statutes8), to a duty-specific commission (Section 581.031(17), Florida Statutes), to the narrowly focused, citrus- canker-oriented charge in Section 581.184(2), Florida Statutes. Through these grants, the legislature clearly has given the Department the general rulemaking authority which is necessary, as a threshold matter, to permit the promulgation of the challenged existing rule; the determinative question, then, is whether the enabling statutes explicitly authorize the rule provisions at issue. In examining the Department’s specific authority to make the existing rules, Section 581.184(2) is of particular interest, not only because it deals directly with citrus canker- related rules, but also because this statute’s mandatory nature distinguishes it from the other grants of rulemaking authority extended to the Department. Enacted in 1986,9 the first sentence of Section 581.184(2)10 requires careful scrutiny: In addition to the powers and duties set forth under this chapter, the department is directed to adopt rules specifying facts and circumstances that, if present, would require the destruction of plants for purposes of eradicating, controlling, or preventing the dissemination of citrus canker disease in the state. Such rules shall be in effect for any period during which, in the judgment of the Commissioner of Agriculture, there is the threat of the spread disease in the state. Section 581.184(2), Florida Statutes (emphasis added). The legislature's use of the verb "direct" (in passive form) in this statute plainly manifests an intent to command the Department to act——and connotes the legislature's expectation that the Department will obey. This, then, is more than a mere grant of authority to make rules; it is also, according to its plain language, an order that requires compliance. By directing (rather than simply authorizing) the Department to promulgate rules specifying facts and circumstances that, if present, would require the destruction of plants to control citrus canker, the legislature effectively, albeit indirectly, placed a qualification——which will be discussed in due course below——on the broad "mandate and grant of authority to deal with problems such as the one at hand"11 found in Section 581.031(17), Florida Statutes. It is this latter section that delegates to the Department the state's power to destroy plants in the interests of controlling citrus canker (among other plant pests).12 Section 581.031(17) provides: The Department has the following powers and duties: * * * (17) To supervise, or cause to be supervised, the treatment, cutting, and destruction of plants, plant parts, fruit, soil, containers, equipment, and other articles capable of harboring plant pests, noxious weeds, or arthropods, if they are infested or located in an area which may be suspected of being infested or infected due to its proximity to a known infestation, or if they were reasonably exposed to infestation, to prevent or control the dissemination of or to eradicate plant pests, noxious weeds, or arthropods, and to make rules governing these procedures.13 As the final clause of Section 581.031(17) makes clear, at the time the legislature directed the Department to adopt rules relating to citrus canker,14 the Department already had the power to adopt rules implementing and interpreting that statute’s specific grant of legislative authority to oversee the destruction of plants infected by or infested with plant pests, or suspected of being infected, or exposed to infestation—— including rules specifying the facts and circumstances under which plants would be destroyed to control citrus canker (a major plant pest). Thus, the first sentence of Section 581.184(2) conferred no new rulemaking authority or regulatory jurisdiction upon the Department. Instead, when in 1986 the legislature enacted the bill that ultimately became Section 581.184(2), Florida Statutes, it imposed a new duty on the Department: the obligation to develop, and adopt as rules, statements of general applicability setting forth, clearly and precisely, facts and circumstances requiring the destruction of plants for purposes of controlling citrus canker. While the Department, if left to its own devices, might have elected to specify such facts and circumstances on a case-by-case basis through adjudication, eschewing the articulation of generally applicable principles (and hence evading the burden of rulemaking), with the passage of the law that is now Section 581.184(2), the legislature took that option away from the agency. The legislature’s rulemaking directive to the Department had (and continues to have) profound consequences for the Department’s regulatory authority because, as a matter of law——and as the legislature is presumed to have known when it gave the command——the rules required by Section 581.184(2) necessarily will control the Department’s exercise of its power and duty to destroy plants for purposes of citrus canker eradication. See Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So. 2d 1237, 1242 (Fla. 1st DCA 1996), rev. denied, 695 So. 2d 701 (1997)(agencies must follow their own rules.) Accordingly, by ordering the Department to adopt particular rules, the legislature purposefully qualified the Department’s authority under Section 581.031(17)——not by diminishing that authority (no power was taken away), but by requiring that the authority be carried out pursuant to certain pre-determined and publicly available guidelines. It follows, then, that the scope of the Department’s rulemaking authority with regard to citrus canker eradication must be determined based on a reading together of Sections 581.031(17) and 581.184(2), which are, on the common subject of citrus canker, in pari materia;15 these enabling statutes, taken as a whole, either authorize the Department’s existing rules, or they do not. See Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000). If the Department’s existing rules fail to comply with the rulemaking directive of Section 581.184(2), then, to the extent of the deficiency, the Department has exceeded its rulemaking authority, by adopting rules that would permit the Department to exercise its power and duty to destroy plants in the absence of legislatively mandated (though Department devised) guidelines. Obviously, therefore, the legislative intent behind the 1986 rulemaking directive is crucial. The plain and unambiguous statutory language is determinative, as it should be, and reveals several important points about the legislative mindset. First, as just mentioned, but to repeat for emphasis, the legislature clearly intended that the Department's citrus canker eradication program be implemented according to, and hence to that extent be governed by, rules specifying the generally applicable facts and circumstances that will require plant destruction. In this regard, it is significant that the legislature did not direct the Department to adopt rules specifying “factors” or “variables” to consider in deciding whether a plant should be destroyed, nor did it mandate that the desired rules specify facts that “might” require the destruction of plants, depending on the presence of other, non-specified circumstances or at the Department’s discretion; rather, the plain language of the statute leaves room for only one contingency: whether the rule- prescribed facts and circumstances exist. When those facts and circumstances are present, the destruction of plants will be required, not as a discretionary matter, but as a function of the statutorily compelled regulatory framework.16 Second, the legislature evidently concluded that the adoption of rules specifying facts and circumstances that would require the destruction of plants in the interests of eradicating citrus canker was, in 1986, feasible and practicable, for it did not condition the directive to make rules on the later concurrence of these or any other factors. Then, as now, whenever the legislature adopts an act that “requires implementation of the act by rules of an agency . . . , such rules shall be drafted and formally proposed . . . within 180 days after the effective date of the act, unless the provisions of the act provide otherwise.” See Section 120.54(12), Florida Statutes (1985). Having said nothing to the contrary, the legislature intended that the Department complete its assigned rulemaking task within 180 days. Third, although this might go without saying, the legislature clearly intended that the Department do more in its rules than merely restate the language in Section 581.031(17) that confers the agency’s powers and duties. That is, because the statute itself already provided (and continues to provide) unambiguously that the Department has the power and duty to supervise the destruction of a plant if the plant is (1) infested; or (2) suspected of being infested or infected due to its proximity to a known infestation; or (3) reasonably exposed to infestation, a rule that simply repeats or paraphrases these statutorily prescribed categories of plants subject to destruction would serve no useful purpose, and so the legislature, being presumed to have had a useful goal in mind, must have intended that the compulsory, rule-specified “facts and circumstances” be more explicit than the existing statute. As the First District Court of Appeal explained (in describing agencies’ rulemaking authority generally): [Agencies have authority] to “implement or interpret” specific powers and duties contained in the enabling statute. A rule that is used to implement or carry out a directive will necessarily contain language more detailed than that used in the directive itself. Likewise, the use of the term “interpret” suggests that a rule will be more detailed than the applicable enabling statute. There would be no need for interpretation if all the details were contained in the statute itself. Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 599 (Fla. 1st DCA 2000)(emphasis added). In sum, the legislature plainly intended that the Department “flesh out” the broad legislative policy articulated in Section 581.031(17) by formulating specific facts and circumstances pertinent to citrus canker eradication. In addition to examining the plain statutory language, a complete and accurate understanding of the legislative intent is facilitated by the knowledge that before the 1986 regular legislative session began, the Department had adopted a number of rules prescribing detailed guidelines for citrus canker eradication and treatments. First published, as proposed rules, on January 25, 1985, in Volume 11, Number 4, of the Florida Administrative Weekly, Chapter 5B-49, Florida Administrative Code, consisting of Rules 5B-49.01 through 5B-49.21, took effect on March 6, 1985. See Florida Administrative Weekly, Vol. 11, No. 8, at pg. 663 (Feb. 22, 1985). These rules were published in the 1985 Annual Supplement to the Florida Administrative Code Annotated, Volume 2, Titles 4, 5, which was issued about the time the 1986 legislature convened.17 The legislature is presumed to have been aware of and familiar with these then-existing rules at the time it directed the Department to adopt rules specifying the facts and circumstances that would require the destruction of plants in connection with citrus canker eradication. That the legislature directed the Department to make the rules described in Section 581.184(2), with knowledge that the Department recently had promulgated extensive rules on the very subject of the legislative directive, is telling. Presumably aware of the Department’s then-existing citrus canker rules, the legislature must have determined that those rules did not adequately specify the facts and circumstances that, if present, would require the destruction of plants. This observation is as self-evident as the common-sense converse proposition: If the legislature had been completely satisfied with Chapter 5B-49, Florida Administrative Code, as it existed at the time of the 1986 session, then the rulemaking directive not only would have been unnecessary, but also, by gratuitously ordering the Department to write additional or amended rules where none were needed or wanted, it would have engendered a potential for mischief. It is presumed that the legislature did not intend to put the Department to a pointless task but rather desired that the Department supplement its then-existing rules with missing information that the legislature deemed necessary for inclusion within them. With that in mind, the rules that existed as of the 1986 legislative session stand as a benchmark, for whatever else the legislature meant by “rules specifying facts and circumstances,” it surely meant rules that would set forth the required information with greater clarity and precision than had been done to date (i.e. mid-1986).18 Turning now to the existing rules to determine whether the challenged provisions are valid or not, it will be seen, initially, that Chapter 5B-58, Florida Administrative Code, specifies surprisingly few facts and circumstances that, if present, would require the destruction of plants. There are, to be precise, only two. The first such circumstance is the one most expected: “All citrus trees which are infected or infested shall be removed.” Rule 5B-58.001(5)(a), Florida Administrative Code. The term “infected” is defined as “[h]arboring citrus canker bacteria and expressing visible symptoms.” Rule 5B- 58.001(1)(i), Florida Administrative Code. Thus, in other words, if a knowledgeable person can tell just by looking at a plant that it is suffering from citrus canker infection, that plant will be destroyed. Petitioners have not challenged the provisions dealing with the destruction of visibly infected or infested trees. The other circumstance is found in Rule 5B-58.001(15), Florida Administrative Code, which provides that “[c]itrus plants in containers found in quarantine areas will be confiscated immediately and destroyed without compensation,” unless such storage is authorized under one of two narrow exceptions stated in the same subsection. Petitioners have not challenged these provisions either. The bone of contention, of course, concerns the facts and circumstances under which trees not visibly affected by citrus canker bacteria will be destroyed. On this subject, the existing rule is notably non-committal and evasive. It says, in the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, that "[t]he decision to remove exposed trees will take into consideration the recommendations of the Citrus Canker Risk Assessment Group." (Emphasis added). Although the rule fails to specify any facts and circumstances that would require the removal of "exposed" trees, the implications are that every "exposed" tree is subject to destruction at the discretion of the Department, and that the Department is inclined to exercise its discretion in favor of destruction.19 The critical term "exposed," which is made to operate through and hence must be read in conjunction with the just- quoted sentence of Rule 5B-58.001(5)(a), is defined in the rule to mean: [1] Determined by the department [2] to likely harbor citrus canker bacteria [3] because of [a] proximity to infected plants, or [b] probable contact with personnel, or regulated articles, or other articles that may have been contaminated with bacteria that cause citrus canker, [4] but not expressing visible symptoms. Rule 5B-58.001(1)(h), Florida Administrative Code (bracketed numbers and letters added). Petitioners complain that this definition constitutes an invalid exercise of delegated legislative authority. They are correct. The rule's definition of "exposed" is constructed of four parts. The first clause——"[d]etermined by the department"——makes plain that the Department is the exclusive arbiter of the evidence, the decision-maker. The second clause is a summary statement of the conclusion that the Department must make and frames the ultimate issue for the Department's determination thusly: whether a plant is likely to harbor citrus canker bacteria. The third part, ushered in by the words "because of," purports to set out the factual premises upon which the Department will base its decision. It consists of two clauses, call them (a) the "proximity clause" and (b) the "probable contact" clause. The fourth and final clause confirms that all plants not visibly suffering from citrus canker (which set consists of all plants not "infected" therewith) are subject to being deemed "exposed." As the introductory words "because of" suggest, the third clause is the only structural component of this definition that could plausibly satisfy the rulemaking directive to specify dispositive facts and circumstances. The others make no genuine attempt. To begin, the first clause plainly does not set forth a specific fact and circumstance that would require the destruction of plants. Continuing, the second clause also does not comply with the directive, for reasons that, while equally compelling, are perhaps less plain. Consider whether, if a person were asked to specify facts and circumstances that, if present, would require a finding of negligence, the following would be responsive: a likely failure to have used reasonable care. The answer obviously is "no," because the statement does not, in and of itself, describe a particular factual scenario that can be perceived by the senses; it reflects, rather, a judgment about facts observed but not specified.20 The same is true of the phrase "likely [to] harbor citrus canker bacteria;" it fails to specify a particular factual occurrence capable of objective observation and instead reflects a judgment about perceivable facts. Skipping over the third part momentarily, the fourth clause, unlike the first two, does express a fact—— but it is not one that, if present without more, would require the destruction of plants. Whether the proximity and probable contact clauses that comprise the "exposed" definition's third part comply with the legislative directive requires a closer look. The starting point is Section 581.184(2), Florida Statutes. When, as here, the statute in question does not contain a specific definition of its terms, it is assumed that the words contained therein were used according to their ordinary dictionary definitions. See Save the Manatee Club, 773 So. 2d at 599 (citing WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996)). The ordinary meaning of the verb “specify” is “to name or state explicitly[21] or in detail.” See Merriam-Webster’s Online Collegiate® Dictionary (hereafter Merriam-Webster’s)(http://www.m-w.com/). The term "fact," as used in everyday discourse, denotes “information presented as having objective reality.” Id. "Circumstance" commonly means "a condition, fact, or event accompanying, conditioning, or determining another: an essential or inevitable concomitant." Id. Putting these common definitions of ordinary words together, it becomes apparent that the directive in Section 581.184(2), Florida Statutes——to "specify[] facts and circumstances"——requires the Department to state explicitly, that is, with clarity and precision and thus without vagueness or room for doubt, particular pieces of information having objective reality (i.e. that describe perceivable scenarios) which, if found to exist in the real world, will require the destruction of plants. Against this statutory backdrop the subject definition's shortcomings stand out in bold relief. The phrase “proximity to infected plants” does not have intrinsic objective reality; it does not, without more, communicate information that is observable, provable, or falsifiable; it is not, therefore, a “fact.”22 While the phrase may, in a loose sense, describe a “circumstance,” it cannot seriously be contended that “proximity to infected plants” is meaningfully precise or explicit, as the statute requires; in fact, it is neither, being instead both elastic and malleable, an empty vessel for the Department to fill with content at its sole discretion. Indeed, for all that appears in the rule, “proximity” might be ten (or 1900) feet, or ten miles, or ten thousand miles, depending on the unstated facts and circumstances. At bottom, a conclusion of “proximity to infected plants” constitutes a subjective judgment or opinion that must be based upon objective facts and circumstances, in the same way that the judgment whether a plant is "likely [to] harbor citrus canker bacteria" also requires a factual foundation upon which to rest. The puzzle piece missing from the existing rule is the description of facts and circumstances that, if present, would require that conclusions of "proximity"——and hence "likelihood"——be drawn. The definition allows the Department to reach the ultimate conclusion ("likely [to] harbor citrus canker bacteria") based upon an opinion ("proximity to infected plants") grounded upon unspecified facts and circumstances. This deficiency is fatal to the rule’s validity. The probable contact clause contains greater detail but is likewise defective. It says that the Department may consider a plant "exposed" if the plant has probably come into contact with a possibly contaminated person or thing. The problem with this provision is that it is vague and leaves too much unsaid; it fails to set forth facts and circumstances upon which the Department will base determinations of probable contact and possible contamination. It does not, in short, "specify[] facts and circumstances that, if present, would require the destruction of plants," as required by Section 581.184(2), Florida Statutes. In view of these flaws in the definition of "exposed," it is evident that, while the Department has announced in Rule 5B-58.001(5)(a) its intent and power to destroy potentially all trees that are not visibly affected by citrus canker bacteria, it has failed to specify the facts and circumstances under which it will remove such trees, despite a clear legislative directive to articulate those facts and circumstances, precisely and in detail, in its rules. Instead of submitting itself to pre- determined guidelines of its own making, as directed by the legislature, the Department has promulgated a rule that, with regard to “exposed” trees, retains maximum——indeed, essentially unfettered——discretion. The plainest and most egregious example of this is the proximity clause. Nothing in the existing rules would prevent the Department from declaring that the entire state of Florida is exposed to citrus canker because of proximity to infected plants and thereupon commencing to destroy every fruit tree in the state. As the plain language of Section 581.184(2), Florida Statutes, makes clear, the legislature intended and expected a more explicit and informative rule. Contrary to the legislative directive, the rule’s definition of “exposed,” as well as the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, which expresses the Department’s intent to destroy some or all “exposed” trees (but only after listening to the Risk Assessment Group’s non-binding recommendations), do nothing whatsoever to “flesh out” Section 581.031(17), Florida Statutes. At best, the Department has merely restated its statutory duty to oversee the destruction of plants “located in an area which may be suspected of being infested or infected due to its proximity to a known infestation” or "reasonably exposed to infestation." Id. This is inadequate.23 Reinforcing these conclusions is an examination of the citrus canker rules that were in effect at the time the legislature enacted the law that is now codified at Section 581.184(2), Florida Statutes. As it existed in mid-1986, Chapter 5B-49, Florida Administrative Code, was far more detailed and explicit regarding the facts and circumstances under which plants would be destroyed than is the present rule. See, e.g., Rules 5B-49.09 (provisions for eradication of citrus canker); 5B-49.10 (requirements for greenhouses, slathouses, shadehouses or bench-growing facilities); 5B-49.11 (requirements for ornamental nurseries, dooryard citrus nurseries, stock dealers or agents); 5B-49.13 (requirements for public and private properties not considered to be commercial citrus groves, nurseries, stock dealers, or agent establishments), Florida Administrative Code Annotated, Vol. 2, pp. 167-69 (1985 Supp.) These rules even contained a precursor to the unpromulgated 1900-foot radius policy now under attack: a 125- foot radius rule that applied under certain circumstances. See, e.g., Rules 5B-49.09(2)(b); 5B-49.11(1), Florida Administrative Code Annotated, Vol. 2, pp. 167-68 (1985 Supp.). These relatively detailed citrus canker rules were already in effect when the legislature directed the Department to make rules specifying facts and circumstances that would require the destruction of plants. From that it can only be presumed that the legislature wanted more detailed rules on the subject of plant destruction. By any reasonable measure, however, existing Chapter 5B-58, Florida Administrative Code, is less detailed and explicit than the citrus canker rules which the legislature, by directing the adoption of specific rules, implicitly deemed imprecise. This confirms the conclusion that existing Rule 5B-58.001, as it relates to the destruction of “exposed” plants, fails to satisfy the legislative directive to make particular citrus canker rules. The existing rule is not saved by its enumeration of two dozen or so “variables” that the Risk Assessment Group is supposed to consider in formulating its non-binding recommendation to the Department whether to remove “exposed” trees. Rule 5B-58.001(5)(a) states, in pertinent part: In developing [its] recommendations, the Citrus Canker Risk Assessment Group will take the following variables into consideration: property type, cultivar, cultivar susceptibility, tree size and age, size of block, tree spacing, horticultural condition, tree distribution, tree density, weather events, wind breaks, movement factors, disease strain, exposure, infection age, infection distribution, disease incidence, Asian citrus leafminer damage, survey access, security of property, sanitation, management practices, closeness of other host properties, and closeness of other infected properties. These “variables” provide at most a patina of precision. On inspection, it is clear that the rule merely sets forth a laundry list of potentially relevant factors that conveys little more information than if the rule had simply stated that the Risk Assessment Group will consider all pertinent data. Moreover, Section 581.184(2) requires dispositive “facts and circumstances,” not “variables” for consideration. Listing two dozen unweighted factors for an agency-appointed committee to consider in making a non-binding recommendation is a far cry from “specifying facts and circumstances that, if present, would require the destruction of plants for purposes of eradicating . . . citrus canker[.]” Section 581.184(2), Florida Statutes. Finally, and most important, the Risk Assessment Group is not the Department, and its recommendations, according to Rule 5B-58.001(5)(a), need only be “take[n] into consideration” by the Department in making a decision whether to order the destruction of an “exposed” tree. The Rule pointedly does not require the Department to consider the “variables” (or any other objective criteria) either in determining whether a tree is "exposed" or in deciding to remove an "exposed" tree. The bottom line is that the risk assessment provisions and the definition of "exposed," taken together, do not communicate the information required by Section 581.184(2), Florida Statutes, with anything approaching the intended clarity, precision, and detail. In connection with “exposed” trees (a set that potentially includes all citrus trees in the state that are not visibly affected by citrus canker bacteria), the Department has failed to implement its citrus canker eradication program according to the kind of specific rules that the legislature intended be in place. For that reason, the enabling statutes do not authorize either Rule 5B-58.001(1)(h) or the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, which implements the “exposed” definition.24 Accordingly, these provisions are invalid exercises of delegated legislative authority. See Section 120.52(8)(b), Florida Statutes. In addition to being unauthorized by the enabling statutes, the fourth sentence of Rule 5B-58.001(5)(a), Florida Administrative Code, is invalid for an independent reason: it “fails to establish adequate standards for agency decisions, [and] vests unbridled discretion in the agency.” Section 120.52(8)(d), Florida Statutes. The leading case on rule-engendered standardless discretion is Cortes v. State Board of Regents, 655 So. 2d 132 (Fla. 1st DCA 1995). There, a rule was challenged that granted university presidents not only (1) the exclusive power to decide, upon being presented with a petition signed by at least a majority of the student body requesting such action, whether to authorize the collection of fees for funding "public interest research groups," but also (2) the "sole discretion" to determine by which of two rule-prescribed means students would be required to assent to the fee, if approved: either a positive checkoff or a negative checkoff on the registration card. Id. at 135. The court held that the enabling statutes authorized the rule to the extent it empowered university presidents to decide, in the first instance, whether to allow the collection of such student fees at their respective institutions. Id. at 140. The court reached a different conclusion, however, regarding the rule's grant of unbridled presidential discretion to decide between the two different methods of obtaining students' consent to pay the fee. The court's analysis is instructive and warrants a lengthy quotation: In one respect, however, the challenged rule itself confers unguided discretion on university presidents that they did not have before the rule was promulgated, viz., the "sole discretion" to decide between a "positive checkoff" and a "negative checkoff." While student contributions are no novelty as a source of funds for student activities, the rule calls certain mechanics into being. Until the rule was adopted, university presidents had no need to choose between "positive" and "negative checkoffs," which [the rule] now requires, under circumstances specified in the rule. An administrative rule which creates discretion not articulated in the statute it implements must specify the basis on which the discretion is to be exercised. Otherwise the "lack of . . . standards . . . for the exercise of discretion vested under the . . . rule renders it incapable of understanding . . . and incapable of application in a manner susceptible of review." Staten v. Couch, 507 So. 2d 702 (Fla. 1st DCA 1987). Because a reviewing "court shall not substitute its judgment for that of the agency on an issue of discretion," § 120.68(12), Fla. Stat. (1993), an agency rule that confers standardless discretion insulates agency action from judicial scrutiny. By statute, a rule or part of a rule which "fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency," § 120.52(8)(d), Fla. Stat. (1983), is invalid. * * * [T]he rule [under review] "fails to establish adequate standards for agency decisions," . . . for or against employing the "negative checkoff," i.e., collecting "donations" from registering students unless they expressly decline to contribute. In this one respect, [the challenged rule] itself "vests unbridled discretion in the agency." [The challenged rule] is devoid of any standards purporting to guide this exercise of discretion. No such standards are implicit in the statutes implemented. Even students who have signed a petition will not necessarily be alerted that a "negative checkoff" choice must be made when they register for classes. [The rule] supplies no principled basis on which a university president can decide whether a registering student's failure to indicate otherwise should be taken as a decision to contribute to the funding of a public interest research organization. No statute creates the "negative checkoff" device or requires that it be sprung on entering freshmen or other unwary registrants. Id. at 138-39; see also Florida Public Service Commission v. Florida Waterworks Association, 731 So. 2d 836, 843 (Fla. 1st DCA 1999)(distinguishing Cortes and upholding proposed rule against attack because, unlike the rule in Cortes, it did not create discretion not articulated in the enabling statute). In Cortes, the court invalidated the negative checkoff option, and thereby effectively eliminated the rule's unlawful delegation of unfettered discretion. Cortes, 655 So. 2d at 140. Like the rule at issue in Cortes, sentence number four in Rule 5B-58.001(5)(a), Florida Administrative Code, confers unguided discretion on the Department that it did not have before the rule was promulgated, namely, the discretion to accept or reject the Risk Assessment Group's recommendations concerning whether to destroy "exposed" trees. Similar to the negative checkoff device, no statute creates the Risk Assessment Group or requires the Department to consider that committee's recommendations. Just as the board in Cortez created by rule discretion for university presidents that was not articulated in the enabling statute, so too the Department, having created the Risk Assessment Group and devised a non-binding risk assessment process, has conferred upon itself a new and exclusively rule- based discretionary power. Consequently, to be valid, the Department's Rule must specify the bases upon which the newly-created discretion is to be exercised. See Section 120,52(8)(d), Florida Statutes. The existing Rule is devoid of standards purporting to guide this exercise of discretion, however, and no standards are implicit in the enabling statutes. The Rule supplies no principled basis on which the Department can decide, for example, whether to override the Risk Assessment Group's recommendation that a tree be spared or, conversely, to reject its advice that a tree be cut down. The fourth sentence of Rule 5B-58.001(5)(a) must be invalidated because it confers standardless discretion and thereby unlawfully insulates the Department from judicial scrutiny. Cortes, 655 So. 2d at 138. This unlawful grant of discretion is particularly troublesome in light of the context in which it is exercised. The Department wields its power to destroy trees in furtherance of the Eradication Program pursuant to immediate final orders premised on the conclusion that the targeted trees are a source of immediate public danger. Because the exigency of the situation precludes the development of a traditional trial-level record, appellate review is somewhat limited, as the first district explained: When an agency enters an immediate final order as a result of a determination that there exists an immediate danger to the public health, safety, or welfare, [appellate] review will determine whether the order recites with particularity the facts underlying such finding. Denney v. Conner, 462 So. 2d 534, 535-36 (Fla. 1st DCA 1985); see also Nordmann v. Florida Department of Agriculture and Consumer Services, 473 So. 2d 278, 279 (Fla. 5th DCA 1985)("Appellate review centers on the particularity with which the order recites the factual findings"). Plainly, the Department is shielded from searching judicial review simply by virtue of the type of decision it is making——and that shield would remain difficult to penetrate even if the rule were filled with adequate standards to guide the agency's discretion. The existing Rule's conspicuous failure to specify the bases upon which the Department's extraordinarily broad discretion in these matters is to be exercised, however, results, intolerably, in the Department being doubly insulated from judicial scrutiny, to the point of being practically immune. The absence of meaningful appellate review in these circumstances led an obviously fed-up panel of the Third District Court of Appeal to vent its frustration recently in Markus v. Florida Department of Agriculture and Consumer Services, 785 So. 2d 595 (Fla. 3d DCA 2001), a homeowners' appeal from an immediate final order pursuant to which their three fruit trees were destroyed. In a seething opinion, the court wrote: Property owners as well as judicial tribunals are struggling with the issue of how and why the Department of Agriculture embarked on its dogged obliteration of the healthy back (or front) yard citrus tree. The frustrations of challenging this policy, either in a Chapter 120 proceeding or before this court, are staggering. Both infected and condemned trees are removed and ground into dust before any meaningful action can be taken by the property owner. The "final agency order" is nothing but a "Dear Resident" form from the Department of Agriculture. A "record on appeal" is an oxymoron. There is no record. Hence there is no meaningful appeal. We find that situation unacceptable as a mater of law, policy, and principle, yet we must affirm. Id. at 596 (emphasis added). Requiring the Department to promulgate rules setting forth principled grounds upon which to exercise its considerable discretion whether to follow the Risk Assessment Group's recommendations will provide meaningful opportunities, through the rulemaking and rule challenge procedures, for public comment and input, legislative oversight, and, ultimately, judicial scrutiny, based on a complete evidentiary record developed in a Chapter 120 proceeding, of the Department's heretofore hidden factual and policy premises. Such vehicles for accountability are the very least the law should (and does) demand of an executive branch agency that has been vested with enormous discretion to implement a program capable of summarily depriving large numbers of citizens of their private property. The Rule-By-Definition The burden of proof is on the party seeking to prove the affirmative of an issue unless a statute provides otherwise. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-87 (Fla. 1st DCA 1981). In a proceeding under Section 120.56(4) to determine a violation of Section 120.54(1)(a), Florida Statutes, therefore, the burden is on the petitioner to establish by a preponderance of evidence: (1) the substance of the agency statement; (2) facts sufficient to show that the statement constitutes a rule-by-definition; and (3) that the agency has not adopted the statement according to the rulemaking procedures. Section 120.56(4)(a), Florida Statutes. If the petitioner meets its burden, then the agency must carry the burden of proving that rulemaking is not feasible and practicable as provided in Section 120.54(1)(a). Section 120.56(4)(b), Florida Statutes. Section 120.52(15), Florida Statutes, defines the term “rule” to mean “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.” A statement is a rule if it has the effect of a rule regardless whether the agency calls it a rule. In determining whether a statement meets the statutory definition of a rule, the important question is: What consequences does this statement cause within its field of operation? As the Court of Appeal, First District, explained, the breadth of the definition in Section 120.52(1[5]) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them. Any agency statement is a rule if it "purports in and of itself to create certain rights and adversely affect others," [State Department of Administration v.] Stevens, 344 So. 2d [290,] 296 [(Fla. 1st DCA 1977)], or serves "by [its] own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law." McDonald v. Dep't of Banking & Fin., 346 So. 2d 569, 581 (Fla. 1st DCA 1977). State Department of Administration v. Harvey, 356 So. 2d 323, 325 (Fla. 1st DCA 1978); see also Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43, 46 (Fla. 1st DCA 1983). Because the focus is on effect rather than form, a statement need not be in writing to be a rule-by-definition. See Department of Highway Safety and Motor Vehicles v. Schluter, 705 So. 2d 81, 84 (Fla. 1st DCA 1998). Given the circumstances of this case, it is instructive to take special note that the definition of “rule” expressly includes statements of general applicability that implement or interpret law. An agency’s interpretation of a statute that gives the statute a meaning not readily apparent from its literal reading and purports to create rights, require compliance, or otherwise have the direct and consistent effect of law, is a rule. See Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 573 So. 2d 19, 22 (Fla. 1st DCA 1990); St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989). As set forth in the Findings of Fact, Petitioners have proved, by the required quantum of evidence, that the Department adopted and has implemented a statement of general applicability which has been denominated herein, for convenience, the PRZ Policy.25 The PRZ Policy is, ironically, the kind of rule that Section 581.184(2), Florida Statutes, requires, because (unlike the Department's adopted rules) it specifies facts and circumstances that, if present, would require the destruction of asymptomatic plants for purposes of eradicating citrus canker. That the PRZ Policy includes an exception under which some trees within the Presumptive Removal Zone might be spared does not diminish its general applicability or dampen its effect, which is that of a rule. Rules often have exceptions; there is nothing novel about that, just as there is nothing extraordinary about rule provisions, such as the PRZ Policy's exception, that authorize a discretionary act.26 In addition, the PRZ Policy implements, and constitutes the Department's interpretation of, Section 581.031(17), Florida Statutes, bringing rigor to the inexact statutory phrase: "area which may be suspected of being infested or infected due to its proximity to a known infestation." The wisdom of this interpretation is not presently before the undersigned. The unavoidable conclusion regarding this interpretation, however, is that it gives the statute a meaning which is not readily apparent from a literal reading thereof and, moreover, requires compliance, adversely affects the rights of property owners, and has the direct and consistent effect of law. In sum, the PRZ Policy falls squarely within the meaning of the term "rule" as defined in Section 120.52(1); it is, put simply, a rule-by-definition. According to Section 120.54(1)(a), “[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s. 120.52 [such as the PRZ Policy] shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable.” (Emphasis added). Once Petitioners met their obligation at hearing to prove that the challenged statement is a rule-by-definition, it became the Department’s burden to prove that adopting the PRZ Policy as a rule would have been either unfeasible or impracticable. Section 120.56(4)(b), Florida Statutes. The Department failed to rebut by a preponderance of evidence the presumption, established in Section 120.54(1)(a)2., Florida Statutes, that rulemaking is practicable. Accordingly, it has been presumed that rulemaking was in fact practicable as of January 1, 2000, when the PRZ Policy took effect. In contrast, the Department did prove that it is currently using the rulemaking process expeditiously and in good faith to adopt rules that articulate the PRZ Policy in part, as discussed below. Thus, in accordance with Section 120.54(1)(a)1.c., Florida Statutes, the Department arguably rebutted the statutory prescription that rulemaking "shall be presumed feasible." The Proposed Amendments to Chapter 5B-58, Florida Administrative Code, effectively incorporate so much of the PRZ Policy as deems trees within a 1900-foot radius of an infected tree to be "exposed" (or, in the proposed rule's terminology, "exposed to infection") and hence subject to destruction. The Proposed Amendments do not, however, address that part of the PRZ Policy which requires the destruction of all trees located within the Presumptive Removal Zone except those designated by the Commissioner as posing a less-than-imminent danger. Indeed, the invalid fourth sentence of Rule 5B- 58.001(5) would subsist substantially intact, save only for the substitution of the term "exposed to infection" for "exposed," after adoption of the Proposed Amendments. Thus, the Proposed Amendments are silent on a crucial aspect of the PRZ Policy. To rebut the presumption of feasibility pursuant to Section 120.54(1)(a)1.c., Florida Statutes, an agency must show that it "is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statement." Whether an agency that it is actively attempting to adopt rules which address some portion of a rule-by-definition, as the Department is doing, should be found to have rebutted the presumption of feasibility is the question. Guidance on this issue is found in a closely related statutory provision, Section 120.56(4)(e), Florida Statutes, which provides in relevant part: Prior to entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), if an agency publishes, pursuant to s. 120.54(3)(a), proposed rules which address the statement and proceeds expeditiously and in good faith to adopt rules which address the statement, the agency shall be permitted to rely upon the statement or a substantially similar statement as a basis for agency action if the statement meets the requirements of s. 120.57(1)(e). (Emphasis added). The "substantially similar" statement upon which an agency in such circumstances is permitted to rely should be found, presumably, within its proposed rules. (Why should the agency be allowed to apply a third variation on the same theme?) Sections 120.54(1)(a)1.c. and 120.56(4)(e), being in pari materia, should be construed together to achieve a unified legislative purpose. Accordingly, it is concluded that, for a proposed rule to "address" an agency statement for purposes of Section 120.54(1)(a)1.c., it must be, if not identical, at least "substantially similar" to the statement. The proposed revisions to Chapter 5B-58.001, Florida Administrative Code, do not, taken as a whole, constitute a statement "substantially similar" to the PRZ Policy. The missing component——which specifies the requirement that trees in the Presumptive Removal Zone be destroyed unless exempted by the Commissioner's discretionary act——is fundamental to the rule-by- definition. Without it, the Proposed Amendments fail to articulate——to "address"——the Department's generally applicable policy. As a result, the Department has failed to rebut the presumption of feasibility. The outcome would be the same, however, even if the Department were given the benefit of a decision that its proposed rule revisions "address" the challenged agency statement for purposes of Section 120.54(1)(a)1.c., Florida Statutes. The reason is that, in this alternative ruling, all the Department has done is erase the presumption of feasibility to which Petitioners otherwise would be entitled in aid of their proof. Evidence that an agency is currently engaged in rulemaking with regard to a statement is not, without more than the Department showed, the equivalent of proof that the agency began the rulemaking process as soon as feasible.27 And an agency that belatedly has commenced rulemaking on a statement of general applicability is no less in violation of Section 120.54(1)(a), Florida Statutes, than one that has not begun at all——although the consequences of a violation may be less severe for the dilatory, as opposed to the recalcitrant, agency. See Section 120.54(4)(e), Florida Statutes. Naturally, however, without the benefit of the presumption, the burden returns to the challenger to establish that the agency failed to timely (i.e. as soon as feasible) begin to adopt the statement as a rule.28 In this case, the evidence showed that the Department feasibly could have started to adopt the PRZ Policy as a rule as early as December 1999, if not sooner. It is concluded that rulemaking was feasible as of, and not later than, January 1, 2000, the date upon which the PRZ Policy took effect.29 In short, the Department's current rulemaking efforts are not only too little for it to benefit from Section 120.54(1)(a)1.c., Florida Statutes, but also come too late to avoid a finding that Section 120.54(1)(a) has been violated. Consequently, it is concluded that the Department has violated Section 120.54(1)(a), Florida Statutes, in connection with the PRZ Policy. Attorneys’ Fees and Costs Section 120.595(4)(a), Florida Statutes, provides that “[u]pon entry of a final order that all or part of an agency statement violates s. 120.54(1)(a), the administrative law judge shall award reasonable costs and reasonable attorneys' fees to the petitioner, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds." The Department has not proved the applicability of an exception to the mandate that attorneys’ fees and costs be awarded to the successful petitioner in a Section 120.56(4) proceeding. Accordingly, it is hereby determined that Petitioners are entitled to recover a reasonable sum for the attorneys’ fees and costs they have incurred in the prosecution of this action. The amount of the award shall be determined by separate order.
The Issue Whether Respondent, Florida Power & Light Company, is entitled to the renewal of Permit No. FL0001562-012-IW1N, the combined Industrial Wastewater/National Pollutant Discharge Elimination System permit for the continued operation of the Turkey Point Cooling Canal System.
Findings Of Fact The Parties Respondent FPL is the largest energy company in the United States, serving more than five million customer accounts in the state of Florida. FPL owns and operates the Turkey Point Clean Energy Center ("Turkey Point"), which consists of three electrical generating units. FPL is the holder of the Permit, an industrial wastewater ("IWW")/National Pollutant Discharge Elimination System ("NPDES") permit for the Turkey Point CCS, which provides wastewater treatment and effluent disposal for two of the three electrical generating units at Turkey Point. As stated above, FPL is the applicant for the Renewal Permit that has been challenged in this proceeding. Respondent DEP is the state agency authorized to regulate the construction and operation of wastewater treatment and effluent disposal facilities, pursuant to chapter 403, Florida Statutes, and implementing rules. As part of its responsibilities, DEP issues permits to authorize the treatment and discharge of industrial wastewater under the state industrial wastewater program, and the federal NPDES program pursuant to delegation from the United States Environmental Protection Agency ("EPA").4 Petitioner FKAA is a public water supply utility authority, established pursuant to chapter 76-441, Laws of Florida. It is responsible for providing potable water services in Monroe County, and domestic wastewater and reclaimed water services to select areas within its geographic jurisdiction. FKAA operates a potable water wellfield in Florida City, Florida, approximately 9.5 miles west of the CCS that withdraws water from the Biscayne Aquifer. Petitioner FKFGA is a volunteer association comprised of professional fishing guides who conduct business, and engage in conservation and education activities, in and around south Florida. Intervenor Monroe County is a county and political subdivision of the state of Florida, the geographic boundaries of which include the Florida Keys, the Florida Keys National Marine Sanctuary, and a portion of Biscayne Bay. Monroe County receives its potable drinking water services from FKAA. 4 The NPDES program is a federal pollution control program established by the Clean Water Act at 33 U.S.C. §1342, the purpose of which is to control point source discharges of industrial and domestic wastewater and stormwater into navigable waters of the United States. The Turkey Point Clean Energy Center and the CCS Turkey Point is an electrical generating facility located on approximately 11,000 acres in unincorporated southeast Miami-Dade County. Its business address is 9760 Southwest 344th Street, Florida City, Florida. The Biscayne National Park is east of, and adjacent to, the facility, and the Biscayne Bay Aquatic Preserve is located northeast, east, and southeast of the facility. The Model Land area, which is a tract of freshwater and brackish wetlands, is generally located to the north, west, and south of the CCS. Several water management canals are located in close proximity to Turkey Point. Specifically, the South Florida Water Management District's ("SFWMD") L-31E Canal, C-106 North Model Land Canal, and C-107 South Model Land Canal are located west of the CCS. Additionally, the Card Sound Road Canal is located west and southwest of the facility, and discharges into Biscayne Bay south of the CCS. The SFWMD S-20 Discharge Canal is located west and south of the CCS, and the Sea-Dade Canal is south of the facility; these canals discharge into Biscayne Bay south of the CCS. Additionally, remnant once-through cooling water canals are located at Turtle Point and the Barge Basin, at the eastern boundary of the facility. These canals have been plugged, so that they no longer are connected to Biscayne Bay. As stated above, Turkey Point currently consists of three electrical generating units: Units 3 and 4, which are nuclear units; and Unit 5, which is a natural gas-fired combined-cycle unit. These electrical generating units are authorized pursuant to the Certification. The Turkey Point facility is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. The CCS consists of a network of canals covering approximately 5,900 acres and providing wastewater treatment and effluent disposal for Units 3 and 4, as well as functioning like a radiator to dissipate heat from the cooling water generated by the operation of these units. The heated cooling water is discharged into the CCS at an internal outfall located at the northwest end of the CCS. Water pumps and gravity circulate the heated water in a counterclockwise direction, north to south, through the CCS, dissipating heat as the water flows through the CCS. Once the cooling water has circulated through the CCS, it is pumped back into Units 3 and 4 at the northeast end of the CCS for reuse as cooling water for those units. The CCS was excavated into sediments and limestone that are part of the surficial Biscayne Aquifer. The CCS is not lined, so there is no physical barrier that prevents water in the canals from entering the Biscayne Aquifer ground water beneath the CCS. Most of the canals comprising the CCS are between three and four feet deep, with an approximately 20-foot-deep canal that formerly was part of the once-through cooling system. A perimeter berm system blocks the CCS from having a direct connection to surface waters, and there are no water control structures, such as culverts, pipes, or pumps, which allow water to be directly discharged from the CCS into offsite surface waters. There are approximately 4.5 billion gallons of water in the CCS, on average. Although some small wastewater streams from the electrical generating units and stormwater are discharged into the CCS, the water in the CCS is comprised of rainfall, cooling water for the electrical generating units, water pumped into the CCS from the Upper Floridan Aquifer, and ground water seepage. Evaporation is the predominant means by which water leaves the CCS, and water from the CCS also seeps into ground water. Evaporation, rainfall, and water inflows from other sources affect the salinity of the water in the CCS canals. As a result of evaporation and periods of low rainfall, the salinity of the water in the CCS has increased over time. The addition of water from rainfall, ground water seepage, and other sources counteracts the effect of evaporation on salinity in the canals. Thus, the salinity of the water in the canals at any given time is driven by the balance of evaporation, water inflows, and water outflows. The Interceptor Ditch, which is located immediately west of the CCS and immediately east of the L-31E Canal, was constructed to create a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. Permitting History of Turkey Point and the CCS The Turkey Point electrical generating facility was constructed in the 1960s. As originally constructed, Turkey Point had a once-through cooling water system through which heated cooling water was directly discharged into Biscayne Bay. Pursuant to a 1971 Consent Decree between FPL and the U.S. Department of Justice, FPL constructed the CCS to alleviate the adverse environmental effects of the direct discharge of heated cooling water into Biscayne Bay. When the CCS was designed, the U.S. Atomic Energy Commission prepared an Environmental Impact Statement ("EIS"), which recognized that water from the CCS could seep, via ground water, into Biscayne Bay. The EIS concluded that the effect of this seepage would be insignificant and was outweighed by the benefit of stopping direct discharges of heated water from Turkey Point into Biscayne Bay. In order to construct the CCS, FPL obtained numerous permits and approvals from multiple regulatory agencies, including the U.S. Atomic Energy Commission, EPA, the U.S. Army Corps of Engineers, the Florida Water Pollution Control Board, and Miami-Dade County, Florida. FPL has operated the CCS, consistent with its original design, since 1973. EPA issued NPDES permits for the CCS, and these permits periodically were renewed. Additionally, since approximately 1982, DEP and its predecessor agency have issued industrial wastewater permits for the CCS. EPA delegated the NPDES permitting program to DEP in 1995, and since that time, DEP has issued combined IWW/NPDES permits5 for the CCS. These permits typically have been issued for a five-year period, and renewed for subsequent five-year periods. The existing Permit authorizes discharges of stormwater and industrial wastewater from the electrical generating units through internal outfalls into the CCS. The Permit does not authorize direct discharges from the CCS into surface waters of the state. The Permit authorizes discharges from the CCS into the Class G-III6 ground water underlying the CCS, provided that these discharges do not cause a violation of the minimum criteria for ground water codified in Florida Administrative Code Rules 62-520.400 and 62-520.430, and do not impair the reasonable and beneficial use of adjacent ground waters or surface waters, in violation of rule 62-520.400. In order to ensure compliance with the Permit, FPL conducts extensive monitoring7 of a range of water quality parameters in surface water, porewater, and ground water near the CCS; the seagrass, mangroves, and freshwater marshes near the CCS; and numerous environmental parameters, including rainfall, at, and proximate to, the CCS. FPL reports its data to regulatory agencies on a regular basis, and submits annual reports to 5 DEP's industrial wastewater regulatory jurisdiction extends to discharges into ground water and surface waters, while the NPDES regulatory jurisdiction extends to point source discharges into navigable surface waters. The combined IWW/NPDES permit issued by DEP covers all of these types of discharges. 6 As discussed below, Class G-III ground water has a concentration of 10,000 milligrams per liter ("mg/L") or greater of total dissolved solids. 7 As an example of the extent of FPL's monitoring associated with the operation of Turkey Point and the CCS, FPL collected over 4.5 million data points through its monitoring network for the period from June 1, 2019, to May 31, 2020. SFWMD, addressing all data collected over the previous year. FPL also provides reports to the Miami-Dade County Department of Environmental Resource Management ("DERM") regarding its remediation program at the CCS, and provides access to its monitoring data to other regulatory agencies, including DEP. The most recent version of the Permit was issued in 2005. The Biscayne Aquifer As stated above, the CCS is excavated into the sediments and limestone of the surficial portion of the Biscayne Aquifer. The Biscayne Aquifer is a water-bearing formation consisting of porous, highly permeable limestone that underlies Broward County, Miami- Dade County, parts of Palm Beach County, and parts of Monroe County. The surficial portion of the Biscayne Aquifer is connected to surface waters, including Biscayne Bay, and to the CCS and other canals in south Florida that are excavated to sufficient depth to connect to the surficial aquifer. The Biscayne Aquifer contains both saltwater and fresh water. Saltwater enters the aquifer from Biscayne Bay, canals containing saltwater, and saltwater wetlands. Fresh water enters the aquifer from rainfall, canals containing fresh water, and freshwater wetlands. The transmissivity of the Biscayne Aquifer varies. Generally, the horizontal transmissivity is greater than the vertical transmissivity in the aquifer, and the horizontal transmissivity varies between different layers of the aquifer. In the vicinity of the CCS, the shallowest portions of the aquifer, from land surface to approximately 20 feet below land surface, are less transmissive than some deeper portions of the aquifer. Beneath this shallow portion of the aquifer, there are three more transmissive, preferential flow zones through which water flows more readily: the Upper Flow Zone, located approximately 25 to 35 feet below ground surface; the Lower Flow Zone, located approximately 50 to 65 feet below ground surface; and the Deep Flow Zone, located approximately 70 to 80 feet below ground surface. Portions of the Biscayne Aquifer serve as the primary drinking water source for portions of southern Florida, including Miami-Dade and Monroe counties. The FKAA operates a potable water wellfield, located approximately 9.5 miles west of the CCS in Florida City, that withdraws water from the Biscayne Aquifer. The portions of the Biscayne Aquifer immediately west of the CCS are not used as a potable water source, and there are no drinking water wells in the portion of the Biscayne Aquifer where hypersaline water is present. For purposes of these proceedings, the saltwater interface is the location in the aquifer at which Class G-II and G-III ground water intersect. The saltwater interface is not a vertical line, but, rather, is wedge-shaped, with the lighter, more buoyant fresh water above, and the denser, heavier saltwater below. The location of the saltwater interface changes, depending on hydrologic conditions. Before the substantial drainage of, and development in, south Florida, the saltwater interface was located at the edge of Biscayne Bay in many locations. As a result of the construction and operation of drainage canals, wellfields, water withdrawals, mining activities, and land use practices throughout the 20th century, the saltwater interface has moved inland. By 1955, the saltwater interface already was located west of where the CCS is now located. Thus, by the time the CCS was constructed and became operational in 1973, saline water already had intruded inland along the coast, and saline ground water existed beneath the CCS site and in the deeper portions of the aquifer west of the current location of the CCS. Thus, portions of the Biscayne Aquifer located west of the CCS did not meet Class G-II8 ground water quality standards, even before construction and operation of the CCS. Additionally, due to sea level rise and other factors, the saltwater interface in the Biscayne Aquifer generally is continuing to move inland in southeast Florida. Interaction of the CCS with Ground Water The ground water under the CCS westward to the L-31E Canal is classified as Class G-III ground water, which is non-potable ground water. At the time the CCS was constructed and began operation, the water in the canals had an average salinity of approximately 34 practical salinity units ("PSU"), close to that of Biscayne Bay. Over time, the salinity of the water in the CCS has increased, primarily due to evaporation, which leaves salt behind. By the early 2000s, the salinity level of the water in the CCS had significantly increased. By 2015, the average salinity of the water in the CCS averaged 50 to 60 PSU and peaked at close to 90 PSU. As the water in the CCS became more saline,9 it became more dense than the water in the portion of the aquifer immediately underlying the CCS. As a result, the saline water sank out of the CCS into the underlying ground water until it reached the bottom of the aquifer, approximately 80 feet below land surface. From there, the saline water spread horizontally, primarily westward due to the hydraulic head pressure of seawater to the east. By 2013, a body of hypersaline ground water (referred to, for purposes of these proceedings, as the "hypersaline plume") extended 1.5 to 2.5 miles west of the CCS. Due to its greater density, the hypersaline plume is located 8 As discussed below, Class G-II ground water is potable ground water having a total dissolved solids concentration of less than 10,000 mg/L. 9 This term generally means that the water has a salinity level greater than seawater. at the bottom of the Biscayne Aquifer, with less saline water immediately above it, and fresher water floating near the surface of the aquifer. Over the approximately 48 years of operation of the CCS, the saltwater interface has moved approximately one to 1.5 miles westward from its location when the CCS was constructed and began operating. To date, the greatest westward extent of the saltwater interface is at a point along the Card Sound Road Canal, west and southwest of the CCS, and near the Florida City Canal, north of the CCS. Administrative Enforcement and Remedial Measures Pursuant to the Certification for Turkey Point, starting in 2009, FPL implemented an extensive surface water and ground water monitoring program to determine the vertical and horizontal extent of saline CCS water and its effects on existing and projected surface water and ground water resources. Specifically, FPL installed an extensive water quality monitoring network consisting of 42 ground water monitoring wells and 33 surface water monitoring stations. Each ground water monitoring well consisted of a station comprised of a cluster of three wells: a deep well, an intermediate well, and a shallow well. The ground water monitoring wells and surface water monitoring stations measured and recorded salinity, specific conductance, and other parameters, at established frequencies. As a result of this monitoring program, FPL has collected a substantial amount of data, which has been analyzed and submitted in reports to various regulatory agencies and entities, including SFWMD and DEP. Based on the monitoring data and analysis, in 2013, SFWMD issued a letter to FPL, concluding that the Interceptor Ditch was effective in restricting the westward movement of saline water from the CCS in the upper portion of the aquifer, but was not effective in restricting the movement of saline water from the CCS into the deeper portions of the Aquifer. SFWMD concluded that, as a result of the operation of the CCS, saline water has moved westward of the L-31E Canal. Also based on the monitoring data and analysis, and in consultation with SFWMD and other regulatory entities, DEP determined that the westward migration of saline water from the CCS needed to be abated to prevent further harm to waters of the state, and that, in order to do so, the water in the CCS needed to be freshened to a salinity of approximately 34 PSU. In December 2014, DEP issued Administrative Order 14-0741, directing FPL to develop a CCS salinity management plan to reduce the salinity of the CCS, in order to abate the westward movement of saline CCS water into Class G-II ground water. The Administrative Order was challenged by third parties, and, following an administrative hearing in DOAH Case Nos. 15-1746 and 15-1747, DEP issued a Final Order on April 21, 2016, approving the Administrative Order and the remedial measures established therein.10 On April 1, 2016, the Siting Board issued a Final Order in OGC Case No. 14-051, DOAH Case No. 15-1559EPP,11 approving the modification of the Certification, to authorize FPL to construct and operate two wells to withdraw up to 14 million gallons per day ("mgd") of water from the Upper Floridan Aquifer and discharge that water into the CCS as part of the salinity management plan to lower the salinity of the water in the CCS. On April 25, 2016, DEP issued a Warning Letter to FPL, stating that water quality sampling indicated that water originating in the CCS was reaching tidal surface waters connected to Biscayne Bay, possibly violating surface water quality standards and ground water quality standards. Also on April 25, 2016, DEP issued a Notice of Violation ("NOV"), incorporating findings in DEP's Final Order in DOAH Case Nos. 15-1746 10 DEP entered a Final Order approving the Administrative Order, which was appealed by one of the parties, Atlantic Civil, Inc. ("ACI") in DCA Case No. 3D16-978. ACI ultimately dismissed its appeal. 11 ACI and other third parties unsuccessfully challenged the modification of the Certification, authorizing the construction and operation of these wells to freshen the CCS. and 15-1747. These findings were that the CCS is the major contributing cause of the continued westward movement of the saltwater interface; that the discharge of saline CCS water into ground water contributes to saltwater intrusion; and that saltwater intrusion into the aquifer west of the CCS is impairing the reasonable and beneficial use of adjacent G-II ground water, in violation of rule 62-520.400. Among other things, the NOV directed FPL to consult with DEP to determine appropriate abatement and remediation measures to address the violations identified in the NOV. In May 2016, FPL submitted to DEP nutrient monitoring results from surface water quality monitoring stations in deep channels in Biscayne Bay adjacent to the CCS. Based on the surface water quality monitoring results, DEP determined, and found in the Consent Order, that no violations of surface water quality standards in Biscayne Bay had occurred due to operation of the CCS. On June 20, 2016, FPL and DEP executed a Consent Order to address the ground water quality violations identified in the NOV and to preemptively address future surface water quality violations which were the subject of the Warning Letter. The Consent Order was not timely challenged, so became final agency action and is in effect. To address ground water violations identified in the NOV, and to help ensure that surface water quality standards are not violated in the future, the Consent Order established three objectives: (1) ceasing discharges from the CCS that impair the reasonable and beneficial use of the G-II ground water to the west of the CCS, in violation of rule 62-520.400; (2) preventing releases of ground water from the CCS into surface waters connected to Biscayne Bay that exceed surface water quality standards in Biscayne Bay; and (3) providing mitigation for environmental impacts related to the historic operation of the CCS. The Consent Order identified specific measures for achieving these objectives; established standards for determining compliance with the objectives and measures; and established timeframes for implementing the measures to accomplish the objectives. To achieve the first objective, the Consent Order directed FPL to engage in freshening activities by pumping essentially fresh water from the Floridan Aquifer into the CCS, as authorized under the modification to the Certification12 to reduce the salinity of the water in the CCS to an average annual salinity of 34 PSU. To implement this remedial measure, FPL installed five wells, having a collective pumping capacity of 14 mgd, to pump brackish water from the Floridan Aquifer into the CCS to reduce the overall salinity of the water in the CCS. The Consent Order established a specific schedule for meeting this target salinity level, and, if necessary, requires FPL to submit a plan containing additional measures to meet that salinity level. FPL began implementing these freshening measures in November 2016, and the CCS had reached a salinity of 34 PSU by November 2020; however, FPL did not achieve the 34 PSU target on an average annual basis because there was less rainfall than in the ten-year period of record on which the freshening plan was based. As previously noted, FPL has proposed additional freshening measures, as required by the Consent Order; however, that proposal, which would be addressed by modifying the Certification, is in the early stages of review and addressed in, or authorized by, the Renewal Permit.13 FPL also has implemented a thermal efficiency plan, as required by the Consent Order, to maintain the water in the CCS at a lower temperature in order to reduce evaporation. 12 Neither the freshening activity authorized in the Certification nor the freshening activity recently proposed by FPL—which, if approved, would be authorized by a modification of the Certification—are authorized by the Renewal Permit. Therefore, these activities are not within the scope of these proceedings. 13 Refer to notes 3 and 12, above. Another key component of the Consent Order aimed at accomplishing the first objective was to require FPL to halt the migration of the hypersaline plume of water seeping from the CCS within three years of the commencement (i.e., May 15, 2018) of the remediation measures, and to reduce the westward extent of the hypersaline plume back to the L-31E Canal within ten years of commencement of the remediation measures.14 To withdraw the hypersaline plume eastward to the L-31E Canal, FPL has installed a Recovery Well System ("RWS"), consisting of ten wells located along the northern and western boundary of the CCS. These wells, which are cased to the Lower Flow Zone of the Biscayne Aquifer, collectively withdraw hypersaline water from the bottom hypersaline plume at a rate of 15 mgd. The hypersaline water removed by the wells is injected, by deep underground injection control wells, into the Floridan Aquifer Boulder Zone, a deep isolated geological formation which does not contain potable water and is used for the disposal of domestic and industrial wastewater. As further discussed below, operation of the RWS creates a hydrologic barrier to prevent water beneath the CCS from flowing west of the boundary of the CCS, and also functions as a remediation measure by drawing hypersaline water that previously had migrated westward from the CCS, back to the L-31E Canal. The Consent Order provides that the westward migration of the hypersaline plume will be deemed halted when the third Continuous Surface Electromagnetic Mapping ("CSEM") survey shows no net increase in hypersaline water volume and no net westward movement in the leading edge of the hypersaline plume. As stated above, the RWS became operational on May 15, 2018. 14 The rate of discharge of water from the CCS into ground water is directly related to the salinity level of the water in the CCS, with more saline water discharging at a greater rate than less saline water. Reducing the salinity of water in the CCS will reduce the rate of discharge into ground water, and also will reduce the salinity gradient that pushes ground water westward from the CCS. Once the water in the CCS no longer is hypersaline, there will be no further discharge of hypersaline water into the aquifer. To accomplish the second objective of the Consent Order, FPL filled in the Turtle Point Canal and the Barge Basin Canal in order to reduce the potential for CCS-origin ground water to flow or seep into surface waters at these locations. In addition, FPL has implemented a nutrient management plan to reduce nutrient concentrations in the water in the CCS and has undertaken other measures, further discussed below, to mitigate for the impacts of the hypersaline plume. The Renewal Permit On or about October 22, 2009, FPL timely filed the application (hereafter, "Application") to renew Permit No. FL0001562-012-IW1N with DEP, requesting authorization for the continued operation of the CCS as a wastewater treatment and effluent disposal facility for the Turkey Point electrical generating facility. Because FPL timely filed the Application,15 the validity period of the Permit was administratively extended, so that the 2005 version of the Permit is the current operative regulatory authorization for the CCS. Pursuant to rule 62-620.335(3), the 2005 version of the Permit remains in effect until a final order is issued in these proceedings, approving or denying the Renewal Permit. DEP reviewed the Application and supporting information and determined, based on those submittals; an analysis of FPL's Annual Remedial Action Annual Status Reports ("RAASRs"); the Electronic Document Management System ("EDMS," also known as "OCULUS") database for the Turkey Point facility; and data and information provided by third parties and other regulatory agencies, including SFWMD and DERM. In addition, consistent with federal and state rule requirements, DEP 15 The Application was filed at least 180 days before expiration of the Permit. See Fla. Admin. Code r. 62-620.335(1), (3). coordinated with EPA regarding renewal of the Permit; EPA did have any objections to issuance of the Renewal Permit DEP complied with all applicable permit application review process requirements, pursuant to rule 62-620.510. On January 2, 2019, DEP issued a Notice of Draft Permit, which was published in the Miami Herald on January 15, 2019. A public notice announcing a public meeting on the Draft Permit was published in the Miami Herald on April 4, 2019, and a public meeting on the Draft Permit was held in Homestead, Florida, on May 7, 2019. Additionally, DEP received public comment through May 21, 2019. Pursuant to the comments received and input at the public meeting, DEP made approximately 28 revisions to the Draft Permit. On April 20, 2020, DEP issued the Notice of Intent to Issue the Renewal Permit. The Notice of Intent was published in the Miami Herald on April 23, 2020, Petitioners and Intervenor received written notice on April 22, 2020. After receiving an extension of time to challenge the proposed issuance of the Renewal Permit, on June 4, 2020, FKAA and FKFGA each timely filed a separate petition for administrative hearing, challenging the proposed issuance of the Renewal Permit. The Renewal Permit authorizes FPL to continue to operate the CCS as a wastewater treatment and effluent disposal facility; establishes numeric and narrative limits for constituents in the water leaving the CCS; establishes extensive surface water, ground water, and pore water monitoring requirements, and establishes requirements regarding operation of the CCS. There are no new surface water or ground water discharges authorized by the Renewal Permit. Like the Permit issued in 2005, the Renewal Permit is a "no discharge" NPDES permit, in that it does not authorize a direct point source discharge to surface waters. Consistent with the 1972 EIS prepared for the construction of the CCS, the Renewal Permit continues to authorize seepage of CCS water into surface waters, provided that such seepage does not cause or contribute to a violation of applicable surface water quality standards and criteria established in Florida Administrative Code Chapter 62-302 and does not impair the designated use of contiguous surface waters. The Renewal Permit also continues to authorize the diffuse discharge of CCS water into Class G-III ground water, provided such discharge meets the water quality standards in rules 62-520.400, 62-520.420, and 62-430 applicable to Class G-III ground water and does not impair the reasonable and beneficial use of adjacent ground waters. The Renewal Permit establishes a compliance schedule for meeting this condition that is consistent with the timeframes set forth in the Consent Order for halting the westward migration of the hypersaline plume of water from the CCS and retracting the hypersaline plume back to the L-31E Canal.16 Specifically, Renewal Permit paragraphs I.1. and VI.8 through VI.10 require that the westward migration of the hypersaline plume from the CCS be halted within three years of commencement of the remedial measures established in the Consent Order, and that the hypersaline plume be retracted back to the L-31E Canal within ten years of commencement of those remedial measures. Compliance with these requirements is determined by CSEM surveys. As stated above, the remedial measures were commenced on May 15, 2018, so the westward migration of the hypersaline plume must be halted by May 16, 2021, and the hypersaline plume must be retracted back to the L-31E Canal by May 16, 2028.17 As further discussed below, the competent substantial evidence establishes that by implementing the RWS, FPL already is meeting the 16 The Renewal Permit refers to the Consent Order, and imposes a compliance schedule for halting and retracting the hypersaline plume that is consistent with specified provisions of the Consent Order, but it does not incorporate the Consent Order. 17 FPL's progress in meeting these compliance milestones, in order to demonstrate reasonable assurance that it will comply with the Renewal Permit's ground water-related conditions, is discussed below. requirement to halt the westward migration of the hypersaline plume from the CCS, and is on track to meet the requirement to withdraw the hypersaline plume back to the L-31E Canal within the timeframe set forth in the Renewal Permit. The Renewal Permit provides that if the compliance milestone established in paragraph VI.9, regarding halting the westward migration of the hypersaline plume, is not met, as determined by the CSEM surveys, FPL must develop and submit a plan for halting the westward migration of the hypersaline plume with the compliance schedule established in the Renewal Permit. The Renewal Permit also provides that at the conclusion of the fifth year of implementing the remedial measures—i.e., May 16, 2023—FPL must evaluate and report to DEP regarding the effectiveness of the remedial measures in retracting the hypersaline plume back to the L-31E Canal by May 16, 2028. If FPL's evaluation shows that such measures are not sufficient to achieve the hypersaline plume ten-year retraction requirement, FPL must provide an alternate plan for DEP review and approval to achieve this requirement. The Renewal Permit authorizes the continued operation of internal outfalls that discharge plant process water and stormwater to the CCS. The Renewal Permit imposes additional protective measures in order to provide reasonable assurance that surface and ground water quality standards will be met by operation of the CCS. Specifically, these measures include a new ground water monitoring group, Ground Water Monitoring Group G-001, which consists of cluster wells that sample ground water at shallow, intermediate, and deep depths, at 20 specified locations in the relative vicinity of the CCS—specifically, west of the L-31E Canal; west of the south-central portion of the CCS; south of the CCS; Southwest Model Lands; Northwest Model Lands; west-central Model Lands; West of Card Sound Canal Road; Biscayne Bay channel entrance to the Barge Basin; Biscayne Bay east of the CCS; north of the CCS; in the central portion of the CCS; Biscayne Bay southeast of the CCS; the northwest corner of the CCS; east of the south-central portion of the CCS; east of the L- 31E Canal, adjacent to the S-20 water control structure; Model Lands west of the L-3 well; Model Lands west of the Florida City Canal—and one deep well adjacent to the City of Homestead baseball complex; the L-3 well sampling at two depths; the L-5 well sampling at two depths; the G-28 well sampling at two depths; and the G-21 well sampling at two depths. These ground water monitoring wells will sample and monitor numerous ground water parameters, including specific conductance; salinity; total dissolved solids ("TDS"); chloride; sodium; nitrogen species, including total ammonia, ammonium ion, nitrate plus nitrite, and total Kjeldahl nitrogen ("TKN"); phosphorus; orthophosphate; magnesium; sulfate; sulfide; and tritium. These sampled parameters include those that Petitioners have raised in these consolidated challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Ground water monitoring wells TPGW-1, 4, 5, 6, 17, 18, and 19 are specifically designated for use in determining compliance with the permit requirement to retract the hypersaline plume. In addition, the Renewal Permit authorizes a new series of surface water monitoring sites, Surface Water Monitoring Group D-01A, at locations in Biscayne Bay, the L-31E Canal, the S-20 Canal, and the Card Sound Canal. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable surface water standards as a result of operation of the CCS. The Renewal Permit also authorizes a new series of porewater18 monitoring sites, Porewater Monitoring Group D-02A, in coastal marine wetlands located north, east, and south of the CCS. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Additionally, the Renewal Permit requires monitoring, at several specified monitoring locations in the CCS, of a range of parameters in non-process wastewater and stormwater discharges into the CCS through and existing internal outfall. The parameters to be sampled include total suspended solids; biochemical oxygen demand; dissolved oxygen; pH; salinity; specific conductance; TDS; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; orthophosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. The Renewal Permit also requires FPL to develop and implement a detailed Best Management Practices ("BMPs") Plan, the purpose of which is to prevent or minimize the generation, and potential for release, of pollutants from operation of the Turkey Point facility that would be discharged into the CCS. As discussed above, after FPL submitted the Application for the Renewal Permit in 2009, and before DEP issued the Notice of Intent to issue the Renewal Permit, DEP determined that the discharge of water from the 18 Porewater is the free water present in sediment. It is water within the interstitial distance between ground water, where ground water standards apply, and surface water, where surface water quality standards apply. Porewater sampling and analysis is a useful tool in determining whether constituents in ground water are seeping into surface water. CCS into ground water was impairing the reasonable and beneficial use of adjacent Class G-II ground water, and issued the NOV. FPL and DEP entered into the Consent Order to resolve that violation, as well as to ensure that water seeping from the CCS into ground water would not cause violations of surface water quality standards. In implementing the remediation measures required under the Consent Order,19 FPL constructed, and is operating, the RWS. As further discussed below, the RWS already has halted the westward migration of the hypersaline plume, so that the operation of the CCS under the Renewal Permit will not violate applicable ground water quality standards. Thus, when DEP issued the Notice of Intent, FPL no longer was in violation of any conditions of the Permit or applicable ground water or surface water quality standards; accordingly, DEP determined that the Renewal Permit should not be denied on the basis of a violation of any permit condition. Challenge to the Renewal Permit As discussed above, on June 4, 2020, Petitioners FKAA and FKFGA each filed a petition, challenging DEP's proposed issuance of the Renewal Permit. These challenges were referred to DOAH and respectively assigned Case Nos. 20-2967 and 20-2968. As noted above, on August 24, 2020, Monroe County filed its unopposed Motion to Intervene, challenging the proposed issuance of the Renewal Permit. Monroe County became a party to these consolidated proceedings on August 26, 2020. At their core, the Administrative Petitions and Motion to Intervene allege, in part, that continued operation of the CCS will result in the 19 The specific purpose of the Consent Order was to address and resolve the ground water quality standard violation that had resulted from the discharge of hypersaline water from the CCS into ground water. continued westward migration of the hypersaline plume, threatening drinking water and other ground water-dependent natural resources.20 The Administrative Petitions and Motion to Intervene also allege that the operational changes authorized by the Renewal Permit will increase nutrient loading, including nitrogen and phosphorus, in Biscayne Bay, thereby disrupting populations of aquatic flora and fauna, in violation of surface water quality standards. The Administrative Petitions and Motion to Intervene allege that FPL has not provided the necessary reasonable assurance that the continued operation of the CCS, through issuance of the Renewal Permit, meets the applicable statutory and rule requirements and standards. Specifically, the Administrative Petitions and Motion to Intervene allege that operation of the CCS, including discharges to ground waters and surface waters, as authorized in the Renewal Permit: (1) will impair designated uses of adjacent surface waters and ground waters, in violation of applicable surface water and ground water rules in chapters 62-302 and 62-520, respectively; (2) will cause or contribute to violations of the surface water quality standards in chapter 62-302; (3) does not adequately protect against discharges of nuisance, acutely toxic, carcinogenic, mutagenic, teratogenic, and dangerous compounds, as required by rules 62-520.400 and 62-520.430; (4) will result in discharges into ground water that will impair contiguous surface waters, in violation of rule 62-520.310(2); (5) will cause a violation of the estuary specific numeric nutrient criteria applicable 20 The Petitions also allege that adding water to freshen the CCS will increase the seepage rate of hypersaline water, resulting in maintenance or increase of the westward movement of the hypersaline plume, which will, in turn, result in the alleged harm to drinking water and natural resources. However, as discussed above, the Renewal Permit does not authorize the addition of freshening water to the CCS; that activity is required under the Consent Order— which was not challenged and is in effect—and was authorized by modification of the Certification, which also is in effect, after being unsuccessfully challenged. Therefore, any effects of freshening activities that already have been authorized, or any future freshening that may be authorized pursuant to further modification of the Certification, are not at issue in this proceeding. to Biscayne Bay which are established in rule 62-302.532(1)(h); (6) will fail to maintain and protect Biscayne Bay National Preserve, as required by rule 62-302.200(27), by virtue of being designated an Outstanding Florida Water ("OFW") and an Outstanding Natural Resource Water ("ONRW")21; (7) will fail to protect Biscayne Bay, as an OFW, pursuant to rule 62-302.700(9)(h)5. and 6.; (8) is inconsistent with the anti-degradation policy set forth in rules 62-302.300, 62-302.700, and 62-4.242(1); (9) has not been shown to be necessary or desirable under federal standards or under circumstances which are clearly in the public interest, if it is shown that the discharges from the CCS will result in water quality degradation; (10) is not in the public interest because: it is not important and beneficial to the public health, safety, or welfare, taking into account policies in rules 62-302.300 and 62-302.700; it will adversely affect the conservation of fish and wildlife, including threatened or endangered species, or their habitats; it will adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and is not consistent with any applicable surface water improvement and management plan that has been adopted by a water management district and approved by DEP; should be denied on the basis of prior permit violations, pursuant to rules 62-4.070(5) and 62-302.320(7); (12) constitutes a menace to public health; creates a public nuisance; is harmful to wildlife and to fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water, in violation of section 403.021(1) and implementing rules; (13) is inconsistent with the State of Florida's declared public policy to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies; the propagation of wildlife, fish, and other aquatic life; and domestic, agricultural, industrial, 21 Biscayne Bay has been designated as an ONRW by rule 62-302.700(10)(a); however, that designation is not in effect, and was not in effect at the time of the final hearing, because the Legislature has not enacted legislation specifically authorizing protection and maintenance of ONRWs to the extent required by federal regulation. recreational, and other beneficial uses; and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water, as provided in section 403.021(2) and implementing rules; (14) is inconsistent with the State of Florida's declared public policy, in section 403.012(5), that the prevention, abatement, and control of pollution of the air and waters of this state are affected with a public interest; (15) is inconsistent with rule 62-4.070(1) requirement that a permit shall be issued to the applicant upon such conditions as DEP may direct, only if the applicant affirmatively provides DEP with reasonable assurance, based on plans, rest results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules, and the corresponding requirement, in rule 62-4.070(2), that DEP deny any application where reasonable assurances are not provided; (16) is inconsistent with the requirement in rule 62-4.242(2)(a) that DEP not issue a permit or water quality certification for any proposed activity or discharge in an OFW, or which significantly degrades, either alone or in combination with other stationary installations, any OFWs, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest, and either a DEP permit for the activity has been issued or an application for such permit was complete on the effective date of the OFW designation, or the existing ambient water quality within OFWs will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed 30 days; that lowered water quality would occur only within a restricted mixing zone approved by DEP; and that water quality criteria would not be violated outside the mixing zone; (17) will violate the prohibition in rule 61-4.242(3) that all discharges or activities that may cause degradation of water quality in ONRWs are prohibited, other than discharges that are exempted by statute from DEP permitting or regulation, or discharges or activities described in rules 62-4.242(2)(a)1.b. or c., and 62-4.242(2)(a)2.b.; (18) will violate the anti-degradation policy in rule 62-302.300(14) through (16),22 that existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected; that pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this state and shall not be allowed and that waters having water quality below the criteria established for them shall be protected and enhanced, except that DEP shall not strive to abate natural conditions; that if DEP finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any DEP rule or standard, it shall refuse to permit the discharge; that if an applicant for either a general or generic permit or renewal of an existing permit for which no expansion of discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest; and that if DEP determines that the applicant has caused degradation of water quality over and above that allowed by previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards, or under circumstances which are clearly in the public interest and are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge; (19) will violate the requirement in rule 62-302.500(1)(a)6. and (1)(b) that surface waters remain free from man-induced non-thermal components of discharges which post a serious danger to the public health, safety, and welfare, and/or which produce conditions so as to create a nuisance; (20) will violate the requirement in rule 62-520.400(1)(f) that the permitted discharge from the 22 The petitions also allege violations of rule 62-302.300(18)(a) and (b), which have not been specifically cited. CCS shall not impair the reasonable and beneficial use of adjacent waters beyond the facility boundary; (21) will violate the requirement in rule 62-520.420 that water quality standards for Class G-II and Class G-III ground water shall not be violated; (22) will violate the requirement in rule 62-520.430 that water quality standards for Class G-III ground water shall not be violated; (23) will violate the requirement in rule 62-620.300(5) that the permitted activity is operated consistent with the proposed permit conditions; (24) will violate the requirement in rule 62-620.320(1) that a permit shall only be issued if the applicant affirmatively provides DEP with reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the wastewater facility or activity will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules; and (25) will violate the requirement in rule 62-620.320(9) that the permit conditions provide for compliance with chapter 403 and applicable DEP rules. Effect of the CCS on Offsite Surface Waters Potential for Seepage of CCS Water into Offsite Surface Waters As previously discussed, there is no direct surface water connection between the canals and water in the CCS and surface waters, including Biscayne Bay. The competent substantial evidence establishes that the berm system, as constructed, creates a relatively impermeable barrier to the direct discharge of CCS water into Biscayne Bay. Moreover, in any event, any net surface flow that could exist between the CCS and Biscayne Bay would predominantly be from east to west—i.e., from Biscayne Bay toward the CCS. Also, as previously discussed, when the CCS was constructed and became operational in the early 1970s, the EIS recognized that there was the potential for some indirect discharge of CCS water into surface waters, including Biscayne Bay, via seepage of CCS water into the ground water immediately underlying the CCS and seepage of that ground water into surface water. In order for water in the CCS to travel through ground water to surface waters, including to Biscayne Bay, three conditions must collectively exist: a pathway that allows the significant flow of water; a hydraulic gradient—i.e., energy potential difference—between the water levels in the CCS and Biscayne Bay; and sufficient time for the water to flow the distance from the CCS to Biscayne Bay, which, in turn, is dependent on the hydraulic conductivity of the geologic unit through which the water flows. If any of these conditions is not present, then water cannot flow from the CCS to Biscayne Bay or other surface waters. The Evidence Does Not Establish that there is Seepage of CCS Water into Biscayne Bay The competent substantial evidence establishes that these conditions do not collectively exist such that there is little, if any, flow or seepage of water from the CCS, via ground water, into Biscayne Bay. As discussed above, the Biscayne Aquifer generally is highly permeable; however, its permeability—and, therefore, its ability to enable significant water flow—varies at different depths and locations. The upper 20 feet of the Biscayne Aquifer is comparatively less permeable than some of the deeper layers in the aquifer. Thus, the upper portion of the Biscayne Aquifer immediately underlying the CCS does not enable any appreciable flow or seepage of ground water containing CCS water into Biscayne Bay. To this point, a comparison of the height of the water in the CCS relative to that in Biscayne Bay shows that the water height in the CCS remains relatively constant, while the water height in Biscayne Bay fluctuates with tidal cycles. This constitutes strong evidence that CCS water does not enter, or have any appreciable exchange with, Biscayne Bay surface waters through a ground water connection. The evidence also does not bear out that CCS water flows into Biscayne Bay through the more permeable preferential flow zones within the Biscayne Aquifer. CCS water may seep into the Upper Flow Zone, which is a layer of the aquifer located approximately 20 to 30 feet below the land surface that acts as a preferential flow zone; however, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone does not intersect the bottom of Biscayne Bay at any location, so that a pathway does not exist for CCS water which has seeped into the ground water in the Upper Flow Zone to ultimately seep or flow into Biscayne Bay. The competent, substantial, and persuasive evidence also shows that CCS-origin water does seep, via ground water, into Biscayne Bay through submarine springs. Some small karst depressions, which Petitioners and Intervenor have characterized as caves,23 exist in the limestone at the bottom of Biscayne Bay east of the CCS. The competent, substantial, and persuasive evidence establishes that these depressions are not deep enough to intersect the Upper Flow Zone of the Biscayne Aquifer. That CCS water does not seep into Biscayne Bay via these karst depressions is borne out by tritium data from water samples collected at the bottom of the depressions, showing that very little of the water at the bottom of the depressions is CCS-origin water, and that to the extent CCS-origin water is present in the depressions, it can be explained entirely by atmospheric deposition. Tritium is a mildly radioactive isotope of hydrogen that is naturally present in the upper atmosphere and waters distal from the Turkey Point facility at average levels of approximately 6 picocuries per liter ("pCi/L"). 23 Dr. Mark Stewart, FPL's expert hydrogeologist, testified that "caves" are solution features in limestone large enough for a person to enter, and that the karst depressions at the bottom of Biscayne Bay, immediately east of the CCS, are not large enough to be considered caves. Tritium also is created as a by-product of the nuclear reaction process, and is part of all water in the CCS, at an average level of approximately 6,000 pCi/L. Because tritium is part of the water molecule in all CCS-origin water, it is an excellent tracer for CCS-origin water. The atmospheric background level of tritium in the vicinity of the CCS averages approximately 11.2 pCi/L, due to evaporation of tritium- containing water from the CCS. By comparing tritium levels in surface water and ground water samples collected at, and in the vicinity of, Turkey Point with the natural atmospheric background tritium level, one can ascribe any tritium levels in the samples which exceed the natural background level to CCS-origin water. The level of tritium in water quality monitoring samples taken at the bottom of the karst depressions ranges between approximately 12 and 20 pCi/L, which shows that highly diluted CCS-origin water—i.e., approximately one one-thousandth of the water sample—exists in these depressions. The competent, substantial, and persuasive evidence establishes that if there were any significant groundwater seepage of CCS-origin water, via ground water, into these depressions in Biscayne Bay, the sustained tritium levels in the depressions likely would be comparable to the tritium levels of the water in the CCS. However, nowhere in Biscayne Bay, including at the bottom of these karst depressions, do tritium levels approach the 6,000+ pCi/L tritium levels of CCS-origin water that would exist if there were seepage or flow of CCS water into Biscayne Bay. Surface water samples taken in Biscayne Bay consistently show tritium levels in the range of 11 to 20 pCi/L, which is entirely explained by atmospheric deposition in the form of rainfall or water vapor, rather than by ground water seepage. To this point, Dr. Kip Solomon, FPL's expert on tritium transport in atmospheric and aqueous mediums, persuasively opined that the overwhelmingly dominant pathway for transport of tritium into Biscayne Bay is via evaporation and atmospheric deposition. This conclusion is supported by the persuasive evidence establishing that neither the karst depressions, nor any other location at the bottom of Biscayne Bay, intersect the Upper Flow Zone or any other deeper preferential flow zones in the Biscayne Aquifer. Additionally, if there were ground water seepage from the CCS into Biscayne Bay, that ground water would enter the bay through the porewater in the sediment at the bottom of the bay. However, porewater sampling in sediment at the bottom of Biscayne Bay consistently shows an average tritium level of approximately 9.3 pCi/L, which is less than the average concentration of tritium in the surface water of Biscayne Bay. This supports the conclusion that tritium likely enters Biscayne Bay at the surface of the water, consistent with an atmospheric deposition source, rather than by ground water seepage from the CCS. Ground water monitoring of tritium levels at various locations under, and in the vicinity of, the CCS, further shows that the predominant movement of tritium-containing water, via seepage from the CCS into ground water, is downward, rather than eastward. These monitoring results further support the conclusion that there is no significant seepage of CCS-origin water, via ground water, into Biscayne Bay. The competent substantial evidence also does not show the existence of a hydraulic gradient that would favor flow of CCS water, via ground water, into Biscayne Bay. The hypersaline water in the CCS is more saline, and, therefore, denser, and heavier per volume, than the seawater in Biscayne Bay, which averages between 34 and 36 PSU. Thus, any hypersaline CCS water in the Upper Flow Zone is generally denser and heavier than the seawater above it, in Biscayne Bay and the uppermost portions of the Biscayne Aquifer. This density and weight difference creates a stable stratification of ground water, with the denser, heavier hypersaline water sinking to, and present at, the lower levels, and the fresher, lighter seawater floating on the top of the stratified ground water column. This stable stratification prevents any hypersaline water that may move from the CCS eastward under Biscayne Bay from rising in the stratified water column up into the bay. Additionally, as discussed above, the water levels in Biscayne Bay typically are higher than the water levels in the CCS, even at low tide in the bay. The lowest water levels in the CCS are on its eastern side, closest to Biscayne Bay, due to operation of the CCS pumps, which pump the water counterclockwise through the CCS, starting at its northwestern corner and ending at its northeastern corner. The difference in the water levels between the CCS and Biscayne Bay creates a hydraulic gradient that results in a net flow of water from east to west—i.e., toward the CCS, rather than toward Biscayne Bay. FPL's expert hydrogeologist, Stewart, determined that for the period from 2011 to 2018, there was a westward hydraulic gradient, favoring water movement from east to west, 70 to 75 percent of the time, and that in the relatively short period when an eastward gradient existed—in 2015, an outlier period during which the CCS water levels were at historic highs—the duration of that eastward gradient was insufficient to allow CCS-origin water to flow to and reach Biscayne Bay. Thus, the prevailing westward hydraulic gradient significantly limits the potential for CCS-origin water to flow or seep into areas beneath Biscayne Bay or reach surface waters in Biscayne Bay. Additionally, the competent substantial evidence establishes that there is no significant flow of ground water from the CCS into Biscayne Bay via the Turtle Point Canal or Barge Basin Canal. These canals, which are located at the northeast corner of the Turkey Point facility, are remnants of the cooling water pass-through system that existed before construction of the CCS. Pursuant to the Consent Order, FPL filled these canals specifically to reduce the potential for CCS water to flow, via ground water seepage or flow, into Biscayne Bay. The Turtle Point Canal previously was approximately 20 feet deep, but has been almost completely filled,24 as required by the Consent Order. The Barge Basin Canal, which provides water access to Turkey Point, previously was approximately 30 feet deep; this canal has been filled, pursuant to the Consent Order, to a depth of approximately nine feet, which is the depth of the channel in Biscayne Bay leading to it. If these canals had constituted a significant source of CCS water discharge into Biscayne Bay before they were filled, a stable, density- stratified, high-salinity and high-tritium layer of water would have filled the canal cuts. However, sampling at the canal sites before they were filled did not indicate the existence of such conditions. This shows that even before the canals were filled, they likely were not a significant source of discharge of CCS-origin water into Biscayne Bay. Moreover, the tritium data collected through water quality monitoring at the Turtle Point and Barge Basin canals shows that tritium levels are very similar to those in the surface water of Biscayne Bay, further indicating that there is no significant flow or seepage of CCS-origin water, via ground water connection through these canals, into Biscayne Bay. In sum, the competent, substantial, and persuasive evidence establishes that there is little, if any, seepage or flow of CCS-origin water into Biscayne Bay. The Evidence Does Not Establish that CCS Water Seeps into Offsite Canals Additionally, the competent substantial evidence does not show that CCS-origin water is seeping, via ground water, to offsite canals or surface waters west of the CCS. As discussed above, the Interceptor Ditch is located immediately to the west of the CCS. As previously noted, it was constructed for the purpose 24 The Turtle Point Canal also has been plugged with a dam consisting of bentonite clay, which has very low permeability so acts as an effective barrier to water flow or percolation. of creating a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. The water level in the Interceptor Canal is maintained at a level that establishes an eastward hydraulic gradient from the L-31E Canal to the CCS, so that shallow surface flow from the CCS to the west is restricted. Tritium analysis of the surface water in the L-31E Canal shows that very little, if any, CCS water is seeping or flowing into the L-31E Canal. The competent substantial evidence further establishes that, since FPL's operation of the RWS beginning in 2018, the hydraulic gradient is toward the wells in the RWS, rendering it highly unlikely that CCS water is seeping or flowing into the L-31E Canal. There are other canals located west and south of the CCS. These include the S-20 Discharge Canal, which is located west and south of the southern end of the CCS, and the Card Sound Road Canal and Sea-Dade Canal, both which are located west and south of the CCS. The same hydrological principles that govern the potential for ground water seepage toward Biscayne Bay govern the potential for ground water seepage to the offsite canals. Specifically, there must be a ground water pathway through which water can readily travel from the CCS to the offsite canals; a hydraulic gradient favoring the movement of water from the CCS toward the offsite canals must exist; and the hydraulic gradient must exist for a sufficient duration to allow water seeping from the CCS to reach the canals. The competent, substantial, and persuasive evidence does not establish that pathway exists for CCS-origin water to seep into the L-31E Canal. The L-31E Canal is approximately 15 to 18 feet deep, so is not deep enough to intersect the Biscayne Aquifer Upper Flow Zone. Additionally, the hydraulic gradient does not favor flow or seepage of ground water from the CCS into the L-31E Canal. As noted above, the water level in the Interceptor Ditch is maintained at a lower water elevation than in the L-31E Canal, so there is a continual west to east gradient, from the L-31E Canal toward the CCS. Moreover, and importantly, because the RWS has been implemented along the western boundary of the CCS, the hydraulic gradient of ground water is toward the RWS, such that any ground water seeping westward from the CCS is intercepted by the RWS and pumped into the Boulder Zone of the Floridan Aquifer; thus, that water cannot seep into the L-31E Canal. The S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal are all approximately 18 feet deep—too shallow to intersect the Upper Flow Zone, which would constitute the pathway for CCS-origin water to seep, via ground water, into these canals. Water quality monitoring data in and around the S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal indicates that little, if any, CCS-origin water reaches these offsite canals via ground water seepage. Additionally, the tritium data does not show significant CCS-origin water seepage or flow, via ground water, into these canals. Water quality data collected in 2015 and 2016 indicates that the Turtle Point Canal and Barge Basin Canal may have intersected the Upper Flow Zone, so that CCS-origin water could have seeped into these canals. However, as discussed above, as required by the Consent Order, these canals have been filled with a bentonite slurry wall down to a depth of approximately 30 feet below land surface, so that they no longer intersect the Upper Flow Zone. In sum, the competent, substantial, and persuasive evidence shows that there is very little, if any, seepage of CCS-origin water, via ground water, into the canals or other surface waters proximate to the Turkey Point facility. The Evidence does not Establish that the CCS Causes Surface Water Quality Violations or Degrades Water Quality in Biscayne Bay Because there is no surface water connection of the CCS to Biscayne Bay, to the extent nutrients—i.e., phosphorus and nitrogen—were to seep or flow from the CCS into Biscayne Bay, the only mechanism by which these nutrients in CCS water could reach Biscayne Bay would be through seepage of CCS-origin water into ground water, and then up into the bay. Further to this point, dissolved nutrients generally do not travel with water molecules that evaporate. Therefore, unlike tritium, nutrients cannot be atmospherically deposited into Biscayne Bay via water vapor or rain. As discussed above, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone of the Biscayne Aquifer does not intersect the bottom of Biscayne Bay, so there is no significant pathway for CCS water carrying dissolved nutrients to flow or seep into Biscayne Bay. Additionally, as discussed above, even if a pathway existed for CCS water to flow or seep, via ground water, into Biscayne Bay, the predominant westward hydraulic gradient, which is from Biscayne Bay toward the CCS, significantly limits the potential for CCS-origin water carrying dissolved nutrients to seep or flow, via ground water, into the surface waters of the bay. Also, as discussed above, to the extent a short-lived eastward hydraulic gradient were to exist, the evidence establishes that it is not of sufficient duration to enable CCS water to reach Biscayne Bay surface waters. The competent substantial evidence also establishes that, in any event, the water in the CCS does not contain excessive amounts of phosphorus and nitrogen. As noted above, FPL has implemented a nutrient management plan. Therefore, even if a pathway, hydraulic gradient, and sufficient time for seepage of water from the CCS into Biscayne Bay all existed, the CCS does not constitute a significant potential source of nutrient pollution. Furthermore, because phosphorus is biologically active, and because the movement of nitrogen and phosphorus dissolved in CCS water is retarded by physical and geochemical processes as the water flows through the sediments comprising the aquifer, to the extent CCS water were to seep, via ground water, into Biscayne Bay, nutrient concentrations in that water would be even less than that of tritium25—i.e., less than one-one thousandth of the water sample—so would not constitute a significant source of nutrient input into Biscayne Bay. Compliance with Numeric and Narrative Nutrient Criteria Biscayne Bay is classified as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well-balanced population of fish and wildlife. Rule 62-302.530 codifies numeric and narrative surface water quality criteria for a range of constituents. With respect to total phosphorus and total nitrogen, rule 62-320.530(48)(a) and (48)(b) establish narrative criteria.26 Specifically, rule 62-302.530(48)(a) requires that the discharge of nutrients shall be limited as needed to prevent violations of other standards contained in chapter 62-302, regarding surface water quality standards. The rule further states that man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of rules 62-302.300, 62-302.700, and 62-4.242. Additionally, rule 62-302.530(48)(b) provides that "[i]n no case will nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." 25 As discussed above, tritium is an excellent tracer of CCS-origin water because it is part of the water molecule in all CCS-origin water. Because dissolved nitrogen and phosphorus ions are not part of the water molecule, and physically and chemically react with the sediment comprising the aquifer, they would be present in smaller concentrations than tritium in CCS- origin water. 26 DEP has not adopted generally applicable Class III surface numeric water quality standards for total phosphorus or total nitrogen. Rule 62-302.531, titled Numeric Interpretations of Narrative Nutrient Criteria, requires that the narrative water quality criterion for nutrients set forth in rule 62-302.530(48)(b) be numerically interpreted for nutrients (i.e., total phosphorus and total nitrogen) and nutrient response variables (i.e., chlorophyll-a),27 in a hierarchical manner. Fla. Admin. Code R. 62-302.531(2). Numeric nutrient criteria generally are developed by determining a threshold level of nutrients in a water body beyond which additional nutrients will cause an imbalance in the flora and fauna. Importantly, the rule provides that when a site-specific interpretation of the narrative criterion in rule 62-302.530(48)(b) has been established, that numeric interpretation will constitute the primary interpretation for that criterion. Fla. Admin. Code R. 62-302.531(2)(a). Thus, pursuant to this rule, for locations for which DEP has adopted site-specific numeric interpretations of the narrative criteria, those site-specific numeric nutrient criteria are used to determine whether there is an exceedance of the narrative nutrient criterion. In rule 62-302.532, titled Estuary Specific Numeric Interpretations of the Narrative Nutrient Criterion, DEP has established site-specific numeric interpretations of the narrative criterion for the estuaries in Florida. With respect to Biscayne Bay, DEP has adopted numeric nutrient criteria for total nitrogen, total phosphorus, and chlorophyll-a that are applicable to specific areas of Biscayne Bay called Estuary Nutrient Regions ("ENRs"). ENRs are regions in the Bay which have similar physical and biological characteristics. The ENR-specific numeric nutrient criteria were adopted to maintain nutrient levels within the ENR at concentrations consistent with the very low nutrient levels that existed in the 1970s, pre-development of much of the area around Biscayne Bay. 27 Chlorophyll-a is a nutrient response variable that can be used as an indicator of algal biomass in a water body. In order to maintain healthy conditions in the ENR, the numeric nutrient criteria for nitrogen, phosphorus, and chlorophyll-a all must be met for that ENR. These site-specific numeric nutrient criteria are codified in rule 62-302.532(1)(h), which went into effect on July 3, 2012. To determine compliance with the numeric nutrient criteria adopted for a specific ENR, water quality sampling for each nutrient is conducted in that ENR at least four times per year, with one sampling event in the winter and one in the summer. In order for the water quality within an ENR to be in compliance with the numeric nutrient criteria established for that ENR, the numeric nutrient criterion for the specific nutrient cannot be exceeded more than once in a three-year period. The ENRs that are immediately proximate to the CCS are ENR H1 (Card Sound Estuary), ENR H6 (South Central Inshore Estuary), and ENR H7 (South Central Mid-Bay Estuary). Russell Frydenborg, who served as a water quality program administrator with DEP and had substantial involvement in developing the site-specific numeric nutrient criteria for the ENRs in Biscayne Bay, presented testimony and supporting evidence regarding compliance with the numeric nutrient criteria in these ENRs. The water quality monitoring data for ENRs H1, H6, and H7 show, for the period from 2013 to 2020, there were no exceedances of the total phosphorus numeric nutrient criterion in ENRs H1, H6, and H7. Accordingly, the numeric nutrient criterion for total phosphorus is being met in the ENRs immediately proximate to the CCS. For the period from 2013 to 2020, the water quality monitoring data for ENRs H1, H6, and H7 show that the numeric nutrient criterion for total nitrogen was exceeded once, in 2018, in ENR H6. However, because the criterion was exceeded only once during the sampling period, which is longer than the three-year period necessary for compliance, the water quality within each of these ENRs was in compliance for total nitrogen over the sampling period. Accordingly, the numeric nutrient criterion for total nitrogen is being met in the ENRs immediately proximate to the CCS. The competent, substantial, and persuasive evidence establishes that the proposed surface water monitoring stations included in the Application for the Renewal Permit are located such that they will accurately detect any potential exceedances of the numeric nutrient criteria in ENRs H1, H6, and H7. The water quality monitoring data for ENRs H1, H6, and H7 show that over the period from 2013 to 2020, the numeric nutrient criterion for chlorophyll-a was exceeded once, in 2017, in ENR H7. Again, because the criterion was exceeded only once during the sampling period—which is longer than the three-year period necessary for compliance—the water quality within each of these ENRs was in compliance for chlorophyll-a over the sampling period. Kenneth Weaver, DEP's program administrator who oversees the development and administration of water quality standards, also testified regarding the results of water quality monitoring for chlorophyll-a, total nitrogen, and total phosphorus conducted over a 20-year period, between 1980 and 2020, in ENRs H1, H6, and H7. The results of his analysis, which were consistent with the evidence presented by Frydenborg, confirm that there currently are no exceedances of the numeric nutrient criteria for chlorophyll-a, total nitrogen, and total phosphorus in ENRs H1, H6, and H7. Weaver's long-term water quality analysis also showed that, for the period between approximately 1970—before the CCS commenced operation— and 2020, salinity levels in ENRs H1, H6, and H7 fluctuated over a range from approximately 25 PSU to 40 PSU, but that there were, and are, no upward trends in salinity levels in these areas of Biscayne Bay. This evidence further supports the conclusion that the CCS is not contributing significant amounts of water, via surface water or ground water seepage or flow, in these areas of the bay. Additionally, porewater samples taken over a ten-year period at transects proximate to the CCS show lower nutrient levels than at areas distal from potential influence of the CCS. This constitutes further evidence that the CCS is not a significant source of nutrient input into Biscayne Bay. Collectively, this competent, substantial, and persuasive evidence demonstrates that ENRs H1, H6, and H7 are meeting—and, over a substantial period of time, have met—the numeric nutrient criteria established for these parts of the bay. Weaver also testified, persuasively, that there is no evidence of any imbalance of flora or fauna related to nutrient concentrations in ENRs H1, H6, and H7. Rather, over time, the water quality in the areas of Biscayne Bay proximate to the CCS has improved. This is borne out by the competent, substantial, and persuasive evidence, discussed in detail below, showing that the marine ecosystem in the areas of Biscayne Bay proximate to the CCS is in a relatively healthy, high-functioning condition, particularly compared to other areas in the bay. Additionally, Weaver and Frydenborg both explained that the estuary-specific numeric nutrient criteria adopted in rule 62-302.532(1) for Biscayne Bay, including ENRs H1, H6, and H7, are more stringent than the narrative nutrient criteria for those ENRs. The numeric nutrient criteria for Biscayne Bay were developed using a "no observed effect" standard, rather than an imbalance threshold, so that the numeric criteria will be exceeded before an imbalance in natural populations of aquatic flora or fauna occurs. Thus, compliance with the numeric nutrient criteria for the ENR means that the narrative nutrient criteria for the ENR are met. In sum, the competent, substantial, and persuasive evidence establishes that the continued operation of the CCS pursuant to the Renewal Permit will comply with the applicable estuary-specific numeric nutrient criteria, and, therefore, will comply with the applicable narrative nutrient criteria. Discharge from the CCS does not Degrade Surface Water Quality in Biscayne Bay As noted above, Biscayne Bay is designated as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. Florida's anti-degradation policy, codified at rule 62-302.300, states, in pertinent part, that pollution that causes or contributes to new violations of water quality standards or to the continuation of existing violation is harmful to the waters of this State and will not be allowed. Fla. Admin. Code R. 62-302.300(15). The policy further states if DEP finds that a new or existing discharge will reduce the quality of the receiving water below the classification established for that water body—here, the Class III designation—or violate any DEP rule or standard, then DEP shall refuse to permit the discharge. Fla. Admin. Code R. 62-302.300(16). Rule 62-302.300(18) further provides that, with limited exception,28 an applicant for the renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Fla. Admin. Code R. 62-302.300(18)(a). 28 Under rule 62-302.300(18)(b), if an applicant for the renewal of an existing permit has caused water quality degradation beyond that allowed in the permit, then the applicant must show that the lowering of water quality is necessary or desirable under federal standards and under circumstances that are clearly in the public interest. As discussed below, the competent substantial evidence does not establish that any discharge from the CCS into surface waters has resulted in the degradation of water quality in Biscayne Bay or other surface waters. The anti-degradation permitting requirements, which implement the anti-degradation policy set forth in rule 62-302.300, are codified at rule 62-4.242. This rule authorizes the issuance of permits when consistent with the anti-degradation policy set forth in rule 62-302.300, and, if applicable, rule 62-302.700, regarding OFWs. Fla. Admin. Code R. 62-4.242(1)(a). Rule 62-4.242(1)(b), which—importantly—applies only when a proposed discharge would result in water quality degradation, provides that, in determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, DEP will consider and balance four factors: whether the proposed project is beneficial to the public health, safety or welfare, taking into account the policies in rule 62-302.300 and, if applicable, rule 62-302.700; whether the proposed discharge will adversely affect the conservation of fish and wildlife, including threatened or endangered species or their habitats; whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity; and whether the proposed discharge is consistent with any applicable adopted and DEP-approved surface water improvement and management ("SWIM") plan. Additionally, the open surface waters of Biscayne Bay adjacent to the CCS are designated an OFW, pursuant to rule 62-302.700. This designation prohibits discharges which degrade water quality, except as allowed under rule 62-4.242(2), below the ambient water quality that existed in the water body as of the date of its designation as an OFW. Biscayne Bay was designated an OFW in 1979. Rule 62-4.242(2) prohibits DEP from issuing a permit for a proposed activity or discharge within an OFW, or which significantly degrades, either alone or in combination with activities or discharges, any OFW, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest. Here, the competent, substantial, and persuasive evidence establishes that, to the extent there may be some indirect discharge or seepage from the CCS, via ground water, into Biscayne Bay, that discharge or seepage does not degrade, and has not degraded, the quality of the surface waters of the Bay. First, as discussed above, the applicable numeric nutrient criteria for Biscayne Bay, including ENRs H1, H6, and H7, are intended to maintain nutrient levels at concentrations necessary to maintain healthy conditions in the ENR. Thus, compliance with the applicable numeric nutrient criteria constitutes compliance with the OFW anti-degradation standard. As discussed above, ENRs H1, H6, and H7 all are in compliance with the applicable estuary-specific numeric nutrient criteria. Therefore, the evidence does not show that there has been any degradation of water quality in these ENRs. Further, the competent substantial evidence shows that, to the extent there may be any discharge of nutrients from the CCS into Biscayne Bay, the nutrient levels in such discharge do not vary from, or exceed, the natural variability of the levels for those nutrients established in the numeric nutrient criteria for ENRs H1, H6, and H7. As discussed above, water quality monitoring over a recent multi-year period (2013 to 2020) establishes that there have not been any exceedances of the numeric nutrient criteria for total phosphorus, total nitrogen, or chlorophyll-a in these areas of the bay, which are closest to the CCS. Additionally, to establish that the water quality in ENRs H1, H6, and H7 has not been degraded by nutrient discharges since 1979, when Biscayne Bay was designated an OFW, Frydenborg presented the results of water quality monitoring conducted between approximately 1970 and 2020, for total phosphorus, total nitrogen, and chlorophyll-a in these ENRs. The water quality monitoring results for total phosphorus for ENR H1 shows that in 1985 and 1988, the level of total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, more recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and, in fact, have declined and remained well below the numeric nutrient criterion for total phosphorus for that ENR through 2020. Water quality monitoring for total phosphorus in ENR H6 shows that in 1971, before the CCS commenced operation, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. More recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H6 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. Water quality monitoring for total phosphorus in ENR H7 shows that in 1970 and 1971, and in 1976 through 1979, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, starting in 1980, water quality monitoring shows that, with the exception of total phosphorus levels in 1985, 1987, and 1988, total phosphorus has not exceeded the level that has been established as the numeric nutrient criterion for total phosphorus for that ENR. Since 1990, the total phosphorus levels in ENR H7 have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. The water quality monitoring results for total nitrogen for ENR H1 shows that in 1970, 1979, and 1981 through 1984, total nitrogen exceeded the level that has since been established as the numeric nutrient criterion for total nitrogen. However, more recent water quality monitoring shows that between 1993 and 2020, total nitrogen levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H6 for the period between 1993 and 2020 shows that the total nitrogen level that has been established as the numeric nutrient criterion has been exceeded twice, in 2008 and 2018. The water quality monitoring results otherwise generally show that since 2009, the total nitrogen level in ENR H6 has been well below that established as the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H7 for the period between 1970 and 2020 shows five exceedances—in 1970, 1974, 1975, 1981, and 2003—of the total nitrogen level that has been established as the numeric nutrient criterion for that ENR. Recent water quality monitoring results, for the period between 2009 and 2020, show that the total nitrogen level in ENR H7 has remained at or below the level that constitutes the numeric nutrient criterion for total nitrogen for that ENR. Water quality monitoring for chlorophyll-a for ENR H1 for the period between 1979 and 2020 shows that, with the exception of, 1982, 1991, and 2007, the level of chlorophyll-a that has been established as the numeric nutrient criterion for this ENR has not been exceeded. In fact, since 2008, the chlorophyll-a levels in ENR H1 have been well below the level established as the numeric nutrient criterion for this ENR. Water quality monitoring for chlorophyll-a for ENR H6 for the period between 1979 and 2020 show that the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Water quality monitoring results for chlorophyll-a for ENR H7 for the period between 1979 and 2020 show that, with the exception of an exceedance in 2017, the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Collectively, this evidence shows that, to the extent that there may be an indirect discharge from the CCS, via ground water seepage or flow, into Biscayne Bay, that discharge has not caused or contributed to the violation of the applicable estuary-specific numeric nutrient criteria established in rule 62-302.532(1)(h) for the ENRs adjacent to the CCS, and has not caused or contributed to the violation of any applicable Class-III surface water criteria or standards codified in rules 62-302.500 or 62-302.530. This evidence also establishes that, to the extent there is any discharge of water from the CCS into Biscayne Bay, the discharge has not caused or contributed to the degradation of Biscayne Bay below Class-III surface water quality standards, nor has it degraded surface water quality beyond that allowed in the Permit. Thus, FPL is not required, to demonstrate, under rule 62-4.242(1)(b), that such discharge is necessary or desirable under federal standards and under circumstances that are clearly in the public interest, pursuant to the factors set forth in that rule. However, even if a discharge from the CCS degraded water quality, that discharge would meet the "necessary and desirable under federal standards" and "clearly in the public interest" requirements of rule 62-4.242(1)(b). Specifically, the Turkey Point electrical generating facility is an essential source of electricity for south Florida and is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. Because the CCS dissipates heat from, and serves as a source of cooling water for, the operation of Units 3 and 4, these electrical generating units cannot be operated without the CCS. Closure of Units 3 and 4 would deprive FPL's customers in south Florida, and, particularly, in Miami-Dade County, of an essential source of electricity. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is important and beneficial to the public health, safety, and welfare. Additionally, as discussed below, the competent, substantial, and persuasive evidence establishes that the CCS does not, and, under the Renewal Permit, will not, adversely affect the conservation of fish and wildlife, including threatened and endangered species, or fishing or water- based recreational values or marine productivity in the vicinity of the CCS. Moreover, to the extent CCS water were to discharge into Biscayne Bay, and that discharge resulted in water quality degradation for these nutrients—neither of which has been demonstrated by the competent substantial evidence, discussed above—because the CCS was in operation before Biscayne Bay was designated an OFW, FPL would not be required to show that any such degradation was in the public interest unless it proposed to expand its discharge into surface waters. As discussed above, the competent substantial evidence establishes that there is no surface water discharge, and very little, if any, ground water discharge, from the CCS into Biscayne Bay, and no evidence was presented showing that FPL has proposed to expand its discharge from the CCS into surface waters. Finally, if FPL were required, pursuant to rule 62-4.242(2), to show that a discharge from the CCS into Biscayne Bay is clearly in the public interest, the competent substantial evidence in the record shows that this standard is met. As discussed above, the Turkey Point electrical generating facility is an essential source of electricity for south Florida, and Units 3 and 4 cannot be operated without the CCS as a source of cooling water and heat dissipation for the thermal discharge from these units. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is clearly in the public interest. Furthermore, under any circumstances, the competent substantial evidence, discussed above and also addressed below, does not establish that, to the extent there is any discharge of CCS water into Biscayne Bay, that discharge has caused or contributed to degradation of surface water quality in the bay. In sum, the competent, substantial, and persuasive evidence establishes that continued operation of the CCS pursuant to the Renewal Permit will not violate Florida's anti-degradation policies codified in rules 62-302.300 and 62-302.700, and will comply with the applicable anti- degradation permitting provisions in rule 62-4.242. The CCS has not Adversely Affected the Marine Ecosystem Immediately Offshore of the CCS The existence of a high-functioning marine ecosystem in Biscayne Bay immediately offshore of the CCS constitutes additional, strong evidence that the CCS is not a source of nutrient introduction into Biscayne Bay. FPL's expert marine ecologist, Dr. Jerald Ault, testified regarding the condition and function of the marine ecosystem immediately adjacent to the CCS. Based on his extensive onsite investigations, he opined that the condition and ecological function of this portion of the bay is as good, or better, than at any other location in the bay. Specifically, unlike many other areas in Biscayne Bay, the portion of the bay immediately contiguous to the CCS, including the remnant water intake and discharge canals at Turkey Point, has an undisturbed, healthy mangrove forest and healthy seagrass communities. That the marine ecosystem is functioning at a high level in the vicinity of Turkey Point is evidenced by the substantial abundance and diversity of bait fish species, such as mullet, anchovies, and sardines; the substantial abundance of pink shrimp, which serves as a food source for many marine fish species; the substantial abundance, diversity, and individual size of predator species of fish, such as tarpon, snapper, snook, and schoolmaster; and the presence of many predator species of bird, such as pelicans, cormorants, ospreys, and terns. The presence, abundance, diversity, and individual size of these organisms immediately offshore of Turkey Point evidences the existence of high-quality, high-functioning marine habitat in this area. Additionally, the presence of threatened and endangered species, such as the smalltooth sawfish, in the portion of Biscayne Bay proximate to the CCS is another indicator of high quality, relatively unstressed marine habitat in this area.29 The good condition and high-level function of the ecosystem in this part of Biscayne Bay shows that the CCS is not adversely affecting the ecology of this portion of the bay. To this point, if the CCS were a source of nutrient introduction to Biscayne Bay, or were otherwise harming the ecological functioning of this part of the bay, the marine ecosystem in the area closest to the CCS would exhibit stress and degradation—which it does not. Dr. Ault compared the good condition and high-level ecological function of the portion of Biscayne Bay proximate to the CCS with that of other parts of the bay which are suffering significant ecological decline as a result of development, urban and agricultural discharges to the bay, and extensive pressure from recreational overfishing. Historically, Biscayne Bay was a highly productive estuarine ecosystem. Before the network of drainage canals was constructed in south Florida, the bay received diffuse freshwater sheet flow from the Everglades, across the land. Construction and operation of the multiple drainage canals in the area has replaced the diffuse freshwater discharge from sheet flow with intermittent high-volume discharges from the canals, transforming portions of Biscayne Bay from an estuary to a partially-enclosed saltwater lagoon. This transformation has resulted in significant ecological degradation in parts of Biscayne Bay, particularly in those areas proximate to the drainage canals. By contrast, the CCS has not affected the delivery of freshwater to Biscayne Bay. Additionally, much of the shoreline habitat along the littoral edge of Biscayne Bay has been eliminated by seawalls and bulkheads associated with 29 Species that have become threatened or endangered often become endangered or threatened because they are particularly sensitive to changes to natural environmental conditions. urban development. Undisturbed, healthy mangrove shoreline habitat now only exists in the southern portion of Biscayne Bay, including at the shoreline adjacent to Turkey Point. To this point, Turkey Point has essentially functioned as a buffer from development of the shoreline along that portion of Biscayne Bay. Dr. Ault also opined that recreational overfishing and boating, directly related to the substantial population increase of Miami-Dade County, along with the impacts of commercial shrimping operations on seagrass habitat and quantities of shrimp available as a food source for fish species, have substantially contributed to the significant decline of fish populations in Biscayne Bay. Additionally, water quality has significantly declined in the portions of Biscayne Bay closest to the points where the drainage canals, which convey agricultural and urban runoff containing nitrogen, phosphorus, and other pollutants, discharge into the bay. These canals have been established as constituting the primary source of nutrient introduction into Biscayne Bay. The addition of nutrients to historically-oligotrophic Biscayne Bay has degraded the water quality and disrupted the ecology of many portions of the Bay, particularly areas to the north of Turkey Point, where these canals discharge into the bay. Dr. Ault developed, and presented the results of, a hydrodynamic model that he conducted, demonstrating the transport, in Biscayne Bay, of fresh water containing dissolved phosphorus and other nutrients discharged from the drainage canals north of Turkey Point into the bay. This model shows that the net movement of water particles containing dissolved nutrients is from north to south along the western shore of Biscayne Bay. The results of this model constitute strong evidence that, to the extent water quality monitoring in Biscayne Bay in the vicinity of Turkey Point were to show the presence of elevated levels of phosphorus or nitrogen, the discharge from the drainage canals north of Turkey Point, rather than the CCS, is the source of those nutrients. Dr. David Tomasko, director of the Sarasota Bay Estuary Program, testified regarding the condition of seagrass in Biscayne Bay, including the areas of the bay closest to the CCS. Seagrass meadows are a good indicator of ecosystem health in Florida estuarine ecosystems. The existence and extent of coverage of seagrass meadows in Biscayne Bay are highly variable, and there is not uniform coverage of seagrass at all locations at all times of the year. Based on Tomasko's investigation, in which he analyzed data gathered through FPL's extensive seagrass monitoring program over a ten- year period at 54 locations near the CCS,30 he opined that the CCS is not having an adverse impact on seagrasses in the vicinity of the CCS. Specifically, he noted that turtlegrass continues to grow at the monitoring sites. While the density of the seagrass is highly variable from site to site, and its distribution is patchy due to shallow bottom sediment depths, there is no underlying trend of seagrass decline or nutrient enrichment at the monitored sites near the CCS. The monitoring information also does not show any increase of macroalgae, or replacement of seagrass by macroalgae, in the immediate vicinity of the CCS. Additionally, unlike the seagrasses at a reference site at Barnes Sound, further south in the bay, the condition of the seagrasses in the vicinity of the CCS generally is good. To this point, Tomasko testified, credibly, that the coverage and condition of the seagrasses along transects in Card Sound proximate to the CCS remain similar to the conditions and coverage that he observed in Card 30 FPL's seagrass monitoring program features three pairs of transects located in Biscayne Bay near the CCS, and another reference site south of the CCS, in Barnes Sound, distal from any potential influence from the CCS. Sound in the 1990s. The evidence does not show that there has been any significant die-off of seagrass in the portion of Biscayne Bay immediately proximate to the CCS. Additionally, the nitrogen-to-phosphorus ratios measured in the leaves of the seagrasses sampled along the transects in the vicinity of the CCS are similar to, or greater than, the nitrogen-to-phosphorus ratios measured in seagrasses at the reference site in Barnes Sound.31 If the CCS were a localized phosphorus input source, the seagrasses sampled along the transects nearest to the CCS would have lower nitrogen-to-phosphorus ratios than those at the reference site. In formulating his opinion, Tomasko relied on findings in a 2019 DERM comprehensive report regarding the decline of seagrass and hardbottom habitat in Biscayne Bay. Based on many years of water quality and habitat monitoring, the DERM report concluded that the areas experiencing significant seagrass die-off are north of the CCS, in the 79th Street Basin, Julia Tuttle Basin, Venetian Basin, and Rickenbacker Basin; in central Biscayne Bay, where several drainage canals, including the Coral Gables Canal and the Snapper Creek Canal, discharge into the bay; and south of the CCS, in the Barnes Sound/Manatee Bay Basin, where canals discharge stormwater into the bay. As discussed above, the water entering the bay from these canals contains substantial amounts of nutrients, including phosphorus, which causes algal blooms that adversely affect seagrass. In sum, although there is substantial temporal and spatial variability in the density and coverage of seagrass at locations closest to the CCS, the evidence establishes that the seagrass in these areas are in relatively good condition compared to other locations in Biscayne Bay. If the CCS were a 31 In nitrogen-to-phosphorus ratios, nitrogen levels constitute the numerator and phosphorus levels constitute the denominator. Therefore, the greater the phosphorus level in the seagrass, the lower the nitrogen-to-phosphorus ratio will be. Conversely, the lower the level of phosphorus in the seagrass, the higher the nitrogen-to-phosphorus ratio will be. significant source of phosphorus input into Biscayne Bay, the seagrasses proximate to the CCS would likely be in significantly worse condition. Dr. William Nuttle testified on behalf of Petitioners regarding the flow of CCS-origin water, via ground water, into Biscayne Bay. Based on information contained in FPL's annual water quality monitoring reports for the Turkey Point facility, Nuttle analyzed water and salt budgets for the CCS and interaction of the CCS with the Biscayne Aquifer. Based on his analysis of the amounts of inflow of water into, and outflow of water from, the CCS, Nuttle opined that water leaves the CCS at a depth of around ten feet deep, flows easterly through ground water, and reaches the surface water of Biscayne Bay, and vice versa. As a basis for his opinion, he relied on what he characterized as "elevated" salinity levels in water in the karst depressions in the Bottom of Biscayne Bay at the lowest point of low tide, when the hydraulic gradient from the CCS toward the bay would be greatest. However, he did not compare the salinity levels in the karst depressions, which he characterized as elevated, with the average salinity levels in other areas of Biscayne Bay, or with the average salinity level of the bay as a whole. He also acknowledged that he does not know how much water from the CCS flows into Biscayne Bay, and that, consequently, he could not opine as to the effect that any flow from the CCS has on surface water quality in Biscayne Bay. Nuttle conceded that most of the time, the hydraulic gradient favors movement of water from Biscayne Bay to the CCS. He further acknowledged that in formulating his opinion that water leaves the CCS and enters Biscayne Bay through the karst depressions, he did not take into account the or absence of a significant pathway for flow between the CCS and the bay, or whether there was sufficient time for CCS water to seep or flow into Biscayne Bay. He did not use tritium as a tracer in his investigation of salinity in the karst depressions, so that he was unable to confirm that water in the depressions having what he characterized as "elevated" salinity levels was, in fact, CCS-origin water. Nuttle acknowledged that, to the extent the Turtle Point and Barge Basin canals may previously have been a source of nutrient input into Biscayne Bay, those canals have been filled, creating an impervious barrier to flow or seepage of water from the CCS to the bay. He did not present any evidence showing nutrient levels associated with these remnant canals after they were filled. Petitioners and Intervenor also presented the testimony of Dr. James Fourqurean, who opined that the CCS is adversely affecting the balance of flora and fauna in the region of Biscayne Bay immediately offshore of the CCS. Fourqurean testified regarding the effect of introducing nutrients to seagrass-dominated ecosystems in south Florida. Specifically, when phosphorus is added to sediment in which turtlegrass is growing, the turtlegrass becomes denser, up to the point at which continued addition of phosphorus then favors the growth of benthic macrophyte species, such as shoal grass and widgeon grass. These species outcompete the turtlegrass, thereby causing a decline in the density, coverage, and condition of the turtlegrass. With the continued addition of phosphorus to the system, seagrass communities eventually give way to communities dominated by seaweed and macroalgae, and, ultimately, single-celled microalgae. In 2018 and 2020, Fourqurean conducted investigations of seagrass communities in the offshore areas adjacent to the CCS. In 2018, he found that some turtlegrass beds in the area generally were dense, indicating what he referred to as a phosphorus "sweet spot" for turtlegrass growth. However, in other turtlegrass beds in the area, he found that macro- and microalgae had overgrown the beds, so that little turtlegrass was left. He ascribed the decline of turtlegrass coverage and density, and the preferred growth of algae to increased levels of phosphorus in the sediment. In 2020, he found that in some areas near the CCS, the turtlegrass beds were still dense, but single- celled microalgae were beginning to grow on the turtlegrass blades, indicating the continued addition of phosphorus to the water in that area. He compared the results of his investigations with historic seagrass coverage maps prepared by DERM from seagrass data collected between the 1980 and 1983, with seagrass coverage in 2020, for the immediate offshore areas of Biscayne Bay north of the CCS, adjacent to the CCS, and south of the CCS. This comparison shows that in 2020, for most, if not all, areas of Biscayne Bay immediately offshore, starting north of the CCS and heading south past the CCS, seagrass coverage has significantly declined. The areas north of the CCS, where urban drainage canals discharge into the bay, show the greatest percentage of increased macroalgal coverage and concomitant decline of seagrass coverage, and increased areas of bare sediment having no seagrass or algal coverage. The areas immediately east of the CCS show also show increased percentage of macroalgal coverage, decreased seagrass coverage, and increased areas having no coverage. The area south of the CCS, where the Sea-Dade Canal discharges into the bay, which historically supported seagrass, now shows mostly macroalgae and bare sediment, with little seagrass coverage. Fourqurean also presented testimony and supporting information showing that over the 20-year period between 1999 and 2020, at all areas of Biscayne Bay, starting north of the CCS and going south of the discharge points of the Sea-Dade Canal, with the exception of one area north of the CCS and immediately east of the Homestead Airforce Base, seagrass coverage has declined at annual rates of between 0.1 and 2.5 percent, with the greatest decreases in coverage occurring southeast and south of the CCS, in relative proximity to discharge points of the Sea-Dade Canal and the Card Sound Road Canal. He also presented evidence that some of the highest phosphorus levels in seagrasses have been observed immediately east of, and adjacent to, the CCS. Fourqurean also investigated, and presented evidence regarding, the concentration of tritium in the sediment porewater at some locations immediately east of the CCS which exhibited the highest phosphorus levels in seagrasses. His investigation showed the existence of a positive correlation between the highest concentrations of porewater tritium and the greatest amount of phosphorus in seagrasses. His analysis did not take into account any background level of tritium. Based on this evidence, Fourqurean opined that the areas immediately adjacent to the CCS have experienced the greatest seagrass decline over the 20-year period, and he attributed that decline to phosphorus input from the CCS, through ground water seepage, into Biscayne Bay. For several reasons, the undersigned finds his testimony and opinions unpersuasive. First, although his opinion is based on the assumption that CCS- origin water carrying dissolved phosphorus is seeping into Biscayne Bay, he did not know either the quantity of such water, or the concentrations of phosphorus in such water, that he contended seep into the Bay. Furthermore, in developing his opinion, Fourqurean did not take into account the other significant sources of phosphorus input to Biscayne Bay, including urban and agricultural runoff that enters the bay through discharges from canals located to the north and south of the CCS. He acknowledged that his opinion that the CCS was the source of the high phosphorus levels that he observed in seagrasses near the CCS was predicated on the assumption that the CCS was the source of all of the phosphorus that he observed in the seagrasses. Fourqurean's failure to consider other significant sources of phosphorus in Biscayne Bay while attributing phosphorus levels in seagrass solely to CCS- origin water renders his opinion unpersuasive. Fourqurean also acknowledged that he did not consider hydrodynamic modeling showing that water containing dissolved phosphorus discharged from canals north of the CCS flows south toward the CCS. He also did not take into account geochemical processes, including adsorption, which would attenuate phosphorus levels in CCS-origin water in ground water flowing through a limestone aquifer, which would reduce the amount of phosphorus that may seep into surface water. Additionally, Fourqurean did not take into account natural background tritium levels near the CCS when he developed his opinion that, based on tritium levels in porewater he measured at some locations east of the CCS, where he also observed high phosphorus levels in seagrasses, the phosphorus levels in those seagrasses came from CCS-origin water seeping into Biscayne Bay. Notably, the tritium levels observed in the porewater at the locations that Fourqurean sampled averaged approximately 4.6 pCi/L— far below the 6,000 pCi/L average tritium concentration of CCS water. These tritium levels can entirely be explained by atmospheric deposition into surface waters in the vicinity of the CCS.32 Fourqurean's analysis of porewater in locations where he also calculated high levels of phosphorus in seagrass showed a positive correlation between the concentration of tritium and higher levels of phosphorus in seagrass; however, he acknowledged that this correlation did not demonstrate a causal relationship between the presence of CCS-origin porewater in sediment and the higher levels of phosphorus in seagrasses at the locations he sampled. Stated succinctly, Fourqurean conceded that the 32 Dr. Kip Solomon, FPL's expert on tritium and its transport in the environment, credibly opined that, due to atmospheric deposition, background levels of tritium in surface waters in the area of Biscayne Bay proximate to the CCS consistently range between 11 and 20 pCi/L, and porewater levels of tritium in this area have an average concentration of approximately 9.3 pCi/L. presence of phosphorus-enriched seagrasses near the CCS did not establish a cause-and-effect relationship between such phosphorus enrichment and seepage of water from the CCS into the bay. Fourqurean included, in his expert report, a graphic depicting areas near the CCS where there was seagrass die-off due to high levels of phosphorus. He acknowledged that when he sampled tritium levels in the porewater at these locations in 2020, the tritium levels at these specific locations were some of the lowest he detected in his porewater sampling investigation, thus indicating that very little, if any, CCS-origin water was the source of the high phosphorus levels in seagrass at these locations. He acknowledged that this evidence did not support his hypothesis that excessive nutrients seeping from the CCS via groundwater caused seagrass die-off at these locations. He also acknowledged that, at specific locations in Biscayne Bay where he contended there was significant seagrass decline and die-off from historic levels that were mapped by DERM in the early 1980s, many factors other than phosphorus input from CCS-origin water seeping into the bay— including guano from roosting birds and numerous other potential sources of phosphorus—could be the cause of such seagrass decline and die-off. He also acknowledged that the areas of Biscayne Bay near the CCS are not the only areas of the bay in which there has been extensive seagrass decline and die- off over the nearly 40-year period between DERM's seagrass mapping and his investigation of the levels and locations of that decline. Fourqurean performed a regression analysis of data on seagrass percent coverage in delineated areas near the CCS in order to determine whether the seagrass decline in those areas was statistically significant; however, he did not perform a similar analysis to determine whether other areas in Biscayne Bay also were experiencing statistically significant levels of decline. He acknowledged that, for the areas of the bay closest to the CCS for which he did perform a regression analysis, the areas showing the greatest decline were those south of the CCS, near the location where the Card Sound Canal discharges into the bay. Fourqurean acknowledged that some of the areas east of the CCS which had the greatest levels of phosphorus in seagrasses are proximate to islands that provide bird roosting habitat, thus providing a rich source of phosphorus input to the surface water in the area. He also acknowledged that in the areas closest to the CCS, the levels of phosphorus are much lower than the areas closest to the bird roosting habitat. Fourqurean also acknowledged that in the area where the karst depressions that Petitioners and Intervenor have characterized as "caves" are located, near the southeastern end of the CCS, lower levels of phosphorus were detected in the seagrasses than at other locations where Fourqurean analyzed seagrass phosphorus levels. This indicates that these depressions do not constitute a point of phosphorus input into the bay. Fourqurean did not take water or porewater samples in the karst depressions to analyze for tritium levels in the depressions. It is noted that FPL's expert hydrogeologist, Stewart, performed an analysis of tritium levels in water samples taken in the depressions, and concluded that the tritium levels of water sampled in the depressions are similar to those in water samples taken in other open water locations in Biscayne Bay relatively close to the depressions. This indicates that these depressions do not constitute a connection between the CCS and Biscayne Bay. Fourqurean concurred with Tomasko that seagrass communities in Biscayne Bay are highly variable, and that even under natural conditions, seagrass location and coverage changes over time. He also acknowledged that the most accurate way to determine whether there is a trend with respect to seagrass density at a specific location is to sample that specific location over time in order to determine whether there is a change in density. In formulating his opinions, he did not perform such an investigation, nor did he rely on FPL's extensive seagrass transect data, which shows no adverse trend in seagrass over a ten-year period. He also did not review the 2019 DERM report, which, in part, concluded that the seagrass in areas near Turkey Point are in relatively good condition compared to the seagrasses in areas of the bay north and south of the CCS. In sum, the competent, substantial, and persuasive evidence demonstrates that the continued operation of the CCS will not result in the input of nutrients into Biscayne Bay. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to Biscayne Bay. The Evidence Does Not Show that the CCS Causes Violations of Surface Water Quality Standards Applicable to Other Offsite Surface Waters As previously discussed, there is no direct surface water connection between the CCS and offsite surface waters, including the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals in the vicinity of the CCS. Additionally, as discussed above, the evidence does not show that there is significant, if any, seepage of CCS-origin water, via ground water seepage, into the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals or surface waters in the vicinity of the CCS, and the evidence does not show that the CCS is a source of nutrient input into these canals or other surface waters. Moreover, the RWS is operating to prevent CCS-origin water that seeps into ground water from moving westward past the boundary of the CCS. Thus, under any circumstances, operation of the RWS ensures that future operation of the CCS will not cause nutrient input into offsite canals or other offsite surface waters. Petitioners and Intervenor did not present any evidence showing that there are any water quality violations or ecological imbalances resulting from nutrient discharge or seepage from the CCS into offsite canals or other offsite surface waters. To the contrary, the competent substantial evidence established that continued operation of the CCS will not result in any exceedances of surface water quality standards or criteria applicable to the offsite canals or other surface waters, nor will it alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna in these canals or in other offsite surface waters. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to offsite canals and other surface waters. Effect of Continued Operation of CCS on Offsite Ground Water The Biscayne Aquifer horizontally extends into western Miami-Dade County. Historically, parts of the Biscayne Aquifer have been naturally saline. As a result of the construction of drainage canals, mining, land development, and ground water withdrawals, and other activities, significant saltwater intrusion has occurred in southeastern Miami-Dade County. As discussed above, by 1955, the location of the saltwater interface in the Model Land area in south Miami-Dade County had moved inland, from its original location near the coastline, to near Florida City, with its greatest landward extent at the Card Sound Road Canal, which, at the time, was an uncontrolled source of saltwater intrusion inland. A water control structure was installed in the Card Sound Road Canal in approximately 2010, and the evidence shows that, as of 2012, the inland extent of the saltwater interface along the Card Sound Road Canal had retracted slightly eastward. As discussed above, by the time the CCS became operational in 1973, the saltwater interface was located approximately three to three-and-a-half miles inland from the coast in the Model Land area. Since then, the saltwater interface has moved approximately one to one-and-a-half miles further inland in the Model Land area, to where it currently is located, approximately four- and-a-half miles from the coast. The NOV issued by DEP in April 2016 found that the CCS was the major contributing cause of the continued westward movement of the saltwater interface in the Model Land area, and that saltwater intrusion into the area west of the CCS was impairing the reasonable and beneficial use of adjacent Class G-II ground water in that area. To resolve this ground water standard violation, and to prevent future violations of surface water quality standards and criteria, FPL and DEP entered into the Consent Order. Allen Stodghill, a geologist with DEP who has worked on various ground and surface water-related issues for the Turkey Point facility since approximately 2008, and who was involved in drafting the Consent Order, testified regarding FPL's compliance with the Consent Order.33 As previously discussed, a key objective of the Consent Order was, and is, to cease saline water discharges from the CCS that impair the 33 To the extent FPL is implementing, or has implemented, remedial measures imposed in the Consent Order to address past violations of ground water standards and to prevent future violations of surface water quality standards, FPL's compliance with the Consent Order is germane to determining whether FPL has provided reasonable assurance that it is in compliance with applicable surface water and ground water quality standards, and, therefore, is entitled to issuance of the Renewal Permit. reasonable beneficial use of the adjacent Class G-II ground water to the west. FPL is in compliance with this objective. Although FPL did not achieve a 34 PSU salinity level in the CCS, it submitted a supplemental salinity management plan and also submitted, and is implementing, a thermal efficiency plan to lower the temperature of the cooling water being discharged into the CCS; this will reduce evaporation, which will help reduce the salinity concentration of water in the CCS. As discussed above, FPL also has implemented the RWS, which consists of a series of ten wells located immediately adjacent to the northern and western boundaries of the CCS. These wells collectively pump approximately 15 mgd, or approximately 5.4 billion gallons per year, of water from the Lower Flow Zone of the Biscayne Aquifer, from depths between 70 and 90 feet below land surface. As hypersaline water is withdrawn, the hypersaline plume decreases in vertical and horizontal extent, with the adjacent lower salinity ground water replacing the area formerly containing the hypersaline water that originated from the CCS. As of the final hearing, over 12.5 billion gallons of hypersaline ground water had been extracted from the Biscayne Aquifer by the RWS. The saline water withdrawn through the recovery wells is disposed, through deep underground injection control wells, into the Floridan Aquifer Boulder Zone, approximately 3,000 feet below land surface. The RWS became fully operational in May 2018. The 5.4 billion gallons per year of hypersaline water extracted by the RWS exceeds the approximately four billion gallons per year of water that discharges from the CCS into the ground water beneath the CCS, so that more hypersaline water is being withdrawn by the RWS than is being added to ground water by the CCS. The RWS wells function to withdraw hypersaline water by creating a potentiometric trough, or hydraulic gradient, in the surface of the aquifer. The wells draw water from the hypersaline plume west of the CCS, thereby withdrawing hypersaline water that had migrated west of the CCS before May 2018, when the RWS was implemented. The wells also draw hypersaline water from the CCS that has seeped into ground water to the east of the RWS, thereby creating a hydraulic barrier such that none of the CCS water that seeps into ground water is able to move westward past the RWS. The extraction of the hypersaline ground water beneath the CCS reduces the driving force that contributed to lateral movement away from the CCS, thereby halting the westward migration of hypersaline water from the CCS. Thus, since May 2018, the RWS has functioned—and continues to function— as a hydrologic barrier that has halted the westward movement of hypersaline water from the CCS. The Consent Order also requires that, by May 2028, the hypersaline plume resulting from historical migration of saline water from the CCS in ground water be retracted back to the L-31E Canal. Based on the results of the RWS operation over the past two-plus years, as determined by CSEM data and water quality monitoring, it is anticipated that the hypersaline plume will be retracted back to the L-31E Canal within the ten-year timeframe established in the Consent Order. Another key objective of the Consent Order was, and is, to prevent releases of ground water from the CCS which violate surface water quality standards in Biscayne Bay. This objective was met by filling the Turtle Point and Barge Basin canals. Thus, to the extent these canals intersected the Upper Flow Zone of the Biscayne Aquifer such that there have been a potential pathway for the migration of nutrients from the CCS, via ground water, into Biscayne Bay, that pathway no longer exists at these locations. Additionally, FPL has submitted and implemented a nutrient management plan, and conducted and completed an inspection of the peripheral impoundment structures. The Consent Order also required FPL to mitigate impacts related to historic operation of the CCS. To meet this objective, FPL completed an analysis, using a variable density three-dimensional ground water model developed under an agreement with DERM to allocate the relative contributions of other entities and factors to the inland movement of the saltwater interface. FPL also has entered into an agreement regarding the conveyance to SFWMD of FPL properties to facilitate the Comprehensive Everglades Restoration Plan, and has provided $1.5 million dollars to DEP to be used to finance saltwater intrusion mitigation projects in the Turkey Point region. FPL also conducted, and completed, the surface water quality sampling program to improve trend analysis in Biscayne Bay and Card Sound. FPL also is in compliance with the water quality monitoring requirements imposed in the Consent Order, including conducting the CSEM surveys and monitoring the salinity of ground water in and around the CCS. FPL submits RAASR reports on an annual basis, summarizing activities related to implementing the Consent Order, which contain CSEM survey and water quality monitoring data. As further discussed below, the results of this monitoring provide strong evidence that the RWS has halted the westward migration, via ground water movement, of CCS-origin water. The monitoring wells associated with the RWS consist of a cluster of three wells, one of which samples from the Upper Flow Zone, one of which samples from the Lower Flow Zone, and one that samples the deep aquifer. The results of the ground water monitoring associated with the RWS generally show that the wells are retracting the hypersaline plume. Some deep well monitoring results show an increase in the chloride levels as the RWS extracts the hypersaline water. This is because, as the RWS system draws water from the bottom of the aquifer, the heavier, more saline water sits, and tends to stay, at the bottom of the aquifer, while the less saline water is extracted by the recovery wells. The increase in chloride levels at the deep monitoring wells is expected because the RWS was recently implemented, and as the RWS operates over time, the chloride levels in the deep monitoring wells are anticipated to drop, as the denser, more saline water located at the bottom of the aquifer ultimately is extracted by the RWS. Based on the foregoing, it is determined that FPL is in compliance with the requirements of the Consent Order. Data collected by CSEM surveys and interpreted by FPL's expert hydrologist, Mark Stewart, confirms that the RWS is functioning effectively to halt the westward migration of the hypersaline plume and to retract the hypersaline plume back to the L-31E Canal, as required by the Consent Order. Using the CSEM data, Stewart conducted ground water modeling for chloride levels for each of 14 layers representing the Biscayne Aquifer at different depths, from land surface down to approximately 99 feet below land surface. Stewart's model, which has been peer-reviewed and accepted as accurate by regulatory agencies, including SFWMD, shows that the RWS is functioning to retract the hypersaline plume eastward to the L-31E Canal. Specifically, for the Upper Flow Zone, which constitutes Layer 7 of Stewart's model and ranges from 7.9 to 9.8 meters (approximately 25.9 to 33 feet) below land surface, the modeling results show significant retraction of the hypersaline plume between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. Layer 10 of Stewart's model, which constitutes the Lower Flow Zone and ranges from 14.2 to 16.8 meters (approximately 46.5 to 55 feet) below land surface, also shows significant retraction of the hypersaline between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. The accuracy of Stewart's modeling was confirmed by water quality monitoring data for chloride taken at numerous ground water quality monitoring wells west and north of the CCS. Most of these monitoring wells showed a statistically significant decrease in chloride concentration, while others showed decreases that were not statistically significant. Some wells showed no trend regarding chloride concentration, while a very small number of the wells had an apparent increase in chloride that was not statistically significant. Stewart noted that the hypersaline plume is not being retracted uniformly in each layer of the aquifer, and that in some of the lower layers of his model, which correspond to greater depths below land surface, the extent of retraction of the hypersaline plume has not been as great as that at shallower layers. However, the RWS is reducing the volume of the plume, which, in Stewart's opinion, shows that the RWS is working to retract the hypersaline plume back toward the L-31E Canal. Stewart further noted that, due to operation of the RWS, there is no additional water coming out of the CCS and flowing westward in the aquifer. Based on the conservative assumption that the original position of the saltwater interface originally was located near the current position of the CCS, and that it moved westward to the TPGW-7 monitoring well by 2018, Stewart estimated that the saltwater interface is moving inland at a rate of approximately 450 feet per year. It is noted that this rate is similar to FKAA's 500-feet-per-year rate estimated movement rate for the saltwater interface. Stewart opined, persuasively, that because the RWS has created a hydrologic barrier such that CCS water no longer is flowing into the aquifer west of the CCS boundary, and because water in the CCS is now less saline, due to freshening, than the ground water under the CCS, such that there no longer is a density drive for CCS water to move downward into the aquifer, it is unlikely that CCS water will move to FKAA's Biscayne Aquifer wellfield. E.J. Wexler, a hydrologist whose expertise is in ground water modeling, solute transport modeling, and contaminant hydrogeology, testified on behalf of Petitioners and Intervenor regarding FPL's remedial measures to withdraw the hypersaline plume east to the L-31E Canal by May 2028. Wexler developed a three-dimensional solute transport model in connection with ACI's proposed expansion of its aggregate mining operation. His study entailed an investigation of the hydrogeology of the area around the ACI site and considered the effects of the SFWMD canals, other lakes and discharge canals, municipal water supply wells, agricultural wells, and the CCS. He modeled the area between the Mowry Canal to the north, the C-111 Canal to the west, and the shoreline of Biscayne Bay to the east and southeast, to determine the location of the saltwater interface and the body of hypersaline water in the Biscayne Aquifer, and to predict the movement of both over time. As part of his modeling, Wexler performed an attribution analysis similar to that performed by FPL, pursuant to the Consent Order. Wexler's model confirmed that hypersaline water seeping from the CCS displaced ground water in the Model Land area, and, thus, acted as the main driver of inland movement of the saltwater interface in the Model Land area. Wexler's ran predictive modeling simulations for a ten-year period, between 2018 and 2027, taking into account the RWS and freshening of the CCS by the addition of 12 mgd of water from the Floridan Aquifer.34 The results of his modeling showed that in the shallower layers of the aquifer, the hypersaline plume will mostly have been retracted back to the western edge of the CCS by 2027. His model also shows that at a depth of approximately 65 feet below land surface, the 35 PSU isochlor remains west of the boundary of the CCS at the end of the ten-year model run, in 2027. 34 Wexler also testified that his model also showed that existing freshening of the addition of 12.2 mgd per day of Floridan Aquifer water to the CCS will not reduce the salinity of the CCS to approximately 34 PSU, as required by the Consent Order. However, the 34 PSU salinity level target for the CCS is not a rule standard and has not been incorporated into the Renewal Permit. Rather, it is a condition of the Consent Order, which is a final, separately enforceable administrative order that is not at issue in these proceedings. Wexler's modeling also shows that the position of the saltwater interface, which is at the approximately 10,000 mg/L, or 10 PSU isochlor line, shows slight eastward movement over the ten-year period simulated.35 Based on the results of his modeling, Wexler opined that the RWS will preferentially retract high salinity ground water from the west in the highly permeable layers of the Biscayne Aquifer, but will leave a persistent body of highly saline ground water in the deeper layers of the aquifer west of the L-31E Canal,36 despite the operation of the RWS. Based on Wexler's modeling simulations for the ten-year period from 2018 to 2027, taking into account the RWS, he opined that the RWS functions more as an interceptor system than a true recovery well system. Specifically, he opined that much of the saline water seeping from the CCS into ground water is intercepted by the RWS, but that the recovery wells comprising the RWS are spaced too far apart, so that when there are high water levels in the CCS, some ground water containing saline CCS-origin water will still seep westward of the CCS in the deep portion of the aquifer. Thus, Wexler opined, the RWS does not create an effective hydrologic barrier to prevent CCS-origin water from continuing to move west of the CCS in the deep aquifer and will not retract hypersaline water back toward the L-31E Canal in the deep aquifer.37 35 Importantly, the Renewal Permit does not require the saltwater interface—which has moved inland due to numerous activities, not just operation of the CCS—to be retracted back to L-31E Canal by May 2028; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by the end of that period. 36 This is consistent with Allen Stodghill's and Mark Stewart's testimony that the RWS will draw hypersaline water down into the deeper layers of the aquifer as it operates and that it will take some time for the RWS to withdraw all of that hypersaline water from the bottom of the aquifer. 37 Wexler also opined that FPL will not meet the requirement, in Condition VI.10 of the Renewal Permit, to retract the hypersaline plume back to the L-31E Canal by 2028. However, Condition VI.10 of the Renewal Permit requires FPL, at the end of the fifth year of operation of the RWS, to evaluate the effectiveness of the RWS in retracting the hypersaline plume to the L-31E Canal within ten years of RWS operation. If this evaluation shows that the RWS will not retract the hypersaline plume to the L-31E Canal by the end of the ten- year period, then FPL must provide an alternative plan for retracting the hypersaline plume Nonetheless, Wexler opined that the RWS would function to retract the saltwater interface slightly over the ten-year compliance period for retracting the hypersaline plume. Wexler's model used different aquifer transmissivity values than those used by Stewart, whose transmissivity values were obtained from United States Geological Survey data. Additionally, Wexler's ground water model—unlike the model prepared and run by Stewart—has neither been peer-reviewed nor reviewed or accepted as accurate by any government agencies. Wexler also opined that highly saline water carrying nutrients, that seeps from the CCS into ground water could flow eastward under Biscayne Bay via preferential pathways and discharged directly to Biscayne Bay. However, he did not investigate whether there are any points at which CCS- origin water seeping into ground water can discharge into Biscayne Bay. As previously discussed, the persuasive evidence, consisting of the testimony and supporting evidence presented by Stewart and Stodghill, shows that there is little, if any, hydrologic connection of the CCS to Biscayne Bay, and, therefore, little, if any, seepage of CCS-origin water into Biscayne Bay. As discussed above, the persuasive evidence does not establish that the karst depressions at the bottom of Biscayne Bay are connected to the Upper Flow Zone or any other preferential pathway in the Biscayne Aquifer, such that CCS-origin water has a pathway to flow or seep into Biscayne Bay. by the end of that period. This interim compliance evaluation provides a "safety check" to help ensure that the hypersaline plume is retracted, such that it no longer is a factor in the location of the saltwater interface. Kirk Martin testified on behalf of Petitioners and Intervenor regarding the projected effect of the hypersaline plume and the movement of the saltwater interface38 on FKAA's Biscayne Aquifer wellfield39 near Florida City, and FKAA's actions in exploring the development of another wellfield so that it can continue to fulfill its obligations to provide potable water to the Florida Keys.40 FKAA operates a wellfield that yields approximately 20 million gallons of water per day from the Biscayne Aquifer, which has been as a sole source aquifer by EPA. This designation means that this portion of the Biscayne Aquifer is the sole source of fresh ground water for southeast Florida. The portion of the Biscayne Aquifer below FKAA's wellfield from which it withdraws fresh water is designated by rule 62-520.410 as a Class G-II aquifer, which, as noted above, means that it is designated for potable water use and has a total dissolved solids concentration of less than 10,000 mg/L. As part of his work for FKAA, Martin analyzed several hydrological components, such as sea level rise, rainfall patterns, ground water levels, ground water pumpage, and water control management for the network of canals in the area, and compared each of these components to noted changes in salinity in monitoring wells. He determined that the most substantial contributor to movement of the saltwater interface in what he termed the "southern front"—which is 38 As discussed above, the saltwater interface is the intersection of Class G-II and G-III ground waters. Class G-III ground water has a total dissolved solids concentration of 10,000 mg/L or greater, and Class G-II ground water has a total dissolved solids concentration of less than 10,000 mg/L. Ten thousand mg/L is roughly equivalent to a 5,000 to 6,000 mg/L chloride concentration. 39 FKAA also has a co-located brackish water wellfield that yields approximately six million gallons of water per day from the Upper Floridan Aquifer. 40 It is important that FKAA monitor for saltwater intrusion because that is the primary threat to the portion of the Biscayne Aquifer from which FKAA withdraws potable water. located south and east of FKAA's wellfields—is manipulation of canal levels, particularly the level of the C-111 Canal, by SFWMD. He opined that operation of the CCS is the major contributor to movement of the saltwater interface within the Model Land area, west of the CCS, and that the movement of the saltwater interface inland is a threat to the portion of the Biscayne Aquifer from which FKAA obtains its source of potable water. The movement of the saltwater interface inland in the Model Land area has impaired the reasonable beneficial use of the adjacent Class G-II ground water, which consists of the Biscayne Aquifer in this location. Martin opined that because implementation of the RWS only withdraws the hypersaline plume, and does not remediate areas in the Model Land in which the ground water has become more saline but is not hypersaline, the implementation of the RWS does not provide reasonable assurance that the saltwater interface will not continue to move inland due to operation of the CCS, thereby violating Class G-II water quality standards and impairing the reasonable and beneficial use of adjacent ground water. However, because the saltwater interface already was located west of the CCS when it commenced operation in 1973, and has continued to move westward due to many other causes besides those solely attributable to the CCS, the Renewal Permit does not require the saltwater interface to be retracted; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by May 2028. Additionally, if, as Martin also opined, the hypersaline plume from the CCS is the primary driver of the westward movement of the saltwater interface, and given that westward movement already has been halted by the RWS and that, assuming successful operation of the RWS, the hypersaline plume will be retracted to the L-31E Canal by May 2028, then implementation of the RWS under the Consent Order will stop the westward movement of the saltwater interface, to the extent such movement is caused by the discharge of hypersaline water from the CCS into ground water. Additionally, as discussed above, the competent, substantial, and persuasive evidence establishes that the operation of the RWS already has halted the westward movement, beyond the boundary of the CCS, of water seeping from the CCS into ground water. Therefore, by definition, the continued operation of the CCS under the Renewal Permit will not result in additional CCS-origin water moving via ground water, westward into the Model Land area or other areas. Martin also opined that FPL's freshening of the CCS, as required by the Consent Order and authorized by the Certification for Turkey Point increases the hydrostatic head of water seeping from the CCS, and will exacerbate the movement, or increase the size, of the hypersaline plume. This opinion fails to take into account that the RWS is removing the water that seeps from the CCS into ground water. Thus, operation of the RWS prevents any water seeping from the CCS into ground water from moving west of the CCS. Accordingly, water seeping from the CCS will not affect the size of the hypersaline plume; to the contrary, the persuasive evidence shows that the RWS already is significantly retracting the hypersaline plume in the Upper Flow Zone and Lower Flow Zone. As discussed above, it is anticipated that as the RWS operates over time, the chloride levels in the deep monitoring wells will drop as the denser, more saline water sitting at the bottom of the aquifer ultimately is extracted. The persuasive evidence indicates that the hypersaline plume retraction conditions in the Renewal Permit will be met within the timeframe set forth in that condition. Martin also testified that current discharges from the CCS will impact the FKAA's use of the potable water, through reduction of the amount of fresh water available and reduction of the buffer between the saltwater interface and FKAA's wellfield. However, again, Martin's opinion fails to take into account that the operation of the RWS already has halted the migration of CCS-origin water west of the boundary of the CCS, so the current operation of the CCS is not affecting the aquifer offsite. To the extent that past discharges from the CCS have caused salinity levels to increase in the Class G-II aquifer west of the CCS and have impaired the reasonable and beneficial uses of that ground water, those past discharges are being retracted by the RWS back to the L-31E Canal, pursuant to the Consent Order. Additionally, the Renewal Permit, Condition VI.9, requires that the westward migration of the hypersaline plume must be halted by May 15, 2021, and Condition VI.10 requires that the hypersaline plume must be retracted back to the L-31E Canal by May 2028. Operation of the CCS in compliance with these conditions will ensure that FPL's future operation of the CCS pursuant to the Renewal Permit does not violate Class G-II ground water standards or impair the reasonable beneficial use of adjacent ground waters. Martin acknowledged that he does not know the quantities or rates of seepage of water from the CCS into ground water for years 2018, 2019, and 2020, and that he did not consider this information in opining that continued operation of the CCS under the Renewal Permit will result in further westward movement of the saltwater interface. He also acknowledged that he does not know the amount of hypersaline water being extracted by the RWS, which has been in operation since May 2018, and he did not take the operation of the RWS into consideration in formulating his opinion. For these reasons, Martin's opinion regarding the lack of effectiveness of the RWS in halting the westward migration of, and retracting, the hypersaline plume is not supported by the evidence and is unpersuasive. The competent substantial evidence establishes that, assuming the saltwater interface is moving westward at a rate of approximately 500 feet per year,41 it would take approximately ten years for the saltwater interface to move one mile westward. At this rate of movement, without any ongoing corrective actions pursuant to the Consent Order, Martin estimates that it would take approximately 40 years for the saltwater interface to reach FKAA's Biscayne Aquifer wellfield. This estimate is consistent with other experts' estimates of the amount of time it will take, if rate of movement of the saltwater interface remains similar to its current rate. Based on the foregoing, it is determined that the continued operation of the CCS under the Renewal Permit will not violate applicable ground water standards. Petitioners' and Intervenor's Standing FKAA's Standing JoLynn Reynolds, Director of Engineering for FKAA, testified regarding the FKAA's interest in challenging the Renewal Permit. As noted above, the FKAA was created by chapter 76-441, Laws of Florida. Pursuant to this law, FKAA supplies water to the Monroe County/Florida Keys area, and wastewater services for parts of Monroe County and the Florida Keys. To meet its legal obligations under this law, FKAA has developed, and operates, two potable water wellfields in Florida City. At its Biscayne Aquifer wellfield, FKAA has ten fresh water-producing wells that withdraw water from the Biscayne Aquifer. At its Floridan Aquifer wellfield, FKAA has four brackish water-producing wells that withdraw water from the Floridan Aquifer, and one deep injection well associated with the reverse osmosis plant. FKAA's water supply pipeline leads from Florida City to the Keys, and traverses a route from Ocean Reef to Key West. 41 Martin testified that monitoring well measurements show that the saltwater interface is moving as slowly as 280 feet per year, while other wells show it moving as fast as 480 feet per year. Martin testified that assuming a rate of 500 feet per year is reasonable for water supply planning purposes, given the uncertainty of measurement. Currently, FKAA produces approximately 18 mgd to meet the potable water demand of its customers. FKAA prepares a Water System Master Plan ("Master Plan") in order to plan its water demands, projected demands, water supply sources, and capital improvement projects over a 20-year planning horizon. However, the Master Plan is updated every two years in order to stay current. FKAA's current Master Plan covers the 2020 to 2040 planning period. FKAA's existing water production wells have a useful life of approximately 50 years. The wells, which were installed in the 1980s, will reach the end of their service life at the end of the 20-year planning horizon. Currently, FKAA does not anticipate having to upgrade or replace any of its water production wells during its current 20-year planning horizon. FKAA has a lime-softening water treatment plant that treats approximately 23.8 mgd of water withdrawn from the Biscayne Aquifer. In addition, FKAA operates a reverse osmosis brackish water treatment plant that treats Floridan Aquifer water and produces approximately six mgd of potable water. FKAA also operates two emergency reverse osmosis plants: one in Marathon, which produces approximately one mgd of potable water, and one in Stock Island, which produces approximately two mgd of potable water. The lime-softening plant, which is used to treat water withdrawn from the Biscayne Aquifer, cannot be used to treat water withdrawn from another aquifer. This plant must treat the water to the drinking water standards of 160 parts per million of sodium and 250 parts per million of chloride. The lime-softening plant is unable to be used to remove salt from the water produced by the wells; thus, the water that is treated by the lime- softening plant must meet drinking water standards for salinity, even before it is treated by the plant. The reverse osmosis plant has a salinity treatment threshold of 4,000 parts per million for chloride, so it cannot be used to treat hypersaline water.42 As part of its water use permit, FKAA is required to have a saltwater intrusion monitoring program. This monitoring program currently consists of 15 wells located east, southeast, and south of the Florida City wellfield site. These wells sample water from depths of 35 feet to 80 feet below land surface. Using USGS-developed isochlor lines, FKAA prepared a graphic showing the approximate location of the saltwater interface for the years 2008, 2011, and 2016. This graphic shows that the saltwater interface is closest to—i.e., approximately 2.99 miles east of—the FKAA's Florida City wellfield at the Card Sound Road Canal. Notably, the saltwater interface at this location did not significantly move in the period between 2008 and 2016. As previously discussed, that canal was open to Biscayne Bay until approximately 2010, and provided a direct conduit for saltwater intrusion inland. The graphic shows that, as of 2016, the next closest location of the saltwater interface is in the Model Land area, approximately 4.48 miles east of the Florida City wellfield. Due to the continued inland movement of the saltwater interface inland over time, in 2017, FKAA installed six new saltwater interface monitoring wells, at an estimated cost of approximately $400,000, to enable continued monitoring of the movement of the saltwater interface.43 One of the wells installed in 2017, FKS-14, showed sharply rising chloride levels at depths from 55 feet to 80 feet below land surface over the period between approximately February 2018 and July 2018. This well also 42 This plant treats water withdrawn from the Floridan Aquifer. There are no allegations in this case that the hypersaline plume has affected, or may affect, any part of the Floridan Aquifer. 43 Notably, three of FKAA's monitoring wells, FKS-1, FKS-2, and FKS-8, which are located east of the saltwater interface, are located immediately proximate to, respectively, the C-111, C-110, and Card Sound Road canals. showed chloride levels beginning to rise at the 40 to 45 feet below land surface level starting in approximately April 2018.44 FKAA's Biscayne Aquifer water production wells withdraw water from between 20 and 60 feet below land surface, so increasing chloride levels have given rise to FKAA's concern regarding the movement of the saltwater interface inland. Based on information showing that the hypersaline plume is pushing the saltwater interface westward toward its Florida City wellfield, FKAA has challenged the Renewal Permit. Currently, FKAA's Biscayne Aquifer wellfield is not contaminated with saline or hypersaline water. However, based on the estimated rate of movement of the saltwater interface of approximately 500 feet per year, the saltwater interface—if its movement is unchecked—is estimated to reach FKAA's Biscayne Aquifer wellfield between 34 and 43 years. As Reynolds explained, FKAA intends to continue producing water from the Biscayne Aquifer because that water already meets drinking water standards for sodium and chlorides, so requires less extensive and expensive treatment than water produced by Floridan Aquifer wells, which would require more costly treatment by reverse osmosis to meet drinking water standards. Thus, in response to its concern that chloride levels may rise in its production wells, FKAA is exploring other locations to which it could relocate its Biscayne Aquifer wellfield if chloride levels continue to rise at accelerated rates in its monitoring wells. To this end, FKAA has Kirk Martin, FPL's water supply planning consultant, to identify available properties north/northwest of its Florida City wellfield that may be suitable for relocation of its water production wellfield. 44 FKS-14 is located southeast of, and in close proximity to, the ACI quarry. FKAA roughly estimates that it will cost approximately $4 million to locate and purchase land suitable for development as a wellfield, and it also estimates that installing additional pipeline to transmit water from a new wellfield to the Florida City lime-softening treatment plant would cost between $1.5 and 2 million dollars per mile. FKAA also would have to install a new pump station, at additional cost, to pump water from a new wellfield to the lime-softening treatment plant. Due to the monitoring results for well FKS-14, which show chloride levels rising sharply once they become elevated, FKAA currently is planning—and incurring cost—in anticipation that it may be required to relocate its wellfield. Reynolds estimated that the process of planning, purchasing, designing, constructing, and commencing operation of a wellfield would take many years. She explained that, given its legal obligation under its special act to provide potable water to the Florida Keys, FKAA does not have the luxury to adopt a wait-and-see approach with respect to preparing for impacts of movement of the saltwater interface on the Biscayne Aquifer. FKAA's water use permit issued by SFWMD grants it the legal right to continue to withdraw from the Biscayne Aquifer up to March 13, 2028. FKFGA's Standing Stephen Friedman, Commodore of the FKFGA, testified regarding that entity's interest in the outcome of these proceedings. The FKFGA, which was established in 1956, is a conservation organization having slightly over 100 members, who are professional fishing guides in and around south Florida. Among other things, the FKFGA helps to educate its members and the public regarding best practices on the water in order to preserve and protect fishery resources and habitat. Its members also assist in sampling activity and in conducting censuses related to natural resources in south Florida. Its members engage in fishing activities all over south Florida, including in Biscayne Bay and the Florida Keys. Friedman testified that he and other members fish in the portion of Biscayne Bay east of the CCS, in the vicinity of the Arsenicker Keys. He testified that he has observed changes in the environmental conditions in this area. According to Friedman, when he started fishing in that area, it had good fishing habitat; however, since 2000, he has observed sparse and dead seagrass, and the quality of the fishing has declined. He testified that bonefish and permit, which are the "target" species for his clientele, are not as plentiful. Consequently, he does not fish there as often as he did in the past. He testified that other members of the FKFGA have related similar experiences to him. Friedman stated that the FKFGA and its members' concerns are that [W]e have a nuclear power plant sitting in between two national parks, and where we're having some environmental difficulties in the Everglades, and we're seeing environmental difficulties in Biscayne Bay National Park. . . . And when we see habitat degrade, and know that it could be prevented, that's where we try to step in and gain as much knowledge as we can, and educate ourselves to find out how we can change something and bring back what used to be great habitat in certain areas. . . . Especially if it's something that we've found that science corroborates our observations. Due to these concerns, as expressed by Friedman, the FKFGA has challenged the Renewal Permit. Benjamin Blanco, a member of the FKFGA, testified regarding his own experiences, as a professional fishing guide and in his personal capacity as a recreational fisherman, regarding fishing in Biscayne Bay and, specifically, in the area offshore of the Turkey Point facility. According to Blanco, he fishes the area offshore of Turkey Point approximately 100 days per year. He testified that, in the past, there were plentiful turtlegrass beds in the area, but that now the bottom of the bay in the area is mostly sand, with no grass. The decline of the abundance and condition of turtlegrass beds in this area has negatively affected the abundance and movement of the game fish species in these areas. As a result, this area no longer supports extensive fishing for these species, and Blanco and other professional fishing guides have had to change their fishing practices. Additionally, as a result of the decline of fish habitat in this area, Blanco no longer engages in personal recreational fishing in this area. He acknowledged that he is not a scientist and has not engaged in any scientific studies on fish populations in Biscayne Bay. He also acknowledged that there are many other factors that are adversely affecting the environment in south Florida, including in Biscayne Bay. Specifically, he acknowledged that the decrease of fresh water flow into Biscayne Bay, the destruction of shoreline habitat, the decline of water quality due to nutrient discharges, and the increase in recreational fishing, all have harmed fish populations in the bay. Monroe County's Standing Michael Forster, County Commissioner for Monroe County District 5, testified on behalf of Intervenor Monroe County, Florida, regarding the County's interest in these proceedings. The County, and the municipalities in the County, receive their potable water supply from FKAA. The County has entered into an interlocal agreement with FKAA, establishing the respective roles of FKAA and the County with respect to FKAA's provision of potable water to the County. Additionally, the County has adopted, in the Monroe County, Florida, Comprehensive Plan (hereafter, "County Plan"), a goal, objectives, and policies recognizing and supporting the role of FKAA in providing the potable water supply to meet the needs of present and future County residents. Under the County Plan, in order for a certificate of occupancy or its functional equivalent to be issued for land development activity for which such approval is required, there must be an adequate potable water supply available to support the development. If a reliable potable water supply is not available to the County, no certificates of occupancy can be issued, thereby severely affecting the County, its economy, and its residents. Forster also testified that the County has an interest in protecting Biscayne Bay as a natural resource. Under the County Plan, the County has planning obligations with respect to, and allocates resources for, the monitoring of environmental and natural resources within its boundaries. In particular, the County is obligated to work cooperatively with various federal and state agencies, including the Florida Keys National Marine Sanctuary ("FKNMS"), which is located in Monroe County, to protect water quality within the FKNMS. Forster testified, credibly, that the County's economy is water-based, and that recreational and commercial fisheries are a major part of that economy. To that end, the County expends resources to monitor the health of fisheries in the County. Ecotourism also constitutes a large part of the County's economic base. Specifically, through the taxes the County collects as a result of tourism, including ecotourism, the County is able to provide a range of local government services to its residents that it otherwise would not be able to provide if it did not have such revenue. The County requested to intervene in these proceedings due to its concerns that the continued operation of the CCS would adversely affect the potable ground water in FKAA's wellfield from which the County obtains its potable water. The County also requested to intervene due to its concerns regarding protecting and maintaining the quality of surface waters in Biscayne Bay, which constitutes an important resource that supports the County's ecotourism.
Conclusions For Petitioners and Intervenor: Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 For Respondent, Department of Environmental Protection: Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent, Florida Power & Light Company: Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. FL0001562-012-IW1N to Florida Power & Light Company. DONE AND ENTERED this 18th day of February, 2022, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2022. COPIES FURNISHED: Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 Brian Stamp Florida Power & Light Company 9760 Southwest 344 Street Florida City, Florida 33035 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Joseph Ianno, Esquire Florida Power & Light Company 700 Universe Boulevard Juno Beach, Florida 33408-2657 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Christopher J. Wahl, Esquire Abbie Schwaderer Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Shawn Hamilton, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 25th day of November, 2002.
