Findings Of Fact This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate. Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds. The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal. Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred. Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal. Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east. The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal. Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal. According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem. If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition. The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant. The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
Recommendation Based upon the foregoing Findings of Fact, and Conclusions of Law, it is, therefore, RECOMMENDED that the State of Florida Department of Environmental Regulation grant the application and issue the permit subject to the following conditions: That the weedgate and fence be removed if at anytime a navigational hazard develops or the structure fall into disrepair. That the weedgate and fence must not cause a state water quality violation outside of the fence and if such water quality violations were caused by the project in water outside the weedgate and fence, enforcement action would follow. DONE and ENTERED this 8th day of March, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1985. COPIES FURNISHED: J. A. and Margaret M. Abbanat 5561 SW Third Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this matter is whether Respondent, Polk County Board of Commissioners (Polk County or County) has provided Respondent, Southwest Florida Water Management District (SWFWMD), with reasonable assurances that the activities Polk County proposed to conduct pursuant to Standard General Environmental Resource Permit (ERP) No. 4419803.000 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, and 40D-40.302, Florida Administrative Code. (All rule citations are to the current Florida Administrative Code.)
Findings Of Fact Events Preceding Submittal of ERP Application The Eagle-Millsite-Hancock drainage system dates back to at least the 1920's, and has been altered and modified over time, especially as a result of phosphate mining activities which occurred on OFP property in the 1950's-1960's. The system is on private property and is not owned and was not constructed by the County. Prior to 1996, the Eagle-Millsite-Hancock drainage system was in extremely poor repair and not well- maintained. The Eagle-Millsite-Hancock drainage system originates at Eagle Lake, which is an approximately 641-acre natural lake, and discharges through a ditch drainage system to Lake Millsite, which is an approximately 130-acre natural lake. Lake Millsite drains through a series of ditches, wetlands, and ponds and flows through OFP property through a series of reclaimed phosphate pits, ditches and wetlands and ultimately flows into Lake Hancock, which is an approximately 4500-acre lake that forms part of the headwaters for the Peace River. The drainage route is approximately 0.5 to 1 mile in overall length. The Eagle-Millsite-Hancock drainage system is one of eight regional systems in the County for which the County and SWFWMD have agreed to share certain funding responsibilities pursuant to a 1996 letter agreement. To implement improvements to these drainage systems, Polk County would be required to comply with all permitting requirements of SWFWMD. During the winter of 1997-1998, Polk County experienced extremely heavy rainfall, over 39 inches, as a result of El Nino weather conditions. This unprecedented rainfall was preceded by high rainfalls during the 1995-1996 rainy season which saturated surface waters and groundwater levels. During 1998, Polk County declared a state of emergency and was declared a federal disaster area qualifying for FEMA assistance. Along the Lake Eagle and Millsite Lake drainage areas, septic tanks were malfunctioning, wells were inundated and roads were underwater. The County received many flooding complaints from citizens in the area. As a result of flooding conditions, emergency measures were taken by the County. The County obtained SWFWMD authorization to undertake ditch cleaning or vegetative control for several drainage ditch systems in the County, including the Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit was required or obtained for this ditch cleaning and vegetative control. During its efforts to alleviate flooding and undertake emergency ditch maintenance along the Eagle-Millsite-Hancock drainage route, the County discovered a driveway culvert near Spirit Lake Road which was crushed and impeding flow. The evidence was unclear and contradictory as to the size of the culvert. Petitioner's evidence suggested that it consisted of a 24-inch pipe while evidence presented by the County and by SWFWMD suggested that it was a 56-inch by 36-inch arched pipe culvert. It is found that the latter evidence was more persuasive. On February 25, 1998, the County removed the crushed arched pipe culvert at Spirit Lake Road and replaced it with two 48-inch diameter pipes to allow water to flow through the system. The replacement of this structure did not constitute ditch maintenance, and it required a SWFWMD ERP. However, no ERP was obtained at that time (although SWFWMD was notified prior to the activity). (One of the eight specific construction items to be authorized under the subject ERP is the replacement of this culvert.) Old Florida Plantation, Ltd. (OFP) property also experienced flooding during February 1998. OFP's property is situated along the eastern shore of Lake Hancock, and the Eagle- Millsite-Hancock drainage system historically has flowed across the property before entering Lake Hancock. In the 1950's and 1960's, the property was mined for phosphate. The mining process destroyed the natural vegetation and drastically altered the soils and topography, resulting in the formation of areas of unnaturally high elevations and unnaturally deep pits that filled with water. OFP purchased the property from U.S. Steel in 1991. The next year OFP initiated reclamation of the property, which proceeded through approximately 1998. In 1996, OFP applied to the County for approval of a development of regional impact (DRI). OFP blamed the flooding on its property in 1998 on the County's activities upstream, claiming that the property had never flooded before. But upon investigation, the County discovered a 48-inch diameter pipe on OFP property which, while part of OFP's permitted drainage system, had been blocked (actually, never unopened) due to OFP's concerns that opening the pipe would wash away wetlands plants recently planted as part of OFP's wetland restoration efforts. With OFP and SWFWMD approval, the County opened this pipe in a controlled manner to allow flowage without damaging the new wetlands plants. Following the opening of this blocked pipe, OFP property upstream experienced a gradual drop in flood water levels. When the water level on OFP's property stabilized, it was five feet lower and no longer flooded. Nonetheless, OFP continues to maintain not only that the County's activities upstream caused flooding on OFP property but also that they changed historic flow conditions. This contention is rejected as not being supported by the evidence. Not only did flooding cease after the 48-inch pipe on OFP's property was opened, subsequent modeling of water flows also demonstrated that the County's replacement of the crushed box culvert at the driveway on Spirit Lake Road as described in Finding 8, supra, did not increase flood stages by the time the water flows into the OFP site and did not cause flooding on OFP property in 1998. (To the contrary, OFP actions to block flows onto its property may have contributed to flooding upstream.) On October 6, 1998, the County entered into a contract with BCI Engineers and Scientists to initiate a study on the Eagle-Millsite-Hancock drainage system, identify options for alleviating flooding along the system and prepare an application for an ERP to authorize needed improvements to the system. Prior to the County's submittal of an ERP application, SWFWMD issued a conceptual ERP to OFP for its proposed wet detention surface water management system to support its proposed DRI on the OFP property. OFP's conceptual permit incorporated the Eagle-Millsite-Hancock drainage system and accommodated off-site flowage into the system. Before submitting an ERP application to SWFWMD, the County had communications with representatives of OFP concerning an easement for the flow of the drainage system through OFP property. In March 1999, the County reached an understanding with OFP's engineering consultant whereby OFP would provide the County with an easement across OFP lands to allow water to flow through to Lake Hancock. In turn, the County would: construct and pay for a control structure and pipe east of OFP to provide adequate flowage without adversely affecting either upstream or downstream surface waters; construct and upgrade any pipes and structures needed to convey water across OFP property to Lake Hancock; and provide all modeling data for OFP's review. The ERP Application Following completion of the engineering study, the County submitted ERP Application No. 4419803.000 for a Standard General ERP to construct improvements to the Eagle-Millsite- Hancock drainage system on August 18, 1999. Eight specific construction activities are proposed under the County's project, at various points along the Eagle- Millsite-Hancock drainage system as follows: 1) Add riprap along channel bottom; 2) Modify culvert by replacing 56-inch by 36- inch arch pipe by two 48-inch pipes (after-the-fact, done in 1998, as described in Finding 8, supra); 3) Add riprap along channel bottom; 4) Add box, modify culvert by replacing existing pipe with two 48-inch pipes, add riprap along channel bottom; 5) add riprap along channel bottom; 6) Add weir, modify culvert by replacing existing 24-inch pipe with two 48-inch pipes, add riprap along channel bottom; 7) Add box and modify culvert by replacing existing 24-inch pipe with two 48-inch pipes; 8) Modify existing weir. Under the County's application, construction activities Nos. 6, 7, and 8 would occur on OFP property. In addition, it was proposed that surface water would flow across OFP's property (generally, following existing on-site drainage patterns), and it was indicated that flood elevations would rise in some locations on OFP's property as a result of the improvements proposed in the County's application. (Most if not all of the rise in water level would be contained within the relatively steep banks of the lakes on OFP's property--the reclaimed phosphate mine pits.) In its application, the County stated that it was in the process of obtaining easements for project area. As part of the ERP application review process, SWFWMD staff requested, by letter dated September 17, 1999, that the County clarify the location of the necessary rights-of-way and drainage easements for the drainage improvements and provide authorization from OFP as property owner accepting the peak stage increases anticipated in certain OFP lakes as a result of the County's proposed project activities. On September 28, 1999, OFP obtained a DRI development order (DO) from the County. In pertinent part, the DRI DO required that OFP not adversely affect historical flow of surface water entering the property from off-site sources. Historical flow was to be determined in a study commissioned by the County and SWFWMD. The DO appeared to provide that the study was to be reviewed by OFP and the County and approved by SWFWMD. Based on the study, a control structure and pipe was to be constructed, operated and maintained by the County at the upstream side of the property that would limit the quantity of off-site historical flow, unless otherwise approved by OFP. OFP was to provide the County with a drainage easement for this control structure and pipe, as well as a flowage easement from this structure, through OFP property, to an outfall into Lake Hancock. The DO specified that the flowage easement was to be for quantitative purposes only and not to provide water quality treatment for off-site flows. The DO required OFP to grant a defined, temporary easement prior to first plat approval. In its November 11, 1999, response to SWFWMD's request for additional information, the County indicated it would obtain drainage easements and that it was seeking written acknowledgment from OFP accepting the proposed increases in lake stages. During the ERP application review process, the County continued efforts to obtain flowage easements or control over the proposed project area and OFP's acknowledgment and acceptance of the increase in lake stages. At OFP's invitation, the County drafted a proposed cross-flow easement. But before a binding agreement could be executed, a dispute arose between OFP and the County concerning other aspects of OFP's development plans, and OFP refused to enter into an agreement on the cross- flow easement unless all other development issues were resolved as well. On August 4, 2000, in response to SWFWMD's request that the County provide documentation of drainage easements and/or OFP's acceptance of the increased lake stages on OFP property, the County submitted a proposed and un-executed Perpetual Flowage and Inundation Easement and an Acknowledgment to be signed by OFP accepting the increased lake stages. On August 7, 2000, the OFP property was annexed by the City of Bartow (the City). On October 16, 2000, the City enacted Ordinance No. 1933-A approving OFP's DRI application. The City's DO contained essentially the same provision on Off- Site Flow contained in the County's DO. See Finding 18, supra. However, the City's DO specified that the historical flow study was required to be reviewed and approved by OFP (as well as by the County and by SWFWMD). OFP has not given formal approval to historical flow studies done to date. On October 6, 2000, SWFWMD issued a Notice of Final Agency Action approving Polk County ERP No. 4419803.000. Permit Specific Condition No. 7 provides that "all construction is prohibited within the permitted project area until the Permittee acquires legal ownership or legal control of the project area as delineated in the permitted construction drawings." As a result of this permit condition, the County cannot undertake construction as authorized under the Permit until any needed easement or legal control is obtained. Precise Easement Route Approximately two months before final hearing, a dispute arose as to the precise cross-flow easement route proposed by the County. OFP had understood that the County's proposed route was based on a detailed survey. But closer scrutiny of the County's proposed route indicated that it cut corners of existing lakes on OFP's property, crossed residential lots proposed by OFP, and veered north into uplands (also proposed for residential use) in the western portion of the route before looping south and then north again to the outfall at Lake Hancock. Information subsequently revealed in the course of discovery suggested that the County's proposed route may have been based on pre-reclamation topography of OFP's property. After OFP recognized the implications of the cross- flow easement route being proposed by the County, OFP provided the County with several different alternative easement routes through the OFP property. While agreement as to the precise route has not yet been reached, the precise route of the easement is not significant to the County, as long as water can flow across OFP property to Lake Hancock and so long as the County does not have to re-locate existing ditches. Such adjustments in the location of the proposed flowage easement would not affect SWFWMD staff's recommendation for permit issuance, as long as it covered the defined project areas. In addition, OFP's current site plan is a preliminary, conceptual plan subject to change before it is finalized. Regardless what cross-flow easement route is chosen, it will be temporary and subject to modification when OFP's development plan is finalized. If the County is unable to not negotiate a flowage easement across OFP property, it could obtain whatever easement is required through use of the County's eminent domain powers. The County's acquisition of an easement to accommodate a flowage route and anticipated increased stage on OFP property gives reasonable assurance that any stage increases will not cause adverse impacts to OFP property and gives reasonable assurance that the County will have sufficient legal control to construct and maintain the improvements. Project Area The County applied for a Standard General Permit and specified a total project area of 0.95 acre. This acreage reflects the area required for actual construction and alteration of control structures and drainage ditches in the preexisting Eagle-Millsite-Hancock system. It does not reflect the entire acreage drained by that system (approximately 1,800 to 2,000 acres). It also does not reflect the area of the cross-flow easement, which the County has yet to obtain. When determining project size for purposes of determining the type of permit applicable to a project, SWFWMD staff considers maximum project area to be limited to the acreage owned or controlled by the applicant. In addition, since this is a retrofit project for improvement of an existing drainage system not now owned or controlled by the County, SWFWMD staff only measured the area required for actual construction and alteration of control structures and drainage ditches. Future easements necessary for future maintenance of the system were not included. When OFP applied for its conceptual ERP for its proposed DRI, the project area was considered to be the acreage owned by OFP. The rest of the basin draining through OFP's property to Lake Hancock (again, approximately 1,800 to 2,000 acres) was not considered to be part of the project area. Water Quantity Impacts The County's project will retrofit certain components of the same drainage system which OFP will utilize for surface water management and treatment pursuant to its conceptual ERP. Modeling presented in the County's application demonstrates that there will be some rises and some lowering of some of the lake levels on OFP's property during certain rain events. Anticipated rises are lower than the top of banks authorized in OFP's conceptual permit; hence the system will continue to function properly. While there are some differences in the County's permit application and OFP's conceptual permit application concerning modeling estimates of flow rates through OFP property, the differences are minor and are attributed to differences in modeling inputs. The County used more detailed modeling information. Any such differences are not significant. Differences in flow rates provided in the County's proposed permit and in OFP's conceptual permit do not render the permits as incompatible. If the County's permit were issued, any modeling undertaken in connection with a subsequent application by OFP for a construction permit would have to be updated to include the County's improvements to the system. This outcome is not a basis for denial of the County's permit. While the rate at which water will flow through the system will increase, no change in volume of water ultimately flowing through the drainage system is anticipated as a result of the County's proposed improvements. The increased lake stages which are anticipated to occur on OFP property as a result of the County's project will not cause adverse water quantity impacts to the receiving waters of Lake Hancock or adjacent lands. The project will not cause adverse flooding to on-site or off-site property. The project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, Florida Statutes. Water Quality Impacts No adverse impacts to water quality on OFP property are anticipated from the County's proposed drainage improvements. The project will not add any pollutant loading source to the drainage system and is not expected to cause any algae blooms or fish kills in OFP waters or cause any additional nutrient loading into OFP's surface water management systems. As reclaimed phosphate mine pits, the lakes on OFP's property are high in phosphates. Meanwhile, water quality in upstream in Millsite Lake and Eagle Lake is very good. Off-site flow of higher quality water flushing the OFP lakes will improve the water quality on the OFP site. The County's project will have no adverse impact on the quality of water in the downstream receiving of Lake Hancock (which currently has poor water quality due in large part to past phosphate mining). Upstream of OFP, the project will not cause any adverse water quality impacts and is anticipated to result in positive impacts by lessening the duration of any flooding event and thereby lessening septic tank inundation from flooding. This will have a beneficial impact on public health, safety, and welfare. Thus, there is a public benefit to be gained in having the County undertake the proposed drainage and flood control improvements now, rather than waiting for OFP to finalize its plat and construct its development project. The County's proposed improvements do not require any formal water quality treatment system. The improvements are to a conveyance system and no impervious surfaces or other facilities generating pollutant loading will be added. Upstream of OFP, the Eagle-Millsite-Hancock drainage system flows through natural lakes and wetlands systems that provide natural water quality treatment of the existing drainage basin. OFP expressed concern that the County's improvements to drainage through these areas (including the ditch maintenance already performed in 1998) will increase flow and reduce residence time, thereby reducing natural water quality treatment. But ditch maintenance does not require an ERP, and the County gave reasonable assurances that reduction in natural water quality treatment will not be significant, especially in view of the good quality of the water flowing through the system out of Eagle Lake and Millsite Lake. As a result, it is found that the County's proposed project will not adversely affect the quality of receiving waters such that any applicable quality standards will be violated. Indeed, OFP's expert consultant conceded in testimony at final hearing that OFP has no reason to be concerned about the quality of water at present. Rather, OFP's real concern is about water quality in the future. Essentially, OFP is asking SWFWMD to require the County to guarantee OFP that future development in the area will not lead to any water quality problems. Requiring such a guarantee as a condition to issuance of an ERP would go far beyond SWFWMD requirements and is never required of any applicant. Besides being speculative on the evidence in this case, future development in the area will be required to meet applicable SWFWMD water quality requirements. SWFWMD permitting required for such future development would be the proper forum for OFP to protect itself against possible future reduction in water quality (as well as possible future increase in water quantity). Environmental Impacts The drainage ditches to be improved by the County's project were originally constructed before 1984. These upland cut ditches were not constructed for the purpose of diverting natural stream flow, and are not known to provide significant habitat for any threatened or endangered species. The County provided reasonable assurance that the proposed project will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions. The functions of the wetlands and surface waters to be affected by the proposed project include conveyance, some water quality treatment, and possibly some wildlife movement or migration functions between the wetlands served by the ditches. Wetland impacts from the project consists of .63 acre of permanent impacts and .21 acre of temporary impacts, for a total of .84 acre of impact. The permanent impacts consist of the replacement of pipes with new structures in the ditches and the addition of rip rap in areas to prevent sedimentation and erosion. The proposed project's anticipated increase in the rate of flow is expected to lessen the duration of any flooding event at the upper end of the drainage system, and at the downstream end is expected to create a subsequent rise in some of the lakes and storage areas on the OFP property during certain rain events. The anticipated rise in some of the reclaimed lakes on OFP property is not anticipated to have any adverse impact on the functions that those surface waters provide to fish, wildlife or any threatened or endangered species. The reclaimed lakes subject to rise in water levels for certain rain events are steep-sided and do not have much littoral zone, and little, if any, loss of habitat will result. The County's application provides reasonable assurance that the anticipated stage increase in affected wetlands or surface waters will not adversely affect the functions provided by those wetlands or surface waters. The County provided reasonable assurance that the proposed project will not violate water quality standards in areas where water quality standards apply, in either the short- term or the long-term. Long-term effects were addressed in Finding 43-51, supra. Short-term water quality impacts anticipated during the construction of the proposed improvements will be addressed through the use of erosion and sediment controls. The proposed project also will not create any adverse secondary impacts to water resources. The project will not cause any adverse impacts to the bird rookery located to the north on OFP property. The project will not cause any adverse impacts to the bass in OFP's lakes, a concern expressed by OFP relatively recently. To the contrary, since the project will improve water quality in OFP's lakes, the impact on OFP's bass is expected to be positive. OFP raised the issue of a bald eagle nesting site located on its property. The evidence was that a pair of bald eagles has built a nest atop a Tampa Electric Company (TECO) power pole on the property in October of each year since 1996. Each year the pair (which is thought to be the same pair) has used a different TECO power pole. Most of the nests, including the one built in October 2000, have been on poles well south of any construction proposed under the County's ERP and clearly outside of the primary and secondary eagle management zones designated by the U.S. Fish and Wildlife Service. But one year, a nest was built on a pole farther north and possibly within the secondary eagle management zone. OFP presented testimony that U.S. Fish and Wildlife would require OFP to apply for an "incidental take" in order to build homes within the primary eagle protection zones around any of the four poles on which eagles have built nests since 1996; timing of construction of homes within the secondary protection zones may be affected. Even accepting OFP's testimony, there was no evidence as to how U.S. Fish and Wildlife would view construction of the County's proposed drainage improvements on OFP property within those zones. In addition, the evidence was that, in order to accomplish its DRI plans to build homes in the vicinity of the TECO power poles that have served as eagle nests in recent years, without having to apply for an "incidental take," OFP plans to place eagle poles (more suitable for eagle nests than power poles, which actually endanger the eagles) in another part of its property which is much more suitable habitat in order to encourage the eagles to build their nest there. The new location would put the County's proposed construction activity far outside the primary and secondary eagle management zones. Other Permitting Requirements The County's proposed project is capable, based on generally accepted scientific engineering and scientific principles, of being effectively performed and of functioning as proposed. The County has the financial, legal, and administrative capability of ensuring that the activity proposed to be undertaken can be done in accordance with the terms and conditions of the permit. No evidence was presented by Petitioner that the Project will cause adverse impacts to any work of the District established under Section 373.086, Florida Statutes. No evidence was presented by Petitioner that the project will not comply with any applicable special basin or geographic area criteria established under Chapter 40D-3, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Standard General Environmental Resource Permit No. 4419803.000. DONE AND ENTERED this 17th day of September, 2001, 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 17th day of September, 2001. COPIES FURNISHED: Linda L. McKinley, Esquire Polk County Attorney's Office Post Office Box 9005, Drawer AT01 Bartow, Florida 33831-9005 Gregory R. Deal, Esquire 1525 South Florida Avenue, Suite 2 Lakeland, Florida 33803 Margaret M. Lytle, Esquire Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Joyce K. Anderson and Thomas Barnett have filed an application for issuance of a permit to dredge and fill a small area in the littoral, or "near shore," zone of Gillis Pond, a "sandhill lake" lying in what is known as the "sandhill region" of Central Florida, generally northeast of Gainesville. The dredging and filling as now proposed would be on and waterward of two lakefront lots jointly owed by the permit applicants. They seek by their application, authorization to dredge and fill at only one site on the waterward margin of the two lots with that modified project area reduced in size to a dimension of 12 feet by 25 feet. Fifteen feet of the project would be waterward of the shoreline. The Respondent, the Department of Environmental Regulation, is an agency of the State of Florida charged with the duty of enforcing, as pertinent hereto, the provisions of Chapter 403, Florida Statutes, and Chapter 17-3 and 4, Florida Administrative Code, enforcing the water quality standards contained therein as they relate to dredge and fill projects of this sort, with concomitant permitting jurisdiction over such projects. The permit applicants desire this dredge and fill permit in order to make a safe, comfortable swimming area for Mrs. Anderson's family and friends. Mrs. Anderson desires to remove the tree stumps, roots and vegetation existing in the littoral zone area of the above dimensions in order to make access directly from the shore more comfortable and pleasant, especially for small children who are unable to swim in the deep water off the waterward end of the existing dock. Mrs. Anderson already has a 56 foot dock extending from her property into the lake. The water is 7 feet deep at the waterward end of the dock and the littoral zone containing aquatic vegetation extends beyond the length of the dock in a waterward direction. The project area would extend waterward of the shoreline, a distance of 15 feet, and would parallel the shoreline approximately a distance of 12 feet. The littoral zone vegetation at the site, however, extends waterward from the shoreline 50 to 60 feet. The proposed area to be dredged is quite small in size in relation to the total linear shoreline of the subject lake of approximately 4,000 feet. The dredged material would be excavated to a depth of approximately 6 inches over that 12 by 15 foot area and replaced with clean sand fill. The dredged material removed from the site would be secured on an upland site such that nutrient pollutants from that dredged material could not be leached or carried back into the lake through storm water runoff. Approximately one-third of the shoreline of the lake is bordered by a marsh or wet prairie which is approximately as large in area as the lake itself. The dominant vegetative species in the project area and surrounding the lake, including the marsh, are submerged freshwater species listed in Rule 17- 4.02(17), Florida Administrative Code, including maidencane, sawgrass and a rare aquatic plant, websteria confervodies. Gillis Pond is a Class III water of the state, although its water quality parameters, or some of them, clearly exceed in quality, the minimum standards for Class III waters. Gillis Pond is what is termed an "ultra- oligotrophic lake, which means that its waters are characterized by a high level of transparency and very low nutrient content, that is to say that they are essentially pristine in nature. An oligotrophic lake such as this is very sensitive to any addition of nutrient pollutants. Even a small addition of nutrients to such water can cause an imbalance in the fauna and flora which have evolved to become dependent upon a low nutrient aquatic environment. Specifically, the rare aquatic plant named above is very sensitive to any enhanced nutrient levels and thus serves as a barometer of the water quality in this body of water. The addition of any nutrient pollutants to the lake, even in small amounts, might alter the chemical balance of the water in a derogatory manner so that the websteria confervodies might be eliminated. The elimination of this species from the littoral zone vegetation band surrounding the lake would likely result in other forms of vegetation supplanting it, altering the balance and makeup of the community of fauna and flora native to the lake and possibly hastening the progress of the lake toward eutrophication and degradation. The present water quality in the lake is such that dissolved oxygen and other criteria are better than the Class III water quality standards. The vegetation in the littoral zone of the lake and extending out as much as 50 to 60 feet waterward performs a significant function in uptaking and fixing nutrient pollutants that wash into the lake from storm water runoff from the surrounding uplands. Inasmuch as 30 to 40 feet of this belt of littoral zone vegetation would remain waterward of the dredged and filled area if the permit is granted, the nutrient uptake function of the vegetation in the littoral zone would not be significantly degraded. There are two locations where littoral zone vegetation has been removed in a similar fashion and water quality and flora and fauna communities characteristic of an oligotrophic lake are still present and healthy. Further, there is an extremely low nutrient level in the lake at the present time, and no significant amount of nutrient pollutants are leached or washed into the lake through septic tanks, storm water runoff or other sources. There is no question that the project as proposed would result in some slight, transitory degradation of water quality in the form of increased turbidity and reduced transparency. Turbidity will be caused during and shortly after the dredging and filling operation itself, caused by stirring up of bottom peat or sediments and by removal of a 12 by 15 foot area of aquatic vegetation in the littoral zone of the lake. Turbidity curtains in still waters such as involved here, can substantially reduce the spread of turbidity caused by the stirring up of bottom material and can substantially reduce the period of its suspension in the water by containing it at the dredged site. The vast majority of the littoral zone vegetation surrounding and waterward of the area to be dredged will remain such that the nutrient uptake function will be essentially undisturbed, thus any adverse impact on water quality will be insignificant. In terms of cumulative effect of allowing a multiplicity of such projects, not even a 10 percent loss of the littoral zone band of vegetation in the lake, which would be the maximum possible loss if all riparian land owners were allowed a similar size dredged and filled area on the front of their lots, would cause a violation of Department water quality standards. Parenthetically, it should be pointed out that such riparian owners cannot be prevented by any water quality criteria in Chapter 403 or Chapter 17, Florida Administrative Code, from having access to the lake in front of their lots. Such human traffic will have the gradual affect of destroying a significant amount of the littoral zone vegetation on and waterward of those lots (which is a cause and result the Department is powerless to regulate). By confining the destruction of littoral zone vegetation to such a small area as that involved in the application at bar and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining critical littoral zone vegetation will be significantly enhanced.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the application of Joyce K. Anderson and Thomas Barnett for a dredge and fill permit as described in the modified and amended application be GRANTED; provided, however, that turbidity curtains are used during all dredging and filling activity and for a reasonable time thereafter until turbidity caused by the project has settled out of the water column. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983. COPIES FURNISHED: Tim Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Joyce K. Anderson and Thomas Barnett 6216-B, Southwest 11th Place Gainesville, Florida 32601 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue for consideration at the hearing was whether the Respondent, Roger Harloff, should be issued a consumptive use permit to withdraw and use ground water from the wells on his property, and if so, in what amount and under what conditions.
Findings Of Fact Respondent, Roger Harloff, owns several farms in southeastern Manatee County, Florida which, taken together, make up an irregular 8,500 acre tract located approximately 2 1/2 miles north of the City of Sarasota's Verna Wellfield. Mr. Harloff grows vegetables on much of this tract, of which approximately 1,500 acres is devoted to tomatoes. This tomato crop is the prime crop produced by Mr. Harloff, and provides the raw material for the Harloff packing plant which is dependent upon the tomato crop in order to stay in business. Mr. Harloff also operates a plant nursery at which he produces many if not most of the seedling plants utilized in his vegetable growing operations. In order to be economically feasible and remain operative, Mr. Harloff must farm approximately 3,800 acres during the Spring growing season and approximately 3,000 acres during the Fall. These acres are made up of tomatoes and other vegetables. The packing plant and the plant nursery are dependent upon the farm operation and without adequate water, the farm operation cannot be successfully carried on. In September 1988, Mr. Harloff applied to the District for a consumptive use permit to withdraw water from twelve wells located on his property, requesting an annual average rate of 12,995,606 gpd, and a maximum daily rate of 47,520,000 gpd. The consumptive use permit application filed by Mr. Harloff was assigned District Number 204467.04. After evaluation of the application in conjunction with its needs and policies, the District issued a staff report and proposed agency action on the application which recommended issuance of the permit authorizing water to be drawn from the 12 wells at a rate approximating that requested in the application. Thereafter, the City of Sarasota, which operates the nearby Verna Wellfield, considering that the proposed withdrawal would have a substantial adverse impact on its wellfield operations, filed a Petition for Formal Administrative Hearing objecting to the issuance of the permit to Mr. Harloff. Though Mr. Harloff has owned much of the property which make up the 8,500 acre tract in question here, at the time of his application, he did not own, but had under contract, a substantial portion. He closed on the purchase of that remainder after he received notice of the District's intention to issue the permit in question but prior to the City's filing its Petition For Formal Hearing. The purchase price of the property in question was $9,000,000.00 which carries an interest payment on the financed portion of $52,000.00 per month. The wells pertinent to the issues in this proceeding are as follows: # Cons. Depth Cas. Lin. Diam. Cap. Loc. 1 1978 1185' 200' 220-490' 12" 2000 gpm SE 2. 1988 1320' 210' 210-480' 16" 3000 gpm SE 9. 1974 1130' 390' 16" 3000 gpm C 10. 1976 1232' 231' 283-400' 16" 3000 gpm NW 11. 1979 1120' 210' 260-480' 12" 2000 gpm NW 12. 1976 1180' 480' 12" 2000 gpm SW 3. 1989 1434' 460' 16" 3000 gpm SE 5. 1989 1374' 610' 16" 3000 gpm W 8. 1989 1292' 548' 16" 3000 gpm NW 13. 1989 1310' 635' 16" 2000 gpm NE Well No. 8 was used as the pump test well for the constant rate discharge test and Well No. 13 was the deep observation well for that test. Wells 1, 2, 9, 10, 11, and 12 have all been previously permitted by the District and No's 1, 2, 9 and 10 are currently permitted under two other permits, while 11 and 12 were permitted under a different permit. Wells No. 3, 5, 8 and 13 have been authorized for construction but not, as yet, to produce water. Wells 4, 6 and 7 have not yet been constructed. The intention is to drill them to a depth of 1,300 feet and case them to 600 feet. Each will have a pump capacity of 3,000 gpm. Number 4 will be in the southeast portion of the tract, number 6 in the central portion, and number 7 will be located just north of number 6. Wells 1, 2, 9, and 10 currently have a combined permitted maximum daily rate of 13,680,000 gallons under permits number 204467.03 for 1 and 2, and 204630 for 9 and 10. The former was issued on December 29, 1987 and will expire on December 29, 1993, and the latter, issued on October 7, 1981, will expire on that same day in 1991. The permit previously issued for wells 11 and 12 authorized withdrawal at a maximum daily rate of 2,160,000 gallons. That permit, number 204374, expired on September 9, 1986 and was not renewed. After the City filed its Petition challenging Mr. Harloff's proposed permit, Mr. Harloff, on June 26, 1989, filed an amended application to withdraw water at an average annual rate of 10.99 mgd and a maximum daily rate of 48.96 million gallons. This amended application refers to an additional proposed well, Number 13. The District, however, had previously approved wells 3 - 8 and 13, and pursuant to this authorization, wells 3, 5, 8, and 13 were built. Mr. Harloff submitted additional amendments to his application on August 7 and 9, 1989. The former requests a seasonal average daily rate of 25.34 mgd and a seasonal maximum daily rate of 32.79 mgd. The latter requests a seasonal average rate of 26.18 mgd, an annual average rate of 15.18 mgd, and a seasonal maximum rate of 31.56 mgd. In that regard, a seasonal rate is the same as an annual rate, (average or maximum) when applied to a growing season as opposed to a year. The additional amendments to the application were evaluated by District staff who, on August 18, 1989, issued a revised staff report and a proposal to issue to Mr. Harloff a consumptive use permit authorizing an average annual withdrawal of 11.1. mgd, an average seasonal withdrawal of 15.6 mgd, and a seasonal maximum withdrawal of 20.1 mgd. The proposed permit also contains terms and conditions which, the District contends, will, inter alia, permit Mr. Harloff to withdraw more water than he is currently authorized without additional adverse impact on the City's Verna Wellfield. It is to some of these terms and conditions that Mr. Harloff objects. Since the issuance of the revised staff report and intent to issue, the parties have negotiated on the various terms and conditions in question and have agreed to some and the amendment of others. Mr. Harloff has no objection to conditions number 1, 2, 3, 7 - 14, 23, 24, 26, 28 - 30, 32, and 34 & 35. The parties agree that other conditions, as indicated herein, should be amended as follows: Condition 19, on the third line, should be changed to read, " up to 20 inches tapering to 12 inches." Condition 22, on the second line, should be changed from "30 days" to "10 days". Condition 25, on the first line, should be changed from "within 60 days" to within 120 days". Condition 31, on the third line, starting with "following month" should be changed to "following months: January, April, July and October". Also, under Sampling Frequency, "Monthly" should be changed to "Quarterly". Condition 33, on the ninth line, insert the work "economically" before the word "feasible" in the phrase "specific operation and irrigation improvements are feasible". Mr. Harloff objects to conditions 4, 5, 15 - 17, 20 & 27. He does not object to the proposed new standards for new wells. Taken together, the parties then disagree only on the requirement for abandonment or refurbishment of existing wells and the quantities of water Mr. Harloff will be allowed to draw. The City supports the District's position on both issues. The City of Sarasota owns and operates a public water system to serve between 50 to 75 thousand people located in Sarasota County. The primary source of water for this system is the Verna Well field which is also owned by the City and which accounts for approximately 60 percent of the City's water needs. The City also operates a reverse osmosis, (R.O.) water desalinization facility, and has back-up wells at St. Armond Key and at the Bobby Jones Wellfield. The Verna Wellfield is located about 17 miles east of the Sarasota city limits on approximately 2,000 acres of land in northeastern Sarasota County. It consists of two tracts of land: Part "A", which is approximately 1/2 mile wide by 4 miles long; and Part "B", which is approximately 1 mile square located about 500 feet southeast of Part "A". The Verna Wellfield's permitted allocation is based on whether the R.O. facility is producing at capacity. If it is, the Verna daily allocation is 7 mgd, and if not, 9.5 mgd. The R.O. facility's capacity is 4.5 mgd and the backup wells have a capacity of 1.7 mgd. The wellfield contains 39 permitted production wells, 30 of which are in Part "A" and 9 of which are in Part "B." One of them, well 30, is currently inactive. The wellfield has been in operation as a part of the City's public water system since September 1966. When the Verna Wellfield was constructed in 1965-1966, its original design specified casing on most wells down to 140 feet with pump bowl settings at 125 feet. Each pump was to have a total dynamic head, (TDH) of 200 feet. Over the years, the City has decreased the TDH of the pumps at Verna from 200 feet to 175 feet. This has resulted in a reduction of the pumps' ability to produce water with sufficient pressure to carry it to the discharge point. This decline has been caused by an increase in withdrawal of water regionally, and not solely because of withdrawals from the Verna Well field. Verna is impacted by the use of water outside the boundaries of the wellfield. The City has an ongoing program calling for the refurbishment of 2 to 3 wells per year at the Verna Wellfield. It is the City's intent to convert the pumps to 200 feet TDH on all well refurbishments in the future. In August 1977, a program requiring permits for the consumptive use of water was implemented in both Sarasota and Manatee Counties. At that time, the Verna Wellfield had a production rate of 6.9 mgd annual average daily rate. On January 6, 1978, the City applied for a permit for Verna and on April 3, 1979, the District issued permit number 27804318 to allow the City to draw water from the Verna Wellfield. The City applied for a renewal of that permit in October 1983 and thereafter, in January 1985, the District authorized the continued withdrawal of water from Verna by the issuance of permit 204318 which, at Condition 18, placed limitations on the City's use of water from the wellfield. Specifically, the permit limited withdrawals from Verna to: ...6,000,000 gallons per day average and 7,000,000 gallons per day maximum, except during those times when ... [the R.O. process is reduced or to facilitate maintenance or repairs]. At such times, ... [withdrawals) may be increased to provide additional supplies not to exceed 8,000,000 gallons per day average annual and 9,500,000 gallons per day maximum. This condition clearly provides for additional supplies to be drawn to increase the Verna Well field production to a total of 8,000,000 and 9,500,000 mgd, respectively, not in addition to the regular permitted amount, by those quantities. The City's permit has been neither suspended nor revoked nor is any violation enforcement action currently under way. The current permit expires January 9, 1991. The water pumped from the Verna wells is held in a 1,000,000 gallon reservoir at the wellfield. This reservoir, which is topped at approximately 22 to 23 feet, electronically controls the pumping activity at the well field by turning on and shutting off pumps, in series, as the water level in the reservoir rises and falls. The water, when needed, is transmitted to another reservoir near the City's treatment plant in downtown Sarasota by gravity flow through a 30" diameter, 92,000 foot long pipe. The flow rate is approximately 5,000 gpm normally. When the treatment plant needs more water, a pump at the well field forces the flow at a rate of between 7,200 to 8,200 gpm, depending upon the level of water in the receiving reservoir. A flow of 8,200 gpm would draw 11.8 mgd from the wellfield. The operating capacity of the Verna Wellfield, in August 1988, was 17.9 mgd. Harloff's experts assert, and there is no concrete evidence to rebut it, that if all wells at Verna were pumping during a 24 hour period in May 1989, the reservoir could have been maintained at full level. However, though there is a manual override of the automatic reservoir/pump control system, it is unrealistic and unwise to expect full production on a 24 hour basis for any lengthy time period. Water under both Mr. Harloff's property and the Verna Well field is found at various levels known by different names. These include, in order of descent, the Surficial Aquifer, the Intermediate Aquifer, the Upper Floridan Aquifer, and the Lower Floridan Aquifer. The Surficial Aquifer extends from the surface down to between 20 and 60 feet below the surface. A 20 foot thick bed of clay separates the water in this aquifer from that in the aquifer immediately below it, the Intermediate Aquifer, which extends from approximately 80 feet down to approximately 420 feet below the surface. In the lower part of the Intermediate Aquifer, permeability decreases until a confining unit separating the bottom of the Intermediate Aquifer from the top of the Upper Floridan Aquifer is formed. There is such a confining unit between 420 and 500 feet. There is no well-defined confining unit between the Upper and Lower Floridan Aquifers. There is, however, a substantial difference in the transmissivity in each zone. "Transmissivity" is defined as the amount of water that will exist through a section of the aquifer that is the same width from the top to the bottom. The lower the transmissivity rate, the deeper the cone and the narrower the radius of effect. The higher the rate, the shallower the cone and the broader the radius. The Lower Floridan Aquifer has an extremely high transmissivity. Its top is found at a range of from 1,050 to 1,200 feet below the surface on Mr. Harloff's property. The water from the Upper Floridan Aquifer is of higher quality than that in the Lower. It is more readily usable for drinking than that in the Lower, but the Lower water is quite acceptable for agricultural purposes. What confining layer exists between the Upper and Lower Floridan Aquifers is made up of relatively impermeable anhydrides and gypsum. Because of this, there is little likelihood of the highly mineralized water from the Lower Floridan Aquifer rising into the better quality water in the Upper. If, therefore, water for agricultural purposes is drawn from the Lower Floridan Aquifer, with its high transmissivity and narrower cone radius, and if the wells utilized to procure this water are cased down to within the Lower aquifer, there is little chance of a negative impact on the better quality water, used for drinking by the City, within the Upper Floridan and Intermediate Aquifers. Mr. Hardin, an expert geologist and hydrogeologist testifying for Mr. Harloff, concluded, utilizing certain commonly accepted computer models, that Mr. Harloff's requested additional withdrawals would not have a significant effect on the Verna Wellfield's ability to produce water sufficient for the City's needs. This conclusion was based on 1989 seasonal use figures including an average rate of 21.95 mgd, a maximum rate of 27.04 mgd, and a maximum rate of 29 mgd under a "run time" calculation and the fact that during that period, the City was able to pump at least its permitted quantity from its wells at Verna. The City and the District do not accept this conclusion as reasonable, however, because, they claim, the withdrawal figures cited are not meter readouts but estimates based on the number of acres farmed and the number of pump operating hours during the period in question. The City's experts contend the data used by Hardin and Prochaska in their opinions is not that which other experts in the field would reasonably rely upon. They do not appear to be unrealistic, however, and, therefore, Mr. Hardin's opinion is accepted as but one factor to be considered. On the other hand, Mr. Anderson, also a Harloff expert hydrogeologist, claims the requested withdrawals would result in only an additional 1.7 foot drawdown in the Upper Floridan Aquifer underlying the Northeast corner of the Verna Well field. To be sure, this is only one small portion of the wellfield in issue. There has, however, been a continuing history of declining groundwater levels in this area over the past several years. After the 1975 drought, the City started to experience declining water levels at Verna which, because of the reduction in ability to produce water, required a lowering of the pump elements in some wells, and also caused the City to develop an R.O. facility in an effort to reduce dependence on well water. This drop in capability occurred again during the 1985 drought and this time the City modified the pump motors to shut off prior to cavitation and initiated a schedule of operating times for wells, so that water is drawn from different and geographically separated areas in a sequence designed to allow periodic regeneration of an area's supply. Nevertheless, water supply remains a concern at Verna, and the problems previously experienced continue to occur during periods of drought. In May 1989, the Verna Wellfield was periodically "unable" to meet it's short term peak demands at times even though all operating wells were pumping. This means that at the times in question, more water was being drawn from the Verna reservoir than could be replaced by pumping activities. It does not mean that the reservoir ran dry and water could not be furnished to the treatment plant. However, this condition is serious and indicative of a more serious shortage in the future unless appropriate safeguards are instituted. Mr. Balleau, the City's expert in hydrology and hydrogeology, and the District's experts all believe the Verna Wellfield is in trouble. It is operating well beyond its design range and the imposition of additional demands on it would seriously and adversely affect its ability to produce water. This position is supported by the facts and found to be accurate. There appear to be several options open to the City to contend with the Verna problem potential. These include: drill deeper wells at Verna to tap the Lower Floridan Aquifer. (This will produce the lower quality water found there and require additional treatment facilities. construct a linear wellfield along the pipeline from Verna to the treatment facility. (This will require additional permitting to draw the water, high construction and operating costs, and still result in low quality water requiring treatment. redevelop the downtown wells currently supplying the R.O. facility. (This will require satisfaction of regulatory issues, adversely impact on the users of the upper aquifers, possibly result in poor water quality and in contamination from nearby landfills.) develop a new well field southeast of Verna. (This will experience regulatory issues and high construction costs, with an unknown water quality result.) buy water from Manatee County. (This is expensive, may result in transmission and compatibility problems, and would be only a short term solution. lower pump assemblies; replace existing pumps and modify the pump circuits. (These are all unreliable, short term solutions of minimal benefit.) Mr. Harloff and the City/District disagree on the appropriate amount of water needed for the successful growing of the crops produced by his operations. Both agree, however, that the heaviest demands for water come in the spring growing season including April and May. Tomatoes require the most water. Peppers require nearly as much. This is because the short root systems require a higher water table in the soil to supply needed moisture. In its analysis of Mr. Harloff's application, the District, referring to tables developed for the purpose of allocation and relating to Harloff's watering history during the period from August 15, 1988 to June 7, 1989, subtracted the fall season recorded application of 20.7 acre-inches from the total 10 month figure of 50.92 acre-inches and concluded he would need 30.22 acre-inches for peppers during the spring, 1989 season. Unless shown to be totally unreasonable, however, (not the case here), the applicant's water need figures should be accepted. Mr. Harloff's operation constitutes an important part of Manatee County's agricultural economy, and agriculture utilizes 68.9 percent of the land in the county. Agricultural products sold in Manatee County in 1987 were valued at $145,655,000.00, which ranked Manatee County third among all Florida counties in vegetable production. Agriculture is the fourth largest employer in Manatee County, employing an average of 4,692 people per month. Through his farm operation alone, Harloff employes as many as 1,050 people, with 200 employed on a full-time basis. Experts estimate that the loss of the Harloff operation would cause a reduction of between 16 and 18 million dollars in agricultural sales in the county with an additional loss in jobs and income to his suppliers. This estimate is not at all unreasonable. Florida produces approximately 95 percent of all tomatoes grown in this country for the fresh tomato market during the winter growing season. Tomatoes are the single largest vegetable crop grown in the state and accounted for 39.7 percent of the total value of vegetables produced in Florida during the 1987-1988 growing season. Mr. Harloff produced 4.8 percent of the total shipment of tomatoes from this state during that period. Water, primarily through irrigation, is an indispensable portion of the farming operation for this crop. Mr. Harloff currently irrigates the majority of his non-citrus crops by use of a "semi-closed ditch irrigation system", as opposed to a "drip system." The drip system is considerably more efficient than the semi-closed system having an efficiency rating, (amount of water actually used by the plants) of between 80 to 90 percent, as opposed to 40 to 60 percent for the other. While Mr. Harloff could reduce his water needs considerably and achieve substantial savings on pump fuel by conversion to a drip system for all or a part of his crops, such an undertaking would be quite costly. One of the conditions proposed by the District for the approval of Harloff's permit, as amended, is the refurbishment of several of the existing wells utilized by Mr. Harloff to make them more efficient and to promote the withdrawal of water from the Lower Floridan Aquifer, in which there appears to be adequate water and from which the Verna Well field does not draw. Currently, Mr. Harloff has seven wells which do not meet the standards of this proposed condition. They are not drilled to 1,300 feet below mean sea level and are not cased to 600 feet. To bring these wells into compliance, they would have to be drilled to the 1,300 foot level, or to a level which has a specific capacity of 400 gpm, and the casings in each would have to be extended to 600 feet. Extending the casings would be a complicated procedure and Harloff's experts in the area cannot guarantee the procedure would successfully achieve the desired end. Assuming the retrofit was successful, the cost of the entire process would be approximately $15,000.00 to $16,000.00 per well. In addition, the process would, perforce, require reducing the diameter of the well from 10 to 8 inches, thereby necessitating increasing the pump capacity to produce sufficient water. The cost of this is substantial with an appropriate new pump costing somewhere between $10,000.00 and $15,000.00 each. Consequently, the anticipated cost of bringing the existing wells up to condition standards would be between $25,000.00 to $31,000.00 per well, while the cost of constructing a new well is between $40,000.00 and $50,000.00 per well. Mr. Harloff feels it would be more prudent for him to replace the existing wells rather than to retrofit them. This may be correct. Harloff experts also claim that extending the casings on the existing wells down to 600 feet would not provide a significant benefit to the aquifer nor cause any significant reduction in drawdown impact at Verna. The District and City experts disagree and, taken on balance, caution and the interests of the public indicate that a conservative approach is more appropriate. While Mr. Harloff proposes to convert the areas served by wells 1, 9, 11, and 12 to the growing of citrus which requires much less water than tomatoes, this would not be sufficient mitigation to offset the need for some modification if large amounts of water will still be drawn. The entire area under the District's jurisdiction has been experiencing a water shortage due to a lack of rainfall. As a result, in June 1989, the District adopted a resolution identifying an area, including the area in question here, as a "water use caution area." This was done because the Floridan Aquifer has been subjected to large seasonable drawdowns of the potientiometric surface, the level to which water in a confined aquifer can rise in a well which penetrates that acquifer. This drawdown is directly related to increased water use in the area, much of which is for agricultural purposes. As a result of the District's action, special conditions on well construction for consumptive use applicants have been imposed on a permit by permit basis to insure, as much as possible, that the applicant uses the lowest quality water appropriate for his intended purpose. These conditions are not unreasonable. While accepting the District's and City's conclusion that his wells, if permitted, would have some impact on the Verna Wellfield, Mr. Harloff does not concede that the impact is significant. Specifically, the difference in impact resulting from an increase from his currently permitted use of 13.68 mgd seasonal maximum and his requested use of 31.56 mgd seasonal maximum for wells 1, 2, 9, and 10 would be a maximum increased drawdown of 1.1 feet at the Intermediate aquifer and 1.8 feet at the Upper Floridan Aquifer. Both figures relate to that portion of the wellfield found in the northeast corner of Part A. If the anticipated usage for crops predicted by Mr. Harloff's experts for the spring of 1989 is accurate, the drawdown would be 0.2 feet for the intermediate aquifer and 0.4 feet for the Upper Floridan Aquifer measured at the northeast corner of Part B of the Verna We1lfield. Harloff's experts contend that additional impacts for the spring of 1989 included, the increased usage will not have a significant effect on Verna's ability to produce its permitted daily maximum withdrawal of 9.5 mgd. While this is an educated speculation, it should be noted that during May 1989, the Verna field was able to produce up to 8.3 mgd without using all wells during any 24 hour period. This does not consider, however, the problems encountered by the City as indicated by the wellfield personnel, and the fact that some of the City wells are not pumping water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Roger Harloff be issued a consumptive use permit, No. 204467.04, as modified, to reflect authorization to draw 15.18 mgd annual average, not to exceed 31.56 mgd seasonal maximum, conditioned upon compliance with the conditions found in the conditions portion of the permit, as modified to conform to the quantities as stated herein, and to include those requirements as to acre-inch and crop-acre limitations, well usage and abandonment schedules, well modification standards, and record keeping, as are contained therein. RECOMMENDED this 5th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-0574 The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: City of Sarasota, joined by the District 1 & 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 8-12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14-22. Accepted and incorporated herein. 23-25. Accepted and incorporated herein. 26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29-33. Accepted and incorporated herein. Not a Finding of Fact but a statement of party position. & 36. Accepted. 37. & 38. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on opponent's satisfaction of its burden of proof. 42-44. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misstatement of fact. Water service was never interrupted. The deficiency was in the City's inability to keep its wellfield reservoir filled. 47-54. Accepted and incorporated herein. Accepted and incorporated herein. Rejected for the reasons outlined in 41. 57-62. Accepted and incorporated herein. 63. Rejected for the reasons outlined in 41. 64-66. Accepted and incorporated herein. Rejected for the reasons outlined in 41. Rejected. & 70. Accepted and incorporated herein. 71. & 72. Accepted and incorporated herein. 73. Accepted and incorporated herein. 74 & 75. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Rejected. Accepted. Irrelevant. 81-84. Rejected. 85. & 86. Accepted and incorporated herein. 87 & 88. Accepted and incorporated herein. 89. Accepted and incorporated herein. 90 & 91. Accepted and incorporated herein. 92. & 93. Accepted and incorporated herein. FOR THE RESPONDENT: Roger Harloff 1-9. Accepted and incorporated herein. 10-13. Accepted and incorporated herein. 14 & 15. Accepted and incorporated herein. 16-25. Accepted and incorporated herein. 26-28. Accepted and incorporated herein. 29 & 30. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not proven. 35 & 36. Accepted and incorporated herein. 37 & 38. Accepted and incorporated herein. 39-41. Accepted and incorporated herein. 42 & 43. Accepted and incorporated herein. 44. Accepted. 45 & 46. Accepted and incorporated herein. 47 & 48. Accepted and incorporated herein. 49. Accepted. 50 & 51. Accepted and incorporated herein. Accepted. Accepted. Accepted. & 56. Accepted and incorporated herein. 57. Accepted. 58-60. Accepted and incorporated herein. 61 & 62. Accepted and incorporated herein. Rejected as unproven. Accepted. Accepted and incorporated herein. Accepted. 67-68. Accepted. Not a Finding of Fact but an interpretation of party po Accepted. Rejected. 72 & 73. Accepted. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte, Gilbert and Gramovot, P.A. 705 East Kennedy- Blvd. Tampa, Florida 33602 Edward B. Helvenston, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made to supplement the factual stipulations contained in the parties' Prehearing Stipulation: State TMDL Legislation Over the last 30 years, surface water quality management in Florida, like in the rest of the United States, has focused on the control of point sources of pollution (primarily domestic and industrial wastewater) through the issuance, to point source dischargers, of National Pollutant Discharge Elimination System (NPDES) permits, which specify effluent-based standards with which the permit holders must comply. Although "enormously successful in dealing with . . . point sources" of pollution, the NPDES program has not eliminated water quality problems largely because discharges from other sources of pollution (nonpoint sources) have not been as successfully controlled. In the late 1990's, the Department recognized that, to meet Florida's water quality goals, it was going to have to implement a TMDL program for the state. Wanting to make absolutely sure that it had the statutory authority to do so, the Department sought legislation specifically granting it such authority. Jerry Brooks, the deputy director of the Department's Division of Water Resource Management, led the Department's efforts to obtain such legislation. He was assisted by Darryl Joyner, a Department program administrator responsible for overseeing the watershed assessment and groundwater protection sections within the Division of Water Resource Management. Participating in the drafting of the legislation proposed by the Department, along with Mr. Brooks and Mr. Joyner, were representatives of regulated interests. No representatives from the environmental community actively participated in the drafting of the proposed legislation. The Department obtained the TMDL legislation it wanted when the 1999 Florida Legislature enacted Chapter 99-223, Laws of Florida, the effective date of which was May 26, 1999. Section 1 of Chapter 99-223, Laws of Florida, added the following to the definitions set forth in Section 403.031, Florida Statutes, which define "words, phrases or terms" for purposes of "construing [Chapter 403, Florida Statutes], or rules or regulations adopted pursuant [t]hereto": (21) "Total maximum daily load" is defined as the sum of the individual wasteload allocations for point sources[11] and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. Section 4 of Chapter 99-223, Laws of Florida, added language to Subsection (1) of Section 403.805, Florida Statutes, providing that the Secretary of the Department, not the Environmental Regulation Commission, "shall have responsibility for final agency action regarding total maximum daily load calculations and allocations developed pursuant to s. 403.067(6)," Florida Statutes. The centerpiece of Chapter 99-223, Laws of Florida, was Section 3 of the enactment, which created Section 403.067, Florida Statutes, dealing with the "[e]stablishment and implementation of total maximum daily loads." Section 403.067, Florida Statutes, was amended in 2000 (by Chapter 2000-130, Laws of Florida) and again in 2001 (by Chapter 2001-74, Laws of Florida). It now reads, in its entirety, as follows: LEGISLATIVE FINDINGS AND INTENT.-- In furtherance of public policy established in s. 403.021, the Legislature declares that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution.[12] The Legislature finds that, while point and nonpoint sources of pollution have been managed through numerous programs, better coordination among these efforts and additional management measures may be needed in order to achieve the restoration of impaired water bodies. The scientifically based total maximum daily load program is necessary to fairly and equitably allocate pollution loads to both nonpoint and point sources. Implementation of the allocation shall include consideration of a cost- effective approach coordinated between contributing point and nonpoint sources of pollution for impaired water bodies or water body segments and may include the opportunity to implement the allocation through nonregulatory and incentive-based programs. The Legislature further declares that the Department of Environmental Protection shall be the lead agency in administering this program and shall coordinate with local governments, water management districts, the Department of Agriculture and Consumer Services, local soil and water conservation districts, environmental groups, regulated interests, other appropriate state agencies, and affected pollution sources in developing and executing the total maximum daily load program. LIST OF SURFACE WATERS OR SEGMENTS.-- In accordance with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., the department must submit periodically to the United States Environmental Protection Agency a list of surface waters or segments for which total maximum daily load assessments will be conducted. The assessments shall evaluate the water quality conditions of the listed waters and, if such waters are determined not to meet water quality standards, total maximum daily loads shall be established, subject to the provisions of subsection (4). The department shall establish a priority ranking and schedule for analyzing such waters. The list, priority ranking, and schedule cannot be used in the administration or implementation of any regulatory program. However, this paragraph does not prohibit any agency from employing the data or other information used to establish the list, priority ranking, or schedule in administering any program. The list, priority ranking, and schedule prepared under this subsection shall be made available for public comment, but shall not be subject to challenge under chapter 120. The provisions of this subsection are applicable to all lists prepared by the department and submitted to the United States Environmental Protection Agency pursuant to s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., including those submitted prior to the effective date of this act, except as provided in subsection (4). If the department proposes to implement total maximum daily load calculations or allocations established prior to the effective date of this act, the department shall adopt those calculations and allocations by rule by the secretary pursuant to ss. 120.536(1) and 120.54 and paragraph (6)(d). ASSESSMENT.-- Based on the priority ranking and schedule for a particular listed water body or water body segment, the department shall conduct a total maximum daily load assessment of the basin in which the water body or water body segment is located using the methodology developed pursuant to paragraph (b). In conducting this assessment, the department shall coordinate with the local water management district, the Department of Agriculture and Consumer Services, other appropriate state agencies, soil and water conservation districts, environmental groups, regulated interests, and other interested parties. The department shall adopt by rule a methodology for determining those waters which are impaired. The rule shall provide for consideration as to whether water quality standards codified in chapter 62- 302, Florida Administrative Code, are being exceeded, based on objective and credible data, studies and reports, including surface water improvement and management plans approved by water management districts under s. 373.456 and pollutant load reduction goals developed according to department rule. Such rule also shall set forth: Water quality sample collection and analysis requirements, accounting for ambient background conditions, seasonal and other natural variations; Approved methodologies; Quality assurance and quality control protocols; Data modeling; and Other appropriate water quality assessment measures. If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. APPROVED LIST.-- If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology- based effluent limitations[13] and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated. In association with this updated list, the department shall establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations. If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard. This updated list shall be approved and amended by order of the department subsequent to completion of an assessment of each water body or water body segment, and submitted to the United States Environmental Protection Agency. Each order shall be subject to challenge under ss. 120.569 and 120.57. REMOVAL FROM LIST.-- At any time throughout the total maximum daily load process, surface waters or segments evaluated or listed under this section shall be removed from the lists described in subsection (2) or subsection (4) upon demonstration that water quality criteria are being attained, based on data equivalent to that required by rule under subsection (3). CALCULATION AND ALLOCATION.-- Calculation of total maximum daily load. Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. The analysis may include mathematical water quality modeling using approved procedures and methods. The department shall develop total maximum daily load calculations for each water body or water body segment on the list described in subsection (4) according to the priority ranking and schedule unless the impairment of such waters is due solely to activities other than point and nonpoint sources of pollution. For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required. A total maximum daily load may be required for those waters that are impaired predominantly due to activities other than point and nonpoint sources. The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards, and shall account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. The total maximum daily load may be based on a pollutant load reduction goal developed by a water management district, provided that such pollutant load reduction goal is promulgated by the department in accordance with the procedural and substantive requirements of this subsection. Allocation of total maximum daily loads. The total maximum daily loads shall include establishment of reasonable and equitable allocations of the total maximum daily load among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities, provide for the attainment of water quality standards and the restoration of impaired waters. The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards and shall be based on consideration of the following: Existing treatment levels and management practices; Differing impacts pollutant sources may have on water quality; The availability of treatment technologies, management practices, or other pollutant reduction measures; Environmental, economic, and technological feasibility of achieving the allocation; The cost benefit associated with achieving the allocation; Reasonable timeframes for implementation; Potential applicability of any moderating provisions such as variances, exemptions, and mixing zones; and The extent to which nonattainment of water quality standards is caused by pollution sources outside of Florida, discharges that have ceased, or alterations to water bodies prior to the date of this act. Not later than February 1, 2001, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives containing recommendations, including draft legislation, for any modifications to the process for allocating total maximum daily loads, including the relationship between allocations and the watershed or basin management planning process. Such recommendations shall be developed by the department in cooperation with a technical advisory committee which includes representatives of affected parties, environmental organizations, water management districts, and other appropriate local, state, and federal government agencies. The technical advisory committee shall also include such members as may be designated by the President of the Senate and the Speaker of the House of Representatives. The total maximum daily load calculations and allocations for each water body or water body segment shall be adopted by rule by the secretary pursuant to ss. 120.536(1), 120.54, and 403.805. The rules adopted pursuant to this paragraph shall not be subject to approval by the Environmental Regulation Commission. As part of the rule development process, the department shall hold at least one public workshop in the vicinity of the water body or water body segment for which the total maximum daily load is being developed. Notice of the public workshop shall be published not less than 5 days nor more than 15 days before the public workshop in a newspaper of general circulation in the county or counties containing the water bodies or water body segments for which the total maximum daily load calculation and allocation are being developed. IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- The department shall be the lead agency in coordinating the implementation of the total maximum daily loads through water quality protection programs. Application of a total maximum daily load by a water management district shall be consistent with this section and shall not require the issuance of an order or a separate action pursuant to s. 120.536(1) or s. 120.54 for adoption of the calculation and allocation previously established by the department. Such programs may include, but are not limited to: Permitting and other existing regulatory programs; Nonregulatory and incentive-based programs, including best management practices, cost sharing, waste minimization, pollution prevention, and public education; Other water quality management and restoration activities, for example surface water improvement and management plans approved by water management districts under s. 373.456 or watershed or basin management plans developed pursuant to this subsection; Pollutant trading or other equitable economically based agreements; Public works including capital facilities; or Land acquisition. In developing and implementing the total maximum daily load for a water body, the department, or the department in conjunction with a water management district, may develop a watershed or basin management plan that addresses some or all of the watersheds and basins tributary to the water body. These plans will serve to fully integrate the management strategies available to the state for the purpose of implementing the total maximum daily loads and achieving water quality restoration. The watershed or basin management planning process is intended to involve the broadest possible range of interested parties, with the objective of encouraging the greatest amount of cooperation and consensus possible. The department or water management district shall hold at least one public meeting in the vicinity of the watershed or basin to discuss and receive comments during the planning process and shall otherwise encourage public participation to the greatest practical extent. Notice of the public meeting shall be published in a newspaper of general circulation in each county in which the watershed or basin lies not less than 5 days nor more than 15 days before the public meeting. A watershed or basin management plan shall not supplant or otherwise alter any assessment made under s. 403.086(3) and (4), or any calculation or allocation made under s. 403.086(6). The department, in cooperation with the water management districts and other interested parties, as appropriate, may develop suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for nonagricultural nonpoint pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be adopted by rule by the department and the water management districts pursuant to ss. 120.536(1) and 120.54, and may be implemented by those parties responsible for nonagricultural nonpoint pollutant sources and the department and the water management districts shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the department or the water management districts shall institute a reevaluation of the best management practice or other measures. 1. The Department of Agriculture and Consumer Services may develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be implemented by those parties responsible for agricultural pollutant sources and the department, the water management districts, and the Department of Agriculture and Consumer Services shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. In the process of developing and adopting rules for interim measures, best management practices, or other measures, the Department of Agriculture and Consumer Services shall consult with the department, the Department of Health, the water management districts, representatives from affected farming groups, and environmental group representatives. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the Department of Agriculture and Consumer Services shall institute a reevaluation of the best management practice or other measure. 2. Individual agricultural records relating to processes or methods of production, or relating to costs of production, profits, or other financial information which are otherwise not public records, which are reported to the Department of Agriculture and Consumer Services pursuant to this paragraph or pursuant to any rule adopted pursuant to this paragraph shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Upon request of the department or any water management district, the Department of Agriculture and Consumer Services shall make such individual agricultural records available to that agency, provided that the confidentiality specified by this subparagraph for such records is maintained. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. The provisions of paragraphs (c) and (d) shall not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality. Additionally, paragraphs (c) and (d) are applicable only to the extent that they do not conflict with any rules promulgated by the department that are necessary to maintain a federally delegated or approved program. RULES.-- The department is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 for: Delisting water bodies or water body segments from the list developed under subsection (4) pursuant to the guidance under subsection (5); Administration of funds to implement the total maximum daily load program; Procedures for pollutant trading among the pollutant sources to a water body or water body segment, including a mechanism for the issuance and tracking of pollutant credits. Such procedures may be implemented through permits or other authorizations and must be legally binding. No rule implementing a pollutant trading program shall become effective prior to review and ratification by the Legislature; and The total maximum daily load calculation in accordance with paragraph (6)(a) immediately upon the effective date of this act, for those eight water segments within Lake Okeechobee proper as submitted to the United States Environmental Protection Agency pursuant to subsection (2). APPLICATION.-- The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section. CONSTRUCTION.-- Nothing in this section shall be construed as limiting the applicability or consideration of any mixing zone, variance, exemption, site specific alternative criteria, or other moderating provision. IMPLEMENTATION OF ADDITIONAL PROGRAMS.-- The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation. In order to provide adequate due process while ensuring timely development of total maximum daily loads, proposed rules and orders authorized by this act shall be ineffective pending resolution of a s. 120.54(3), s. 120.56, s. 120.569, or s. 120.57 administrative proceeding. However, the department may go forward prior to resolution of such administrative proceedings with subsequent agency actions authorized by subsections (2)-(6), provided that the department can support and substantiate those actions using the underlying bases for the rules or orders without the benefit of any legal presumption favoring, or in deference to, the challenged rules or orders. Key Provisions of Law Referenced in Section 403.067, Florida Statutes Section 403.021, Florida Statutes Section 403.021, Florida Statutes, which is referenced in Subsection (1) of Section 403.067, Florida Statutes, provides, in pertinent part, as follows: The pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water. It is declared to be the public policy of this state 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 and fish and other aquatic life, and for domestic, agricultural, industrial, 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. * * * It is hereby declared that the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development. The Legislature further finds and declares that: Compliance with this law will require capital outlays of hundreds of millions of dollars for the installation of machinery, equipment, and facilities for the treatment of industrial wastes which are not productive assets and increased operating expenses to owners without any financial return and should be separately classified for assessment purposes. Industry should be encouraged to install new machinery, equipment, and facilities as technology in environmental matters advances, thereby improving the quality of the air and waters of the state and benefiting the citizens of the state without pecuniary benefit to the owners of industries; and the Legislature should prescribe methods whereby just valuation may be secured to such owners and exemptions from certain excise taxes should be offered with respect to such installations. Facilities as herein defined should be classified separately from other real and personal property of any manufacturing or processing plant or installation, as such facilities contribute only to general welfare and health and are assets producing no profit return to owners. In existing manufacturing or processing plants it is more difficult to obtain satisfactory results in treating industrial wastes than in new plants being now planned or constructed and that with respect to existing plants in many instances it will be necessary to demolish and remove substantial portions thereof and replace the same with new and more modern equipment in order to more effectively treat, eliminate, or reduce the objectionable characteristics of any industrial wastes and that such replacements should be classified and assessed differently from replacements made in the ordinary course of business. * * * It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. The department, as the state water quality protection agency, shall compile, correlate, and disseminate available information on any contaminant which endangers or may endanger existing or potential drinking water resources. It shall also coordinate its regulatory program with the regulatory programs of other agencies to assure adequate protection of the drinking water resources of the state. It is the intent of the Legislature that water quality standards be reasonably established and applied to take into account the variability occurring in nature. The department shall recognize the statistical variability inherent in sampling and testing procedures that are used to express water quality standards. The department shall also recognize that some deviations from water quality standards occur as the result of natural background conditions. The department shall not consider deviations from water quality standards to be violations when the discharger can demonstrate that the deviations would occur in the absence of any human-induced discharges or alterations to the water body. Rule Chapter 62-302, Florida Administrative Code Rule Chapter 62-302, Florida Administrative Code, which is referenced in Subsection (3)(b) of Section 447.067, Florida Statutes, contains Florida's "[s]urface water quality standards." Rule 62-302.300, Florida Administrative Code, is entitled, "Findings, Intent, and Antidegradation Policy for Surface Water Quality," and provides as follows: Article II, Section 7 of the Florida Constitution requires abatement of water pollution and conservation and protection of Florida's natural resources and scenic beauty. Congress, in Section 101(a)(2) of the Federal Water Pollution Control Act, as amended,[14] declares that achievement by July 1, 1983, of water quality sufficient for the protection and propagation[15] of fish, shellfish, and wildlife, as well as for recreation in and on the water, is an interim goal to be sought whenever attainable. Congress further states, in Section 101(a)(3), that it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. The present and future most beneficial uses of all waters of the State have been designated by the Department by means of the Classification system set forth in this Chapter pursuant to Subsection 403.061(10), F.S.[16] Water quality standards[17] are established by the Department to protect these designated uses.[18] Because activities outside the State sometimes cause pollution[19] of Florida's waters, the Department will make every reasonable effort to have such pollution abated. Water quality standards apply equally to and shall be uniformly enforced in both the public and private sector. Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. The Commission, recognizing the complexity of water quality management and the necessity to temper regulatory actions with the technological progress and the social and economic well-being of people, urges, however, that there be no compromise where discharges of pollutants constitute a valid hazard to human health. The Commission requests that the Secretary seek and use the best environmental information available when making decisions on the effects of chronically and acutely toxic substances and carcinogenic, mutagenic, and teratogenic substances. Additionally, the Secretary is requested to seek and encourage innovative research and developments in waste treatment alternatives that might better preserve environmental quality or at the same time reduce the energy and dollar costs of operation. The criteria set forth in this Chapter are minimum levels which are necessary to protect the designated uses of a water body. It is the intent of this Commission that permit applicants should not be penalized due to a low detection limit associated with any specific criteria. (10)(a) The Department's rules that were adopted on March 1, 1979 regarding water quality standards are designed to protect the public health or welfare and to enhance the quality of waters of the State. They have been established taking into consideration the use and value of waters of the State for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. Under the approach taken in the formulation of the rules adopted in this proceeding: 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 The mixing zone,[20] zone of discharge, site specific alternative criteria, exemption, and equitable allocation 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, natural background,[21] and detectability. This is an even-handed and balanced approach to attainment of water quality objectives. The Commission has specifically recognized that the social, economic and environmental costs may, under certain special circumstances, outweigh the social, economic and environmental benefits if the numerical criteria are enforced statewide. It is for that reason that the Commission has provided for mixing zones, zones of discharge, site specific alternative criteria, exemptions and other provisions in Chapters 62-302, 62-4, and 62-6, F.A.C. Furthermore, the 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 62-4 and 62-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the State's 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. Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State 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. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters. The Department shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources, and all cost- effective and reasonable best management practices for nonpoint source control. For the purposes of this rule, highest statutory and regulatory requirements for new and existing point sources are those which can be achieved through imposition of effluent limits required under Sections 301(b) and 306 of the Federal Clean Water Act (as amended in 1987) and Chapter 403, F.S. For the purposes of this rule, cost-effective and reasonable best management practices for nonpoint source control are those nonpoint source controls authorized under Chapters 373 and 403, F.S., and Department rules. The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man-induced nutrients into waters of the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further nutrient concentrations and sensitive to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enrichment of those waters presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus. Existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use. 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. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge. If the Department finds that a proposed new discharge or expansion of an existing discharge will not reduce the quality of the receiving waters below the classification established for them, it shall permit the discharge if such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met. Projects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S.; also projects permitted under the grandfather provisions of Sections 373.414(11) through (16), F.S., or permitted under Section 373.4145, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of Rule 62-312.080(2), F.A.C. (18)(a) Except as provided in subparagraphs (b) and (c) of this paragraph, an applicant for either a general permit or 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. If the Department determines that the applicant has caused degradation of water quality over and above that allowed through previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. These circumstances are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge. If the new or expanded discharge was initially permitted by the Department on or after October 4, 1989, and the Department determines that an antidegradation analysis was not conducted, then the applicant seeking renewal of the existing permit shall demonstrate that degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Rule 62-302.400, Florida Administrative Code, classifies all surface waters of the state "according to designated uses." The rule provides for five classifications: Class I ("Potable Water Supplies"); Class II ("Shellfish Propagation or Harvesting"); Class III ("Recreation, Propagation of a Healthy, Well-Balanced Population of Fish and Wildlife": Fresh and Marine); Class IV ("Agricultural Water Supplies"); and Class V ("Navigation, Utility and Industrial Use").22 See Rule 62-302.400(1), Florida Administrative Code. These "[w]ater quality classifications are arranged in order of degree of protection required, with Class I water having generally the most stringent water quality criteria23 and Class V the least. However, Class I, II, and III surface waters share water quality criteria established to protect recreation and the propagation and maintenance of a healthy well-balanced population of fish and wildlife." Rule 62-302.400(4), Florida Administrative Code. Waters designated as "Outstanding Florida Waters and Outstanding National Resource Waters" are given "special protection." See Rule 62-302.700(1) and (7), Florida Administrative Code ("It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. . . . The policy of this section shall be implemented through the permitting process pursuant to Section 62-4.242, F.A.C.").24 According to Subsection (5) of Rule 62-302.400, Florida Administrative Code, Criteria applicable to a classification are designed to maintain the minimum conditions necessary to assure the suitability of water for the designated use of the classification. In addition, applicable criteria are generally adequate to maintain minimum conditions required for the designated uses of less stringently regulated classifications. Therefore, unless clearly inconsistent with the criteria applicable, the designated uses of less stringently regulated classifications shall be deemed to be included within the designated uses of more stringently regulated classifications. "The specific water quality criteria corresponding to each surface water classification are listed in Rules 62-302.500 and 62-302.530," Florida Administrative Code. Rule 62- 302.400(3), Florida Administrative Code. Subsection (1) of Rule 62-302.500, Florida Administrative Code, sets forth what are known as the "free froms." It provides as follows: Minimum Criteria. All surface waters of the State shall at all places and at all times be free from: Domestic, industrial, agricultural, or other man-induced non-thermal components of discharges which, alone or in combination with other substances or in combination with other components of discharges (whether thermal or non-thermal): Settle to form putrescent deposits or otherwise create a nuisance; or Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance; or Are acutely toxic; or Are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring, wildlife or aquatic species, unless specific standards are established for such components in Rules 62-302.500(2) or 62-302.530; or Pose a serious danger to the public health, safety, or welfare. Thermal components of discharges which, alone, or in combination with other discharges or components of discharges (whether thermal or non-thermal): Produce conditions so as to create a nuisance; or Do not comply with applicable provisions of Rule 62-302.500(3), F.A.C. Silver in concentrations above 2.3 micrograms/liter in predominantly marine waters. Rule 62-302.530, Florida Administrative Code, has a table that contains both numeric and narrative surface water quality criteria to be applied except within zones of mixing. The left-hand column of the Table is a list of constituents [or parameters] for which a surface water criterion exists. The headings for the water quality classifications are found at the top of the Table. Applicable criteria lie within the Table. The individual criteria should be read in conjunction with other provisions in water quality standards, including Rules 62- 302.500 and 62-302.510, F.A.C. The criteria contained in Rules 62-302.500 or 62-302.510 also apply to all waters unless alternative or more stringent criteria are specified in Rule 62-302.530, F.A.C. Unless otherwise stated, all criteria express the maximum not to be exceeded at any time. In some cases, there are separate or additional limits, such as annual average criteria, which apply independently of the maximum not to be exceeded at any time. The following are the specific parameters listed in the table: Alkalinity; Aluminum; Ammonia (un-ionized); Antimony; Arsenic (total and trivalent); Bacteriological Quality (Fecal Coliform Bacteria); Bacteriological Quality (Total Coliform Bacteria); Barium; Benzene; Beryllium; Biological Integrity; BOD (Biochemical Oxygen Demand); Bromine (free molecular); Cadmium; Carbon Tetrachloride; Chlorides; Chlorine (total residual); Chromium (trivalent and hexavalent); Chronic Toxicity; Color; Conductance (specific); Copper; Cyanide; Detergents; 1,1- Dichloroethylene (1,1-di-chloroethene); Dichloromethane (methylene chloride); 2,4-Dinitrotoluene; Dissolved Oxygen; Dissolved Solids; Fluorides; Halomethanes; Hexachlorobutadiene; Iron; Lead; Manganese; Mercury; Nickel; Nitrate; Nuisance Species;25 Nutrients;26 Odor; Oils and Greases; Pesticides and Herbicides (2,4,5-TP; 2-4-D; Aldrin; Betahexachlorocyclohexane; Chlordane; DDT; Demeton; Dieldrin; Endosulfan; Endrin: Guthion; Heptachlor; Lindane; Malathion; Methoxychlor; Mirex; Parathion; Toxaphene); pH; Phenolic Compounds; Phosphorous (Elemental); Polycyclic Aromatic Hydrocarbons; Radioactive Substances; Selenium; Silver; 1,1,2,2-Tetrachloroethane; Tetrachloroethylene; Thallium; Total Dissolved Gases; Transparency; Trichloroeylene (trichloroethene); Turbidity; and Zinc. Rule 62-302.800, Florida Administrative Code, provides for the establishment of "[s]ite [s]pecific [a]lternative [c]riteria" where a water body, or portion thereof, does "not meet a particular ambient water quality criterion specified for its classification, due to natural background conditions or man- induced conditions which cannot be controlled or abated."27 Section 303(d) of the Clean Water Act Section 303(d) of the Clean Water Act (33 U.S.C. Section 1313(d)), which is referenced in Subsections (1), (2), (9), and (11) of Section 447.067, Florida Statutes, provides as follows: Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision (1)(A) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 1311 of this title are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D) of this title, for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. Limitations on revision of certain effluent limitations Standard not attained For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations established under this section. Standard attained For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. Development of Proposed Rule Chapter 62-303, Florida Administrative Code The rule development process that culminated in the adoption of proposed Rule Chapter 62-303, Florida Administrative Code, began shortly after the enactment of Chapter 99-223, Laws of Florida, when the Department decided, consistent with its routine practice in complex rulemaking cases, to form a technical advisory committee (TAC) to assist the Department in developing an "identification of impaired surface waters" rule by rendering advice to the Department concerning technical and scientific matters.28 The Department solicited nominations for TAC membership from stakeholder groups, but ultimately rejected the nominations it received and instead selected individuals it believed were best qualified to contribute based upon their expertise (in areas including water quality monitoring, water quality chemistry, water quality modeling, estuarine ecology, wetland ecology, analytical chemistry, statistics, bioassessment procedures, limnology, coastal ecology, fish biology, and hydrology). The first TAC meeting was held August 12, 1999. There were 12 subsequent TAC meetings, the last two of which were held on August 4, 2000, and August 28, 2000. The TAC meetings were held in various locations throughout the state (Pensacola, Tallahassee, Jacksonville, Gainesville, Orlando, Tampa, St. Petersburg, and West Palm Beach) and were open to public, with members of the public able to make comments. All 13 TAC meetings were noticed in the Florida Administrative Weekly. The TAC meetings were chaired by Mr. Joyner, who was the Department employee primarily responsible for drafting an "identification of impaired surface waters" rule. Mr. Joyner emphasized to the TAC members that their role was simply to give advice and make recommendations to the Department and that their advice and recommendations might not be followed. As it turned out, there were several instances where the Department rejected a TAC recommendation. In addition to seeking the advice of experts on technical and scientific matters, the Department wanted to hear from stakeholders regarding policy issues. Towards that end, it took steps to establish a Policy Advisory Committee (PAC). An organizational meeting of the PAC was held on March 24, 2000, in Tallahassee, the day after the seventh TAC meeting (which was also held in Tallahassee). After being told about the government in the sunshine and public records laws with which they would have to comply as PAC members, "no one wanted to be on the PAC." The consensus of those present was to "just have public meetings [to elicit stakeholder input] and not have a formal PAC." The Department acted accordingly. Following this March 24, 2000, meeting, the Department abandoned its efforts to form a PAC and instead held four public meetings to obtain input from the public regarding policy questions involved in crafting an "identification of impaired surface waters" rule. The last two of these public meetings were combined with the last two TAC meetings (held on August 4, 2000, and August 28, 2000). Each of the five "policy" public meetings held by the Department (including the March 24, 2000, PAC organizational meeting) were noticed in the Florida Administrative Weekly. The Department also held two rule development workshops (one on September 7, 2000, and the other on December 7, 2000), both of which were also noticed in the Florida Administrative Weekly. Between the time these two rule development workshops were held, Mr. Joyner met with representatives of regulated interests and the environmental community to discuss their thoughts regarding what should be included in an "identification of impaired surface waters" rule. Throughout the rule development process, the Department also received and considered written comments from interested persons. Information about the rule development process was posted on the Department's web site for the public to read. The Department e-mailed approximately 350 persons (whose names were on a list of interested persons compiled by the Department) to notify them in advance of any meetings and workshops on proposed Rule Chapter 62-303, Florida Administrative Code. Proposed Rule Chapter 62-303, Florida Administrative Code, underwent numerous revisions during the rule development process. Whenever a revised version of the proposed rule chapter was prepared, the Department sent a copy of it, via e-mail, to the persons on the Department's 350 "interested persons" e-mail list. Changes to proposed Rule Chapter 62-303, Florida Administrative Code, were made not only in response to comments made by members of the TAC and stakeholders, but also in response to comments made by staff of the Region IV office of the United States Environmental Protection Agency (EPA), with whom Department staff had extensive discussions regarding the proposed rule chapter. The Environmental Regulation Commission (ERC) "exercise[s] the standard-setting authority of the [D]epartment."29 In March of 2001, approximately 19 months after the first TAC meeting, the Department was ready to present its most recent version of proposed Rule Chapter 62-303, Florida Administrative Code, to the ERC for adoption. Accordingly, it published a Notice of Proposed Rulemaking in the March 23, 2001 (Volume 27, Number 12) edition of the Florida Administrative Weekly announcing that a hearing on the proposed rule chapter would be held before the ERC on April 26, 2001. The Notice contained the complete text of the proposed rule chapter, as well as the following statement of “[p]urpose, effect, and summary”: The purpose of the proposed new rule is to establish a methodology to identify impaired waters that will be included on the State's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads, pursuant to subsection 403.067(4), Florida Statutes (F.S.), and which will be submitted to the United States Environmental Protection Agency pursuant to subparagraphs 303(d)(1)(A) and 303(d)(1)(C) of the Clean Water Act. As directed by 403.067, F.S., the development of the State's 303(d) list will be a two-step process; waters will first be identified as potentially impaired and then any impairment will be verified before listing the water. The rule implements this statutory direction by providing a methodology to identify surface waters of the state that will be included on a "planning list" of waters. Pursuant to subsection 403.067(2) and (3), F.S., the Department will evaluate the data used to place these waters on the planning list, verify that the data meet quality assurance and data sufficiency requirements of the "verified list," and collect additional data, as needed, to complete the assessment. The rule also provides information about the listing cycle, the format of the verified list, and delisting procedures. At the ERC's regularly scheduled March 29, 2001, meeting, Mr. Joyner formally briefed the ERC on the status of the rule development process (as he had previously done at ERC's regularly scheduled meetings on June 29, 2000, August 24, 2000, December 5, 2000, and January 25, 2001). At the March 29, 2001, meeting, Mr. Joyner went through the proposed rule chapter with the ERC "paragraph by paragraph." As noted above, prior to the scheduled April 26, 2001, ERC hearing, petitions challenging the proposed rule chapter (as published in the March 23, 2001, edition of the Florida Administrative Weekly) were filed with the Division by Petitioner Lane (on April 10, 2001) and by all Joint Petitioners excluding Save Our Suwannee, Inc. (on April 13, 2001). On April 21, 2001, all Joint Petitioners excluding Save Our Suwannee, Inc., filed a Request with ERC asking: that rulemaking proceedings regarding proposed Rule 62-303 be conducted under the provisions of Sections 120.569 and 120.57, Florida Statutes, as to all parties, or alternatively at least to the six petitioners; that the evidentiary processes involved under the provisions of Sections 120.569 and 120.57, Florida Statutes, be combined with the already pending DOAH proceedings of all parties, or at least the six petitioners; and that rulemaking proceedings, as to proposed Rule 62-303, be suspended pending completion of the evidentiary processes before DOAH as well as the DOAH ruling on the pending petitions, as to all parties or at least the six petitioners. The Request was considered and denied by the ERC at the outset of its hearing on the proposed rule chapter, which was held as scheduled on April 26, 2001. That same day, the ERC issued a written order denying the Request, which read, in pertinent part as follows: But for their request to combine the requested evidentiary proceeding with the existing rule challenges pending before DOAH, Petitioners have requested conversion of the instant rulemaking proceeding to an evidentiary hearing or "draw out." A draw out is authorized under proper circumstances by Section 120.54(3)(c)2, Florida Statutes, which states: "Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that the person's substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect the person's interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of ss. 120.569 and 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed." A participant in the rulemaking proceeding who requests such relief is asking to "draw out" of the rulemaking proceeding and for the agency to afford the party an evidentiary hearing in lieu thereof.[30] A copy of each of the six petitions filed by the parties with DOAH was attached to the joint notice now before the Commission. But for minor variations in allegations to establish standing, each of the six petitions sets out seventeen (17) counts with each count asserting that a particular provision, or provisions, of proposed Rule 62-303 is an invalid exercise of delegated legislative authority or otherwise a violation of Section 403.067, F.S., or the federal Clean Water Act. None of the individual petitions, or the joint notice, demonstrate that the pending rulemaking proceeding fails to protect the petitioners' substantial interests, nor have petitioners raised any factual issues that would require a separate evidentiary hearing beyond the scope of the DOAH proceedings already pending. Under these circumstances, Section 120.56(2)(b), F.S., specifically allows an agency to proceed with all other steps in the rulemaking process, except for final adoption, while a DOAH rule challenge is pending.[31] In view of the foregoing, and in exercising its discretion as afforded by Section 120.54(3)(c)2., F.S., the Commission has determined that the rulemaking proceeding adequately protects the interests asserted by each of the six petitioners who joined in the joint notice as filed April 20th, 2001. Accordingly, the petitioners' joint request for relief therein is denied. The version of the proposed rule chapter published in the March 23, 2001, edition of the Florida Administrative Weekly, with some modifications, was adopted by the ERC at its April 26, 2001, meeting (at which members of the public were given the opportunity to comment prior to ERC deliberation). The modifications were noticed in a Notice of Change published in the May 11, 2001, edition (Volume 27, Number 19) of the Florida Administrative Weekly. Contents of the ERC-Adopted Version of Proposed Rule Chapter 62- 303, Florida Administrative Code Proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Identification of Impaired Surface Waters." It is divided into four parts. Part I: Overview Part I of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following "general" provisions: Proposed Rules 62-303.100, 62-303.150, and 62- 303.200, Florida Administrative Code. Part I: Proposed Rule 62-303.100, Florida Administrative Code Proposed Rule 62-303.100, Florida Administrative Code, is entitled, "Scope and Intent." It provides an overview of the proposed rule chapter and reads as follows: This chapter establishes a methodology to identify surface waters of the state that will be included on the state's planning list of waters that will be assessed pursuant to subsections 403.067(2) and (3), Florida Statutes (F.S.). It also establishes a methodology to identify impaired waters that will be included on the state's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads (TMDLs), pursuant to subsection 403.067(4) F.S., and which will be submitted to the United States Environmental Protection Agency (EPA) pursuant to paragraph 303(d)(1) of the Clean Water Act (CWA). Subsection 303(d) of the CWA and section 403.067, F.S., describe impaired waters as those not meeting applicable water quality standards, which is a broad term that includes designated uses, water quality criteria, the Florida antidegradation policy, and moderating provisions. However, as recognized when the water quality standards were adopted, many water bodies naturally do not meet one or more established water quality criteria at all times, even though they meet their designated use.[32] Data on exceedances of water quality criteria will provide critical information about the status of assessed waters, but it is the intent of this chapter to only list waters on the verified list that are impaired due to point source or nonpoint source pollutant discharges. It is not the intent of this chapter to include waters that do not meet water quality criteria solely due to natural conditions or physical alterations of the water body not related to pollutants. Similarly, it is not the intent of this chapter to include waters where designated uses are being met and where water quality criteria exceedances are limited to those parameters for which permitted mixing zones or other moderating provisions (such as site-specific alternative criteria) are in effect. Waters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants shall be noted in the state's water quality assessment prepared under subsection 305(b) of the CWA. This chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established. It is not the intent of this chapter to establish new water quality criteria or standards, or to determine the applicability of existing criteria under other provisions of Florida law. In cases where this chapter relies on numeric indicators of ambient water quality as part of the methodology for determining whether existing narrative criteria are being met, these numeric values are intended to be used only in the context of developing a planning list and identifying an impaired water pursuant to this chapter. As such, exceedances of these numeric values shall not, by themselves, constitute violations of Department rules that would warrant enforcement action. Nothing in this rule is intended to limit any actions by federal, state, or local agencies, affected persons, or citizens pursuant to other rules or regulations. Pursuant to section 403.067, F.S., impaired waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA. Specific Authority 403.061, 403.067, FS. Law Implemented 403.021(11). 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.100, Florida Administrative Code, refers to the narrowing and winnowing process (more fully described in subsequent portions of the proposed rule chapter) that will yield the Department's "updated list" of waters for which TMDLs will be calculated, which list will be submitted to the EPA in accordance with Section 303(d) of the Clean Water Act. (The Department last submitted such a list to the EPA in 1998. This list is referred to by the Department as its 1998 303(d) list.) The Department's intent not to include on its "updated list" of waters for which TMDLs will be calculated those "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants," as provided in Subsection (2) of proposed Rule 62- 303.100, Florida Administrative Code, is consistent with the view expressed in Section 403.067, Florida Statutes, that TMDLs are appropriate only where there is man-induced pollution involving the discharge (from either a point or nonpoint source) of identifiable pollutants. See, e.g., Section 403.067(1), Florida Statutes ("[T]he development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution"); Section 403.067(4), Florida Statutes ("If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard."); and Section 403.067(6)(a)2., Florida Statutes ("For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required."). While "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants" will not appear on the Department's "updated list" of waters for which TMDLs will be calculated, they will be included in the "water quality assessment prepared under subsection 305(b) of the CWA" (305(b) Report), which provides as follows: Each State shall prepare and submit to the Administrator by April 1, 1975, and shall bring up to date by April 1, 1976, and biennially thereafter, a report which shall include-- a description of the water quality of all navigable waters in such State during the preceding year, with appropriate supplemental descriptions as shall be required to take into account seasonal, tidal, and other variations, correlated with the quality of water required by the objective of this chapter (as identified by the Administrator pursuant to criteria published under section 1314(a) of this title) and the water quality described in subparagraph (B) of this paragraph; an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water, have been or will be achieved by the requirements of this chapter, together with recommendations as to additional action necessary to achieve such objectives and for what waters such additional action is necessary; an estimate of (i) the environmental impact, (ii) the economic and social costs necessary to achieve the objective of this chapter in such State, (iii) the economic and social benefits of such achievement, and (iv) an estimate of the date of such achievement; and a description of the nature and extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources, including an estimate of the costs of implementing such programs. The Administrator shall transmit such State reports, together with an analysis thereof, to Congress on or before October 1, 1975, and October 1, 1976, and biennially thereafter. The declaration made in Subsection (3) of proposed Rule 62-303.100, Florida Administrative Code, that "[t]his chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established" is similar to that made in Subsection (9) of Section 403.067, Florida Statutes, that "[t]he provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards." Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, together with proposed Rule 62-303.600, Florida Administrative Code (which will be discussed later), are designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." Section 403.061, Florida Statutes, which is cited as the "[s]pecific [a]uthority" for proposed Rule 62-303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter), authorizes the Department to, among other things, "[a]dopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of [Chapter 403, Florida Statutes]." See Section 403.061(7), Florida Statutes. Section 403.062, Florida Statutes, which is included among the statutory provisions cited in proposed Rule 62- 303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter) as the "[l]aw [i]mplemented," reads as follows: Code Pollution control; underground, surface, and coastal waters.-- The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them. Part I: Proposed Rule 62-303.150, Florida Administrative Proposed Rule 62-303.150, Florida Administrative Code, explains the "[r]elationship [b]etween [p]lanning and [v]erified [l]ists." It provides as follows: The Department shall follow the methodology in Section 62-303 300 to develop a planning list pursuant to subsection 403.067(2), F.S. As required by subsection 403.067(2), F.S., the planning list shall not be used in the administration or implementation of any regulatory program, and shall be submitted to EPA for informational purposes only. Waters on this planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach. During this assessment, the Department shall determine whether the water body is impaired and whether the impairment is due to pollutant discharges using the methodology in Part III. The resultant verified list of impaired waters, which is the list of waters for which TMDLs will be developed by the Department pursuant to subsection 403.067(4), will be adopted by Secretarial Order and will be subject to challenge under subsection [sic] 120.569 and 120.57 F.S. Once adopted, the list will be submitted to the EPA pursuant to paragraph 303(d)(1) of the CWA. Consistent with state and federal requirements, opportunities for public participation, including workshops, meetings, and periods to submit comments on draft lists, will be provided as part of the development of planning and verified lists. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The initial drafts of proposed Rule Chapter 62-303, Florida Administrative Code, provided for merely a single list of impaired waters needing TMDLs. It was only after the last TAC meeting (and before the first rule development workshop) that the concept of having two lists (a preliminary, "planning list" of potentially impaired waters requiring further assessment and a final, "verified list . . . of waters for which TMDLs will be developed by the Department") was incorporated into proposed Rule Chapter 62-303, Florida Administrative Code, by Department staff (although the idea of having a "potentially impaired subset" of impaired waters was discussed at TAC meetings). Such action was taken in response to concerns raised during the rule development process that the proposed rule chapter, as then drafted with its one-list methodology, "was too restrictive, that it would only get a small subset of waters on [the Departments 303(d)] list." To decrease, in a manner consistent with the provisions of Section 403.067, Florida Statutes, the chance that an impaired water needing a TMDL would be erroneously excluded, Department staff revised the proposed rule chapter to provide for a two-step listing process where potentially impaired waters would first be placed on a "planning list" based upon criteria generally less "restrictive" than the listing criteria contained in the previous drafts of the proposed rule chapter and then further tested (if necessary) and assessed to verify if, based upon criteria generally more rigorous than the "planning list" criteria, they should be included on a "verified list" of waters needing TMDLs (to be submitted to the EPA as the state's "updated" 303(d) list). Weighing against Department staff making it any easier for a water to be placed on the "verified list" was the significant regulatory consequence of such action. Erroneously listing a water as needing a TMDL would result in the unnecessary expenditure of considerable time, money, and effort. The more rigorous the listing criteria, the less likely it would be that a water would be listed erroneously and such unnecessary expenditures made. Subsequent to the ERC's adoption of proposed Rule Chapter 62-303, Florida Administrative Code, the National Research Council (NRC),33 through one of its committees,34 acting at the request of Congress to analyze the scientific basis of the nationwide TMDL program, issued a report entitled, "Assessing the TMDL Approach to Water Quality Management" (NRC Publication). In the NRC Publication, the committee endorses a "two-list process" like the one incorporated in proposed Rule Chapter 62-303, Florida Administrative Code, explaining as follows: Determining whether there should be some minimum threshold of data available when evaluating waterbodies for attainment of water quality standards is an issue of great concern to states. On the one hand, many call for using only the "best science" in making listing decisions, while others fear that many impaired waters will not be identified in the wait for additional data. The existence of a preliminary list addresses these concerns by focusing attention on waters suspected to be impaired without imposing on stakeholders and the agencies the consequences of TMDL development, until additional information is developed and evaluated. According to Subsection (1) of proposed Rule 62- 303.150, Florida Administrative Code, "[w]aters on th[e] planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach." The following are the major concepts incorporated in the "Department's watershed management approach": The basin management unit is the geographic or spatial unit used to divide the state into smaller areas for assessment- -generally groups of Hydrologic Unit Codes (HUCs)[35] . . . . The basin management cycle is the five- year cycle within which watersheds are assessed and management plans developed and implemented. The Management Action Plan (MAP), a document developed over the five-year cycle and subsequently updated every five years, describes the watershed's problems and how participants plan to address them. Forums and communications networks allow participants to collect and evaluate as much information as possible on their individual basins and to reach a consensus on strategic monitoring, priority water bodies, and management strategies. The statewide basin management schedule establishes the proposed sequence for assessing individual watersheds. . . . Each individual basin cycle under the "Department's watershed management approach" takes five years to complete, and is "repeated every five years." It is, in other words, an iterative process. The five phases of the cycle are as follows: Phase I: Preliminary Basin Assessment; Phase II: Strategic Monitoring; Phase III: Data Analysis and TMDL Development; Phase IV: Management Action Plan; and Phase V: Implementation. The first two phases of the cycle are discussed in greater detail in proposed Rule 62-303.700, Florida Administrative Code. Part I: Proposed Rule 62-303.200, Florida Administrative Code Proposed Rule 62-303.200, Florida Administrative Code, contains definitions of various terms and phrases used in proposed Rule Chapter 62-303, Florida Administrative Code. It provides as follows: As used in this chapter: "BioRecon" shall mean a bioassessment conducted following the procedures outlined in "Protocols for Conducting a Biological Reconnaissance in Florida Streams," Florida Department of Environmental Protection, March 13. 1995, which is incorporated by reference. "Clean techniques" shall mean those applicable field sampling procedures and analytical methods referenced in "Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels, July 1996, USEPA. Office of Water, Engineering and Analysis Division. Washington, D.C.," which is incorporated by reference. "Department" or "DEP" shall mean the Florida Department of Environmental Protection. "Designated use" shall mean the present and future most beneficial use of a body of water as designated by the Environmental Regulation Commission by means of the classification system contained in Chapter 62-302, F.A.C. "Estuary" shall mean predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, and lagoons. "Impaired water" shall mean a water body or water body segment that does not meet its applicable water quality standards as set forth in Chapters 62-302 and 62-4 F.A.C., as determined by the methodology in Part III of this chapter, due in whole or in part to discharges of pollutants from point or nonpoint sources. "Lake Condition Index" shall mean the benthic macroinvertebrate component of a bioassessment conducted following the procedures outlined in "Development of Lake Condition Indexes (LCI) for Florida," Florida Department of Environmental Protection, July, 2000, which is incorporated by reference. "Natural background" shall mean the condition of waters in the absence of man- induced alterations based on the best scientific information available to the Department. The establishment of natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data. "Nuisance species" shall mean species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters. "Physical alterations" shall mean human-induced changes to the physical structure of the water body. "Planning list" shall mean the list of surface waters or segments for which assessments will be conducted to evaluate whether the water is impaired and a TMDL is needed, as provided in subsection 403.067(2), F.S. "Pollutant" shall be as defined in subsection 502(6) of the CWA. Characteristics of a discharge, including dissolved oxygen, pH, or temperature, shall also be defined as pollutants if they result or may result in the potentially harmful alteration of downstream waters. "Pollution" shall be as defined in subsection 502(19) of the CWA and subsection 403.031(2), F.S. "Predominantly marine waters" shall mean surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 milligrams per liter. "Secretary" shall mean the Secretary of the Florida Department of Environmental Protection. "Spill" shall mean a short-term, unpermitted discharge to surface waters, not to include sanitary sewer overflows or chronic discharges from leaking wastewater collection systems. "Stream" shall mean a free-flowing, predominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies. "Stream Condition Index" shall mean a bioassessment conducted following the procedures outlined in "Development of the Stream Condition Index (SCI) for Florida," Florida Department of Environmental Protection, May, 1996, which is incorporated by reference. "Surface water" means those waters of the State upon the surface of the earth to their landward extent, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be classified as surface water when it exits from the spring onto the earth's surface. "Total maximum daily load" (TMDL) for an impaired water body or water body segment shall mean the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. A TMDL shall include either an implicit or explicit margin of safety and a consideration of seasonal variations. "Verified list" shall mean the list of impaired water bodies or segments for which TMDLs will be calculated, as provided in subsection 403.067(4), F.S., and which will be submitted to EPA pursuant to paragraph 303(d)(1) of the CWA. "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a 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 (mixing zones, site-specific alternative criteria, and exemptions) contained in Chapter 62-302, F.A.C., and in Chapter 62-4, F.A.C., adopted pursuant to Chapter 403, F.S. "Water segment" shall mean a portion of a water body that the Department will assess and evaluate for purposes of determining whether a TMDL will be required. Water segments previously evaluated as part of the Department's 1998 305(b) Report are depicted in the map titled "Water Segments of Florida," which is incorporated by reference. "Waters" shall be those surface waters described in Section 403.031(13) Florida Statutes. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New There are some high salinity waters of the state that, although they do not have riverine input, nonetheless meet the definition of "estuary" found in Subsection (5) of proposed Rule 62-303.200, Florida Administrative Code, because they are "bays" or "lagoons," as those terms are used in the second sentence of Subsection (5). Rule Chapter 62-4, Florida Administrative Code, which is referenced in Subsections (6) and (23) of proposed Rule 62- 303.200, Florida Administrative Code, addresses the subject of "[p]ermits." According to Subsection (1) of Rule 62-4.210, Florida Administrative Code, "[n]o person shall construct any installation or facility which will reasonably be expected to be a source of . . . water pollution without first applying for and receiving a construction permit from the Department unless exempted by statute or Department rule." Subsection (1) of Rule 62-4.240, Florida Administrative Code, requires that "[a]ny person intending to discharge wastes into the waters of the State shall make application to the Department for an operation permit." An "operation permit" must: Specify the manner, nature, volume and frequency of the discharge permitted; Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the Department; and Contain such additional conditions, requirements and restrictions as the Department deems necessary to preserve and protect the quality of the receiving waters and to ensure proper operation of the pollution control facilities. Rule 62-4.240(3), Florida Administrative Code. "An operation permit [will] be issued only if all Department requirements are met, including the provisions of Rules 62-302.300 and 62-302.700 and Rule 62-4.242, F.A.C." Rule 62-4.240(2), Florida Administrative Code. Subsection (1) of Rule 62-4.242, Florida Administrative Code, describes "[a]ntidegradation [p]ermitting [r]equirements." It provides as follows: Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300 and, if applicable, Rule 62- 302.700. 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, the department shall consider and balance the following factors: Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in Rules 62- 302.100, 62-302.300, and, if applicable, 62- 302.700); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. In addition to subsection (b) above, in order for a proposed discharge (other than stormwater discharges meeting the requirements of Chapter 62-25, F.A.C.), to be necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the permit applicant must demonstrate that neither of the following is economically and technologically reasonable: Reuse of domestic reclaimed water. Use of other discharge locations, the use of land application, or reuse that would minimize or eliminate the need to lower water quality. Subsections (2) and (3) of Rule 62-4.242, Florida Administrative Code, prescribe "[s]tandards [a]pplying to Outstanding Florida Waters" and "[s]tandards [a]pplying to Outstanding National Resource Waters," respectively. Subsection (4) of Rule 62-4.242, Florida Administrative Code, "prescribe[s] the means by which the Department, upon the petition of a license applicant, will equitably allocate among such persons [directly discharging significant amounts of pollutants into waters which fail to meet one or more of the water quality criteria applicable to those waters] the relative levels of abatement responsibility of each for abatement of those pollutants." Subsection (1) of Rule 62-4.244, Florida Administrative Code, provides that the Department, upon application, may "allow the water quality adjacent to a point of discharge to be degraded to the extent that only the minimum conditions described in subsection 62-302.500(1), Florida Administrative Code, apply within a limited, defined region known as the mixing zone"; provided, that the "mixing zone" does not "significantly impair any of the designated uses of the receiving body of water." Subsection 502(6) of the Clean Water Act (33 U.S.C. Section 1362(6)), which is referenced in Subsection (12) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) "sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. Subsection 502(19) of the Clean Water Act (33 U.S.C. Section 1362(19)), which is referenced in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. In Chapter 403, Florida Statutes, the definition of "pollution" is found, not in Subsection (2) of Section 403.031, Florida Statutes, as indicated in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, but in Subsection (7) of the statute. The "water segments" referenced in the second sentence of Subsection (24) of proposed Rule 62-303.200, Florida Administrative Code, are, for the most part, either approximately five linear miles each (in the case of streams) or approximately five square miles each (in the case of waters not in a defined channel). Subsection (13) of Section 403.031, Florida Statutes, which is referenced in Subsection (25) of proposed Rule 62- 303.200, Florida Administrative Code, provides that "'[w]aters' include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." The other terms and phrases defined in proposed Rule 62-303.200, Florida Administrative Code, will be discussed, where appropriate, later in this Final Order. Part II: Overview Part II of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "planning list" of potentially impaired waters and how the list will be compiled: Proposed Rules 62-303.300, 62- 303.320, 62-303.330, 62-303.340, 62-303.350, 62-303.351, 62- 303.352, 62-303.353, 62-303.360, 62-303.370, and 62-303.380, Florida Administrative Code. Code Part II: Proposed Rule 62-303.300, Florida Administrative Proposed Rule 62-303.300, Florida Administrative Code, is entitled, "Methodology to Develop the Planning List." It provides as follows: This part establishes a methodology for developing a planning list of waters to be assessed pursuant to subsections 403.067(2) and (3), F.S. A waterbody shall be placed on the planning list if it fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part. It should be noted that water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62- 303.310-353, or to protect human health, which is addressed in sections 62-303.360- 380. Waters on the list of water segments submitted to EPA in 1998 that do not meet the data sufficiency requirements for the planning list shall nevertheless be included in the state's initial planning list developed pursuant to this rule. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second sentence of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be placed on the "planning list." At the April 26, 2001, rule adoption hearing, the ERC initially voted to delete from proposed Rule Chapter 62-303, Florida Administrative Code, the language in Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code. The ERC, however, later in the hearing, reversed itself after learning of a letter, dated April 26, 2001, that was sent to the Department by Beverly H. Bannister, the Director of the EPA's Region 4 Water Management Division. Ms. Bannister's letter read, in pertinent part, as follows: EPA expressed significant concern that, under earlier versions of the IWR [Impaired Waters Rule], waters currently identified as impaired on the State's 1998 Section 303(d) list which were determined to have "insufficient data" would be removed from the State's Section 303(d) list and also not appear on the State's planning list with its associated requirement for additional data collection. As a result of EPA concerns, the latest version of the IWR provides that waters on the current 1998 Section 303(d) list that do not meet the data sufficiency requirement of the planning list will be placed on the IWR's planning list, and sufficient data will be collected to verify the water's impairment status. In further discussions with the State regarding the EPA's concern about the 2002 Section 303(d) list, the State has committed to review all waters on the 1998 303(d) list and include all waters that meet the verification requirements of the IWR on the State's 2002 list. In addition, the State will also review all available data from 1989 to 1998 for development of a statewide planning list and include on the 2002 list any additional waters that meet the verification requirements, based on data from 1994 to 1998. (The State is unable to do a complete assessment for data gathered in 1999, 2000, and 2001 because of a national problem in the upload of data into the new Federal STORET data system.) Those waters on the 1998 303(d) list that do not meet the verification requirements will be de-listed for "good cause" and placed on the State's planning list as insufficient to verify the water's use-support status according to the methodology in the IWR. The "good cause" justification for de- listing the waters is based on several factors: 1) the requirements of the State Rule that these waters be moved to a planning list for additional data collection and assessment that will occur within a reasonable period of time; 2) a determination will be made that the waters are either impaired (and placed on the 303(d) list) or attaining its uses; and 3) the State's commitment to EPA that waters on the planning list that appeared on the State's 1998 Section 303(d) list will be monitored and assessed during the first or second rotation through the State's Watershed Management Process consistent with the schedule for TMDL development in EPA's consent decree with Earthjustice. High priority water/pollutant combinations will be monitored and assessed during the first rotation of the watershed cycle (i.e., within 5 years of 2001), and low priority water/pollutant combinations will be monitored and assessed during the second rotation of the watershed cycle (i.e., within 10 years of 2001). After this additional data collection and assessment, the water will be added to the appropriate future 303(d) list if the water is verified to be impaired, or the water will be "de- listed" based on the "good cause" justification that the water is attaining its uses. Waters on the 1998 303(d) list where sufficient data exists to demonstrate the water is meeting the IWR's planning list criteria for use support will be de-listed in the 2002 303(d) list submittal. It is EPA's view that this process will achieve the intent of the CWA and will provide sufficient documentation of the waters still requiring TMDLs by FDEP. Together with the data collection requirements found in Part III of the proposed rule chapter, Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, ensures that all waters on the Department's 1998 303(d) list (which list is referenced in Subsection (2)(c) of Section 403.067, Florida Statutes) will be assessed by the Department and that they will not be eliminated from consideration for TMDL development simply because there is not enough data to determine whether a TMDL is needed. Part II: Proposed Rule 62-303.310, Florida Administrative Code Proposed Rule 62-303.310, Florida Administrative Code, is entitled, "Evaluation of Aquatic Life Use Support." It provides as follows: A Class I, II, or III water shall be placed on the planning list for assessment of aquatic life use support (propagation and maintenance of a healthy, well-balanced population of fish and wildlife) if, based on sufficient quality and quantity of data, it: exceeds applicable aquatic life-based water quality criteria as outlined in section 62-303.320, does not meet biological assessment thresholds for its water body type as outlined in section 62-303.330, is acutely or chronically toxic as outlined in section 62-303.340, or exceeds nutrient thresholds as outlined in section 62-303.350. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New This proposed rule, like Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability." A water need meet only one of the four listed benchmarks to be placed on the "planning list for assessment of aquatic life use support." Each of these benchmarks is discussed at greater length in one or more of the subsequent sections of Part II of the proposed rule chapter. Part II: Proposed Rule 62-303.320, Florida Administrative Code Proposed Rule 62-303.320, Florida Administrative Code, addresses the "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" benchmark described in Subsection (1) of proposed Rule 62-303.310, Florida Administrative Code. It cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw[s] [i]mplemented" by the proposed rule. Proposed Rule 62-303.320, Florida Administrative Code, establishes a statistical method (involving "data modeling," as that term is used in Subsection (3)(b)4. of Section 403.067, Florida Statutes) for use in determining whether a water should be placed on the "planning list." It is not feasible, due to limited resources, to examine a water body at every point to determine its true overall condition. Rather, samples must be taken over time and inferences drawn from the sampling results, taking into consideration the "variability [of water quality] occurring in nature" and "that some deviations from water quality standards occur as the result of natural background conditions" (as the Legislature observed in Subsection (11) of Section 403.021, Florida Statutes). The process is, necessarily, characterized by a lack of certainty and the possibility of error. As stated in the NRC Publication: Given the finite monitoring resources, it is obvious that the number of sampling stations included in the state program will ultimately limit the number of water quality measurements that can be made at each station. Thus, in addition to the problem of defining state waters and designing the monitoring network to assess those waters, fundamental statistical issues arise concerning how to interpret limited data from individual sampling stations. Statistical inference procedures must be used on the sample data to test hypotheses about whether the actual condition in the water body meets the criterion. Thus, water quality assessment is a hypothesis-testing procedure. A statistical analysis of sample data for determining whether a water body is meeting a criterion requires the definition of a null hypothesis; for listing a water body, the null hypothesis would be that the water is not impaired. The analysis is prone to the possibility of both Type I error (a false conclusion that an unimpaired water is impaired) and Type II error (a false conclusion that an impaired water is not impaired). . . . The TAC and Department staff had extensive discussions regarding the issue of what particular type of "statistical analysis" to incorporate in the proposed rule chapter before deciding on a binomial distribution analysis. The binomial model is a time-tested nonparametric statistical method that is used where there are two possible outcomes, such as, in the case of water quality sampling, whether a water quality criterion has been exceeded or not. A parametric statistical analysis, based upon an assumption of normal distribution, which, unlike the binomial model incorporated in the proposed rule chapter, takes into account the magnitude of exceedances,36 was considered, but reasonably rejected by the TAC and Department staff because it was anticipated that, in many instances, the number of samples available to the Department would not be adequate to make the underlying distributional assumption with the requisite degree of certainty. The binomial model, which takes sample size into consideration, offers greater certainty with a limited number of samples than does the parametric statistical analysis that the TAC and Department staff rejected. Nonetheless, even in the case of the binomial model, the more samples there are, the more precise the analysis will be. Both Type I errors (false positives) and Type II errors (false negatives) decrease as sample size increases. To ensure greater analytic precision, proposed Rule 62-303.320, Florida Administrative Code, and its counterpart in Part III of the proposed rule chapter (proposed Rule 62-303.420, Florida Administrative Code) contain reasonable minimum sample size requirements (ten, with limited exceptions, for placement on the "planning list," and 20 for placement on the "verified list," which is ten more than the TAC recommended37). The NRC Publication contains the following discussion regarding the appropriateness of employing a binomial model to identify impaired waters needing TMDLs: The committee does not recommend any particular statistical method for analyzing monitoring data and for listing waters. However, one possibility is that the binomial hypothesis test could be required as a minimum and practical first step (Smith et al., 2001). The binomial method is not a significant departure from the current approach--called the raw score approach--in which the listing process treats all sample observations as binary values that either exceed the criterion or do not, and the binomial method has some important advantages. For example, one limitation of the raw score approach is that it does not account for the total number of measurements made. Clearly, 1 out of 6 measurements above the criterion is a weaker case for impairment than is 6 out of 36. The binomial hypothesis test allows one to take sample size into account. By using a statistical procedure, sample sizes can be selected and one can explicitly control and make trade-offs between error rates. (see Smith et al., 2001, and Gibbons, in press, for guidance in managing the risk of false positive and false negative errors). Several states, including Florida and Virginia, are considering or are already using the binomial hypothesis test to list impaired waters. Detailed examples of how to apply the test are beyond the scope of this document, but can be found in Smith et al. (2001) and the proposed Chapter 62-303 of the Florida Administrative Code. In a footnote, the committee added the following: The choice of Type I error rate is based on the assessor's willingness to falsely categorize a water body. It also is the case that, for any sample size, the Type II error rate decreases as the acceptable Type I error rate increases. The willingness to make either kind of mistake will depend on the consequences of the resulting action (more monitoring, costs to do a TMDL plan, costs to implement controls, possible health risk) and who bears the cost (public budget, private parties, etc.). The magnitude and burden of a Type I versus Type II error depend on the statement of the null hypothesis and on the sample size. When choosing a Type I error rate, the assessor may want to explicitly consider these determinants of error rates. The TAC recommended a Type I error rate of five percent (or, stated differently, a confidence level of 95 percent) be used in making listing decisions.38 Department staff responsible for drafting the proposed rule chapter, believing that, as a matter of policy, a 95 percent confidence level was too high and that a higher Type I error rate should be tolerated in order to reduce Type II error, reasonably settled on an 80 percent confidence level for placement on the "planning list" and a 90 percent confidence level for placement on the "verified list." Scientific studies generally do not employ a confidence level below 80 percent. A 50 percent confidence level is "comparable to flipping a coin." Use of the binomial model to determine impairment for purposes of TMDL development (based upon exceedances of water quality criteria) further requires the selection of a fixed "exceedance frequency" representing an acceptable rate of violation beneath which a water segment will not be considered impaired. A permissible "exceedance frequency" accounts for the natural variability of water quality and the uncertainty that the measurements taken are representative of the overall condition of the water segment sampled. The Department, pursuant to EPA guidance, has historically used a ten percent "exceedance frequency" for purposes of identifying, in its 305(b) Report, waters not meeting their designated uses. The TAC and Department staff agreed that a ten percent "exceedance frequency" should likewise be incorporated in the proposed rule chapter. The NRC Publication contains the following discussion regarding "exceedance frequencies" in general and a ten percent "exceedance frequency" in particular: Whether the binomial or the raw score approach is used, there must be a decision on an acceptable frequency of violation for the numeric criterion, which can range from 0 percent of the time to some positive number. Under the current EPA approach, 10 percent of the sample measurements of a given pollutant made at a station may exceed the applicable criterion without having to list the surrounding waterbody. The choice of 10 percent is meant to allow for uncertainty in the decision process. Unfortunately, simply setting an upper bound on the percentage of measurements at a station that may violate a standard provides insufficient information to properly deal with the uncertainty concerning impairment. The choice of acceptable frequency of violation is also supposed to be related to whether the designated use will be compromised, which is clearly dependent on the pollutant and on waterbody characteristics such as flow rate. A determination of 10 percent cannot be expected to apply to all water quality situations. In fact, it is inconsistent with federal water quality criteria for toxics that specify allowable violation frequencies of either one day in three years, four consecutive days in three years, or 30 consecutive days in three years (which are all less than 10 percent). Embedded in the EPA raw score approach is an implication that 10 percent is an acceptable violation rate, which it may not be in certain circumstances. Nonetheless, as the chairman of the committee that produced the NRC Publication, Dr. Kenneth Reckhow, testified at the final hearing in these consolidated cases when asked whether he "believe[d] that a determination of ten percent exceedance [frequency] cannot be expected to apply to all water quality situations": the "notion of one size fits all is . . . a pragmatic approach to the limits of what can be done in a regulatory environment." Dr. Reckhow, during his testimony, declined to "endorse[] as a scientist" the use of an "exceedance frequency" of ten percent (as opposed to some other "particular level"),39 but he stated his opinion (which the undersigned accepts) that "it is important to select a level, and from a science perspective it would be useful to see states employ a level like that or levels roughly around that point and see how effectively they have worked in terms of achieving the goal of meeting designated uses." Subsection (1) of proposed Rule 62-303.320, Florida Administrative Code, sets forth in tabular form, by sample size (from ten samples to 500 samples), the minimum number of exceedances needed for placement on the "planning list." It provides as follows: Water segments shall be placed on the planning list if, using objective and credible data, as defined by the requirements specified in this section, the number of exceedances of an applicable water quality criterion due to pollutant discharges is greater than or equal to the number listed in Table 1 for the given sample size. This table provides the number of exceedances that indicate a minimum of 10% exceedance frequency with a minimum of an 80% confidence level using a binomial distribution. Table 1: Planning List Minimum number of measured exceedances needed to put a water on the Planning list with at least 80% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this # of exceedances From To 10 15 3 16 23 4 24 31 5 32 39 6 40 47 7 48 56 8 57 65 9 66 73 10 74 82 11 83 91 12 92 100 13 101 109 14 110 118 15 119 126 16 127 136 17 137 145 18 146 154 19 155 163 20 164 172 21 173 181 22 182 190 23 191 199 24 200 208 25 209 218 26 219 227 27 228 236 28 237 245 29 246 255 30 256 264 31 265 273 32 274 282 33 283 292 34 293 301 35 302 310 36 311 320 37 321 329 38 330 338 39 339 348 40 349 357 41 358 367 42 368 376 43 377 385 44 386 395 45 396 404 46 405 414 47 415 423 48 424 432 49 433 442 50 443 451 51 452 461 52 462 470 53 471 480 54 481 489 55 490 499 56 500 500 57 The "calculations [reflected in Table 1] are correct." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The U.S. Environmental Protection Agency's Storage and Retrieval (STORET) database shall be the primary source of data used for determining water quality criteria exceedances. As required by rule 62- 40.540(3), F.A.C., the Department, other state agencies, the Water Management Districts, and local governments collecting surface water quality data in Florida shall enter the data into STORET within one year of collection. Other sampling entities that want to ensure their data will be considered for evaluation should ensure their data are entered into STORET. The Department shall consider data submitted to the Department from other sources and databases if the data meet the sufficiency and data quality requirements of this section. STORET is a "centralized data repository" maintained by the EPA. It contains publicly available water quality data, contributed by state agencies and others, on waters throughout the nation. Subsection (3) of Rule 62-40.540, Florida Administrative Code, which is referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides that "[t]he U.S. Environmental Protection Agency water quality data base (STORET) shall be the central repository of the state's water quality data" and that"[a]ll appropriate water quality data collected by the Department, Districts, local governments, and state agencies shall be placed in the STORET system within one year of collection." At the end of 1998, STORET underwent a major overhaul. It is "now more accommodating of meta data," which is auxiliary information about the underlying data. As Ms. Bannister indicated in her April 26, 2001, letter to the Department, there was a "problem in the upload of data into the new Federal STORET data system." This new version of STORET is still not "very user-friendly." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, however, while it strongly encourages the entry of data into STORET, does not require that data be entered into STORET to be considered by the Department in determining whether there have been the requisite number of exceedances for placement on the "planning list," as the last sentence of Subsection (2) makes abundantly clear. Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, imposes reasonable age-related restrictions on what data can be used to determine whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." It provides as follows: When determining water quality criteria exceedances, data older than ten years shall not be used to develop planning lists. Further, more recent data shall take precedence over older data if: the newer data indicate a change in water quality and this change is related to changes in pollutant loading to the watershed or improved pollution control mechanisms in the watershed contributing to the assessed area, or the Department determines that the older data do not meet the data quality requirements of this section or are no longer representative of the water quality of the segment. The Department shall note for the record that the older data were excluded and provide details about why the older data were excluded. These provisions are reasonably designed to increase the likelihood that the decision to place a water on the "planning list" will be based upon data representative of the water's current conditions. While the data that will be excluded from consideration by Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, may be objective and credible data, such data merely reflects what the conditions of the water in question were at the time the samples yielding the data were collected. Declining to rely on this data because it is too old to be a reliable indicator of current conditions is not unreasonable. The TAC recommended that listing decisions be based on data no older than five years.40 Department staff, however, believed that, for purposes of compiling a "planning list," a ten-year cut-off was more appropriate. The binomial model is predicated on independent sampling. Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, addresses "in a very straightforward, simple, but reasonable way, the notion of spatial independence and temporal independence." It provides as follows: To be assessed for water quality criteria exceedances using Table 1, a water segment shall have a minimum of ten, temporally independent samples for the ten year period. To be treated as an independent sample, samples from a given station shall be at least one week apart. Samples collected at the same location less than seven days apart shall be considered as one sample, with the median value used to represent the sampling period. However, if any of the individual values exceed acutely toxic levels, then the worst case value shall be used to represent the sampling period. The worst case value is the minimum value for dissolved oxygen, both the minimum and maximum for pH, or the maximum value for other parameters. However, when data are available from diel or depth profile studies, the lower tenth percentile value shall be used to represent worst case conditions. For the purposes of this chapter, samples collected within 200 meters of each other will be considered the same station or location, unless there is a tributary, an outfall, or significant change in the hydrography of the water. Data from different stations within a water segment shall be treated as separate samples even if collected at the same time. However, there shall be at least five independent sampling events during the ten year assessment period, with at least one sampling event conducted in three of the four seasons of the calendar year. For the purposes of this chapter, the four seasons shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. States may set their "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at either acutely toxic levels or chronically toxic levels. The EPA, based on data from toxicity tests, has determined what these acutely toxic levels and chronically toxic levels should be, and it has provided its recommendations to the states for their use in setting appropriate water quality criteria. With one exception (involving silver in predominantly marine waters), the Department, in Rule Chapter 62-302, Florida Administrative Code, has opted to establish "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at chronically toxic levels, rather than at acutely toxic levels, because chronic-toxicity-based criteria are, in the Department's view, "more protective." Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, will require the Department, under certain circumstances, to determine whether acutely toxic levels of parameters listed in Rule Chapter 62-302, Florida Administrative Code (other than silver in predominantly marine waters) have been exceeded. Neither the Department's existing rules, nor the proposed rule chapter, specifies what these levels are. In making this determination, the Department intends to use the acutely toxic levels recommended by the EPA. The last two sentences of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, address "seasonal . . . variations," as required by Subsection (3)(b)1. of Section 403.067, Florida Statutes, and do so in a manner consistent with the TAC's recommendation on the matter. As Subsection (3)(b)1. of Section 403.067, Florida Statutes, suggests, water quality may vary from season to season. Such variations tend to be more pronounced in the northern part of the state than in South Florida in the case of certain parameters, such as dissolved oxygen, which is usually "at its critical condition" during the warmer months. While certain types of exceedances may be more likely to occur during a particular season or seasons of the year, exceedances may occur at any time during the year. Department staff, as recommended by the TAC, included the last two sentences in Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, in a reasonable effort to avoid a situation where a listing decision would be based upon skewed data (provided by persons "with an agenda") reflecting only isolated instances of worst or best case conditions, as opposed to "data . . . spread throughout the year as much as possible." Data from each of the four seasons of the calendar year were not required "because then some data sets might be excluded just because they missed a quarterly sample," an outcome the TAC and Department staff considered to be undesirable because they "wanted to be all-inclusive and . . . capture all waters that in fact might even potentially be impaired" on the "planning list." Notwithstanding the "three out of four seasons" data sufficiency requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, because the proposed rule establishes an "exceedance frequency" threshold of ten percent, a water may qualify for placement on the "planning list" under the proposed rule even though all of the exceedances evidenced by the data in the Department's possession (covering at least three of the four seasons of the year) occurred in the one season when conditions are typically at their worst for the water. (If there were other exceedances, they would not be excluded from consideration under the proposed rule simply because they occurred during a time of year when exceedances are atypical.) The "three out of four seasons" requirement does not completely protect against persons "with an agenda" obtaining the result they want by providing the Department skewed data, but, as Dr. Reckhow testified at the final hearing, it would be difficult, if not impossible, for the Department to devise a rule which provides for Department consideration of data submitted by members of the public and, at the same time, completely "prevent[s] someone who is clever [enough] from contriving the analysis." As Dr. Reckhow pointed out, to counteract the data submissions of such a person, those who believe that the data is not truly representative of the overall condition of the water can "collect their own data and make the[ir] case" to the Department. Subsection (5) of proposed Rule 62-303.320, Florida Administrative Code, which reads as follows, provides two exceptions to the data sufficiency requirements of Subsection of the proposed rule: Notwithstanding the requirements of paragraph (4), water segments shall be included on the planning list if: there are less than ten samples for the segment, but there are three or more temporally independent exceedances of an applicable water quality criterion, or there are more than one exceedance of an acute toxicity-based water quality criterion in any three year period. The "three or more exceedances" exception (found in Subsection (5)(a) of proposed Rule 62-303.320, Florida Administrative Code) to the proposed rule's minimum sample size requirement of ten was not something that the "TAC ever voted on." It was included in the proposed rule by Department staff at the request of Petitioners. As noted above, the only "acute toxicity-based water quality criterion" in Rule Chapter 62-302, Florida Administrative Code, is the criterion for silver in predominantly marine waters. Accordingly, Subsection (5)(b) of proposed Rule 62-330.320, Florida Administrative Code, applies only where that criterion has been exceeded (more than once in a three year period). Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, provides that certain data (described therein) will be excluded from consideration by the Department in determining whether a water should be placed on the "planning list" pursuant to the proposed rule. It reads as follows: Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors shall be excluded from the assessment. Outliers identified through statistical procedures shall be evaluated to determine whether they represent valid measures of water quality. If the Department determines that they are not valid, they shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. The exclusion of the data described in Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, is entirely appropriate. Indeed, it would be unreasonable for the Department to consider such data. Earlier versions of Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, automatically excluded outliers from consideration. The ERC-adopted version, however, provides that outliers will first be identified41 and then examined and, only if they are determined by the Department, using its "best professional judgment," not to be "valid measures of water quality," will they be excluded from consideration. (Values, although extreme, may nonetheless "represent valid measures of water quality."). Subsection (7) of proposed Rule 62-303.320, Florida Administrative Code, which provides as follows, addresses "[q]uality assurance and [q]uality control protocols," as those terms are used in Subsection (3)(b)3. of Section 403.067, Florida Statutes: The Department shall consider all readily available water quality data. However, to be used to determine water quality exceedances, data shall be collected and analyzed in accordance with Chapter 62-160, F.A.C., and for data collected after one year from the effective date of this rule, the sampling agency must provide to the Department, either directly or through entry into STORET, all of the data quality assessment elements listed in Table 2 of the Department's Guidance Document "Data Quality Assessment Elements for Identification of Impaired Surface Waters" (DEP EAS 01-01, April 2001), which is incorporated by reference. Rule Chapter 62-160, Florida Administrative Code, which is referenced in Subsection (7)(a) of proposed Rule 62- 303.320, Florida Administrative Code, contains "[q]uality assurance requirements" that, with certain limited exceptions, "apply to all programs, projects, studies, or other activities which are required by the Department, and which involve the measurement, use, or submission of environmental data or reports to the Department." Rule 62-160.110, Florida Administrative Code. Adherence to quality assurance requirements such as those in Rule Chapter 62-160, Florida Administrative Code, is essential to obtaining data that is objective and credible. Compliance with these requirements makes it less likely that sampling results will be inaccurate. DEP EAS 01-01, April 2001, which is incorporated by reference in Subsection (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The Department relies on environmental data from a variety of sources to carry out its mission. Those data must satisfy the needs for which they are collected, comply with applicable standards, specifications and statutory requirements, and reflect a consideration of cost and economics. Careful project planning and routine project and data reviews, are essential to ensure that the data collected are relevant to the decisions being made. Many aspects of a project affect data quality. Sampling design, selection of parameters, sampling technique, analytical methodologies and data management activities are a few such aspects, whether the data are being collected for a compliance program, or for research activities. The level of quality of each of those elements will affect the final management decisions that are based on a project's outcome. Data quality assessment is one activity that is instrumental in ensuring that data collected are relevant and appropriate for the decisions being made. Depending on the needs of the project, the intended use of the final data and the degree of confidence required in the quality of the results, data quality assessment can be conducted at many levels. For the purposes of identification of impaired surface waters, the level of data quality assessment to be conducted (Table 1) requires providing the appropriate data elements (Table 2). If the data and applicable data elements are in an electronic format, data quality assessments can be performed automatically on large volumes of data using software tools, without significant impact to staffing. Department programs can realize significant improvement in environmental protection without additional process using these types of review routinely. Table 1: Recommended Quality Assessment Checks Quality Test Review to determine if analyses were conducted within holding times Review for qualifiers indicative of problems Screen comments for keywords indicative of problems Review laboratory certification status for particular analyte at the time analysis was performed Review data to determine if parts are significantly greater than the whole (e.g., ortho-P>total phosphorous, NH3>TKN, dissolved metal>total metal) Screen data for realistic ranges (e.g., is pH<14?) Review detection limits and quantification limits against Department criteria and program action levels to ensure adequate sensitivity Review for blank contamination Table 2: Data Elements Related to Quality Assessment ID Element Description Sample ID Unique Field Sample Identifier Parameter Name Name of parameter measured Analytical Result Result for the analytical measurement 4. Result Units Units in which measurement is reported DEP Qualifiers Qualifier code describing specific QA conditions as reported by the data provider Result Comments Free-form text where data provider relates information they consider relevant to the result Date (Time) of Sample Collection Date (Time) of Sample Preparations Date (Time) of Sample Analysis Analytical Method Method number used for sample analysis Prep Method Method number used for sample preparation prior to analysis Sample Matrix Was the sample a surface water or groundwater sample, a fresh- water or saltwater sample DOH Certificate Certificate number Number/ issued by the Laboratory ID Department of Health's lab certification program Preservatives Description of Added preservatives added to the sample after collection MDL Method detection limit for a particular result PQL Practical quantification limit for a particular result Sample Type Field identifying sample nature (e.g., environmental sample, trip blank, field blank, matrix spike, etc. Batch ID Unambiguous reference linking samples prepped or analyzed together (e.g., trip preparation, analysis Ids) 19 Field, Lab Blank Results Results for field/laboratory blank analysis required by the methods 20 CAS Number CAS registry number of the parameter measured Having the auxiliary information listed in Table 2 of DEP EAS 01-01 will help the Department evaluate the data that it receives from outside sources to determine whether the data are usable (for purposes of implementing the provisions of the proposed rule chapter). Subsection (8) of proposed Rule 62-303.320, Florida Administrative Code, also addresses "[q]uality assurance and [q]uality control protocols." It reads as follows: To be used to determine exceedances of metals criteria, surface water data for mercury shall be collected and analyzed using clean sampling and analytical techniques, and the corresponding hardness value shall be required to determine exceedances of freshwater metals criteria that are hardness dependent, and if the ambient hardness value is less than 25 mg/L as CaCO3, then a hardness value of 25 will be used to calculate the criteria. If data are not used due to sampling or analytical techniques or because hardness data were not available, the Department shall note for the record that data were excluded and explain why they were excluded. The "clean sampling and analytical techniques" referenced in Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, are, as noted above, defined in Subsection (2) of proposed Rule 62-303.200, Florida Administrative Code, as "those applicable field sampling procedures and analytical methods" permitted by the EPA's "Method 1669." "Method 1669" is a "performance-based," "guidance document" that, as its "Introduction" and introductory "Note," which read, in pertinent part, as follows, reveal, allows for the use of procedures other than those specifically described therein for "[s]ampling [a]mbient [w]ater for [t]race [m]etals at EPA [w]ater [q]uality [c]riteria [l]evels": . . . . In developing these methods, EPA found that one of the greatest difficulties in measuring pollutants at these levels was precluding sample contamination during collection, transport, and analysis. The degree of difficulty, however, is dependent on the metal and site-specific conditions. This method, therefore, is designed to provide the level of protection necessary to preclude contamination in nearly all situations. It is also designed to provide the protection necessary to produce reliable results at the lowest possible water quality criteria published by EPA. In recognition of the variety of situations to which this method may be applied, and in recognition of continuing technological advances, the method is performance-based. Alternative procedures may be used, so long as those procedures are demonstrated to yield reliable results. . . . Note: This document is intended as guidance only. Use of the terms "must," "may," and "should" are included to mean that the EPA believes that these procedures must, may, or should be followed in order to produce the desired results when using this guidance. In addition, the guidance is intended to be performance-based, in that the use of less stringent procedures may be used as long as neither samples nor blanks are contaminated when following those modified procedures. Because the only way to measure the performance of the modified procedures is through the collection and analysis of uncontaminated blank samples in accordance with this guidance and the referenced methods, it is highly recommended that any modification be thoroughly evaluated and demonstrated to be effective before field samples are collected. Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, requires that "Method 1669"- permitted procedures be used only where a water is being tested to determine if it exceeds the criterion for mercury (.012 micrograms per liter in the case of Class I waters and Class III freshwaters, and .025 micrograms per liter in the case of Class II waters and Class III marine waters). Use of these procedures is necessary to avoid the sample contamination (from, among other things, standard lab bottles, hair, dandruff, atmospheric fallout, and pieces of cotton from clothing) which commonly occurs when standard, non- "Method 1669"-permitted techniques are used. Because "the criteria [for mercury are] so low" and may be exceeded due solely to such contamination, it is essential to employ "Method 1669"-permitted techniques in order to obtain results that are reliable and meaningful. The "Method 1669"-permitted techniques are approximately five times more costly to employ than standard techniques and the Department's laboratory is the only laboratory in the state (with the possible exception of a laboratory at Florida International University) able to provide "clean sampling and analytical techniques" to measure mercury levels in surface water. Nonetheless, as Timothy Fitzpatrick, the Department's chief chemist, testified at the final hearing in these consolidated cases: [I]f you want to measure methyl mercury or total mercury in surface water, you have to use clean techniques or you're measuring noise. And the whole purpose behind using clean techniques is to do sound science and to have confidence in the number. It's not to determine whether or not you're throwing out a body of data. It's to be able to get numbers that make sense. And there's no point in having a database full of information that's virtually worthless because it contains noise, analytical noise. As Subsection (8)(b) of proposed Rule 62-303.320, Florida Administrative Code, suggests, there are certain "metals for which the actual water quality criterion itself changes as the hardness [of the water, measured in milligrams per liter calcium carbonate] changes." Criteria for these metals are set (in the table contained in Rule 62-302.530, Florida Administrative Code) at higher levels for high hardness waters than for low hardness waters. To know which criterion applies in a particular case, the Department needs to know the hardness of the water sampled. Subsection (9) of proposed Rule 62-303.320, Florida Administrative Code, guards against reliance on data that, due to the use of inappropriate methods, may fail to reveal exceedances that actually exist. It provides as follows: Surface water data with values below the applicable practical quantification limit (PQL) or method detection limit (MDL) shall be assessed in accordance with Rules 62- 4.246(6)(b)-(d) and (8), F.A.C. If sampling entities want to ensure that their data will be considered for evaluation, they should review the Department's list of approved MDLs and PQLs developed pursuant to Rule 62-4.246, F.A.C., and, if available, use approved analytical methods with MDLs below the applicable water quality criteria. If there are no approved methods with MDLs below a criterion, then the method with the lowest MDL should be used. Analytical results listed as below detection or below the MDL shall not be used for developing planning lists if the MDL was above the criteria and there were, at the time of sample collection, approved analytical methods with MDLs below the criteria on the Department's list of approved MDLs and PQLs. If appropriate analytical methods were used, then data with values below the applicable MDL will be deemed to meet the applicable water quality criterion and data with values between the MDL and PQL will be deemed to be equal to the MDL. Subsections (6)(b) through (d) and (8) of Rule 62- 4.246, Florida Administrative Code, provide as follows: All results submitted to the Department for permit applications and monitoring shall be reported as follows: The approved analytical method and corresponding Department-established MDL and PQL levels shall be reported for each pollutant. The MDLs and PQLs incorporated in the permit shall constitute the minimum reporting levels for each parameter for the life of the permit. The Department shall not accept results for which the laboratory's MDLs or PQLs are greater than those incorporated in the permit. All results with laboratory MDLs and PQLs lower than those established in the permit shall be reported to the Department. Unless otherwise specified, all subsequent references to MDL and PQL pertain to the MDLs and PQLs incorporated in the permit. Results greater than or equal to the PQL shall be reported as the measured quantity. Results less than the PQL and greater than or equal to the MDL shall be reported as less than the PQL and deemed to be equal to the MDL. Results less than the MDL shall be reported as less than the MDL. * * * (8) The presence of toxicity (as established through biomonitoring), data from analysis of plant or animal tissue, contamination of sediment in the vicinity of the installation, intermittent violations of effluent limits or water quality standards, or other similar kinds of evidence reasonably related to the installation may indicate that a pollutant in the effluent may cause or contribute to violations of water quality criteria. If there is such evidence of possible water quality violations, then (unless the permittee has complied with subsection (9) below) in reviewing reports and applications to establish permit conditions and determine compliance with permits and water quality criteria, the Department shall treat any result less than the MDL of the method required in the permit or the method as required under subsection (10) below or any lower MDL reported by the permittee's laboratory as being one half the MDL (if the criterion equals or exceeds the MDL) or one half of the criterion (if the criterion is less than the MDL), for any pollutant. Without the permission of the applicant, the Department shall not use any values determined under this subsection or subsection (9) below for results obtained under a MDL superseded later by a lower MDL. The final subsection of proposed Rule 62-303.320, Florida Administrative Code, Subsection (10), provides as follows: It should be noted that the data requirements of this rule constitute the minimum data set needed to assess a water segment for impairment. Agencies or groups designing monitoring networks are encouraged to consult with the Department to determine the sample design appropriate for their specific monitoring goals. Proposed Rule 62-303.320, Florida Administrative Code, establishes a relatively "rigid" framework, based upon statistical analysis of data, with little room for the exercise of "best professional judgment," for determining whether a water qualifies for placement on the "planning list." There are advantages to taking such a "cookbook" approach. It promotes administrative efficiency and statewide uniformity in listing decisions. Furthermore, as Dr. Reckhow pointed out during his testimony, it lets the public know "how a [listing] decision is arrived at" and therefore "makes it easier for the public to get engaged and criticize the outcome." Such "rigidity," however, comes at a price, as Dr. Reckhow acknowledged, inasmuch as observations and conclusions (based upon those observations) made by the "experienced biologist who really understands the system . . . get[] lost." While proposed Rule 62-303.320, Florida Administrative Code, may rightfully be characterized as a "rigid statistical approach," it must be remembered that, in the subsequent portions of Part II of the proposed rule chapter, the Department provides other ways for a water to qualify for placement on the "planning list." A discussion of these alternatives follows. Code Part II: Proposed Rule 62-303.330, Florida Administrative Proposed Rule 62-303.330, Florida Administrative Code, is entitled, "Biological Assessment." As noted in Subsection (2) of proposed Rule 62-303.310, Florida Administrative Code, it "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon a failure to "meet biological assessment thresholds for its water body type." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." A "[b]iological [a]ssessment" provides more information about the overall ability of a water to sustain aquatic life than does the "data used for determining water quality exceedances" referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code. This is because "[b]iological [a]ssessment[s]," as is noted in the NRC Publication, "integrate the effects of multiple stressors over time and space." As Mr. Joyner pointed out in his testimony, a "[b]iological [a]ssessment" is "more than just a snapshot like a water quality sample is of the current water quality [at the particular location sampled]." Unlike proposed Rule 62-303.320, Florida Administrative Code, proposed Rule 62-303.330, Florida Administrative Code, deals with "biological criteria," not "numerical criteri[a]," as those terms are used in Subsection (3)(c) of Section 403.067, Florida Statutes, and the method it establishes for determining "planning list" eligibility does not involve statistical analysis. Subsection (1) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]iological data must meet the requirements of paragraphs (3) and (7) in section 62- 303.320," Florida Administrative Code, which, as noted above, impose age ("paragraph" (3)) and quality assurance/quality control and data submission ("paragraph" (7)) restrictions on the use of data. While the "biological component of STORET is not . . . usable" at this time and the biological database maintained by the Department "is not a database where members of the public can input data," pursuant to "paragraph" (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, data collected by someone outside the Department that is not entered into either STORET or the Department's own biological database may still be considered by the Department if it is provided "directly" to the Department. Inasmuch as "[b]iological [a]ssessment[s]" reflect the "effects of multiple stressors over time and space," failed assessments are no more likely during one particular time of the year than another. Consequently, there is no need to limit the time of year in which "[b]iological [a]ssessment[s]" may be conducted. The first sentence of Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]ioassessments used to assess streams and lakes under this rule shall include BioRecons, Stream Condition Indices (SCIs), and the benthic macroinvertebrate component of the Lake Condition Index (LCI), which only applies to clear lakes with a color less than 40 platinum cobalt units." The BioRecon and SCI, as those terms are defined in Subsections (1) and (18), respectively, of proposed Rule 62- 303.200, Florida Administrative Code, are rapid bioassessment protocols for streams developed by the Department. They are "similar to the original rapid bioassessment protocols that were designed by the U.S. EPA in [19]89." Conducting a BioRecon or SCI requires the deployment of a Standard D frame dip net approximately one and a half meters in length (including its handle), which is used to obtain samples of the best available habitat that can be reached. The samples are obtained by taking "sweeps" with the one and a half meter long dip net. Both wadable and non-wadable streams can be, and have been, sampled using this method prescribed by the BioRecon and SCI, although sampling is "more challenging when the water body is deeper than waist deep." In these cases, a boat is used to navigate to the areas where sampling will occur. The sampling "methods are identical regardless of the depth of the water." The BioRecon and SCI both include an assessment of the health of the habitat sampled, including the extent of habitat smothering from sediments and bank instability. The purpose of such an assessment is "to ascertain alteration of the physical habitat structure critical to maintenance of a healthy biological condition." Like all bioassessment protocols, the BioRecon and SCI employ "reasonable thresholds" of community health (arrived at by sampling "reference sites," which are the least affected and impacted sites in the state) against which the health of the sampled habitat is measured. Impairment is determined by the sampled habitat's departure from these "reasonable thresholds" (which represent expected or "reference" conditions). The BioRecon is newer, quicker and less comprehensive than the SCI. Only four sweeps of habitat are taken for the BioRecon, compared to 20 sweeps for the SCI. Furthermore, the BioRecon takes into consideration only three measures of community health (taxa richness, Ephemeroptera/ Plecoptera/Tricoptera Index, and Florida Index), whereas the SCI takes into account four additional measures of community health. For these reasons, the BioRecon is considered a "screening version" of the SCI. Like the BioRecon and the SCI, the LCI is a "comparative index." Conditions at the sampled site are compared to those at "reference sites" to determine the health of the aquatic community at the sampled site. Samples for the LCI are taken from the sublittoral zone of the targeted lake,42 which is divided into twelve segments. Using a petite PONAR or Ekman sampler dredge, a sample is collected from each of the twelve segments. The twelve samples are composited into a single, larger sample, which is then examined to determine what organisms it contains. The results of such examination are considered in light of six measures of community health: Total taxa, EOT taxa, percent EOT, percent Diptera, the Shannon-Weiner Diversity Index, and the Hulbert Index. Lakes larger than 1,000 acres are divided into two subbasins or into quadrants (as appropriate), and each subbasin or quadrant is sampled separately, as if it were a separate site. It is essential that persons conducting BioRecons, SCIs, and LCIs know the correct sampling techniques to use and have the requisite amount of taxonomic knowledge to identify the organisms that may be found in the samples collected. For this reason, a second sentence was included in Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows: Because these bioassessment procedures require specific training and expertise, persons conducting the bioassessments must comply with the quality assurance requirements of Chapter 62-160, F.A.C., attend at least eight hours of Department sanctioned field training, and pass a Department sanctioned field audit that verifies the sampler follows the applicable SOPs in Chapter 62-160, F.A.C., before their bioassessment data will be considered valid for use under this rule. The Department has developed SOPs for BioRecons, SCIs, and LCIs, which are followed by Department personnel who conduct these bioassessments. The Department is in the process of engaging in rulemaking to incorporate these SOPs in Rule Chapter 62-160, Florida Administrative Code, but had not yet, as of the time of the final hearing in these consolidated cases, completed this task.43 Subsection (3) of proposed Rule 62-303.330, Florida Administrative Code, provides as follows: Water segments with at least one failed bioassessment or one failure of the biological integrity standard, Rule 62- 302.530(11), shall be included on the planning list for assessment of aquatic life use support. In streams, the bioassessment can be an SCI or a BioRecon. Failure of a bioassessment for streams consists of a "poor" or "very poor" rating on the Stream Condition Index, or not meeting the minimum thresholds established for all three metrics (taxa richness, Ephemeroptera/Plecoptera/Tricoptera Index, and Florida Index) on the BioRecon. Failure for lakes consists of a "poor" or "very poor" rating on the Lake Condition Index. Subsection (11) of Rule 62-302.530, Florida Administrative Code, prescribes the following "biological integrity standard[s]" for Class I, II and III waters: Class I The Index for benthic macroinvertebrates shall not be reduced to less than 75% of background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class II The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. Class III: Fresh The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class III: Marine The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. The "Index" referred to in these standards is the Shannon-Weaver Diversity Index. Subsection (4) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows, allows the Department to rely upon "information relevant to the biological integrity of the water," other than a failure of a BioRecon, SCI, or LCI or a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code, to place a water on the "planning list" where the Department determines, exercising its "best professional judgment," that such "information" reveals that "aquatic life use support has [not] been maintained": Other information relevant to the biological integrity of the water segment, including information about alterations in the type, nature, or function of a water, shall also be considered when determining whether aquatic life use support has been maintained. The "other information" that would warrant placement on the "planning list" is not specified in Subsection (4) because, as Mr. Frydenborg testified at the final hearing, "[t]he possibilities are so vast." Proposed Rule 62-303.330, Florida Administrative Code, does not make mention of any rapid type of bioassessment for estuaries, the failure of which will lead to placement of a water on the "planning list," for the simple reason that the Department has yet to develop such a bioassessment.44 Estuaries, however, may qualify for "planning list" placement under proposed Rule 62-303.330, Florida Administrative Code, based upon "one failure of the biological integrity standard," pursuant to Subsection (3) of the proposed rule,45 or based upon "other information," pursuant to Subsection (4) of the proposed rule (which may include "information" regarding seagrasses, aquatic macrophytes, or algae communities). Part II: Proposed Rule 62-303.340, Florida Administrative Code Proposed Rule 62-303.340, Florida Administrative Code, is entitled, "Toxicity," and, as noted in Subsection (3) of proposed Rule 62-303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon it being "acutely or chronically toxic." These requirements, like those found in proposed Rule 62-303.330, Florida Administrative Code, relating to "[b]iological [a]ssessment[s]," are not statistically-based. They are as follows: All toxicity tests used to place a water segment on a planning list shall be based on surface water samples in the receiving water body and shall be conducted and evaluated in accordance with Chapter 62- 160, F.A.C., and subsections 62-302.200(1) and (4), F.A.C., respectively. Water segments with two samples indicating acute toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart over a twelve month period, some time during the ten years preceding the assessment. Water segments with two samples indicating chronic toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart, some time during the ten years preceding the assessment. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of Rule 62-320.200, Florida Administrative Code, which is referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "acute toxicity." It provides as follows: "Acute Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-third (1/3) of the amount lethal to 50% of the test organisms in 96 hours (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Subsection (4) of Rule 62-320.200, Florida Administrative Code, which is also referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "chronic toxicity." It provides as follows: "Chronic Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-twentieth (1/20) of the amount lethal to 50% of the test organisms in 96 hrs (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Testing for "acute toxicity" or "chronic toxicity," within the meaning of Subsections (1) and (4) of Rule 62- 320.200, Florida Administrative Code (and therefore proposed Rule 62-303.340, Florida Administrative Code) does not involve measuring the level of any particular parameter in the water sampled. Rather, the tests focus upon the effects the sampled water has on test organisms. Mortality is the end point that characterizes "acute toxicity." "Chronic toxicity" has more subtle effects, which may include reproductive and/or growth impairment. Historically, the Department has tested effluent for "acute toxicity" and "chronic toxicity," but it has not conducted "acute toxicity" or "chronic toxicity" testing in receiving waters. The requirement of Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, that test data be no older than ten years old is reasonably designed to make it less likely that a water will be placed on the "planning list" based upon toxicity data not representative of the water's current conditions. Requiring that toxicity be established by at least "two samples" taken "at least two weeks apart" during a "twelve month period," as do Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, is also a prudent measure intended to minimize inappropriate listing decisions. To properly determine whether toxicity (which can "change over time") is a continuing problem that may be remedied by TMDL implementation, it is desirable to have more than one sample indicating toxicity. "The judgment was made [by the TAC] that two [samples] would be acceptable to make that determination." The TAC "wanted to include as much data regarding . . . toxicity . . . , and therefore lowered the bar in terms of data sufficiency . . . to only two samples." As noted above, the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," which, if not met, will result in a water being placed on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, include the requirement that surface waters not be "acutely toxic." Whether a water should be placed on the "planning list" because it fails to meet this "minimum criterion" (or "free from") will be determined in light of the provisions of proposed Rule 62-303.340, Florida Administrative Code. Except for "[s]ilver in concentrations above 2.3 micrograms/liter in predominantly marine waters," "acute toxicity" is the only "free from" addressed in any portion of Part II of the proposed rule chapter outside of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code. Part II: Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code, address "nutrients." Nutrients, which consist primarily of nitrogen and phosphorous, stimulate plant growth (and the production of organic materials). Waste water treatment facilities, certain industrial facilities that discharge waste water, phosphate mines, and agricultural and residential lands where fertilizers are used are among the sources of nutrients that affect water bodies in Florida. Nutrients are important to the health of a water body, but when they are present in excessive amounts, problems can arise. Excessive amounts of nutrients can lead to certain species, typically algaes, out-competing native species that are less able to use these nutrients, which, in turn, results in a change in the composition of the aquatic population and, subsequently, the animal population. Factors influencing how a water body responds to nutrient input include location, water body type, ecosystem characteristics, water flow, and the extent of light inhibition. As Mr. Frydenborg testified at the final hearing, nutrients are "probably the most widespread and pervasive cause of environmental disturbance in Florida" and they present "the biggest challenge [that needs to be] overcome in protecting aquatic systems." See also Rule 62-302.300(13), Florida Administrative Code ("The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State."). As noted above, nutrients are among the parameters for which water quality criteria have been established by the Department in Rule 62-302.530, Florida Administrative Code. The criterion for nutrients set forth in Subsection (48)(b) of the rule (which applies to all "water quality classifications") is a "narrative . . . criterion," as that term is used in Subsection (3)(c) of Section 403.067, Florida Statutes. It is as follows: "In no case shall nutrient concentrations of a body of water be altered as to cause an imbalance of natural populations of aquatic flora or fauna." Proposed Rule 62-303.350, Florida Administrative Code, is entitled, "Interpretation of Narrative Nutrient Criteria," and, as noted in Subsection (4) of proposed Rule 62- 303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon excessive "nutrient enrichment." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, reads as follows: Trophic state indices (TSIs) and annual mean chlorophyll a values shall be the primary means for assessing whether a water should be assessed further for nutrient impairment. Other information indicating an imbalance in flora or fauna due to nutrient enrichment, including, but not limited to, algal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation, changes in algal species richness, and excessive diel oxygen swings shall also be considered. Any type of water body (stream, estuary, or lake) may be placed on the "planning list" based upon the "other information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. Whether to do so in a particular case will involve the exercise of "best professional judgment" on the part of the Department. The items specifically mentioned in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, "[a]lgal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation,46 changes in algal species richness, and excessive diel oxygen swings," are all indicators of excessive "nutrient enrichment." The "but not limited to" language in this sentence makes it abundantly clear that this is not an exhaustive listing of "other information indicating an imbalance in flora or fauna due to nutrient enrichment" that will be considered by the Department in determining whether a water should be placed on the "planning list." During the rule development process, there were a number of members of the public who expressed the view that the Department's possession of the "information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, should be the sole basis for determining "nutrient impairment" and that TSIs and annual mean chlorophyll a values should not be used. Department staff rejected these suggestions and drafted the proposed rule chapter to provide for additional ways, using TSIs and annual mean chlorophyll a values, for a water to make the "planning list" based upon excessive "nutrient enrichment." Chlorophyll a is the photosynthetic pigment in algae. Measuring chlorophyll a concentrations in water is a reasonable surrogate for measuring the amount of algal biomass present (which is indicative of the extent of nutrient enrichment inasmuch as nutrients promote algal growth). Chlorophyll a values, expressed in micrograms per liter, reflect the concentration of suspended algae (phytoplankton) in the water.47 High amounts of chlorophyll a indicate that there have been algal blooms. Algal blooms represent significant increases in algal population (phytoplankton) over a short period of time. They have a deleterious effect on the amount of dissolved oxygen in the water. Algal blooms may occur in any season. There are no adequate means to predict when they will occur. An annual mean chlorophyll a value reflects the level of nutrient enrichment occurring in a water over the course of a year. Biologists look at these values when studying the productivity of aquatic systems. Using an annual mean is the "best way" of determining whether nutrient enrichment is a consistent enough problem to cause an imbalance in flora or fauna. The TSI was developed for the Department's use in preparing 305(b) Reports. It is a "tried and true method" of assessing lakes (and only lakes) for "nutrient impairment." No comparable special index exists for other types of water bodies in this state. TSI values are derived from annual mean chlorophyll a, as well as nitrogen and phosphorous, values (which are composited). The process of "[c]alculating the Trophic State Index for lakes" was described in the "State's 1996 305(b) report" (on page 86) as follows: The Trophic State Index effectively classifies lakes based on their chlorophyll levels and nitrogen and phosphorous concentrations. Based on a classification scheme developed in 1977 by R.E. Carlson, the index relies on three indicators-- Secchi depth, chlorophyll, and total phosphorous-- to describe a lake's trophic state. A ten unit change in the index represents a doubling or halving or algal biomass. The Florida Trophic State Index is based on the same rationale but also includes total nitrogen as a third indicator. Attempts in previous 305(b) reports to include Secchi depth have caused problems in dark-water lakes and estuaries, where dark waters rather than algae diminish transparency. For this reason, our report drops Secchi depth as a category. We developed Florida lake criteria from a regression analysis of data on 313 Florida lakes. The desirable upper limit for the index is 20 micrograms per liter of chlorophyll, which corresponds to an index of 60. Doubling the chlorophyll concentration to 40 micrograms per liter increases the index to 70, which is the cutoff for undesirable (or poor) lake quality. Index values from 60 to 69 represent fair water quality. . . . The Nutrient Trophic State Index is based on phosphorous and nitrogen concentrations and the limiting nutrient concept. The latter identifies a lake as phosphorous limited if the nitrogen-to-phosphorous concentration ratio is greater than 30, nitrogen limited if the ratio is less than 10, and balanced (depending on both nitrogen and phosphorous) if the ratio is 10 to 30. The nutrient ratio is thus based solely on phosphorous if the ratio is greater than 30, solely on nitrogen if less than 10, or on both nitrogen and phosphorous if between 10 and 30. We calculated an overall Trophic State Index based on the average of the chlorophyll and nutrient indices. Calculating an overall index value requires both nitrogen and phosphorous measurements. Subsections (2) and (3) of proposed Rule 62-303.350, Florida Administrative Code, which provide as follows, impose reasonable data sufficiency and quality requirements for calculating TSIs and annual mean chlorophyll a values and changes in those values from "historical levels": To be used to determine whether a water should be assessed further for nutrient enrichment, data must meet the requirements of paragraphs (2)-(4), (6), and (7) in rule 62- 303.320, at least one sample from each season shall be required in any given year to calculate a Trophic State Index (TSI) or an annual mean chlorophyll a value for that year, and there must be annual means from at least four years, when evaluating the change in TSI over time pursuant to paragraph 62- 303.352(3). When comparing changes in chlorophyll a or TSI values to historical levels, historical levels shall be based on the lowest five-year average for the period of record. To calculate a five-year average, there must be annual means from at least three years of the five-year period. These requirements do not apply to the "other information" referenced in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. As was stated in the NRC Publication, and as Department staff recognized, "data are not the same as information." Subsection (2)(b) of proposed Rule 62-303.350, Florida Administrative Code, being more specific, modifies Subsection (2)(a) of the proposed rule, to the extent that Subsection (2)(a) incorporates by reference the requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, that "at least one sampling event [be] conducted in [only] three of the four seasons of the calendar year." Requiring data from at least each season is appropriate because the data will be used to arrive at numbers that represent annual means. Furthermore, as noted above, there is no season in which bloom events never occur in this state. Four years of data, as required by Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, establishes a "genuine trend" in the TSI. The requirement, in Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, that the "lowest five-year average for the period of the record" be used to establish "historical levels" was intended to make it easier for a water to be placed on the "planning list" for "nutrient impairment." 190. Proposed Rules 62-303.351, 62-303.352, and 62- 303.353, Florida Administrative Code, establish reasonable statewide TSI and annual mean chlorophyll a values, which if exceeded, will result in a water being placed on the "planning list."48 In establishing these statewide threshold values, Department staff took into consideration that averaging values obtained from samples taken during bloom events with lower values obtained from other samples taken during the course of the year (to get an annual mean value for a water) would minimize the impact of the higher values and, accordingly, they set the thresholds at levels lower than they would have if the thresholds represented, not annual mean values, but rather values that single samples, evaluated individually, could not exceed. Department staff recognized that the statewide thresholds they set "may not be protective of very low nutrient waters." They therefore, in proposed Rules 62-303.351, 62- 303.352, and 62-303.353, Florida Administrative Code, reasonably provided that waters not exceeding these thresholds could nonetheless get on the "planning list" for "nutrient impairment" based upon TSI values (in the case of lakes) or annual mean chlorophyll a values (in the case of streams and estuaries) if these values represented increases, of sufficient magnitude, as specified in the proposed rules, over "historical levels." Proposed Rule 62-303.351, Florida Administrative Code, is entitled, "Nutrients in Streams," and reads as follows: A stream or stream segment shall be included on the planning list for nutrients if the following biological imbalances are observed: algal mats are present in sufficient quantities to pose a nuisance or hinder reproduction of a threatened or endangered species, or annual mean chlorophyll a concentrations are greater than 20 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The TAC and Department staff investigated the possibility of evaluating "nutrient impairment" in streams by looking at the amount of attached algae (measured in milligrams of chlorophyll a per square meter) as opposed to suspended algae, but "weren't able to come up with" an appropriate "number." They were advised of a "paper" in which the author concluded that 150 milligrams of chlorophyll a per square meter was "indicative of imbalances in more northern conditions rivers." Reviewing Florida data, the TAC and Department staff determined that this threshold would be "non-protective in our state" inasmuch as the "the highest chlorophylls" in the Florida data they reviewed were 50 to 60 milligrams of chlorophyll a per square meter. Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, which describes, in narrative terms, another type of "information indicating an imbalance in flora or fauna due to nutrient enrichment" (in addition to those types of information specified in Subsection (1) of proposed Rule 62- 303.350, Florida Administrative Code), was included in proposed Rule 62-303.351 in lieu of establishing a numerical "milligrams of chlorophyll a per square meter" threshold. The term "nuisance," as used in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, was intended to have the same meaning as it has in Rule 62-302.500, Florida Administrative Code. "Nuisance species," as used in Rule Chapter 62-500, Florida Administrative Code, are defined as "species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters." Mr. Joyner knew that the Suwannee River "had problems with algal mats49 and that those algal mats might hinder reproduction of the sturgeon" in the river. The "hinder reproduction of a threatened or endangered species" language was inserted in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, "to address things like that" occurring in the Suwannee River. It was "very difficult" for the TAC and Department staff to come up with a "micrograms per liter" threshold for Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. All available data on Florida streams were reviewed before the TAC and Department staff decided on a threshold. The threshold ultimately selected, 20 micrograms per liter, "represents approximately the 80th percentile value currently found in Florida streams," according to the data reviewed. The "20 micrograms per liter" threshold, combined with the other provisions of the proposed rule and the second sentence of proposed Rule 62-303.350, Florida Administrative Code, was "thought to be something that would hold the line on future [nutrient] enrichment," particularly with respect to streams "like the lower St. Johns River which tends to act more like a lake." Anything over 20 micrograms per liter of chlorophyll a "is a clear indication that an imbalanced situation is occurring." There are some streams in Florida that have high nutrient concentrations but, because of flow conditions and water color, also have low levels of chlorophyll a in the water column (reflecting that the nutrients' presence in the water has not resulted in significant algal growth). That these streams would not qualify for placement on the "planning list" pursuant to proposed Rule 62-303.351, Florida Administrative Code, as drafted, did not concern the TAC and Department staff because they thought it appropriate "to focus on [the] realized impairment" caused by nutrients, not on their mere presence in the stream. If these nutrients travel downstream and adversely affect the downstream water to such an extent that the downstream water qualifies for a TMDL, "all the sources upstream would be addressed" in the TMDL developed for the downstream water. Pursuant to Subsection (2) of proposed Rule 62- 303.351, Florida Administrative Code, streams with "very, very low chlorophylls," well under 20 micrograms per liter, can nonetheless qualify for placement on the planning list based upon two consecutive years of increased annual mean chlorophyll a values "over historical values." In the case of a stream with "historical values" of two micrograms per liter, for instance, the increase would need to be only more than one microgram per liter. Proposed Rule 62-303.352, Florida Administrative Code, is entitled, "Nutrients in Lakes," and reads as follows: For the purposes of evaluating nutrient enrichment in lakes, TSIs shall be calculated based on the procedures outlined on pages 86 and 87 of the State's 1996 305(b) report, which are incorporated by reference. Lakes or lake segments shall be included on the planning list for nutrients if: For lakes with a mean color greater than 40 platinum cobalt units, the annual mean TSI for the lake exceeds 60, unless paleolimnological information indicates the lake was naturally greater than 60, or For lakes with a mean color less than or equal to 40 platinum cobalt units, the annual mean TSI for the lake exceeds 40, unless paleolimnological information indicates the lake was naturally greater than 40, or For any lake, data indicate that annual mean TSIs have increased over the assessment period, as indicated by a positive slope in the means plotted versus time, or the annual mean TSI has increased by more than 10 units over historical values. When evaluating the slope of mean TSIs over time, the Department shall use a Mann's one-sided, upper-tail test for trend, as described in Nonparametric Statistical Methods by M. Hollander and D. Wolfe 16 (1999 ed.), pages 376 and 724 (which are incorporated by reference), with a 95% confidence level. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New As noted above, a TSI value of 60, the threshold established in Subsection (1) of proposed Rule 62-303.352, Florida Administrative Code, for darker-colored lakes, is the equivalent of a chlorophyll a value of 20 micrograms per liter, which is the "micrograms per liter" threshold for streams established in Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. A TSI value 40, the threshold established in Subsection (2) of proposed Rule 62-303.352, Florida Administrative Code, for lighter-colored lakes, corresponds to a chlorophyll a value of five micrograms per liter, which "is an extremely low level." A TSI value of 40 is "very protective for that particular category of lake[s]." A lower threshold was established for these lighter- colored lakes (having a mean color less than or equal to 40 platinum cobalt units) because it was felt that these lakes needed "extra protection." Providing such "extra protection" is reasonably justified inasmuch as these lakes (due to their not experiencing the "infusion of leaf litter" that affects darker- colored lakes) tend to have a "lower nutrient content naturally" and therefore "very different aquatic communities" than their darker counterparts. Some lakes are naturally eutrophic or even hyper- eutrophic. Inasmuch as the TMDL program is not designed to address such natural occurrences, it makes sense to provide, as Subsections (1) and (2) of proposed Rule 62-303.352, Florida Administrative Code, do, that the TSI thresholds established therein will not apply if "paleolimnological information" indicates that the TSI of the lake in question was "naturally greater" than the threshold established for that type of lake (60 in the case of a darker-colored lake and 40 in the case of a lighter-colored lake). Lakes with TSI values that do not exceed the appropriate threshold may nonetheless be included on the "planning list" based upon "increas[es] in TSIs" pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. Any statistically significant increase in TSI values "over the assessment period," as determined by "use [of] a Mann's one-sided, upper-tail test for trend" and a "95% confidence level" (which the TAC recommended inasmuch as it is "the more typical scientific confidence level"), or an increase in the annual mean TSI of more than ten units "over historical values," will result in a lake being listed pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. The first of these two alternative ways of a lake getting on the "planning list" based upon "increas[es] in TSIs" is "more protective" than the second. Under this first alternative, a lake could be listed before there was more than a ten unit increase in the annual mean TSI "over historical values." A ten-unit increase in the annual mean TSI represents a doubling (or 100 percent increase) "over historical values." As noted above, pursuant to Subsection (3) of proposed Rule 62- 303.351, Florida Administrative Code, only a 50 percent increase "over historical values" in annual mean chlorophyll a values is needed for a stream to make the "planning list" and, as will be seen, proposed Rule 62-303.353, Florida Administrative Code, contains a similar "50 percent increase" provision for estuaries; however, because "lakes are much more responsive to nutrients," Department staff reasonably believed that "the ten- unit change was a protective measure." Proposed Rule 62-303.353, Florida Administrative Code, is entitled, "Nutrients in Estuaries," and reads as follows: Estuaries or estuary segments shall be included on the planning list for nutrients if their annual mean chlorophyll a for any year is greater than 11 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Estuaries are at "the very bottom" of the watershed. The amount of nutrients in an estuary is dependent, not only on what is occurring in and around the immediate vicinity of the estuary,50 but also "what is coming down" any river flowing into it. Not all of the nutrients in the watershed reach the estuary inasmuch as "there is assimilation and uptake along the way." The "11 micrograms per liter" threshold ultimately selected as a "protective number in terms of placing estuaries on the 'planning list'" was recommended by the TAC following a review of data reflecting trends with respect to chlorophyll a levels in various Florida estuaries. In addition, the TAC heard a presentation concerning the "modeling work" done by the Tampa Bay National Estuary Program to establish "site-specific" chlorophyll a targets for segments of Tampa Bay, including the target of 13.2 micrograms per liter that was established for the Hillsborough Bay segment of Tampa Bay, which is "closer to the [nutrient] sources" than other parts of Tampa Bay. The TAC also considered information about "various bloom situations" in estuaries which led to the "general feeling" that an estuarine algal bloom involved chlorophyll a values "considerably higher" than 11 micrograms per liter. An alternative method for an estuary to make the "planning list" for "nutrient impairment" based upon a 50 percent increase in annual mean chlorophyll a values "over historical values" was included in proposed Rule 62-303.353, Florida Administrative Code, because the "11 micrograms per liter" threshold was not expected "to be adequately protect[ive]" of "the very clear sea grass communities" like those found in the Florida Keys. Part II: Proposed Rule 62-303.360, Florida Administrative Code Proposed Rule 62-303.360, Florida Administrative Code, establishes four separate ways for a water to be placed on the "planning list" for failing to provide "primary contact and recreation use support." It reads as follows: Primary Contact and Recreation Use Support A Class I, II, or III water shall be placed on the planning list for primary contact and recreation use support if: the water segment does not meet the applicable water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or the water segment includes a bathing area that was closed by a local health Department or county government for more than one week or more than once during a calendar year based on bacteriological data, or the water segment includes a bathing area for which a local health Department or county government has issued closures, advisories, or warnings totaling 21 days or more during a calendar year based on bacteriological data, or the water segment includes a bathing area that was closed or had advisories or warnings for more than 12 weeks during a calendar year based on previous bacteriological data or on derived relationships between bacteria levels and rainfall or flow. For data collected after August 1, 2000, the Florida Department of Health (DoH) database shall be the primary source of data used for determining bathing area closures. Advisories, warnings, and closures based on red tides, rip tides, sewage spills, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when assessing recreation use support. However, the Department shall note for the record that data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The "water quality criteria for bacteriological quality" referenced in Subsection (1)(a) of proposed Rule 62- 303.360, Florida Administrative Code, are set forth in Subsections (6) and (7) of Rule 62-303.530, Florida Administrative Code, which provide as follows: Parameter: Bacteriological Quality (Fecal Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 5 samples taken over a 30 day period. Class II: MPN shall not exceed a median value of 14 with not more than 10% of the samples exceeding 43, nor exceed 800 on any one day. Class III: Fresh: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Class III: Marine: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Parameter: Bacteriological Quality (Total Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: < = 1,000 as a monthly avg., nor exceed 1,000 in more than 20% of samples examined during any month, nor exceed 2,400 at any time using either MPN or MF counts. Class II: Median MPN shall not exceed 70 and not more than 10% of the samples shall exceed an MPN of 230. Class III: Fresh: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Class III: Marine: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Fecal coliform bacteria are found in the feces of animals and humans. They can be identified in the laboratory "fairly easily, usually within 24 to 48 hours" and "are used worldwide as indicators of fecal contamination and potential public health risks." Enterococci are another "distinct group of bacteria." They too are found in animal and human feces. The recommendation has been made that enterococci be used as bacteriological "indicators" for assessing "public health risk and swimmability," particularly in marine waters. The Department, however, is not convinced that there is "sufficient science at this time" to warrant adoption of this recommendation in states, like Florida, with "warmer climates," and it has not amended Rule 62-303.530, Florida Administrative Code, to provide for the assessment of bacteriological quality using enterococci counts.51 The statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code (which is incorporated by reference in Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code) is as appropriate for determining whether a water should be placed on the "planning list" based upon exceedances of bacteriological water quality criteria as it is for determining whether a water should be placed on the "planning list" for "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Unlike Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, Subsections (1)(b), (1)(c), and (1)(d) of the proposed rule, at least indirectly, allow for waters to be placed on the "planning list" based upon enterococci counts. The closures, advisories, and warnings referenced in Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, are issued, not by the Department, but by local health departments or county governments, and may be based upon enterococci sampling done by those governmental entities. Subsection (1)(b) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based exclusively upon bathing area closures. It was included in the proposed rule upon the recommendation of the EPA "to track their 305(b) guidance." Both freshwater and marine bathing areas in Florida may be closed if circumstances warrant. The Department of Health (which operates the various county health departments) does not close marine beaches, but county governments may. Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based upon any combination of closures, advisories, or warnings "totaling 21 days or more during a calendar year," provided the closures, advisories, and warnings were based upon up-to-date "bacteriological data." Department staff included this provision in the proposed rule in lieu of a provision recommended by the TAC (about which Petitioner Young had expressed concerns) that would have made it more difficult for a water to be placed on the "planning list" as a result of bacteriological data-based closures, advisories, or warnings. In doing so, Department staff exercised sound professional judgment. The 21 days or more of closures, advisories, or warnings needed for listing under the proposed rule do not have to be consecutive, although they all must occur in the same calendar year. Subsection (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, like Subsection (1)(c) of the proposed rule, provides for listing based upon a combination of closures, advisories, or warnings, but it does not require that it be shown that the closures, advisories, or warnings were based upon up-to-date "bacteriological data." Under Subsection (1)(d) of the proposed rule, the closures, advisories, or warnings need only have been based upon "previous [or, in other words, historical] bacteriological data" or "derived relationships between bacteria levels and rainfall or flow." Because assessments of current bacteriological quality based upon "previous bacteriological data" or on "derived relationships between bacteria levels and rainfall or flow" are less reliable than those based upon up-to-date "bacteriological data," Department staff were reasonably justified in requiring a greater total number of days of closures, advisories, or warnings in this subsection of the proposed rule (more than 84) than they did in Subsection (1)(c) of the proposed rule (more than 21). (Like under Subsection (1)(c) of the proposed rule, the days of closures, advisories, or warnings required for listing under Subsection (1)(d) of the proposed rule do not have to be consecutive days.) Subsection (1)(d) was included in the proposed rule in response to comments made at a TAC meeting by Mike Flannery of the Pinellas County Health Department concerning Pinellas County beaches that were "left closed for long periods of time" without follow-up bacteriological testing. Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably limits the closures, advisories, and warnings upon which the Department will be able to rely in determining whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule to those closures, advisories, and warnings based upon "factors . . . related to chronic discharges of pollutants." The TMDL program is designed to deal neither with short-term water quality problems caused by extraordinary events that result in atypical conditions,52 nor with water quality problems unrelated to pollutant discharges in this state. It is therefore sensible to not count, for purposes of determining "planning list" eligibility pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, closures, advisories, and warnings that were issued because of the occurrence of such problems. A "spill," by definition (set out in Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, which is recited above), is a "short term" event that does not include "sanitary sewer overflows or chronic discharges from leaking wastewater collection systems." While a one-time, unpermitted discharge of sewage (not attributable to "sanitary sewer overflow") is a "short- term" event constituting a "sewage spill," as that term is used in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, repeated unpermitted discharges occurring over an extended period of time (with or without interruption) do not qualify as "sewage spills" and therefore Subsection (3) of the proposed rule will not prevent the Department from considering closures, advisories, and warnings based upon such discharges in deciding whether the requirements for listing set forth in Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met. Like "sewage spills," "red tides" are among the events specifically mentioned in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code. "Red tide" is a "very loose term" that can describe a variety of occurrences. It is apparent from a reading of the language in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, in its entirety, that "red tide," as used therein, was intended to describe an event "not related to chronic discharges of pollutants." Department staff's understanding of "red tides" was shaped by comments made at a TAC meeting by one of the TAC members, George Henderson of the Florida Marine Research Institute. Mr. Henderson told those present at the meeting that "red tides are an offshore phenomenon that move on shore" and are fueled by nutrients from "unknown sources" likely located, for the most part, outside of Florida, in and around the Mississippi River. No "contrary scientific information" was offered during the rule development process.53 Lacking "scientific information" clearly establishing that "red tides," as they understood the term, were the product of "pollutant sources in Florida," Department staff reasonably concluded that closures, advisories, and warnings based upon such "red tides" should not be taken into consideration in deciding whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, and they included language in Subsection (3) of the proposed rule to so provide. The "red tides" to which Mr. Henderson referred are harmful algae blooms that form off-shore in the Gulf of Mexico and are brought into Florida coastal waters by the wind and currents. There appears to be an association between these blooms of toxin-producing algae and nutrient enrichment, but the precise cause of these bloom events is "not completely understood." Scientists have not eliminated the possibility that, at least in some instances, these "red tides" are natural phenomena not the result of any pollutant loading either in or outside of Florida. The uncertainty surrounding the exact role, if any, that Florida-discharged pollutants play in the occurrence of the "red tides" referenced in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably justifies the Department's declining, for purposes of determining whether the listing requirements of Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met, to take into consideration closures, advisories, and warnings based upon such "red tides." The exclusions contained in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part II of the proposed rule chapter other than Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62-303.360. This includes the provisions of proposed Rule 62-303.350, Florida Administrative Code, which, as noted above, provides, among other things, that "planning list" eligibility may be based upon "information indicating an imbalance in flora or fauna due to nutrient enrichment, including . . . algal blooms." Accordingly, notwithstanding the "red tides" exclusion in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, the presence of algal blooms of any type "indicating an imbalance in flora or fauna due to nutrient enrichment" will result in the affected water making the "planning list" pursuant to proposed Rule 62-303.350, Florida Administrative Code, to be "assessed further for nutrient impairment." Part II: Proposed Rule 62-303.370, Florida Administrative Code Proposed Rule 62-303.370, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for fish and shellfish consumption." It reads as follows: Fish and Shellfish Consumption Use Support A Class I, II, or III water shall be placed on the planning list for fish and shellfish consumption if: the water segment does not meet the applicable Class II water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or there is either a limited or no consumption fish consumption advisory. issued by the DoH, or other authorized governmental entity, in effect for the water segment, or for Class II waters, the water segment includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification. Changes in harvesting classification from prohibited to unclassified do not constitute a downgrade in classification. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which effectively duplicates the provisions of Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, to the extent that those provisions apply to Class II waters, establishes an appropriate means of determining whether a water should "be placed on the planning list for fish and shellfish consumption." Waters that do not qualify for listing pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, may make the "planning list" based upon "fish consumption advisories" under Subsection (2) of the proposed rule. The Department of Health, which issues these advisories, does so after conducting a statistical evaluation of fish tissue data collected from at least 12 fish. A large number of fish consumption advisories have been issued to date for a number of parameters, including, most significantly, mercury. The first fish consumption advisory was issued in 1989 after "high levels of mercury" were found in the sampled fish tissue. Many fish consumption advisories were issued ten or more years ago and are still in effect. Fish consumption advisories are continued until it is shown that they are not needed. Most of the fish tissue data for the fish consumption advisories now in effect were collected between 1989 and 1992. There is no reason to reject this data as not "being representative of the conditions under which those samples were collected." There has been data collected since 1992, but 1992 was "the last peak year" of sampling. Over the last ten years, the "focus has been on the Everglades" with respect to sampling for mercury, although sampling has occurred in "a broadly representative suite of water bodies statewide." The TAC recommended against using fish consumption advisories for listing coastal and marine waters because of the possibility that these advisories might be based upon tissue samples taken from fish who ingested mercury, or other substances being sampled, outside of the state. Department staff, however, rejected this recommendation and did not include a "coastal and marine waters" exclusion in Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Shellfish Evaluation and Assessment Program, which is referenced in Subsection (3) of proposed Rule 62- 303.370, Florida Administrative Code, is administered by the Florida Department of Agriculture and Consumer Services' Division of Aquaculture's Shellfish Environmental Assessment Section. The Shellfish Environmental Assessment Section (SEAS) is responsible for classifying and managing Florida shellfish harvesting areas in a manner that maximizes utilization of the state's shellfish resources and reduces the risk of shellfish- borne illness. In carrying out its responsibilities, the SEAS applies the "[s]hellfish [h]arvesting [a]rea [s]tandards" set forth in Rule 5L-1.003, Florida Administrative Code, which provides as follows: The Department shall describe and/or illustrate harvesting areas and provide harvesting area classifications as approved, conditionally approved, restricted, conditionally restricted, prohibited, or unclassified as defined herein, including criteria for opening and closing shellfish harvesting areas in accordance with Chapters II and IV of the National Shellfish Sanitation Program Model Ordinance. Copies of the document Shellfish Harvesting Area Classification Maps, revised October 14, 2001, and the document Shellfish Harvesting Area Classification Boundaries and Management Plans, revised October 14, 2001, containing shellfish harvesting area descriptions, references to shellfish harvesting area map numbers, and operating criteria herein incorporated by reference may be obtained by writing to the Department at 1203 Governors Square Boulevard, 5th Floor, Tallahassee, Florida 32301. Approved areas -- Growing areas shall be classified as approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that pathogenic microorganisms, radionuclides, and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be harvested from such areas for direct marketing. This classification is based on the following criteria: The area is not so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous; and The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet one of the following standards during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions: 1) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 43 per 100 ml. (per 5-tube, 3-dilution test) or 2) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 33 per 100 ml. (per 12-tube, single-dilution test). Harvest from temporarily closed approved areas shall be unlawful. Conditionally approved areas -- A growing area shall be classified as conditionally approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvesting shellfish for direct marketing may be dependent upon attainment of established performance standards by wastewater treatment facilities discharging effluent directly or indirectly into the area. In other instances, the sanitary quality of the area may be affected by seasonal populations, climatic and/or hydrographic conditions, non-point source pollution, or sporadic use of a dock, marina, or harbor facility. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting approved area criteria. In order to develop effective operating procedures, these intermittent pollution events shall be predictable. Harvest from temporarily closed conditionally approved areas shall be unlawful. Restricted areas -- A growing area shall be classified as restricted when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that fecal material, pathogenic microorganisms, radionuclides, harmful chemicals, and marine biotoxins are not present in dangerous concentrations after shellfish from such an area are subjected to a suitable and effective purification process. The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet the following standard: The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 88 per 100 ml. and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 260 per 100 ml. (per 5-tube, 3-dilution test) in those portions of the area most probably exposed to fecal contamination during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions. Harvest is permitted according to permit conditions specified in Rule 5L-1.009, F.A.C. Harvest from temporarily closed restricted areas shall be unlawful. Conditionally restricted area -- A growing area shall be classified as conditionally restricted when a sanitary survey or other monitoring program data, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvest of shellfish for relaying or depuration activities is dependent upon the attainment of established performance standards by wastewater treatment facilities discharging effluent, directly or indirectly, into the area. In other instances, the sanitary quality of such an area may be affected by seasonal population, non-point sources of pollution, or sporadic use of a dock, marina, or harbor facility, and these intermittent pollution events are predictable. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting restricted area criteria. Harvest is permitted according to permit conditions specified in Rule 5L- 1.009, F.A.C. Harvest from temporarily closed conditionally restricted areas shall be unlawful. Prohibited area -- A growing area shall be classified as prohibited if a sanitary survey indicates that the area does not meet the approved, conditionally approved, restricted, or conditionally restricted classifications. Harvest of shellfish from such areas shall be unlawful. The waters of all man-made canals and marinas are classified prohibited regardless of their location. Unclassified area -- A growing area for which no recent sanitary survey exists, and it has not been classified as any area described in subsections (2), (3), (4), (5), or (6) above. Harvest of shellfish from such areas shall be unlawful. Approved or conditionally approved, restricted, or conditionally restricted waters shall be temporarily closed to the harvesting of shellfish when counts of the red tide organism Gymnodinium breve[54] exceed 5000 cells per liter in bays, estuaries, passes or inlets adjacent to shellfish harvesting areas. Areas closed to harvesting because of presence of the red tide organism shall not be reopened until counts are less than or equal to 5000 cells per liter inshore and offshore of the affected shellfish harvesting area, and shellfish meats have been shown to be free of toxin by laboratory analysis. The Department is authorized to open and temporarily close approved, conditionally approved, restricted, or conditionally restricted waters for harvesting of shellfish in emergencies as defined herein, in accordance with specific criteria established in operating procedures for predictively closing individual growing areas, or when growing areas do not meet the standards and guidelines established by the National Shellfish Sanitation Program . Operating procedures for predictively closing each growing area shall be developed by the Department; local agencies, including those responsible for operation of sewerage systems, and the local shellfish industry may be consulted for technical information during operating procedure development. The predictive procedure shall be based on evaluation of potential sources of pollution which may affect the area and should establish performance standards, specify necessary safety devices and measures, and define inspection and check procedures. Under Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, only the "downgrading" of an area initially approved for shellfish harvesting to a more restrictive classification will cause a Class II water to be "placed on the planning list for fish and shellfish consumption." The temporary closure of an approved harvesting area will not have the same result. Temporary closures of harvesting areas are not uncommon. These closures typically occur when there is heavy local rainfall or flooding events upstream, which result in high fecal coliform counts in the harvesting areas. While these areas are not being harvested during these temporary closures, "[p]ropagation is probably maximized in closure conditions." This is because, during these periods, there are "more nutrients for [the shellfish] to consume" inasmuch as the same natural events that cause fecal coliform counts to increase also bring the nutrients (in the form detritus) into the area. The Department of Agriculture and Consumer Services (DACS) does not reclassify an area simply because there have been short-term events, like sewage spills or extraordinary rain events, that have resulted in the area's temporary closure. Where there are frequent, extended periods of closures due to high fecal coliform counts in an area that exceed Class II water quality criteria for bacteriological quality, however, one would reasonably expect that reclassification action would be taken. Even if the DACS does not take such action, the water may nonetheless qualify for placement on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, based upon the fecal coliform data relied upon by the DACS in closing the area, provided the data meets the requirements set forth in proposed Rule 62-303.320, Florida Administrative Code. The DACS has never reclassified an area from "prohibited" to "unclassified." David Heil, the head of the SEAS, made a presentation at the April 20, 2000, TAC meeting, during which he enumerated various ways that the Department could determine "impairment as it relates to shellfish harvesting waters" and recommended, over the others, one of those options: combination of the average number and duration of closures over time. None of the options listed by Mr. Heil, including his top recommendation, were incorporated in proposed Rule 62- 303.370, Florida Administrative Code. The TAC and Department staff looked into the possibility of using the option touted by Mr. Heil, but determined that it would not be practical to do so. Relying on the DACS' reclassification of harvesting areas was deemed to be a more practical approach that was "consistent with the way the Department classifies waters as Class II and therefore it was included in the proposed rule."55 Code Part II: Proposed Rule 62-303.380, Florida Administrative Proposed Rule 62-303.380, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for drinking water use support" and, in addition, addresses "human-health based criteria" not covered elsewhere in Part II of the proposed rule chapter. It reads as follows: Drinking Water Use Support and Protection of Human Health. A Class I water shall be placed on the planning list for drinking water use support if: the water segment does not meet the applicable Class I water quality criteria based on the methodology described in section 62-303.320, or a public water system demonstrates to the Department that either: Treatment costs to meet applicable drinking water criteria have increased by at least 25% to treat contaminants that exceed Class I criteria or to treat blue-green algae or other nuisance algae in the source water, or the system has changed to an alternative supply because of additional costs that would be required to treat their surface water source. When determining increased treatment costs described in paragraph (b), costs due solely to new, more stringent drinking water requirements, inflation, or increases in costs of materials shall not be included. A water shall be placed on the planning list for assessment of the threat to human health if: for human health-based criteria expressed as maximums, the water segment does not meet the applicable criteria based on the methodology described in section 62- 303.320, or for human health-based criteria expressed as annual averages, the annual average concentration for any year of the assessment period exceeds the criteria. To be used to determine whether a water should be assessed further for human-health impacts, data must meet the requirements of paragraphs (2), (3), (6), and (7) in rule 62-303.320. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Use of the statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code, is not only appropriate (as discussed above) for making "planning list" determinations based upon "[e]xceedances of [a]quatic [l]ife- [b]ased [c]riteria" and "water quality criteria for bacteriological quality," it is also a reasonable way to determine whether a water should "be placed on the planning list for drinking water use support" based upon exceedances of "applicable Class I water quality criteria" (as Subsection (1)(a) of proposed Rule 62-303.380, Florida Administrative Code, provides) and to determine whether a water should "be placed on the planning list for assessment of the threat to human health" based upon exceedances of other "human-health based criteria expressed as maximums" (as Subsection (2)(a) of the proposed Rule 62-303.380, Florida Administrative Code, provides). Subsection (1)(b) was included in proposed Rule 62- 303.380, Florida Administrative Code, because the TAC and Department staff wanted "some other way," besides having the minimum number of exceedances of "applicable Class I water quality criteria" required by Subsection (1)(a) of the proposed rule, for a Class I water to qualify for "place[ment] on the planning list for drinking water use support." Looking at the costs necessary for public water systems to treat surface water,56 as Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, allows, is a reasonable alternative means of determining whether a Class I water should be "placed on the planning list for drinking water use support." Under Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, the cost analysis showing that the requirements for listing have been met must be provided by the public water system. This burden was placed on the public water system because the Department "does not have the resources to do that assessment on [its] own." The Department cannot be fairly criticized for not including in Subsection (1)(b)1. of proposed Rule 62-303.380, Florida Administrative Code, references to the other contaminants (in addition to blue-green algae) that have "been put on a list by the EPA to be . . . evaluated for future regulations" inasmuch as there are no existing criteria in Chapter 62-302, Florida Administrative Code, specifically relating to these contaminants. Particularly when read together with the third sentence of Subsection (1) of proposed Rule 62-303.300 (which provides that "[i]t should be noted water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62-303.310-353, or to protect human health, which is addressed in sections 62-303.360-380"), it is clear that the "human health-based criteria" referenced in Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, are those numerical criteria in Rule Chapter 62-302, Florida Administrative Code, designed to protect human health. While laypersons not familiar with how water quality criteria are established may not be able to determine (by themselves) which of the numerical water quality criteria in Rule Chapter 62-302, Florida Administrative Code, are "human health-based," as that term is used Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, Department staff charged with the responsibility of making listing decisions will be able to so. "[H]uman health-based criteria" for non-carcinogens are "expressed as maximums" in Rule Chapter 62-302, Florida Administrative Code. "[H]uman health-based criteria" for carcinogens are "expressed as annual averages" in Rule Chapter 62-302, Florida Administrative Code. "Annual average," as that term is used in Rule Chapter 62-302, Florida Administrative Code, is defined therein as "the maximum concentration at average annual flow conditions. (see Section 62-4.020(1), F.A.C.)." Subsection (1) of Rule 62- 4.020, Florida Administrative Code, provides that "[a]verage [a]nnual [f]low "is the long-term harmonic mean flow of the receiving water, or an equivalent flow based on generally accepted scientific procedures in waters for which such a mean cannot be calculated." The "annual mean concentration" is not exactly the same as, but it does "generally approximate" and is "roughly equivalent to," the "maximum concentration at average annual flow conditions." Using "annual mean concentrations" to determine whether there have been exceedances of a "human health-based criteria expressed as annual averages" is a practical approach that makes Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, more easily "implementable" inasmuch as it obviates the need to calculate the "average annual flow," which is a "fairly complicated" exercise requiring "site-specific flow data" not needed to determine the "annual mean concentration."57 Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, does not impose any minimum sample size requirements, and it requires only one exceedance of any "human health-based criteri[on] expressed as [an] annual average[]" for a water to be listed. The limitations it places on the data that can be considered (by incorporating by reference the provisions of Subsections (2), (3), (6), and (7) of proposed Rule 62-303.320, Florida Administrative Code, which have been discussed above) are reasonable. Part III: Overview Part III of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "verified list" of impaired waters for which TMDLs will be calculated, how the list will be compiled, and the manner in which waters on the list will be "prioritized" for TMDL development: Proposed Rules 62-303.400, 62-303.420, 62- 303.430, 62-303.440, 62-303.450, 62-303.460, 62-303.470, 62- 303.480, 62-303.500, 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code. Code Part III: Proposed Rule 62-303.400, Florida Administrative Proposed Rule 62-303.400, Florida Administrative Code, is entitled, "Methodology to Develop the Verified List," and reads as follows: Waters shall be verified as being impaired if they meet the requirements for the planning list in Part II and the additional requirements of sections 62- 303.420-.480. A water body that fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part, shall be determined to be impaired. Additional data and information collected after the development of the planning list will be considered when assessing waters on the planning list, provided it meets the requirements of this chapter. In cases where additional data are needed for waters on the planning list to meet the data sufficiency requirements for the verified list, it is the Department's goal to collect this additional data[58] as part of its watershed management approach, with the data collected during either the same cycle that the water is initially listed on the planning list (within 1 year) or during the subsequent cycle (six years). Except for data used to evaluate historical trends in chlorophyll a or TSIs, the Department shall not use data that are more than 7.5 years old at the time the water segment is proposed for listing on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Pursuant to the first sentence of proposed Rule 62- 303.400, Florida Administrative Code, if a water qualifies for placement on the "planning list" under a provision in Part II of the proposed rule chapter that does not have a counterpart in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, that water will automatically be "verified as being impaired." Examples of provisions in Part II of the proposed rule chapter that do not have counterparts in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, are: the provision in Subsection (3) of proposed Rule 62- 303.330, Florida Administrative Code, that "water segments with at least . . . one failure of the biological integrity standard, Rule 62-302.530(11), shall be included on the planning list for assessment of aquatic life use support"; Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a water will be placed on the "planning list" if it "does not meet applicable Class II water quality criteria for bacteriological quality based upon the methodology described in section 62-303.320," Florida Administrative Code; Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a Class II water will be placed on the "planning list" if it "includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification"; and Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, pursuant to which a water may qualify for "planning list" placement based upon water treatment costs under the circumstances described therein. Waters that are "verified as being impaired," it should be noted, will not automatically qualify for placement on the "verified list." They will still have to be evaluated in light of the provisions (which will be discussed later in greater detail) of proposed Rule 62-303.600, Florida Administrative Code (relating to "pollution control mechanisms") and those of proposed Rules 62-303.700 and 62- 303.710, Florida Administrative Code (which require that the Department identify the "pollutant(s)" and "concentration(s)" that are "causing the impairment" before placing a water on the "verified list"). Of the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," the only ones addressed anywhere in proposed Rules 62-303.310 through 62-303.380 and 62- 303.410 through 62-303.480, Florida Administrative Code, are the requirement that surface water not be "acutely toxic" and the requirement that predominantly marine waters not have silver in concentrations above 2.3 micrograms per liter. In determining whether there has been a failure to meet the remaining "minimum criteria," the Department will exercise its "best professional judgment." Like the second sentence of Proposed Rule 62-303.300, Florida Administrative Code, the second sentence of proposed Rule 62-303.400, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be deemed "impaired." Neither Subsection (1) of proposed Rule 62-303.400, Florida Administrative Code, nor any other provision in the proposed rule chapter, requires that a water be on the "planning list" as a prerequisite for inclusion on the "verified list." Indeed, a reading of Subsection (3)(c) of proposed Rule 62- 303.500, Florida Administration, the "prioritization" rule, which will be discussed later, leaves no reasonable doubt that, under the proposed rule chapter, a water can be placed on the "verified list" without having first been on the "planning list." The second sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, indicates when the Department hopes to be able to collect the "additional data needed for waters on the planning list to meet the [more rigorous] data sufficiency requirements for the verified list," which data the Department pledges, in subsequent provisions of Part III of the proposed rule chapter, will be collected (at some, unspecified time). The Department did not want to create a mandatory timetable for its collection of the "additional data" because it, understandably, wanted to avoid making a commitment that, due to funding shortfalls that might occur in the future, it would not be able to keep.59 If it has the funds to do so, the Department intends to collect the "additional data" within the time frame indicated in the second sentence of proposed Rule 62-303.400, Florida Administrative Code. The Department will not need to collect this "additional data" if the data is collected and presented to the Department by an "interested party" outside the Department. (The proposed rule chapter allows data collected by outside parties to be considered by the Department in making listing decisions, provided the data meets the prescribed quality requirements.) Requiring (as the third and final sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, does) that all data relied upon by the Department for placing waters on the "verified list," except for data establishing "historical trends in chlorophyll a or TSIs," under no circumstances be older than "7.5 years old at the time the water segment is proposed for listing on the verified list" is a reasonable requirement designed to avoid final listing decisions based upon outdated data not representative of the water's current conditions. As noted above, the TAC recommended that listing decisions be based upon data no older than five years old. Wanting to "capture as much data for the assessment process" as reasonably possible, Department staff determined that the appropriate maximum age of data should be two and half years older than that recommended by the TAC (the two and a half years representing the amount of time it could take to "do additional data collection" following the creation of the "planning list"). Part III: Proposed Rule 62-303.410, Florida Administrative Code Proposed Rule 62-303.410, Florida Administrative Code, is entitled, "Determination of Aquatic Life Use Support," and provides as follows: Failure to meet any of the metrics used to determine aquatic life use support listed in sections 62-303.420-.450 shall constitute verification that there is an impairment of the designated use for propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Like proposed Rule 62-303.310, Florida Administrative Code, its analogue in Part II of the proposed rule chapter, proposed Rule 62-303.410, Florida Administrative Code, incorporates the concept of "independent applicability." A failure of any of the "metrics" referenced in the proposed rule will result in "verification" of impairment. Code Part III: Proposed Rule 62-303.420, Florida Administrative Proposed Rule 62-303.420, Florida Administrative Code, the counterpart of proposed Rule 62-303.320, Florida Administrative Code, establishes a reasonable statistical method, involving binomial distribution analysis, to verify impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" due to pollutant discharges. It reads as follows: Exceedances of Aquatic Life-Based Water Quality Criteria The Department shall reexamine the data used in rule 62-303.320 to determine exceedances of water quality criteria. If the exceedances are not due to pollutant discharges and reflect either physical alterations of the water body that cannot be abated or natural background conditions, the water shall not be listed on the verified list. In such cases, the Department shall note for the record why the water was not listed and provide the basis for its determination that the exceedances were not due to pollutant discharges. If the Department cannot clearly establish that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges, it is the Department's intent to determine whether aquatic life use support is impaired through the use of bioassessment procedures referenced in section 62-303.330. The water body or segment shall not be included on the verified list for the parameter of concern if two or more independent bioassessments are conducted and no failures are reported. To be treated as independent bioassessments, they must be conducted at least two months apart. If the water was listed on the planning list and there were insufficient data from the last five years preceding the planning list assessment to meet the data distribution requirements of section 303.320(4) and to meet a minimum sample size for verification of twenty samples, additional data will be collected as needed to provide a minimum sample size of twenty. Once these additional data are collected, the Department shall re-evaluate the data using the approach outlined in rule 62- 303.320(1), but using Table 2, which provides the number of exceedances that indicate a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution. The Department shall limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph. Table 2: Verified List Minimum number of measured exceedances needed to put a water on the Planning list with at least 90% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this From To # of exceedances 20 25 5 26 32 6 33 40 7 41 47 8 48 55 9 56 63 10 64 71 11 72 79 12 80 88 13 89 96 14 97 104 15 105 113 16 114 121 17 122 130 18 131 138 19 139 147 20 148 156 21 157 164 22 165 173 23 174 182 24 183 191 25 192 199 26 200 208 27 209 217 28 218 226 29 227 235 30 236 244 31 245 253 32 254 262 33 263 270 34 271 279 35 280 288 36 289 297 37 298 306 38 307 315 39 316 324 40 325 333 41 334 343 42 344 352 43 353 361 44 362 370 45 371 379 46 380 388 47 389 397 48 398 406 49 407 415 50 416 424 51 425 434 52 435 443 53 444 452 54 453 461 55 462 470 56 471 479 57 480 489 58 490 498 59 499 500 60 (3) If the water was placed on the planning list based on worst case values used to represent multiple samples taken during a seven day period, the Department shall evaluate whether the worst case value should be excluded from the analysis pursuant to subsections (4) and (5). If the worst case value should not be used, the Department shall then re-evaluate the data following the methodology in rule 62-303.420(2), using the more representative worst case value or, if all valid values are below acutely toxic levels, the median value. If the water was listed on the planning list based on exceedances of water quality criteria for metals, the metals data shall be validated to determine whether the quality assurance requirements of rule 62- 303.320(7) are met and whether the sample was both collected and analyzed using clean techniques, if the use of clean techniques is appropriate. If any data cannot be validated, the Department shall re-evaluate the remaining valid data using the methodology in rule 62-303.420(2), excluding any data that cannot be validated. Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, outliers the Department determines are not valid measures of water quality, water quality criteria exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters, water quality criteria exceedances within permitted mixing zones for those parameters for which the mixing zones are in effect, and water quality data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Once the additional data review is completed pursuant to paragraphs (1) through (5), the Department shall re-evaluate the data and shall include waters on the verified list that meet the criteria in rules 62-303.420(2) or 62-303.320(5)(b). Specific Authority: 403.061, 403.067, FS. Law Implemented: 403.021(11), 403.062, 403.067, FS. History -- New The TMDL program is intended to address only water quality impairment resulting from pollutant discharges (from point or non-point sources), as is made clear by a reading of Section 403.067, Florida Statutes, particularly Subsection 6(a)2. thereof (which, as noted above, provides that, "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no maximum daily load will be required"). Subsection (1)(a) of proposed Rule 62- 303.420(1)(a), Florida Administrative Code, is in keeping with this intent. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, should be read together with Subsection (1)(a) of the proposed rule. The "physical alterations of the water body" referred to in Subsection (1)(b) are the same type of "physical alterations" referred to in Subsection (1)(a), to wit: "physical alterations of the water body that cannot be abated." "Best professional judgment" will be used by the Department in determining, as it must under Subsection (1) of proposed Rule 62-303.420, Florida Administrative Code, whether or not exceedances are due to pollutant discharges. If the Department, exercising its "best professional judgment," finds that there is not proof "clearly establish[ing] that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges," the Department, pursuant to Subsection (1)(b) of proposed Rule 62- 303.420, Florida Administrative Code, will determine whether the water in question should be "verified as impaired" for aquatic life use support by relying on "[b]iological [a]ssessment[s]" conducted in accordance with the procedures set forth in proposed Rule 62-303.330, Florida Administrative Code (which, among other things, prohibit reliance on "[b]iological [a]ssessment[s]" based on "data older than ten years"). The results of these "[b]iological [a]ssessment[s]" will not make the Department any better able to "answer the question of whether natural background or physical alterations were responsible for [the] exceedances," but, as noted above, it will enable the Department to make a more informed decision about the overall ability of the water to sustain aquatic life. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, reasonably provides that the water will not be "verified as impaired" for aquatic life use support if there have been two or more "[b]iological [a]ssessment[s]" conducted at least two months apart over the last ten years and "no failures [have been] reported." That a water has "passe[d]" these "[b]iological [a]ssessment[s]" establishes "that aquatic life use support is being maintained" and, under such circumstances, it would be inappropriate to include that water on the "verified list." Looking at just the data "from the last five years preceding the planning list assessment," as the first sentence of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, requires the Department to do, rather than all of the data supporting the placement of the water in question on the "planning list," regardless of when the data was collected, makes sense because, to properly discharge its responsibilities under Section 403.067, Florida Statutes, the Department must ascertain what the current overall condition of the water in question is. As noted above, Subsection (2) of proposed Rule 62- 303.420, Florida Administrative Code, requires a "minimum sample size for verification [of impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria]" of twenty samples," with no exceptions. While this is more than the number of samples required for "planning list" compilation purposes under proposed Rule 62-303.320, Florida Administrative Code, it "is a very small number of samples relative to the [number of] samples that [the Department] would need to take to do a TMDL." Furthermore, unlike any provision in proposed Rule 62-303.320, Florida Administrative Code, Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, provides that, if a water (on the "planning list") lacks the required minimum number of samples, the "additional data" needed to meet the minimum sample requirement "will be collected" (at some unspecified time in the future). Because these additional samples "will be collected," the requirement of proposed Rule 62-303.420, Florida Administrative Code, that there be a minimum of 20 samples should not prevent deserving waters from ultimately being "verified as impaired" under the proposed rule (although it may serve to delay such "verification"). Such delay would occur if a water on the "planning list" had five or more exceedances within the "last five years preceding the planning list assessment" (five being the minimum number of exceedances required for "verification" under proposed Rule 62- 303.420, Florida Administrative Code), but these exceedances were based on fewer than 20 samples. The additional samples that would need to be collected to meet the minimum sample size requirement of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, would have no effect on the Department's "verification" determination, even if these samples yielded no exceedances, given that proposed Rule 62-303.420, Florida Administrative Code, does not contain any provision comparable to Subsection (3) of Rule 62-303.320, Florida Administrative Code, providing that, under certain circumstances, "more recent data" may render "older data" unusable.60 The water would qualify for "verification" regardless of what the additional samples revealed. That is not to say, however, that taking these additional samples would serve no useful purpose. Data derived from these additional collection efforts (shedding light on the severity of the water quality problem) could be used by the Department to help it "establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations," as the Department is required to do pursuant to Subsection (4) of Section 403.067, Florida Statutes. The "calculations [reflected in the table, Table 2, which is a part of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code] are correct." They are based on "a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution." As noted above, the Department did not act unreasonably in selecting this "exceedance frequency" and "confidence level" for use in determining which waters should be "verified as impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." Subsection (4) of proposed Rule 62-303.420, Florida Administrative Code, imposes reasonable quality assurance requirements that must be met in order for "metals data" to be considered "valid" for purposes of determining whether a water has the minimum number of exceedances needed to be "verified as impaired" under the proposed rule. It requires that "Method 1669"-permitted procedures be used only where these procedures are "appropriate." Determining the appropriateness of these procedures in a particular case will require the Department to exercise its "best professional judgment," taking into consideration the amount of the metal in question needed to violate the applicable water quality criterion, in relation to the amount of contamination that could be expected to occur during sample collection and analysis if conventional techniques were used. Doing so should result in "Method 1669"-permitted procedures being deemed "appropriate" in only a few circumstances: when a water is being tested to determine if it exceeds the applicable criterion for mercury, and when testing low hardness waters61 for exceedances of the applicable criterion for cadmium and lead. It is necessary to use "Method 1669"-permitted procedures in these instances to prevent test results that are tainted by contamination occurring during sample collection and analysis. Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, reasonably excludes other data from the "verification" process. It contains the same exclusions that pursuant to Subsection (6) of proposed Rule 62-303.320, Florida Administrative Code, apply in determining whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" ("[v]alues that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, [and] outliers the Department determines are not valid measures of water quality"), plus additional exclusions. Among the additional types of data that will be excluded from consideration under Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are "exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters." Permit violations, by themselves, can cause water quality impairment; however, as the Department has reasonably determined, the quickest and most efficient way to deal with such impairment is to take enforcement action against the offending permittee. To take the time and to expend the funds to develop and implement a TMDL62 to address the problem, instead of taking enforcement action, would not only be unwise and an imprudent use of the not unlimited resources available to combat poor surface water quality in this state, but would also be inconsistent with the expression of legislative intent in Subsection (4) of Section 403.067, Florida Statutes, that the TMDL program not be utilized to bring a water into compliance with water quality standards where "technology-based effluent limitations [or] other pollution control programs under local, state, or federal authority" are sufficient to achieve this result. It is true that the Department has not stopped, through enforcement, all permit violations and that, as Mr. Joyner acknowledged during his testimony at the final hearing, "there are certain cases out there where there are chronic violations of permits." The appropriate response to this situation, however, is for the Department to step up its enforcement efforts, not for it to develop and implement TMDLs for those waters that, but for these violations, would not be impaired. (Citizens dissatisfied with the Department's enforcement efforts can themselves take action, pursuant to Section 403.412(2), Florida Statutes, to seek to enjoin permit violations.) It will be "extremely difficult" to know whether exceedances are due solely to permit violations. Because of this, it does not appear likely that the Department "will be using [the permit violation exclusion contained in] proposed [R]ule [62-303.420(5), Florida Administrative Code] very often." Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, will not exclude from consideration all water quality criteria exceedances in mixing zones . Only those exceedances relating to the parameters "for which the mixing zones are in effect" will be excluded. The exclusion of these exceedances is appropriate inasmuch as, pursuant to the Department's existing rules establishing the state's water quality standards (which the Legislature made clear, in Subsections (9) and (10) of Section 403.067, Florida Statutes, it did not, by enacting Section 403.067, intend to alter or limit), these exceedances are permitted and not considered to be violations of water quality standards. To the extent that there may exist "administratively- continued" permits (that is, permits that remain in effect while a renewal application is pending, regardless of their expiration date) which provide for outdated "mixing zones," this problem should be addressed through the permitting process, not the TMDL program. A "contaminant spill," as that term is used in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, is a short-term, unpermitted discharge [of contaminants63] to surface waters." (See Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, recited above, which defines "spill," as it is used in the proposed rule chapter). It is well within the bounds of reason to exclude from consideration (as Subsection (5) of proposed Rule 62- 303.420, Florida Statutes, indicates the Department will do in deciding whether a water should be "verified as being impaired" under the proposed rule) data collected in such proximity in time to a "contaminant spill" that it reflects only the temporary effects of that "short-term" event (which are best addressed by the Department taking immediate action), rather than reflecting a chronic water quality problem of the type the TMDL program is designed to help remedy. In deciding whether this exclusion applies in a particular case, the Department will need to exercise its "best professional judgment" to determine whether the post-"contaminant spill" data reflects a "short- term" water quality problem attributable to the "spill" (in which case the exclusion will apply) or whether, instead, it reflects a chronic problem (in which case the exclusion will not apply). "Bypass" is defined in Subsection (4) of Rule 62- 620.200, Florida Administrative Code, as "the intentional diversion of waste streams from any portion of a treatment works." "Upset" is defined in Subsection (50) of Rule 62- 620.200, Florida Administrative Code, as follows: "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, careless or improper operation. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of upset provisions of Rule 62-620.610, F.A.C., are met. The "upset provisions of Rule 62-620.610, F.A.C." are as follows: (23) Upset Provisions. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: An upset occurred and that the permittee can identify the cause(s) of the upset; The permitted facility was at the time being properly operated; The permittee submitted notice of the upset as required in condition (20) of this permit; and The permittee complied with any remedial measures required under condition (5) of this permit. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof. Before an enforcement proceeding is instituted, no representation made during the Department review of a claim that noncompliance was caused by an upset is final agency action subject to judicial review. Rule 62-620.610, Florida Administrative Code, also contains "[b]ypass [p]rovisions," which provide as follows: (22) Bypass Provisions. Bypass is prohibited, and the Department may take enforcement action against a permittee for bypass, unless the permittee affirmatively demonstrates that: Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and The permittee submitted notices as required under condition (22)(b) of this permit. If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the Department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass within 24 hours of learning about the bypass as required in condition (20) of this permit. A notice shall include a description of the bypass and its cause; the period of the bypass, including exact dates and times; if the bypass has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The Department shall approve an anticipated bypass, after considering its adverse effect, if the permittee demonstrates that it will meet the three conditions listed in condition (22)(a)1. through 3. of this permit. A permittee may allow any bypass to occur which does not cause reclaimed water or effluent limitations to be exceeded if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of condition (22)(a) through (c) of this permit. The "bypasses" to which the Department refers in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are those that are not prohibited (as Mr. Joyner testified and is evidenced by the grouping of "bypasses" in the same provision with "upsets" and by the fact that there is another provision in Subsection (5) of the proposed rule that deals with permit violations). Since these types of bypasses, as well as upsets, are exceptional events that, under the Department's existing rules, are allowed to occur without the permittee being guilty of a permit violation, it is reasonable, in verifying impairment under proposed Rule 62-303.420, Florida Administrative Code, to discount data tainted by their occurrence, which reflect atypical conditions resulting from legally permissible discharges. The "25-year, 24-hour storm" exclusion was included in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, in response to the TAC's recommendation that the proposed rule "exclude data from extreme storm events." The "25-year, 24-hour storm" is "commonly used in the regulatory context as a dividing line between extremely large rainfall events and less extreme events." It is a rainfall event (or as one witness, the chief of the Department's Bureau of Watershed Management, Eric Livingston, put it, a "gully washer") that produces an amount of rainfall within 24 hours that is likely to be exceeded on the average only once in 25 years. In Florida, that amount is anywhere from about eight to 11 inches, depending on location. Because a "25-year, 24-hour storm" is an extraordinary rainfall event that creates abnormal conditions in affected waters, there is reasonable justification for the Department's not considering, in the "verification" process under proposed Rule 62-303.420, Florida Administrative Code, "25-year, 24-hour storm"-impacted data. This should result in the exclusion of very little data. Data collected following less severe rainfall events (of which there are many in Florida)64 will be unaffected by the "25- year, 24-hour storm" exclusion in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.430, Florida Administrative Proposed Rule 62-303.430, Florida Administrative Code, the counterpart of proposed Rule 62-303.330, Florida Administrative Code, establishes a reasonable non-statistical approach, involving "[b]iological [a]ssessment," to be used as an alternative to the statistical method described in proposed Rule 62-303.420, Florida Administrative Code, in verifying aquatic life use support impairment. Proposed Rule 62-303.430, Florida Administrative Code, reads as follows: Biological Impairment All bioassessments used to list a water on the verified list shall be conducted in accordance with Chapter 62-160, F.A.C., including Department-approved Standard Operating Procedures. To be used for placing waters on the verified list, any bioassessments conducted before the adoption of applicable SOPs for such bioassessments as part of Chapter 62-160 shall substantially comply with the subsequent SOPs. If the water was listed on the planning list based on bioassessment results, the water shall be determined to be biologically impaired if there were two or more failed bioassessments within the five years preceding the planning list assessment. If there were less than two failed bioassessments during the last five years preceding the planning list assessment the Department will conduct an additional bioassessment. If the previous failed bioassessment was a BioRecon, then an SCI will be conducted. Failure of this additional bioassessment shall constitute verification that the water is biologically impaired. If the water was listed on the planning list based on other information specified in rule 62-303.330(4) indicating biological impairment, the Department will conduct a bioassessment in the water segment, conducted in accordance with the methodology in rule 62-303.330, to verify whether the water is impaired. For streams, the bioassessment shall be an SCI. Failure of this bioassessment shall constitute verification that the water is biologically impaired. Following verification that a water is biologically impaired, a water shall be included on the verified list for biological impairment if: There are water quality data reasonably demonstrating the particular pollutant(s) causing the impairment and the concentration of the pollutant(s); and One of the following demonstrations is made: if there is a numeric criterion for the specified pollutant(s) in Chapter 62-302, F.A.C., but the criterion is met, an identification of the specific factors that reasonably demonstrate why the numeric criterion is not adequate to protect water quality and how the specific pollutant is causing the impairment, or if there is not a numeric criterion for the specified pollutant(s) in Chapter 62- 302, F.A.C., an identification of the specific factors that reasonably demonstrate how the particular pollutants are associated with the observed biological effect. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, was written in anticipation of the "adoption of applicable SOPs" for BioRecons, SCIs, and LCIs "as part of [Rule] Chapter 62-160," Florida Administrative Code, subsequent to the adoption of the proposed rule chapter. As noted above, at the time of the final hearing in these cases, the Department was in the process of engaging in rulemaking to incorporate in Rule Chapter 62-160, Florida Administrative Code, the SOPs for BioRecons, SCIs, and LCIs that Department personnel currently use to conduct these "[b]iological [a]ssessment[s]." Until the rulemaking process is completed and any amendments to Rule Chapter 62-160, Florida Administrative Code, become effective,65 to be "used to list a water on the verified list" pursuant to Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, "[b]iological [a]assessment[s]" need meet only the quality assurance requirements of the pre-amendment version of Rule Chapter 62-160 (which does not include SOPs for BioRecons, SCIs and LCIs). Once the amendments become effective, however, "[b]iological [a]assessment[s]," both pre- and post-amendment, will have to have been conducted in substantial compliance with the applicable SOPs included in the new version of Rule Chapter 62-160. No "[b]iological [a]assessment" will be rejected under Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, because it fails to comply with an SOP that, at the time of the "verification" determination, has not been made a part of the Department's rules. The TAC-approved requirement of Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, that there be at least "two failed bioassessments during the last five years preceding the planning list assessment" (as opposed to a longer period of time) in order for a water to be "verified as being [biologically] impaired," without the need to conduct another "[b]iological [a]assessment," is reasonably designed to avoid listing decisions that are based upon test results not representative of the existing overall biological condition of the water in question. Two such failed "[b]iological [a]assessment[s]" will provide the Department with a greater degree of assurance that the water truly suffers from "biological impairment" than it would have if only one failed "[b]iological [a]assessment" was required. If there are fewer than "two failed bioassessments during the last five years preceding the planning list assessment," Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, provides that the Department will conduct another "[b]iological [a]ssessment" to determine whether the water should be "verified as being [biologically] impaired," and failure of this additional "[b]iological [a]assessment" will constitute "verification that the water is biologically impaired." The requirement that there be another failed "[b]iological [a]assessment" to confirm "biological impairment" before a water is "verified as being [biologically] impaired" under Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, is scientifically prudent, particularly in those cases where the water was placed on the "planning list" based upon a "[b]iological [a]ssessment" conducted more than five years earlier. The failure of this additional "[b]iological [a]ssessment" is enough to get the water "verified as being [biologically] impaired" even if there were no failed "[b]iological [a]ssessment[s]" in the "last five years preceding the planning list assessment." Inasmuch as the SCI, compared to the BioRecon, is a more comprehensive and rigorous test, it is reasonable to require (as Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, does) that, in the case of a stream placed on the "planning list" as a result of a failed BioRecon, the additional "[b]iological [a]ssessment" be an SCI, not a BioRecon, and to also require (as Subsection (3) of proposed Rule 62-303.430, Florida Administrative Code, does) that an SCI, rather than a BioRecon, be conducted where a stream has been placed on the "planning list" based upon "other information specified in rule 62-303.330(4) indicating biological impairment." Until such time as the Department develops a rapid bioassessment protocol for estuaries, where the Department is required in Part II of the proposed rule chapter to conduct an additional "[b]iological [a]ssessment, the Department intends to meet this obligation by engaging in "biological integrity standard" testing. TMDLs are pollutant-specific. If a water is "verified as [biologically] impaired," but the Department is not able to identify a particular pollutant as the cause of the impairment, a TMDL cannot be developed. See Section 403.031(21), Florida Statutes (to establish TMDL it is necessary to calculate the "maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards"); and Section 403.067(6)(a)2., Florida Statutes ("The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards"). Accordingly, as noted above, in Subsection (3)(c) of Section 403.067, Florida Statutes, the Legislature has imposed the following perquisites to the Department listing, on its "updated list" of waters for which TMDLs will be calculated, those waters deemed to be impaired based upon "non-attainment [of] biological criteria": If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. Furthermore, Subsection (4) of Section 403.067, Florida Statutes, provides that, if a water is to placed on the "updated list" on any grounds, the Department "must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard." The requirements of Subsection (4) of proposed Rule 62-303.430, Florida Administrative Code, are consistent with these statutory mandates. Proposed Rule 62-303.430, Florida Statutes, does not address waters placed on the "planning list" based upon a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code. Therefore, by operation of proposed Rule 62-303.400, Florida Administrative Code, waters meeting the minimum requirements for "planning list" placement based upon failure of the "biological integrity standard" (a single failure within the ten-year period preceding the "planning list" assessment) will automatically be "verified as being impaired." This is a less stringent "verification" requirement than the Department adopted in proposed Rule 62-303.430, Florida Administrative Code, for "verification" of waters placed on the "planning list" based upon a failed BioRecon, SCI, or LCI. While the results of BioRecons, SCIs, and LCIs are more accurate indicators of "biological impairment" than are the results of "biological integrity standard" testing, the Department's decision to make it more difficult for a water to be "verified as being impaired" if it was placed on the "planning list" based upon a failed BioRecon, SCI, or LCI (as opposed to a failure of the "biological integrity standard") is reasonably justified inasmuch as the "biological integrity standard" is one of the water quality criteria that have been established by the Department in Rule 62-302.530, Florida Administrative Code, whereas, in contrast, neither the BioRecon, SCI, nor LCI are a part of the state's water quality standards. Code Part III: Proposed Rule 62-303.440, Florida Administrative Proposed Rule 62-303.440, Florida Administrative Code, the counterpart of proposed Rule 62-303.340, Florida Administrative Code, prescribes another reasonable method, that is not statistically-based, to verify aquatic life use support impairment. It reads as follows: : Toxicity A water segment shall be verified as impaired due to surface water toxicity in the receiving water body if: the water segment was listed on the planning list based on acute toxicity data, or the water segment was listed on the planning list based on chronic toxicity data and the impairment is confirmed with a failed bioassessment that was conducted within six months of a failed chronic toxicity test. For streams, the bioassessment shall be an SCI. Following verification that a water is impaired due to toxicity, a water shall be included on the verified list if the requirements of paragraph 62-303 430(4) are met. Toxicity data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403. 062, 403.067, FS. History -- New Pursuant to Subsections (1)(a) and (3) of proposed Rule 62-303.440, Florida Administrative Code, a water will automatically be "verified as impaired" for aquatic life use support if it was placed on the "planning list" on the basis of being "acutely toxic," provided that the data supporting such placement was "not collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm." The TAC and Department staff determined that additional testing was not necessary for "verification" under such circumstances because the end point that characterizes "acute toxicity" is so "dramatic" in terms of demonstrating impairment that it would be best to "just go ahead and put [the water] on the list with the two acute [toxicity] failures and start figuring out any potential sources of that impairment." The TAC and Department staff, however, reasonably believed that, because "chronic toxicity tests, in contrast, are measuring fairly subtle changes in a lab test organism" and there is "a very long history within the NPDES program of people questioning the results of the chronic toxicity test," before a water is "verified as being impaired" due to "chronic toxicity," the impairment should be "confirmed with a bioassessment that was conducted within six months of a failed chronic toxicity test"66 (as Subsection (1)(b) of proposed Rule 62-303.440, Florida Administrative Code, provides). It is reasonable to require that the bioassessment, in the case of a stream, be an SCI, rather than a BioRecon, because, as noted above, of the two, the former is the more comprehensive and rigorous test. The requirements of Subsection (2) of proposed Rule 62-303.440, Florida Administrative Code, are consistent with the provisions of the Subsections (3)(c) and (4) of Section 403.067, Florida Statutes. It may be difficult to identify the pollutant causing the impairment inasmuch as toxicity tests are not designed to yield such information. The rationale for excluding, in the assessment process described in proposed Rule 62-303.440, Florida Administrative Code, "data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm" (as Subsection (3) of the proposed rule does) is the same, justifiable rationale (discussed above) supporting the exclusion of such data in the assessment of impairment under proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.450, Florida Administrative Proposed Rule 62-303.450, Florida Administrative Code, the counterpart of proposed Rules 62-303.350 through 62- 303.353, Florida Administrative Code, provides other reasonable ways, not based upon statistics, for waters to be "verified as [being] impaired" for aquatic life use support. It reads as follows: Interpretation of Narrative Nutrient Criteria. A water shall be placed on the verified list for impairment due to nutrients if there are sufficient data from the last five years preceding the planning list assessment combined with historical data (if needed to establish historical chlorophyll a levels or historical TSIs), to meet the data sufficiency requirements of rule 62- 303.350(2). If there are insufficient data, additional data shall be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the thresholds provided in rule 62-303.351- .353, for streams, lakes, and estuaries, respectively, or alternative, site-specific thresholds that more accurately reflect conditions beyond which an imbalance in flora or fauna occurs in the water segment. In any case, the Department shall limit its analysis to the use of data collected during the five years preceding the planning list assessment and the additional data collected in the second phase. If alternative thresholds are used for the analysis, the Department shall provide the thresholds for the record and document how the alternative threshold better represents conditions beyond which an imbalance in flora or fauna is expected to occur. If the water was listed on the planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna as provided in Rule 62-303 350(1), the Department shall verify the imbalance before placing the water on the verified list for impairment due to nutrients and shall provide documentation supporting the imbalance in flora or fauna. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The requirement of the first sentence of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, that there be sufficient (non-historical) data (as measured against the requirements of Subsection (2) of proposed Rule 62- 303.350, Florida Administrative Code67) "from [just] the last five years preceding the planning list assessment" in order for a "nutrient impair[ed]" water to go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code) is reasonably designed to avoid listing decisions based upon outdated data not representative of the water's current conditions. According to the second and third sentences of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, if there is not enough data from this five- year time period, the additional data needed to meet the data sufficiency requirements "will be collected" by the Department, and such additional data, along with the data "from the last five years preceding the planning list assessment," will be evaluated to determine whether one of the applicable thresholds set out in proposed Rules 62-303.351 through 62-303.353, Florida Administrative Code, or an "alternative" threshold established specifically for that water, has been met or exceeded. Deciding whether "alternative, site-specific thresholds" should be used and, if so, what they should be, will involve the exercise of the Department's "best professional judgment," as will the determination as to how, in each case the Department is presented with a water placed on the "planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna," it should go about "verify[ing] the imbalance," as the Department will be required to do by Subsection (2) of proposed Rule 62-303.450, Florida Administrative Code. In some instances, the Department will only need to thoroughly review the "other information" to "verify the imbalance." In other cases, where the "other information" is not sufficiently detailed, new "information" will need to be obtained. How the Department will proceed in a particular case will depend upon the specific circumstances of that case. Code Part III: Proposed Rule 62-303.460, Florida Administrative Proposed Rule 62-303.460, Florida Administrative Code, the counterpart of proposed Rule 62-303.360, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as [being] impaired" for primary contact and recreation use support. It reads as follows: Primary Contact and Recreation Use Support The Department shall review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62-160. If the segment is listed on the planning list based on bathing area closures, advisories, or warnings issued by a local health department or county government, closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when verifying primary contact and recreation use support. The Department shall then re-evaluate the remaining data using the methodology in rule 62- 303.360(1)(c). Water segments that meet the criteria in rule 62-303.360(1)(c) shall be included on the verified list. If the water segment was listed on the planning list due to exceedances of water quality criteria for bacteriological quality, the Department shall, to the extent practical, evaluate the source of bacteriological contamination and shall verify that the impairment is due to chronic discharges of human-induced bacteriological pollutants before listing the water segment on the verified list. The Department shall take into account the proximity of municipal stormwater outfalls, septic tanks, and domestic wastewater facilities when evaluating potential sources of bacteriological pollutants. For water segments that contain municipal stormwater outfalls, the impairment documented for the segment shall be presumed to be due, at least in part, to chronic discharges of bacteriological pollutants. The Department shall then re-evaluate the data using the methodology in rule 62-303.320(1), excluding any values that are elevated solely due to wildlife. Water segments shall be included on the verified list if they meet the requirements in rule 62-303.420(6). Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The first sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, was included in the proposed rule in response to comments made by stakeholders during the rule development process that the Department would be "abdicating [its] authority" if, in determining whether a water was impaired for purposes of TMDL development, it relied solely on action taken by other governmental entities. Department staff agreed that the Department, "as the agency responsible for preparing this list," should at least "review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62- 160," Florida Administrative Code. The rationale for the Department not considering bathing area "closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants . . . when verifying [impairment of] primary contact and recreation use support" (per the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code) is the same, justifiable rationale (discussed above) supporting the exclusions of these closures, advisories, and warnings from consideration in the determination of whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed Rule 62-303.360, Florida Administrative Code. The exclusions set forth in the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part III of the proposed rule chapter other than Subsection (1) of proposed Rule 62-303.460. Pursuant to the third and fourth sentences of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, after the Department determines, in accordance with the first and second sentences of this subsection of the proposed rule, what bacteriological data-based bathing area closures, advisories, and warnings should be counted, it will determine whether there were a total of at least 21 days of such closures, advisories, and warnings during a calendar year (the number required by Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, for placement on the "planning list") and, if there were, it will verify the water in question as being impaired for primary contact and recreation use support. This is the only way for a water to be "verified as being impaired" based upon bathing area closures, advisories, or warnings under the proposed rule chapter. The "criteria" set forth in Subsections (1)(b) and (1)(d) of proposed Rule 62-303.360, Florida Administrative Code (unlike the criteria set forth in Subsection (1)(c) of proposed Rule 62-303.360) are not carried forward in proposed Rule 62- 303.460, Florida Administrative Code. Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, provides another way, based upon a statistical analysis of "exceedances of water quality criteria for bacteriological quality," for a water to be "verified as being impaired" for primary contact and recreation use support. It reasonably requires the Department, in determining whether such impairment exists, to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Under Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, the Department, to the extent practical, will evaluate the source of an exceedance to make sure that it is "due to chronic discharges of human-induced bacteriological pollutants," and, if such evaluation reveals that the exceedance was "solely due to wildlife," the exceedance will be excluded from the calculation. While it is true that "microbial pollutants from [wildlife] do constitute a public health risk in recreational waters," the purpose of the TMDL program is to control human-induced impairment and, consequently, the Department is not required to develop TMDLs "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution." See Section 403.067(6)(a)2., Florida Statutes. Part III: Proposed Rule 62-303.470, Florida Administrative Code Rule 62-303.470, Florida Administrative Code, the counterpart of proposed Rule 62-303.370, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for fish and shellfish consumption use support. It provides as follows: Fish and Shellfish Consumption Use Support In order to be used under this part, the Department shall review the data used by the DoH as the basis for fish consumption advisories and determine whether it meets the following requirements: the advisory is based on the statistical evaluation of fish tissue data from at least twelve fish collected from the specific water segment or water body to be listed, starting one year from the effective date of this rule the data are collected in accordance with DEP SOP FS6000 (General Biological Tissue Sampling) and FS 6200 (Finfish Tissue Sampling), which are incorporated by reference, the sampling entity has established Data Quality Objectives (DQOs) for the sampling, and the data meet the DQOs. Data collected before one year from the effective date of this rule shall substantially comply with the listed SOPs and any subsequently developed DQOs. there are sufficient data from within the last 7.5 years to support the continuation of the advisory. If the segment is listed on the planning list based on fish consumption advisories, waters with fish consumption advisories for pollutants that are no longer legally allowed to be used or discharged shall not be placed on the verified list because the TMDL will be zero for the pollutant. Waters determined to meet the requirements of this section shall be listed on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.470, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" based upon fish consumption advisories pursuant to Subsection (2) of proposed Rule 62- 303.370, Florida Administrative Code. Waters placed on the "planning list" pursuant to Subsections (1) and (3) of proposed Rule 62-303.370, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62- 303.600, 62-303.700, and 62-303.710, Florida Administrative Code). The mere fact that a fish consumption advisory is in effect for a water will be enough for that water to qualify for placement on the "planning list" under Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Department will not look beyond the four corners of the advisory at this stage of the "identification of impaired surface waters" process. Proposed Rule 62-303.470, Florida Administrative Code, however, will require the Department, before including the water on the "verified list" based upon the advisory, to conduct such an inquiry and determine the adequacy of the fish tissue data supporting the initial issuance of the advisory and its continuation. Mandating that the Department engage in such an exercise as a prerequisite to verifying impairment based upon a fish consumption advisory is a provident measure in keeping with the Legislature's directive that the TMDL program be "scientifically based." Department staff's intent, in requiring (in Subsection (1)(a) of proposed Rule 62-303.470, Florida Administrative Code) that there be fish tissue data from at least 12 fish, "was to maintain the status quo" and not require any more fish tissue samples than the Department of Health presently uses to determine whether an advisory should be issued. The SOPs incorporated by reference in Subsection (1)(b) of proposed Rule 62-303.470, Florida Administrative Code, contain quality assurance requirements that are essentially the same as those that have been used "for many years" to collect the fish tissue samples upon which fish consumption advisories are based. These SOPs have yet to be incorporated in Rule Chapter 62-160, Florida Administrative Code. Data Quality Objectives are needed for sampling to be scientifically valid. There are presently no Data Quality Objectives in place for the sampling that is done in connection with the Department of Health's fish consumption advisory program. Pursuant to Subsection (1)(b) of proposed Rule 62- 303.470, Florida Administrative Code, after one year from the effective date of the proposed rule, in order for data to be considered in determining data sufficiency questions under the proposed rule, the sampling entity will have to have established Data Quality Objectives for the collection of such data and the data will have to meet, or (in the case of "data collected before one year from the effective date of this rule") substantially comply with, these Data Quality Objectives. As noted above, the majority of fish consumption advisories now in effect were issued based upon fish tissue data collected more than 7.5 years ago that has not been supplemented with updated data. It "will be a huge effort to collect additional data that's less than seven-and-a-half years old" for the waters under these advisories (and on the "planning list" as a result thereof) to determine, in accordance with Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, whether the continuation of these advisories is warranted. Undertaking this "huge effort," instead of relying on data more than 7.5 years old to make these determinations, is reasonably justified because this 7.5-plus-year-old data that has already been collected may no longer be representative of the current conditions of the waters in question and it therefore is prudent to rely on more recent data. Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, does not specify the amount of fish tissue data that will be needed in order for the Department to determine that there is sufficient data to "support the continuation of the advisory." The Department will need to exercise its "best professional judgment" on a case-by-case basis in making such sufficiency determinations. Part III: Proposed Rule 62-303.480, Florida Administrative Code Proposed Rule 62-303.480, Florida Administrative Code, the counterpart of proposed Rule 62-303.380, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for the protection of human health. It provides as follows: Drinking Water Use Support and Protection of Human Health If the water segment was listed on the planning list due to exceedances of a human health-based water quality criterion and there were insufficient data from the last five years preceding the planning list assessment to meet the data sufficiency requirements of section 303.320(4), additional data will be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the methodology in rule 62-303.380(2) and limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph (not to include data older than 7.5 years). For this analysis, the Department shall exclude any data meeting the requirements of paragraph 303.420(5). The following water segments shall be listed on the verified list: for human health-based criteria expressed as maximums, water segments that meet the requirements in rule 62-303.420(6), or for human health-based criteria expressed as annual averages, water segments that have an annual average that exceeds the applicable criterion. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.480, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" for "assessment of the threat to human health" pursuant to Subsection (2) of proposed Rule 62- 303.380, Florida Administrative Code. Notwithstanding that proposed Rule 62-303.480, Florida Administrative Code, is entitled, "Drinking Water Use Support and Protection of Human Health," waters placed on the "planning list" for drinking water use support pursuant to Subsection (1) of proposed Rule 62- 303.380, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62- 303.700, and 62-303.710, Florida Administrative Code). Proposed Rule 62-303.480, Florida Administrative Code, reasonably requires the Department, in determining whether a water should be "verified as being impaired" for the protection of human health based upon exceedances of "human health-based criteria expressed as maximums," to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Proposed Rule 62-303.480, Florida Administrative Code, also sets forth an appropriate method for use in determining whether a water should be "verified as being impaired" based upon exceedances of "human health-based criteria expressed as annual averages." Only one exceedance of any "human health-based criteria expressed as an annual average" will be needed for a water to be listed under the proposed rule, the same number needed under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, for a water to make the "planning list." Under proposed Rule 62-303.480, Florida Administrative Code, however, unlike under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, the data relied upon by the Department will have to meet the "data sufficiency requirements of section [62]-303.320(4)," Florida Administrative Code, and, in addition, data of the type described in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, as well as data collected more than "five years preceding the planning list assessment," will be excluded from the Department's consideration. Code Part III: Proposed Rule 62-303.500, Florida Administrative As noted above, Subsection (4) of Section 403.067, Florida Statutes, directs the Department, "[i]n association with [its preparation of an] updated list [of waters for which TMDLs will be calculated, to] establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations." Proposed Rule 62- 303.500, Florida Administrative Code, explains how the Department will go about carrying out this statutory directive. It reads as follows: When establishing the TMDL development schedule for water segments on the verified list of impaired waters, the Department shall prioritize impaired water segments according to the severity of the impairment and the designated uses of the segment taking into account the most serious water quality problems; most valuable and threatened resources; and risk to human health and aquatic life. Impaired waters shall be prioritized as high, medium, or low priority. The following waters shall be designated high priority: Water segments where the impairment poses a threat to potable water supplies or to human health. Water segments where the impairment is due to a pollutant regulated by the CWA and the pollutant has contributed to the decline or extirpation of a federally listed threatened or endangered species, as indicated in the Federal Register listing the species. The following waters shall be designated low priority: [W]ater segments that are listed before 2010 due to fish consumption advisories for mercury (due to the current insufficient understanding of mercury cycling in the environment). Man-made canals, urban drainage ditches, and other artificial water segments that are listed only due to exceedances of the dissolved oxygen criteria. Water segments that were not on a planning list of impaired waters, but which were identified as impaired during the second phase of the watershed management approach and were included in the verified list, unless the segment meets the criteria in paragraph (2) for high priority. All segments not designated high or low priority shall be medium priority and shall be prioritized based on the following factors: the presence of Outstanding Florida Waters. the presence of water segments that fail to meet more than one designated use. the presence of water segments that exceed an applicable water quality criterion or alternative threshold with a greater than twenty-five percent exceedance frequency with a minimum of a 90 percent confidence level. the presence of water segments that exceed more than one applicable water quality criteria. administrative needs of the TMDL program, including meeting a TMDL development schedule agreed to with EPA, basin priorities related to following the Department's watershed management approach, and the number of administratively continued permits in the basin. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is anticipated that most waters on the Department's "updated list" will fall within the "medium priority" category. Subsections (4)(a) through (4)(e) of proposed Rule 62-303.500, Florida Administrative Code, describe those factors (including, among others, the "presence of Outstanding Florida Waters" and "the number of administratively continued permits in the basin," the latter being added "based on input from the Petitioners") that will be taken into account by the Department in prioritizing waters within this "medium priority" category; but nowhere in the proposed rule does the Department specify how much weight each factor will be given relative to the other factors. This is a matter that, in accordance with the TAC's recommendation, will be left to the "best professional judgment" of the Department. "[T]here is a lot known about mercury" and its harmful effects; however, as the Department correctly suggests in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, there is not yet a complete understanding of "mercury cycling in the environment" and how mercury works its way up the food chain. "[T]here are a series of projects that are either on the drawing board or in progress now" that, hopefully, upon their conclusion, will give the Department a better and more complete understanding of what the sources of mercury in Florida surface waters are and how mercury "cycles" in the environment and ends up in fish tissue. Until the Department has such an understanding, though, it is reasonable for waters "verified as being impaired" due to fish consumption advisories for mercury to be given a "low priority" designation for purposes of TMDL development (as the Department, in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, indicates it will). Code Part III: Proposed Rule 62-303.600, Florida Administrative As noted above, proposed Rule 62-303.600, Florida Administrative Code, like Subsection (5) of proposed Rule 62- 303.100, Florida Administrative Code, is designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." It reads as follows: Evaluation of Pollution Control Mechanisms Upon determining that a water body is impaired, the Department shall evaluate whether existing or proposed technology- based effluent limitations and other pollution control programs under local, state, or federal authority are sufficient to result in the attainment of applicable water quality standards. If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA,[68] the segment shall not be listed on the verified list. The Department shall document the basis for its decision, noting any proposed pollution control mechanisms and expected improvements in water quality that provide reasonable assurance that the water segment will attain applicable water quality standards. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is beyond reasonable debate that, pursuant to Subsection (4) of Section 403.067, Florida Statutes, before the Department may include impaired waters on the "updated list" of waters for TMDLs will be calculated, it must evaluate whether "technology-based effluent limitations and other pollution control programs" are sufficient for water quality standards in these waters to be attained in the future. (To construe the statute as requiring the Department to simply look back, and not forward into the future, in conducting its mandated evaluation of "pollution control programs" would render meaningless the language in the statute directing the Department to conduct such an evaluation after having determined that these waters are impaired.69 As Mr. Joyner testified at the final hearing in explaining what led Department staff "to conclude that [the Department] should be considering future achievement of water quality standards or future implementation of such [pollution control] programs": [I]t [Subsection (4) of Section 403.067, Florida Statutes] basically requires two findings. It's impaired and these things won't fix the problem. If the "won't fix the problem" required it to be fixed right now in the present tense [to avoid listing], then it couldn't be impaired. So it would just be an illogical construction of having two requirements in the statute.) Proposed Rule 62-303.600, Florida Administrative Code, does not specify when "in the future" water quality attainment resulting from an existing or proposed "pollution control program" must be expected to occur in order for a presently impaired water to not be listed; but neither does Subsection (4) of Section 403.067, Florida Statutes, provide such specificity. Indeed, the statute's silence on the matter was the very reason that Department staff did "not set a time frame for [expected] compliance with water quality standards." Rather than "set[ting] such a time frame," Department staff took other measures "to address the open nature of the statute" and limit the discretion the Legislature granted the Department to exclude presently impaired waters from the "updated list" based upon there being pollution control programs sufficient to result in these waters attaining water quality standards in the future "for the pollutant of concern." They included language in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, requiring that the Department, before exercising such discretion to exclude a presently impaired water from the "updated list," have "reasonable assurance" that water quality standards will be attained and that "reasonable progress" will be made in attaining these standards within a specified time frame, to wit: "by the time the next 303(d) list is scheduled to be submitted to EPA." "Reasonable assurance" is a term that has a "long history" of use by the Department in various programs,70 including its wastewater permitting program.71 Neither sheer speculation that a pollution control program will result in future water quality attainment, nor mere promises to that effect, will be sufficient, under Subsection of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code, to exclude an impaired water from the "updated list." The Department will need to examine and analyze the specific characteristics of each impaired water, as well as the particular pollution control program in question, including its record of success and/or failure, if any, before determining (through the use of its "best professional judgment") whether there is the "reasonable assurance" required by these proposed rule provisions. How much time it will take for an impaired water to attain water quality standards will depend on various water- specific factors, including the size of the water body, the size of the watershed, and whether there are pollutants stored in the sediment. The particular circumstances of each case, therefore, will dictate what constitutes "reasonable progress72 towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA," within the meaning of Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code. Because of the case-specific factors involved in determining "reasonable assurance" and "reasonable progress," it was not practicable for Department staff to specify in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, exactly what would be needed to be shown in each case to establish "reasonable assurance" and "reasonable progress." At the April 26, 2001, rule adoption hearing, Department staff proposed an amendment to proposed Rule 62- 303.600, Florida Administrative, to make the proposed rule more specific by adding "a list of elements that needed to be addressed to provide reasonable assurance" and defining "reasonable progress." The amendment, which was opposed by the DACS and regulated interests, was withdrawn before being considered by the ERC because Department staff felt that is was not "quite well thought out enough," particularly insofar as it addressed the concept of "reasonable progress." Part III: Proposed Rule 62-303.700, Florida Administrative Code As noted above, proposed Rule 62-303.700, Florida Administrative Code, describes the first two phases of the "basin management cycle" and the TMDL-related events that will occur during these phases. It reads as follows: Listing Cycle The Department shall, to the extent practical, develop basin-specific verified lists of impaired waters as part of its watershed management approach, which rotates through the State's surface water basins on a five year cycle. At the end of the first phase of the cycle, which is designed to develop a preliminary assessment of the basin, the Department shall update the planning list for the basin and shall include the planning list in the status report for the basin, which will be noticed to interested parties in the basin. If the specific pollutant causing the impairment in a particular water segment is not known at the time the planning list is prepared, the list shall provide the basis for including the water segment on the planning list. In these cases, the pollutant and concentration causing the impairment shall be identified before the water segment is included on the verified list to be adopted by Secretarial Order. During the second phase of the cycle, which is designed to collect additional data on waters in the basin, interested parties shall be provided the opportunity to work with the Department to collect additional water quality data. Alternatively, interested parties may develop proposed water pollution control mechanisms that may affect the final verified list adopted by the Secretary at the end of the second phase. To ensure that data or information will be considered in the preliminary basin assessment, it must be submitted to the Department or entered into STORET or, if applicable, the DoH database no later than September 30 during the year of the assessment. Within a year of the effective date of this rule, the Department shall also prepare a planning list for the entire state. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The preference expressed in proposed Rule 62-300.700, Florida Administrative Code, for verified lists to be developed on a "basin-specific" basis "as part of the Department's watershed management approach" is consistent with the directive in the first sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that the Department conduct its TMDL assessment for the “basin in which the water body . . . is located.” Proposed Rule 62-300.700, Florida Administrative Code, carries out the mandate in the second sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that, in conducting its TMDL assessment, the Department "coordinate" with "interested parties." Furthermore, the proposed rule makes clear that parties outside the Department will have the opportunity "work with the Department to collect additional water quality data" needed to meet data sufficiency requirements. Identifying the "pollutant and concentration causing the impairment" before including a water on the "verified list," as proposed Rule 62-303.700, Florida Administrative Code, requires be done, is something the Department will need to do to comply with the directive contained in the third sentence of Subsection (4) of Section 403.067, Florida Statutes. Part III: Proposed Rule 62-303.710, Florida Administrative Code Proposed Rule 62-303.710, Florida Administrative Code, addresses the "[f]ormat of [v]erified [l]ist and [v]erified [l]ist [a]pproval." It reads as follows: The Department shall follow the methodology established in this chapter to develop basin-specific verified lists of impaired water segments. The verified list shall specify the pollutant or pollutants causing the impairment and the concentration of the pollutant(s) causing the impairment. If the water segment is listed based on water quality criteria exceedances, then the verified list shall provide the applicable criteria. However, if the listing is based on narrative or biological criteria, or impairment of other designated uses, and the water quality criteria are met, the list shall specify the concentration of the pollutant relative to the water quality criteria and explain why the numerical criterion is not adequate. For waters with exceedances of the dissolved oxygen criteria, the Department shall identify the pollutants causing or contributing to the exceedances and list both the pollutant and dissolved oxygen on the verified list. For waters impaired by nutrients, the Department shall identify whether nitrogen or phosphorus, or both, are the limiting nutrients, and specify the limiting nutrient(s) in the verified list. The verified list shall also include the priority and the schedule for TMDL development established for the water segment, as required by federal regulations. The verified list shall also note any waters that are being removed from the current planning list and any previous verified list for the basin. The verified basin-specific 303(d) list shall be approved by order of the Secretary. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second and fourth sentences of Subsection (1) of proposed Rule 62-303.710, Florida Administrative Code, track the requirements of the third sentence of Subsection (4) and the first and second sentences of Subsection (3)(c), respectively, of Section 403.067, Florida Statutes. Furthermore, as a practical matter, a TMDL cannot be developed if the culprit pollutant is not able to be identified. Subsection (2) of proposed Rule 62-303.710, Florida Administrative Code, was included in the proposed rule because, in most instances, the Department does not consider dissolved oxygen to be a pollutant. The pollutants most frequently associated with exceedances of the dissolved oxygen criteria are nutrients (nitrogen and/or phosphorous). It is essential to identify the "limiting nutrient," as Subsection (3) of proposed Rule 62-303.710, Florida Administrative Code, requires the Department to do, inasmuch as the "limiting nutrient" is the particular pollutant for which a TMDL will be developed. Part IV: Overview Part IV of proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Miscellaneous Provisions." It includes two proposed rules, proposed Rule 62-303.720, Florida Administrative Code, and proposed Rule 62-303.810, Florida Administrative Code. Part IV: Proposed Rule 62-303.720, Florida Administrative Code Proposed Rule 62-303.720, Florida Administrative Code, describes how waters may be removed from the "planning list" and the "verified list." The proposed rule, which is entitled, "Delisting Procedures," cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented" by the proposed rule. Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, addresses the removal of waters from the "planning list." It reads as follows: Waters on planning lists developed under this Chapter that are verified to not be impaired during development of the verified list shall be removed from the State's planning list. Once a water segment is verified to not be impaired pursuant to Part III of this chapter, the data used to place the water on the planning list shall not be the sole basis for listing that water segment on future planning lists. The "removal" provisions of Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will apply to all waters on the planning list "that are verified to not be impaired during development of the verified list," including those waters that had been placed on the "planning list" pursuant to Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, by virtue of their having been on the state's 1998 303(d) list. Waters removed from the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will be eligible to reappear on "future planning lists," but not based exclusively on "the data used to [initially] place the water on the planning list." Additional data will be needed. Subsections (2) and (3) of proposed Rule 62-303.720, Florida Administrative Code, address the removal of waters from the "verified list." They read as follows: Water segments shall be removed from the State's verified list only after completion of a TMDL for all pollutants causing impairment of the segment or upon demonstration that the water meets the water quality standard that was previously established as not being met. For waters listed due to failure to meet aquatic life use support based on water quality criteria exceedances or due to threats to human health based on exceedances of single sample water quality criteria, the water shall be delisted when: the number of exceedances of an applicable water quality criterion due to pollutant discharges is less than or equal to the number listed in Table 3 for the given sample size, with a minimum sample size of 30. This table provides the number of exceedances that indicate a maximum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution, or following implementation of pollution control activities that are expected to be sufficient to result in attainment of applicable water quality standards, evaluation of new data indicates the water no longer meets the criteria for listing established in section 62-303.420, or following demonstration that the water was inappropriately listed due to flaws in the original analysis, evaluation of available data indicates the water does not meet the criteria for listing established in section 62-303.420. New data evaluated under rule 62- 303.720(2)(a)1. must meet the following requirements: they must include samples collected during similar conditions (same seasons and general flow conditions) that the data previously used to determine impairment were collected with no more than 50% of the samples collected in any one quarter, the sample size must be a minimum of 30 samples, and the data must meet the requirements of paragraphs 62-303.320(4), (6) and (7). For waters listed due to failure to meet aquatic life use support based on biology data, the water shall be delisted when the segment passes two independent follow-up bioassessments and there have been no failed bioassessments for at least one year. The follow-up tests must meet the following requirements: For streams, the new data may be two BioRecons or any combination of BioRecons and SCIs. The bioassessments must be conducted during similar conditions (same seasons and general flow conditions) under which the previous bioassessments used to determine impairment were collected. The data must meet the requirements of Section 62-303.330(1) and (2), F.A.C. For waters listed due to failure to meet aquatic life use support based on toxicity data, the water shall be delisted when the segment passes two independent follow-up toxicity tests and there have been no failed toxicity tests for at least one year. The follow-up tests must meet the following requirements: The tests must be conducted using the same test protocols and during similar conditions (same seasons and general flow conditions) under which the previous test used to determine impairment were collected. The data must meet the requirements of rules 62-303.340(1), and the time requirements of rules 62-303.340(2) or (3). For waters listed due to fish consumption advisories, the water shall be delisted following the lifting of the advisory or when data complying with rule 62-303.470(1)(a) and (b) demonstrate that the continuation of the advisory is no longer appropriate. For waters listed due to changes in shellfish bed management classification, the water shall be delisted upon reclassification of the shellfish harvesting area to its original or higher harvesting classification. Reclassification of a water from prohibited to unclassified does not constitute a higher classification. For waters listed due to bathing area closure or advisory data, the water shall be delisted if the bathing area does not meet the listing thresholds in rule 62-303.360(1) for five consecutive years. For waters listed based on impacts to potable water supplies, the water shall be delisted when applicable water quality criteria are met as defined in rule 62- 303.380(1)(a) and when the causes resulting in higher treatment costs have been ameliorated. For waters listed based on exceedance of a human health-based annual average criterion, the water shall be delisted when the annual average concentration is less than the criterion for three consecutive years. For waters listed based on nutrient impairment, the water shall be delisted if it does not meet the listing thresholds in rule 62-303.450 for three consecutive years. For any listed water, the water shall be delisted if following a change in approved analytical procedures, criteria, or water quality standards, evaluation of available data indicates the water no longer meets the applicable criteria for listing. Table 2: Delisting Maximum number of measured exceedances allowable to DELIST with at least 90% confidence that the actual exceedance rate is less than or equal to ten percent. Sample Sizes From To Maximum # of exceedances allowable for delisting 30 37 0 38 51 1 52 64 2 65 77 3 78 90 4 91 103 5 104 115 6 116 127 7 128 139 8 140 151 9 152 163 10 164 174 11 175 186 12 187 198 13 199 209 14 210 221 15 222 232 16 233 244 17 245 255 18 256 266 19 267 278 20 279 289 21 290 300 22 301 311 23 312 323 24 324 334 25 335 345 26 346 356 27 357 367 28 368 378 29 379 389 30 390 401 31 402 412 32 413 423 33 424 434 34 435 445 35 446 456 36 457 467 37 468 478 38 479 489 39 490 500 40 Any delisting of waters from the verified list shall be approved by order of the Secretary at such time as the requirements of this section are met. Subsection (2)(a)1. of proposed rule 62-303.720, Florida Administrative Code, establishes a statistical methodology appropriate for "delisting" waters that have been listed as impaired based upon {e]xceedances of [a]quatic [l]ife- [b]ased [w]ater [q]uality [c]riteria." This "delisting" methodology" is the "equivalent" (as that term is used in Subsection (5) of Section 403.067, Florida Statutes) of the statistical methodology that will be used, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to verify impairment based upon such exceedances. Both methodologies are based on the binomial model and use an "exceedance frequency" threshold of ten percent with a minimum confidence level of 90 percent. A greater minimum sample size is required under Subsection (2)(a)1. of proposed Rule 62-303.720, Florida Administrative Code, because the Department will need, thereunder, "to have at least 90 percent confidence that the actual exceedance rate is less than ten percent" "as opposed to greater than ten percent, which is a bigger range." The "calculations [reflected in the table, Table 3, which is a part of Subsection (2)(a)1. of proposed Rule 62- 303.720, Florida Administrative Code] are correct." There is nothing unreasonable about the "delisting" criteria set forth in Subsections (2)(c) and (2)(j) of proposed Rule 62-303.720, Florida Administrative Code. Subsection (2)(c) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department, where waters have been "listed due to failure to meet aquatic life use support based on toxicity data" (in the form of two failed toxicity tests conducted "two weeks apart over a twelve month period"), to "delist" these waters if the Department has more recent "equivalent [toxicity] data" (in the form of two passed "follow-up toxicity tests," with no failed tests for at least twelve months) showing that the waters are not toxic. Subsection (2)(j) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department to "delist" a water "following a change in approved analytical procedures" only where the change calls into question the validity and accuracy of the data that was relied upon to make the original listing determination and there is other data demonstrating that the water meets water quality standards. Code Part IV: Proposed Rule 62-303.810, Florida Administrative Proposed Rule 62-303.810, Florida Administrative Code, is entitled, "Impairment of Interstate and Tribal Waters." It reads as follows: The Department shall work with Alabama, Georgia, and federally recognized Indian Tribes in Florida to share information about their assessment methodology and share water quality data for waters that form state boundaries or flow into Florida. In cases where assessments are different for the same water body, the Department shall, to the extent practical, work with the appropriate state, Indian Tribe and EPA to determine why the assessments were different. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New
The Issue The issue is whether Respondent, Krista Howard,2/ is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 28, 2017, and subsequently amended on January 11, 2018.3/
Findings Of Fact The Parties Petitioner Defenders is a Florida non-profit corporation that has been in existence since the mid-1980s or earlier. Defenders' primary purpose is to protect and preserve Crooked Lake so that it may remain an Outstanding Florida Water ("OFW") for all members of the public to use and enjoy. Defenders has more than 25 members who reside in Polk County, Florida. Its membership consists of approximately 100 family memberships, mostly comprised of persons who live on or near Crooked Lake. Petitioners Gerards are riparian landowners on Crooked Lake, whose property is located immediately adjacent to, and slightly to the northwest of, Respondent Howard's property. The Gerards' home address is 1055 Scenic Highway North, Babson Park, Florida 33827. Respondent Howard is the applicant for the Consolidated Authorization for the Dock. Howard's property, which is riparian to Crooked Lake, is located at 1045 Scenic Highway North, Babson Park, Florida 33827. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to that statute. Pursuant to that authority, DEP determines whether to issue or deny applications for ERPs. Pursuant to section 253.002, Florida Statutes, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and, in that capacity, reviews and determines whether to issue or deny, applications for approval to use sovereignty submerged lands.5/ DEP Review of the Application The Dock is proposed to be located on sovereignty submerged lands and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and a sovereignty submerged lands lease are required. On or about February 14, 2017, Todd Rickman, Howard's professional contractor who designed the Dock, filed an Application for a Sovereignty Submerged Lands Lease for Existing Structures and Activities6/ ("Application") with DEP's Southwest District Office, seeking approval to construct and operate the Dock. On or about March 15, 2017, DEP requested additional information regarding the project. Howard submitted the requested items, and the Application was determined complete on May 30, 2017. Notice of DEP's receipt of the Lease portion of the Application was provided as required by section 253.115. The comment period commenced on June 15, 2017, and ended on July 6, 2017. As previously noted, on July 28, 2017, DEP issued the Consolidated Notice of Intent, proposing to issue the Consolidated Authorization to construct and operate the Dock. On January 11, 2018, DEP amended the Consolidated Notice of Intent to accurately reflect the "clearly in the public interest" permitting standard for the ERP portion of the Consolidated Authorization, which is applicable to projects proposed in OFWs. Background Crooked Lake Crooked Lake (also, "Lake") is an approximately 4,247-acre freshwater lake in Polk County, Florida. It is an irregularly shaped karst lake roughly resembling an inverted "L," with the longer axis running north to south. It is located on the Lake Wales Ridge. Crooked Lake is designated an OFW by Florida Administrative Code Rule 62-302.700(9)(i)9.7/ The Lake is classified as a Class III waterbody pursuant to Florida Administrative Code Rule 62-302.400(15).8/ The elevations and bottom contours in Crooked Lake vary substantially throughout the Lake. Thus, water depths may, and generally do, vary substantially from one location to another throughout the Lake. The water levels in Crooked Lake fluctuate frequently and, at times, dramatically, depending on rainfall frequency and amounts. A graph prepared by Petitioners' Witness James Tully, using Southwest Florida Water Management District ("SWFWMD") historical water level data for Crooked Lake measured in National Geodetic Vertical Datum of 1929 ("NGVD") shows water levels historically fluctuating from as low as approximately 106 feet in or around 1991, to as high as 123 feet NGVD in or around 1951, 1961, and 2004. Rickman generated a water level graph using the Polk County Water Atlas ("Atlas") website. This graph, which covers the period of 2008 through mid-2017, shows that the water levels in Crooked Lake, for this most recent ten-year period, fluctuated approximately five feet, with the lowest levels falling slightly below 114 feet NGVD for relatively short periods in 2012 and 2013, and the highest level rising to approximately 119 feet NGVD in mid-2017. The competent, credible evidence shows that although water levels in Crooked Lake may occasionally rise to levels at or around 123 feet NGVD, those conditions have been associated with extreme weather events such as hurricanes, are atypical, and are relatively short-lived. The maximum water level in Crooked Lake is subject to control by a weir located south of the Lake. Discharge from the weir occurs at a control elevation of 120 feet NGVD. As such, the water level in parts of Crooked Lake may, at times, temporarily exceed 120 feet NGVD, but will eventually decrease to 120 feet NGVD as the water flows south and is discharged through the weir. To the extent rainfall does not recharge the Lake, water levels may fall below 120 feet NGVD. The ordinary high water line ("OHWL"), which constitutes the boundary between privately-owned uplands and sovereignty submerged lands, has been established at 120.0 feet NGVD for Crooked Lake. Crooked Lake is used for recreational activities such as fishing, swimming, boating, and jet ski use, and there are public and private boat ramps at various points on the lake that provide access to the Lake. There is no marina having a fueling station on the Lake. The credible evidence shows that the northeast portion of the Lake, where the Dock is proposed to be located, experiences a substantial amount of boat and jet ski traffic. This portion of the Lake also is used for swimming, water- skiing, wakeboarding, the use of "towables" such as inner tubes, and for other in-water recreational uses. The Proposed Dock Howard holds fee title by warranty deed to parcel no. 333028-000000-033140 located at 1045 Scenic Highway, Babson Park, Florida.9/ This parcel has approximately 110 linear feet of riparian shoreline on Crooked Lake. The Dock is proposed to be constructed and operated on sovereignty submerged lands adjacent to this riparian upland parcel, which is located on the eastern shore of the northeastern portion of Crooked Lake. The Dock, as proposed, is a private single-family residential dock that will be used by Howard for water-dependent recreational purposes, such as specifically, boating, fishing, swimming, and sunbathing. The Dock is not proposed to be constructed or used by, or to otherwise serve, commercial or multifamily residential development. The Dock is configured as a "T," supported by pilings and consisting of a 4-foot-wide by 152-foot-long access walkway, and an approximately 1,983-square-foot terminal platform comprised of a lower-level platform having four vessel slips and a flat platform roof. Two sets of stairs lead from the lower level of the terminal platform to the platform roof, which will be elevated eight feet above the lower-level platform and will have a railed perimeter. The platform roof will function as a roof for the boat storage area below and a sundeck. The four slips on the Dock's lower-level platform will be used for permanent mooring for up to six watercraft: a 23-foot-long ski boat,10/ a 20-foot-long fishing boat, and four jet skis. As proposed, the Dock will occupy a total area of approximately 2,591 square feet. The lower platform of the Dock is proposed to be constructed at an elevation of 121 feet NGVD. The roof/upper platform will be constructed eight feet above that, at an elevation of 129 feet NGVD. The pilings supporting the Dock will be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water. Pursuant to the Specific Purpose Field Survey ("Survey") for the Lease submitted as part of the Application, the Lease will preempt approximately 2,591 square feet, and closely corresponds to the footprint of the Dock. The submerged lands surrounding the Dock that are not occupied by the footprint of the Dock, including the area between terminal platform and the shoreline, are not included in the preempted area of the Lease.11/ The Survey shows "approximate riparian lines" which delineate Howard's riparian area oriented to the center of the waterbody and to the primary navigation channel in the northeast portion of Crooked Lake. As shown on the version of the Survey initially filed as part of the Application, the Dock was proposed to be located approximately 4.7 feet, at its closest point, from the southern riparian line. However, in response to DEP's request for additional information, the Survey was modified in April 2017, to shift the Dock northward within Howard's riparian area. The Dock is now proposed to be located 25.1 feet, at its closest point, from the southern riparian line, and 29.4 feet, at its closest point, from the northern riparian line. The walkway of the Dock will commence at an approximate elevation of 120 feet NGVD, which corresponds to the OHWL established for Crooked Lake. As previously noted above, the walkway will extend waterward approximately 152 feet, where it will intersect with the terminal platform. The terminal platform will extend another 52 feet waterward. In total, the Dock is proposed to extend waterward approximately 204 feet from the OHWL. Although the Dock would be one of the longest and largest docks on Crooked Lake, the credible evidence establishes that there are several other docks of similar size and/or length on the Lake. Rickman testified that he obtained approvals for, or was otherwise aware of, several docks over 2,000 square feet on the Lake. Additionally, the evidence showed that eight other docks on the Lake are longer than the proposed Dock.12/ Rickman testified that most of the larger docks on Crooked Lake have roofs, and that most of these roofs are pitched, rather than flat.13/ As noted above, the water level in Crooked Lake frequently and, at times, extensively fluctuates. As a result, there are periods during which water depths in parts of the Lake are extremely shallow. Rickman testified that the Dock was designed to extend far enough out into Crooked Lake to reach sufficient water depth to enable Howard to maximize the use of the Dock for boating throughout the year. The Dock is designed to extend out to the point at which the bottom elevation of the Lake is approximately 109.9 feet NGVD. Based on the Atlas' ten-year water level graph for Crooked Lake referenced above, Rickman projected that at this point, the water depth typically would be sufficient to allow Howard to operate her largest vessel, the 23-foot ski boat. The ski boat has a 25-inch draft.14/ The boat will be stored out of the water on a boat lift on the Dock, attached by cables to a sub-roof immediately beneath the platform roof. When being lowered into or hoisted from the water, the boat will be placed in a boat cradle consisting of two containment railings approximately 18 inches high each on either side, and a "V" shaped aluminum bottom with bunks on which the boat is cradled. The aluminum bottom of the cradle was estimated to be two to three inches thick. Although the boat cradle is approximately 18 to 21 inches in "total height,"15/ the cradle does not have to be completely lowered its entire 18- to 21-inch height into the water when used. Steven Howard explained, credibly, that the cradle needs to be lowered into the water only a few inches lower than the ski boat's 25-inch draft to enable the boat to float into or out of the cradle. To that point, Rickman testified that taking into account the 25-inch draft of the ski boat and the "total height" of the boat cradle, between 40 and 44 inches of water depth would be required when the cradle is used in order to avoid coming into contact with the Lake bottom. Based on the Atlas graph showing the lowest water levels for the previous ten-year period at approximately 114 feet NGVD, Rickman designed the Dock to extend out to the 109.9-foot NGVD bottom elevation point. At this point, the projected water depth would be slightly more than four feet during periods of the lowest projected water levels for Crooked Lake. For the Dock to be able to wharf out to 109.9 feet NGVD bottom elevation, it must extend a total of approximately 204 feet waterward into the Lake. The credible evidence establishes that while Howard's ski boat is one of the largest, it is not the largest boat operated on Crooked Lake. Impacts Assessment for Environmental Resource Permit Water Quality Impacts As noted above, Crooked Lake is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in rule 62-302.300 apply to Crooked Lake. The Dock, as proposed to be constructed and operated, is not anticipated to adversely affect or degrade water quality in Crooked Lake. Specifically, as required by the Consolidated Authorization, a floating turbidity curtain will be installed around the boundary of the construction area before construction commences, and it must be left in place until construction is complete and turbidity levels in the work area have returned to background levels. Additionally, as noted, the pilings supporting the Dock must be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water over the life of the structure. The Consolidated Authorization also prohibits the installation and use of fueling equipment at the Dock; prohibits the discharge of sewage or other waste into the water; prohibits liveaboards; prohibits fish cleaning or the installation of fish cleaning stations unless sufficient measures such as sink screens and waste receptacles are in place; and prohibits repair and maintenance activities involving scraping, sanding, painting, stripping, recoating, and other activities that may degrade water quality or release pollutants into the water. Although the Consolidated Authorization imposes a specific condition requiring, for all vessels using the Dock, a minimum 12-inch clearance between the deepest draft of the vessel (with motor in the down position) and the top of submerged resources, it does not specifically address circumstances where the use of the boat cradle, rather than the vessel itself, may come into contact with the Lake bottom. DEP's witness acknowledged that if the boat cradle were to come into contact with the Lake bottom, water quality standards may be violated. Given the information presented at the final hearing regarding the operation of the boat lift and the need for sufficient clearance between the bottom of the boat cradle and the lake bottom, the undersigned recommends that a specific condition be included in the Consolidated Authorization prohibiting contact of the Lake bottom by the boat cradle. This recommended condition is set forth in paragraph 73.A., below. Upon consideration of the conditions imposed by the Consolidated Authorization discussed above, including imposing a specific condition that prohibits contact of the boat cradle with the Lake bottom, the undersigned finds that the Dock will not adversely affect or degrade the water quality of Crooked Lake. Water Quantity Impacts The Dock, as proposed, is a piling-supported structure that will not impound, store, or impede the flow of surface waters. As such, the Dock will not cause adverse flooding to on-site or offsite property, will not result in adverse impacts to surface water storage and conveyance capabilities, and will not result in adverse impacts to the maintenance of surface or ground water levels. Impacts to Fish, Wildlife, and Listed Species and Habitat The Application states, in section 5, question 6, that there is no vegetation on Howard's riparian shoreline. However, the Survey depicts an area of emergent grasses approximately 60 feet wide and extending diagonally approximately 70 feet waterward into the Lake. The Survey depicts this grassed area as straddling the riparian line between Howard's property and the adjacent parcel to the south. The Survey shows the Dock as being located a significant distance waterward of the grassed area, such that no portion of the Dock will be located on or near this grassed area. Additionally, an aerial photograph of Howard's property and the Lake waterward of Howard's property shows a smaller patch of what appears to be emergent grasses further offshore. This grassed area is not shown on the Survey, and it cannot definitively be determined, by examining the Survey and the aerial photograph, whether this grassed area is growing in an area that will be impacted by the Dock. Steven Howard acknowledged that this smaller grassed area may be located at or near the jet ski slip on the southeastern side of the Dock. An environmental assessment of this smaller grassed area was not performed or submitted as part of the Application. Thus, any value that this area may have as fish and wildlife habitat was not assessed as part of DEP's determination that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat. In order to provide reasonable assurance that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat, the undersigned recommends including a specific condition in the Consolidated Authorization requiring this smaller grassed area to be completely avoided during construction and operation of the Dock, or, if avoidance is not feasible, that an environmental assessment be performed prior to construction so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated to determine whether minimization and compensatory mitigation should be required. This recommended condition is set forth in paragraph 73.B., below. As previously noted, the Consolidated Authorization contains a specific condition requiring a minimum 12-inch clearance between the deepest draft of the vessel (with the motor in the down position) and the top of submerged resources for all vessels that will use the docking facility. Compliance with this condition will help ensure that the value of functions provided to fish and wildlife and to listed species and their habitat of any such submerged resources is not adversely impacted by vessels using the Dock. The Consolidated Authorization also contains a specific condition requiring handrails to be installed on the Dock to prevent mooring access to portions of the Dock other than the wetslips. This will help protect submerged resources in shallower areas in the vicinity of the Dock. Fish populations in the immediate area of the Dock site may temporarily be affected during construction of the Dock; however, those impacts are not anticipated to be permanent. Additionally, as previously discussed, the Dock pilings must be wrapped with an impervious material to prevent leaching of pollutants into the water, and once installed, the pilings may provide habitat for fish and a substrate for benthic organisms. Provided that the conditions set forth in the draft Consolidated Authorization, as well as the recommendation regarding the smaller grassed area, are included in the final version of the Consolidated Authorization, it is determined that the construction and operation of the Dock will not adversely impact the value of functions provided to fish, wildlife, or to listed species or their habitat.16/ Impact on Navigation Petitioners assert that the Dock will constitute a hazard to navigation in the northeast portion of Crooked Lake. Specifically, they assert that because the Dock will extend out approximately 204 feet into the Lake, it necessarily will create a navigational hazard to boaters in the vicinity. As support, Petitioners presented evidence consisting of Steven Howard's testimony that an inner tube on which his nephew was riding, that was being pulled behind a motor boat, collided with the Gerards' 84-foot-long floating dock adjacent to Howard's riparian area. Petitioners argue that if an 84-foot-long dock creates a navigational hazard, a 204-foot-long dock would create an even greater navigational hazard. The undersigned does not find this argument persuasive. The portion of Crooked Lake on which the Dock is proposed to be located is approximately a mile and a half to two miles long and one-half to three-quarters of a mile wide. Although this portion of Crooked Lake experiences substantial boat traffic, the evidence shows that the Lake is sufficiently large in this area, even with the Dock in place, to allow safe navigation. To this point, it is noted that there are two other longer docks in the northeastern portion of Crooked Lake, extending 220 and 244 feet into the Lake from the shoreline. There was no evidence presented showing that either of these docks constitutes a navigational hazard.17/ Petitioners also assert that during periods of high water in this portion of Crooked Lake, the Dock will be underwater and thus will present a navigational hazard. In support, they presented photographs taken on October 30, 2017—— approximately six weeks after Hurricane Irma struck central Florida——showing ten docks, out of the 109 docks on Crooked Lake, that were partially or completely submerged.18/ When the photographs were taken, the approximate water elevation was 119.2 feet NGVD. All or a portion of the submerged docks had been constructed at or below the 119.2-foot NGVD elevation. The docks without roofs were mostly or completely invisible under the water. However, for the roofed docks, the roofs remained visible above the water even when their docking platforms were submerged. Here, although the walkway and lower platform of Howard's Dock is proposed to be constructed at an elevation of 121 feet NGVD, the roof will be constructed at an elevation of 129 feet NGVD. Thus, even during the relatively infrequent periods19/ during which the water level in Crooked Lake may exceed 121 feet NGVD, the platform roof will still be visible to vessels navigating in this portion of the Lake. Additionally, the Consolidated Authorization contains a specific condition requiring the waterward end of the Dock to be marked with a sufficient number of reflectors to be visible from the water at night by reflected light. This condition provides additional assurance that the Dock will not present a navigational hazard. For these reasons, it is determined that the Dock will not adversely affect navigation. Other ERP-Related Issues The evidence did not show that the Dock is proposed to be located in or proximate to a "work of the District," as defined in section 373.019(28). The only "work of the District" about which evidence was presented is the weir located south of Crooked Lake. This structure is many thousands of feet south of the Dock. There was no evidence presented showing that the Dock would have any impact on this weir. The Dock, as proposed, was designed by an experienced professional contractor who has designed and installed many docks on Crooked Lake, and, as such, is anticipated to function as proposed. The Dock must be built according to engineering diagrams to the Consolidated Authorization, and as-built drawings must be submitted when Dock construction is complete so that DEP can confirm that the Dock is constructed in accordance with the approved design. The evidence establishes that Howard, as the applicant, and Rickman, as the professional contractor in charge of construction, are financially, legally, and administratively capable of ensuring that the activity will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. No evidence to the contrary was presented. The Dock will be located in the waters of Crooked Lake and will be affixed to the submerged bottom. The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that historical or archaeological resources are anticipated to be impacted by the project. Additionally, the Consolidated Authorization contains a general condition requiring subsurface activity associated with construction of the Dock to immediately cease, and DHR to be contacted, if any prehistoric or historic artifacts, such as pottery or ceramics, stone tools or implements, dugout canoes, or other physical remains that could be associated with Native American cultures or early colonial or American settlements are encountered at any time within the project site area. Additional Recommended Conditions Based on the foregoing, the undersigned recommends that the following specific conditions be included in the Consolidated Authorization, Permit No. 53-0351424-001-EI: A minimum six-inch clearance shall be maintained between the top of all submerged resources and the deepest draft of the cradle of the boat lift while in use. For purposes of this condition, submerged resources consist of the bottom sediment and/or any submerged grasses or other aquatic organisms. Any emergent grasses in the permittee's riparian area shall be avoided during the construction and operation of the Dock. If it is not feasible to avoid these grasses, an environmental assessment of the grassed area shall be performed and submitted to the Department prior to commencing construction, so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated and the extent to which minimization and/or compensatory mitigation is appropriate can be determined. Clearly in the Public Interest Florida Administrative Code Rule 62-4.070, Standards for Issuing or Denying Permits, states in pertinent part: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test 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 Department standards or rules. In addition to the foregoing permitting requirements, because the Dock is proposed to be located in an OFW, Howard also must provide reasonable assurance that the Dock meets the "clearly in the public interest" standard. The "clearly in the public interest" standard does not require the applicant to demonstrate need for the project or a net public benefit from the project. Rather, this standard requires the applicant to provide greater assurances, under the circumstances specific to the project, that the project will comply with the applicable permitting requirements.20/ For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the applicable permitting requirements and the "clearly in the public interest" standard for issuance of the ERP. Impacts Assessment for Sovereignty Submerged Lands Lease Water-Dependency of the Proposed Dock A water-dependent activity is one which can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. See Fla. Admin. Code R. 18-21.003(71). Petitioners argue that the Dock will not constitute a water-dependent activity because the depth of water in the slips may, at times, be insufficient to allow operation of Howard's vessels while complying with the requirement that a minimum 12- inch clearance be maintained between the lowest draft of the vessel and submerged resources. The undersigned finds this argument unpersuasive. The Dock is being constructed specifically for the purpose of enabling Howard to use her vessels for boating——a recreational activity for which use of the water indisputably is an integral part. The Dock's primary purpose is to moor vessels that will be used for the water-dependent recreational activities of boating and fishing, and other water-dependent recreational uses of the Dock include fishing, swimming and sunbathing. Case law interpreting the Florida Administrative Code Chapter 18-21 makes clear that because docks are used for mooring vessels or conducting other in-water recreational uses, they are "water-dependent" activities for purposes of the rules.21/ Thus, even if water depths in the Dock's slips are at times insufficient for vessel mooring or launching,22/ this does not render the Dock not a "water-dependent activity." Resource Management Requirements The preempted area of the Lease is proposed to be used for a Dock that will be used for boating, fishing, and swimming. These traditional in-water recreational uses are consistent with the management purposes of sovereignty submerged lands as described in rule 18-21.004(2)(a). With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock will not result in adverse impacts to sovereignty submerged lands and associated resources. With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock is designed to minimize or eliminate impacts to fish and wildlife habitat and submerged resources. With the inclusion of the currently proposed conditions in the draft Consolidated Authorization, as well as the recommended conditions set forth in paragraphs 73.A. and 73.B., it is determined that the Dock, as designed and constructed, will minimize or eliminate cutting, removal, or destruction of wetland vegetation. Additionally, as discussed above, the proposed Consolidated Approval requires the avoidance of adverse impacts to historic and cultural resources. Riparian Rights Consistent with rule 18-21.004(3)(d), the Dock is proposed to be constructed in Howard's riparian area and will be set back more than 25 feet from the northerly and southerly riparian lines shown on the Survey. Rule 18-21.004(3)(a) prohibits activities authorized under chapter 18-21 from being implemented in a manner that would unreasonably infringe on traditional common law riparian rights, as defined in section 253.141, of upland owners adjacent to sovereignty submerged lands. Similarly, rule 18-21.004(3)(c) requires all structures and activities to be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent riparian owners. Collectively, these provisions prohibit an activity that will occur on sovereignty submerged lands from unreasonably infringing on or unreasonably restricting the riparian rights of upland riparian owners. Riparian rights are rights appurtenant to, and inseparable from, riparian land that borders on navigable waters. § 253.141, Fla. Stat.; Broward v. Mabry, 50 So. 830 (Fla. 1909). At common law, riparian rights include the rights of navigation, fishing, boating, and commerce. Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957). The right of navigation necessarily includes the right to construct and operate a dock to access navigable waters. Belvedere Dev. Corp. v. Dep't of Transp., 476 So. 2d 649 (Fla. 1985); Shore Vill. Prop. Owners' Ass'n v. Dep't of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002). Common law riparian rights also include the right to an obstructed view. Lee Cnty v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998). Many of these common law riparian rights have been statutorily codified in section 253.141. Statutory riparian rights include the "rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law." § 253.141(1), Fla. Stat. At issue in this case are the competing riparian rights of next-door neighbors——i.e., Howard's right to wharf out to navigable waters for purposes of boating and other water- dependent recreational activities, and the Gerards' right to an unobstructed view. The question is whether Howard's proposed construction and operation of a dock of sufficient length to enable her to use her boats would unreasonably infringe on or unreasonably restrict the Gerards' right to an unobstructed view of the Lake. By virtue of the riparian rights appurtenant to Howard's riparian property, she is entitled to wharf out to water deep enough to enable her to navigate. She owns two boats, one of which pulls a draft of 25 inches, and the other, a draft of 20 inches, which she uses to navigate the Lake. Thus, an essential aspect of Howard's riparian right of navigation is her ability to construct and operate a dock long enough to enable her to reach water depths sufficient to use these boats. However, as noted above, this right is not unfettered. Howard's exercise of her riparian navigation right cannot unreasonably infringe on Gerard's right to an unobstructed view. Florida case law holds that the right to an "unobstructed" view does not entail a view free of any infringement or restriction whatsoever by neighboring structures or activities. In Hayes, the court defined the right as "a direct, unobstructed view of the [c]hannel and as well a direct, unobstructed means of ingress and egress . . . to the [c]hannel." Id. at 801 (emphasis added). The court then prescribed the rule that "in any given case, the riparian rights of an upland owner must be preserved over an area 'as near as practicable' in the direction of the [c]hannel so as to distribute equitably the submerged lands between the upland and the [c]hannel." Id. (emphasis added). To the extent there is no channel in this portion of the Lake, Hayes dictates that riparian rights must be apportioned equitably, so that a riparian owner's right to an unobstructed view can extend only from the owner's property in the direction of the center of the Lake. Kling v. Dep't of Envtl. Reg., Case No. 77-1224 (Fla. DOAH Oct. 6, 1977; Fla. DER Nov. 18, 1977) at ¶¶ 11-12 (emphasis added). Here, no evidence was presented showing that the Dock——which will be located immediately south and east of the Gerards' riparian property and attendant riparian area——will present an obstruction to the Gerards' view of the Lake channel. Additionally, the evidence did not establish that Howard's Dock would obstruct the Gerards' view of the center of the northeast portion of Crooked Lake, which is located west and slightly south of their property.23/ Administrative precedent in Florida provides additional support for the determination that the Dock will not unreasonably infringe on the Gerards' right to an unobstructed view. In O'Donnell v. Atlantic Dry Dock Corporation, Case No. 04-2240 (Fla. DOAH May 23, 2005; Fla. DEP Sept. 6, 2005), riparian owners challenged the proposed approval of expansions of sovereignty submerged lands leases authorizing Atlantic Dry Dock, a neighboring commercial shipyard, to expand its shipyard facilities and install new docking facilities. The administrative law judge noted that although the expanded shipyard would further encroach on the riparian owners' already somewhat-restricted view from their property, it would not substantially and materially obstruct the Petitioners' view to the channel. He commented: "it [their view] may be further obstructed to the west in the direction of the Atlantic Marine yard, but not in the direction of the channel." To that point, he found that although "any lateral encroachment on the Petitioners' line-of-sight to the channel by the large eastern dry dock proposed will be an annoyance, . . . [it] will not rise to the level of a substantial and material interference or obstruction of the Petitioners' view to the channel." Id. at ¶ 119. He found that "there is no 'special riparian right' to a view of the sunset, just as there was no right to a particular object of view . . . by the riparian owners complaining in the Hayes case." Id. at ¶ 120. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998), also is instructive. In Castoro, neighboring riparian owners challenged the proposed issuance of an environmental approval and sovereignty submerged lands lease for a 227-foot-long dock having a terminal platform with boat lift. The owners contended that due to the dock's length, it would impermissibly obstruct their views of the water. The administrative law judge rejected that contention, distinguishing the circumstances from those in Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998), in which the construction of a bridge that blocked 80 percent of the riparian owners' view of the channel was held to constitute a "substantial and material" obstruction to the riparian right of view. The ALJ noted that although the dock would have "some impact on the neighbors' views" and their use of the waterbody, it did not unreasonably impact their riparian rights to an unobstructed view or to use of the waterbody. Id. at ¶¶ 73-74. In Trump Plaza of the Palm Beaches Condominium v. Palm Beach County, Case No. 08-4752 (Fla. DOAH Sept. 24, 2009; Fla. DEP Oct. 8, 2009), a condominium association challenged the proposed issuance of a sovereignty submerged lands use approval to fill in a dredged area and create mangrove islands in the Lake Worth Lagoon, alleging, among other things, that the creation of the mangrove islands would unreasonably infringe on their riparian right to an unobstructed view. In rejecting this position and recommending issuance of the submerged lands use approval, the ALJ noted that the area obstructed by the mangrove islands would be negligible compared to the remaining expanse of the view, and further noted that the owners' real concern was directed at the aesthetics of the project——specifically, they did not want to view mangrove islands. The ALJ stated: "[t]he evidence supports a finding that while the project will undoubtedly alter the view of the water from [the riparian owners' property], the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights." Id. at ¶ 86. Applying these case law principles, it is determined that the Dock will not unreasonably infringe on or unreasonably restrict the Gerards' riparian right to an unobstructed view. To that point, the cases make clear that the right to an "unobstructed" view is not an unfettered right to a view of the water completely free of any lateral encroachment, but, instead is the right of a view toward the channel or the center of a lake without unreasonable infringement or restriction. Here, although the Dock will laterally encroach on the Gerards' full panoramic view of the Lake——and, as such, may even constitute an annoyance, the evidence did not show that the Dock will obstruct or otherwise restrict their view to the channel or the center of the Lake. Moreover, to the extent the Gerards have expressed concern about the Dock interfering with their view of the south shore of the Lake, O'Donnell makes clear the desire to have a particular object of view——here, the south shore of the Lake——is not a legally protected riparian right. It is also found that the Dock will not unreasonably interfere with the Gerards' riparian rights of ingress, egress, boating, or navigation. As previously noted, the Dock will be located at least 25 feet inside the riparian lines established for Howard's upland property, and, it will not be constructed in a location or operated in a manner that will obstruct, interfere with, or restrict the Gerards' access to the Lake or to sufficient water depths to enable navigation.24/ The evidence also did not establish that the Dock will restrict or otherwise interfere with the Gerards' use of their riparian area for ingress and egress, boating, fishing, bathing, or other riparian uses. In sum, it is concluded that the Dock will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners. Accordingly, it is determined that the Dock will meet the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 63 through 67, it is determined that the Dock will not constitute a navigational hazard in violation of rule 18-21.004(7)(g). Not Contrary to the Public Interest Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. To meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro, at ¶ 69. For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the "not contrary to the public interest" standard required for issuance of the Lease. Demonstration of Entitlement to ERP Howard met her burden under section 120.569(2)(p) to present a prima facie case of entitlement to the ERP by entering into evidence the Application, the Notice of Intent, and supporting information regarding the proposed Dock. She also presented credible, competent, and substantial evidence beyond that required to meet her burden under section 120.569(2)(p) to demonstrate prima facie entitlement to the ERP. The burden then shifted to Petitioners to demonstrate, by a preponderance of the competent substantial evidence, that the Dock does not comply with section 373.414 and applicable ERP rules. For the reasons discussed above, it is determined that Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding. Accordingly, for the reasons addressed above, it is determined that Howard is entitled to issuance of the ERP for the Dock. Demonstration of Entitlement to Lease As previously discussed, Howard bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Dock meets all applicable statutory and rule requirements for issuance of the Lease for the Dock. For the reasons discussed above, it is determined that Howard met this burden, and, therefore, is entitled to issuance of the sovereignty submerged lands lease for the Dock. Petitioners' Standing Defenders' Standing As stipulated by the parties and noted above, Defenders is an incorporated non-profit entity created for the primary purpose of protecting and preserving Crooked Lake so that it may remain an OFW for all members of the public to enjoy. Defenders has been in existence since at least the mid- 1980s. Robert Luther, the president of Defenders, testified that the organization's purpose also entails providing education and promoting public awareness in order to preserve the natural beauty, water quality, ecological value, and quality of life around Crooked Lake. As stipulated by the parties and noted above, Defenders has more than 25 members. Luther testified that Defenders has approximately 100 family members, most of whom live on or around Crooked Lake. He noted that many of Defenders' members own boats, which they park at a local boat landing on the Lake. Based on this testimony, it is inferred that these members operate their boats on Crooked Lake. After receiving the public notice of the project, Defenders' board of directors voted to oppose issuance of the Consolidated Authorization for the Dock. Luther testified that the board's decision was based on the determination that "it was clearly within the public interest" to oppose the Dock. Gerards' Standing The Gerards reside at 1055 Scenic Highway, Babson Park, Florida. Their riparian property is immediately adjacent to, and northwest of, Howard's property. The Gerards own a floating dock that is located within their riparian area.25/ The dock consists of two 4-foot- wide by 30-foot-long ramps attached to a 24-foot-long by 8-foot- wide pontoon boat. Priscilla Gerard testified that she enjoys spending time sitting and reading books on the beach in front of her property, and that having that area to sit and read is a significant aspect of her enjoyment of her lakefront property. Ms. Gerard observed that extensive boating activities in the northeast portion of the Lake on weekends is disruptive, and interferes with her use of her beach for relaxing and reading. She particularly noted that boats operating very close to the shore cause waves to splash up on her beach, interfering with her ability to sit and read close to the shore. She did not contend that Howard's use of the Dock for boating would contribute to the disruptive nature of existing boat traffic in the vicinity. Ms. Gerard has viewed the plans for the proposed Dock and is very concerned that due to its size, her view of the south side of the Lake will be completely blocked. She acknowledged, and other competent, credible evidence showed, that there are other docks on the Lake in the vicinity of her riparian property. The evidence shows that existing docks having lengths of 145 feet and 170 feet are located in the vicinity of, and are visible from, the Gerards' property. She testified that an existing dock and tiki hut block her view of the Lake to the north. She acknowledged that although Howard's Dock, if constructed as proposed, may somewhat obstruct her view to the left (south) of her property, it would not block her view straight out into the Lake. Phillip Gerard testified that he has boated extensively on Crooked Lake in a variety of vessel types. He further testified that he has observed a range of boating practices on Crooked Lake, including seeing water skiers and persons being towed behind motorized vessels on inner tubes and other types of "towables." He testified that, based on his personal observations, persons being towed do not have independent control of the speed or direction of the "towable"; thus, depending on the direction in which the towing vessel turns, the towable may be slung to the left or the right. Gerard commented that such lack of control could result in a person riding on a towable colliding with a dock, and he noted that Howard's nephew, who was riding on an inner tube being towed by a boat, was involved in such a collection with his (Mr. Gerard's) own dock. Mr. Gerard did not testify that the Dock would present a navigational hazard to, or otherwise interfere with, the Gerards' riparian right of ingress and egress. Neither of the Gerards testified that the Dock would impact their ability to access navigable waters in the Lake. Mr. Gerard acknowledged that if Howard's Dock were constructed, boats that currently travel very close to the shoreline of his property would be forced to swing further out in the Lake, away from his riparian shoreline, in order to avoid the Dock.
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 approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft of Permit No. 53-0351424-001-EI, as modified to include the Additional Recommended Conditions set forth in paragraphs 73.A. and 73B. DONE AND ENTERED this 5th day of July, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 5th day of July, 2018.
The Issue Whether the activities conducted on respondent's property required a dredge/fill permit and whether respondent violated the conditions of the permit issued on February 15, 1985.
Findings Of Fact Respondent is the record holder of a parcel of land located within Section 35, Township 45, South, Range 21 East, in Lee County, Florida. Respondent's property is contiguous to Pine Island Sound, a Class II, Outstanding Florida Water. Maureen Powers, an Environmental Specialist with the Department initially inspected respondent's property on May 23, 1984, after the Department received an anonymous complaint that someone was clearing away mangroves on the property. Ms. Powers-discovered that an earthen-fill road had been constructed on the property, and a portion of the road, 24' x 43'; was located within the landward extent of the state's waters. The determination that the portion of the road was within the Department's jurisdiction was based on the dominance of black and white mangroves. There had been recent mangrove cutting in the area, and a pile of vegetative debris, the result of the cutting, had been placed in the jurisdictional wetlands contiguous to Pine Island Sound. On June 1, 1984, Ms. Powers met with respondent in Langley Adair's office to discuss the violations observed on May 23, 1984, and to discuss the resolution of these violations. Respondent agreed to remove all of the earthen fill and vegetative debris that he had deposited within the jurisdictional wetlands. He agreed to refrain from any further work within the jurisdictional area prior to receiving a permit from the department. He also agreed to open up a flow channel in the berm along Pine Island Sound to restore circulation to the area. On July 11, 1984, Ms. Powers conducted an on-site inspection and discovered that the vegetative debris and the fill material had not been removed. Further, it was apparent that respondent's proposed home site, outlined by string and stakes, was submerged and directly connected by water to Pine Island Sound. The water standing on the property covered a portion of the fill area. On August 8, 1984, another inspection was performed, and it was discovered that respondent still had not removed the fill materials. The condition of the property was essentially the same as it had been on July 11, 1984. By letter dated August 20, 1984, respondent was again notified of the violations and reminded that he had agreed on June 1, 1984, to remove the vegetative and earthen fill. Respondent was informed that he needed to remove the fill materials within 30 days of receipt of the letter in order to avoid further enforcement action. On September 5, 1984, Ms. Powers again inspected the property and found that the proposed homesite and a portion of the fill were still submerged, that the water connected directly with Pine Island Sound and the fill materials had not been removed. Also apparent was a flume of milky white water which originated at the toe of the fill and continued into Pine Island Sound. Water samples were taken which revealed that the erosion of the unauthorized fill was resulting in a violation of state surface water quality criteria, specifically, turbidity1 greater than 29 Nephelometric Turbidity Units above natural background. The background sample, taken upstream from the site of the discharge, had a value of 5.2 turbidity units. The water sample taken two feet from the toe of the fill had a value of 69 turbidity units, and the sample from Pine Island Sound waterward of the mangrove fringe had a value of 46 turbidity units. On October 9, 1984, a letter was sent to respondent which pointed out that the earthen and vegetative fill had not been removed and notifying respondent that erosion of the earthen fill into the waters of Pine Island Sound had resulted in violation of surface water quality criteria. Respondent was requested to immediately cease and desist from all unauthorized. activity under the Department's jurisdiction. To clarify the situation, original photos of the site were sent with the letter which showed the earthen fill, the vegetative debris, and the turbid water leaving the site. A diagram of the site was also included to show the location fill materials that were to have been removed. On October 25, 1984, Ms. Powers met with Mr. Decker at the site. Ms. Powers showed respondent the earthen fill and vegetative debris that should have been removed. Ms. Powers noted that the waterward 23' x 24' section of the earthen fill had become heavily colonized by black mangrove seedings and, therefore, excepted that portion of the fill from the removal requirement so that the seedlings would not be disturbed. Mr. Decker stated that he would remove the unauthorized fill within two weeks. Meanwhile, apparently in September, respondent had submitted a permit application. Mr. Beaver was the field inspector assigned by DER to evaluate the application and make a recommendation on the feasibility of the project to the dredge and fill supervisor. On October 8, 1984, Mr. Beaver performed the field inspection at the site, and on October 23, 1984, issued his permit application appraisal recommending that the application be denied. Mr. Beaver recommended that the project be reconsidered for a permit if, among other things, the house site were removed from the landward extent of the state waters and located in the uplands, the septic tank were removed from the low lying portions of the site, and previously cut areas were allowed to regrow in native vegetation. On November 15, 1984, Mr. Beaver met with Mr. Decker and Mr. Cantrell, the district supervisor of dredge and fill, to discuss the project. Mr. Cantrell asked how the project could be modified so that Mr. Decker could have his house in the location where he wanted it. Mr. Beaver suggested a stilt, elevated house with a small fill pad that would allow access to the entrance of the house. The house would have to be elevated -enough so that revegetation of wetland plants could occur underneath the house structure and water flow could be maintained. On November 19, 1984, Ms. Powers and Mr. Beaver met Mr. Decker at the property. Ms. Powers and Mr. Beaver staked the DER jurisdiction line and marked the proposed location of Mr. Decker's boardwalk. Mr. Decker asked about placing wood chip mulch on the wetlands on his property in order to beautify the area. Mr. Decker was informed that wood chip mulch was considered vegetative fill and would require modification of his permit application. Subsequent to the meeting of November 15 and the on- site inspection of November 19, Mr. Decker modified his project. However, wood chip mulch was not mentioned. On December 7, 1984, Mr. Beaver recommended that the application be approved subject to specified conditions, which were ultimately incorporated into the permit. On December 11, 1984, Ms. Powers inspected the site and discovered that a large pile of wood chips had been placed on the northeast end of the fill road waterward of the jurisdiction line. The vegetative debris and earthen fill that had previously been on the project had not been removed. Respondent was notified of the violations by a Cease and Desist letter dated January 4, 1985. The letter pointed out that respondent had been told specifically that wood chip mulch was considered vegetative fill and that dredge/fill permit would be required prior to the placement of any fill material. On February 5, 1984, respondent met with DER, officials to discuss the violations. Mr. Decker stated that the fill had been removed as requested. The Department informed Mr. Decker that an inspection would be performed and, if the fill had not been removed, the Department would pursue formal enforcement action. On February 7, 1985, the site was inspected none of the fill material had been removed. A subsequent inspection on February 20, 1985, revealed that the wood chips had been spread throughout the jurisdictional wetlands. On February 15, 1985, respondent received a permit to fill and to construct a dock and boardwalk. The specific conditions of the permit include the following: 2. A 20' x 16' - 4" fill pad shall be the only fill placed waterward of the jurisdictional line. This fill pad will be composed of clean sand and have the banks stabilized by a riprap revetment with a slope not greater than 2H:1V. * * * The house and all associated structures shall be built upon stilts with concrete footings and/or wooden pilings. On-site turbidity control devices shall be installed and properly maintained to localize turbidity impacts to the construction area. * * * All vegetative debris, trash and spoil material resulting from concrete footing placement shall be removed from the landward extent of State Waters as defined by the jurisdiction line staked by the DER. Upon completion of construction, non- filled areas beneath the stilt house and associated structures shall be returned to original grade if they were altered by construction. Wetland vegetation shall be planted in the previously cleared area and mangroves removed by construction activities shall be replaced on a 2 for 1 basis with 80% survival over a three year period. * * * 11. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.111 - Criteria - Class II Waters Shellfish Propagation or Harvesting, Surface Waters General Conditions 2 and 5 of the permit provide: 2. This permit is valid only for the specific processes and operation applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for 81' filled area was located within the landward extent of the state waters. 19. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 2\', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the revocation and enforcement action by the department. 5. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant or aquatic life or property and penalties therefor caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, unless specifically authorized by an order from the department. On March 19, 1985, an inspection of the property revealed that Mr. Decker had totally ignored the conditions of his permit. Rather than a fill pad of 20' x 16', respondent had filled an area approximately 78' x 81'.2 The fill was unstabilized, and no turbidity control devices were in place. Fill material had been used to construct a earthen berm across a natural flow channel, blocking the flow of water onto the property. Further, the vegetative debris resulting from the construction of the boardwalk had been deposited in the mangrove wetlands. On March 22, 1985, a Notice of Violation and. Orders for Corrective Action was sent to the respondent. Respondent received the notice on or about March 26, 1985. The landward extent of the state waters on respondent's property, the area in which a DER permit is required for dredging and filing, was determined by the presence of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), and saltwort (Basis maritime) as the dominant species. The jurisdiction line was originally staked on November 19, 1984, and was reestablished on April 23, 1985, from remaining landmarks, due to the original markers being removed. The 78' x81' filled area was located within the landward extent of the state waters. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 21/2', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the jurisdictional wetlands, but respondent placed a septic tank and drainfield in that area.3 By filling an area several times the size of the area authorized, respondent has seriously violated the conditions of the permit. A fill area of the size that now exists eliminates the habitat and water quality functions that the area historically performed. Respondent has violated Specific Condition #4, which required that the house and associated structures be built on stilts. The purpose of such a requirement is to preserve undisturbed the existing substrate, which constitutes the base of the food chain, and to allow for a free flow of water across the site, which is essential to the health of the mangrove system. Respondent not only filled an area larger than his proposed house, he poured a solid, continuous, concrete foundation on top of the fill, which would prevent the flow of water should the water rise high enough to come onto the filled area.4 By filling the area, destroying the substrate, and preventing the flow of water into the area, respondent has violated Specific Condition #4 of the permit. Respondent violated Specific Condition #5 of his permit in that respondent failed to install any turbidity control devices. Turbidity control devices of some sort are necessary in a fill area such as the one in this case. Turbidity screens or staked hay bales could have been used. Respondent also violated Specific Condition #8. Construction debris and vegetative debris were located throughout the area. Although respondent technically has not violated Specific Condition #9, in that it requires acts to be performed "upon completion of construction", respondent has made compliance with that provision an impossibility because he has filled the "non- filled areas beneath the stilt house" and therefore there are no "non-filled areas" to return to original grade. Respondent has never requested that his permit conditions and requirements be modified. By his actions, respondent has repeatedly shown a complete disregard for the requirements of the law, and he has totally ignored the conditions set forth in the permit. Mr. Decker was not qualified as an expert and I did not find him to be a credible witness. The reasonable costs and expenses incurred by the Department in relation to the enforcement aspects of this action are $866.17. These costs and expenses were incurred by the Department in its effort to control and abate pollutants and to restore the waters and property of the state to their former condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the respondent's permit, number 360902245, be revoked that the respondent be ordered to make payment to the Department in the amount of $866.17 for costs and expenses incurred by the state and that the following corrective action be ordered: Respondent shall within thirty (30) days, remove all unauthorized fill material placed within the area of Department jurisdiction. Prior to initiating the fill removal respondent shall arrange for Department personnel to stake the area to be restored. All areas shall be restored to the elevation and soil conditions which existed prior to the placement of fill material. Respondent shall take all necessary precautions to ensure that state water quality standards are not violated during the restoration work. Respondent shall not disturb adjacent areas within the jurisdiction of the Department unless approved by the Department in writing. DONE and ENTERED this a 24th day of January, 1986, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986.
Findings Of Fact In September, 1985, Armand J. Houle purchased an 80 acre tract located eight miles east of the Naples toll booth on State Road 84 and approximately two miles north of Alligator Alley. The purpose of buying the property was to mine the limestone rock thereon, through a borrow pit, for the purpose of selling it as road base to the State of Florida Department of Transportation for use in the construction of 1-75 (Alligator Alley extending from Naples to the Florida east coast). While no contract has existed or currently exists, correspondence between the Department of Transportation and counsel for the Petitioner indicates that approximately 800,000 cubic yards of fill will be required in the immediate area and that Petitioner's proposed borrow pit would be the ideal source of this rock. Prior to making the purchase, Mr. Houle's associate, Raymond Chester, contacted both the Department of Transportation concerning the potential use of the rock and representatives of the Department of Environmental Regulation. The response he received from these agencies led him to, believe that a borrow pit might well be permitted and the effort should be pursued. After Mr. Chester and Mr. Houle became partners in the property, they contacted county officials and received zoning and other local permits for the facility. It was only after this, when DER was approached again that the applicants were advised a permit would not be issued. Mr. Houle agrees that, if the permits as requested were granted, he would accept a prohibition against further development of the property after removal of the rock and fill, would allow access to the restored lakes to the public for fishing and recreation; would agree to an appropriate restoration plan for the site; and would ensure compliance with the restoration plan stipulated by the Department. After the property was purchased in late 1985, Mr. Houle approached Daniel W. Brundage, the vice-president of an engineering firm in Naples, with a view toward developing the property in question as a borrow pit. Plans were developed for application for permits with the County and Mr. Brundage, consistent therewith, visited the site on several occasions. He found some vegetation off from the site which could be related to wetlands and contacted a representative of DER with whom he went to the site to look it over. This agency representative, Mr. Beever, concluded that the property was a jurisdictional wetland. Mr. Brundage nonetheless felt confident enough to begin work with the County to secure a permit to convert this land, classified as agricultural, to mining property. Consistent with his efforts, the request for conversion went through a four step process on the way to the County Commission which included approval by (1) the Water Management Advisory Board, (2) the Environmental Advisory Council which recommended same changes accepted by the Petitioner, (3) the Subdivision Review Committee, and (4) the Coastal Area Planning Council. All four subagencies recommended approval and thereafter the County granted its permit for work to begin. Assuming all permits are issued, the property will be developed in two stages. In stage one the site will be cleared of vegetation, and the top soil on Phase I, the western 40 acre parcel, removed and used to construct a berm around the entire perimeter of the site as well as between the two 40 acre parcels. The berm will be entirely within property boundaries and used to isolate any water removed from the active phase within the site so that it does not flow onto adjoining property. The eastern 40 acre tract, (Stage II) will be used for water storage during the excavation of Stage 1. It is anticipated that no water will leave the site during construction of either stage with the exception of extraordinary waterfall during rainfall or hurricane. Before any water is discharged, it will go into a storage configuration so that any sediment therein would settle to the bottom before discharge. The discharged water will be filtered through hay bales or filter screens to avoid any turbidity in the surrounding water. The design of this holding capacity in the filter system is sufficient to accommodate the water of a 25 year storm. As Stage I is completed, Stage II will be opened, and the ground water from Stage II pumped back to Stage I for storage. A similar storage and filtration system will be utilized around Stage I. Primary access to the property will be along the western boundary of 8 Mile Canal, but if this is not allowed, Petitioner proposes to build a single span bridge across the 8 Mile Canal at 40th Street to allow access to the property. After the lime rock has been excavated, the berm will be removed and the side of the property graded to form the banks of a 56 acre lake for recreational purposes. The edge of the lake will be a meandering slope at a ratio of 10:1 which will be assured by survey to be in compliance with the County plan. The lake, which will have a maximum depth of 20 feet, will be excavated at a depth ratio of 2:1 from the edge of the slope to the bottom of the lake. During excavation and prior to restoration, heavy equipment will be used for the removal of the rock such as drag lines, back hoes, motor graders, and bulldozers and an area within the boundaries of the site will be isolated and set up for fueling and maintenance. It will be floored with a membrane to prohibit oil and fuel from getting into the ground as a result of accidental spills. Storage tanks for fuel and oil will be above ground and available for immediate inspection. Waste facilities will be in the form of porta-potties and any water falling in this maintenance area will be drained to a low sump within the membraned area for storage until evaporation or safe removal. In the event of a heavy rainfall, water can be stored and anti-sedimented and cleaned and, if necessary, operations can be temporarily stopped. Mr. Brundage indicates that he has never seen any standing water on the site during his five visits nor has any standing water ever been reported to him. He is aware of no historical or archaeological sites on the property, and at no point would rock be mined within 50 feet of the property line. Dr. Durbin Tabb, a botanist, was retained by the Petitioner to prepare a plan for restoration of the site after mining operations were complete. In preparing his plan, he visited the site on several occasions finding varying plant life, much of which was grasses and rushes. In the north was a pine lowland where he saw palmettos scattered in the grassland as well as a few dwarf cypress trees. He also observed a small cluster of cabbage palms in the southern portion of the eastern tract and noted that the currently existing berm along the eastern boundary of the eastern tract is currently being invaded by exotic plant life including the Brazilian pepper. Dr. Tabb found little evidence of recent surface water accumulation; mollusk residue showed no evidence of recent viability; and he found no crawfish burrows which, if present, would show a water table near the surface. Other visitors to the site, however, did find crawfish burrows. The marsh soil shows that, at some time in the past, it was wet enough to support a soil-forming community. This is no longer' the case according to, Dr. Tabb. The process was stopped by the formulation of the Golden Gate Canal System in the 1960's. The existing marsh does, however', hold sufficient water to support the growth of muhli grass. Dr. Tabb's restoration plan is his best estimate of how the property can be restored to its previous condition by replanting native species found in the area. The program will include littoral zone vegetation to provide shelter and a feeding zone along the water's edge which does not now exist. The plan calls for the saying of the marsh soil. Since neither DER nor the client responded to his plan, when submitted, with any suggestions or corrections, he assumed it was approved. Dr. Tabb, who is also an expert in estuarian biology and zoology, concluded that the area on which this site is located is a very poor habitat for deer and panther. The red cockaded woodpecker has no trees on the property which it specifically desires and the property is a poor or nonexistent habitat for the indigo snake and the Everglades snake. It might, however, constitute a habitat for the Cape Sable seaside sparrow, but this bird has never been seen in this inland area. Panthers cross the area as do bears, but the presence of the excavated lake would be no more hindrance to them in their crossing than would the presence of Alligator Alley and the proposed 1-75. The area with sawgrass and muhli grass, which is dominant throughout the Golden Gate area, is called a "dry prairie" as opposed to a "wet prairie." While some of the same plants exist, it is somewhat different in that there are no viable wetlands wildlife organisms currently existing on the property. In Dr. Tabb's opinion, the property has lost its wetlands characteristics and only the marsh soil's water retention permits the life of the grasses currently existing. Wading birds would use the site later but do not currently utilize the area where excavation would take place. In Dr. Tabb's restoration plan, the slope to the lake would be replanted with saw and muhli grasses down to the litoral zone. From there on to the water, a palette of normal wet grasses would be planted to serve as feeding sites and roasting sites for the birds. In addition, an island planted with willows would be constructed off shore in the lake. Deer currently visit the area. They are not currently supported on the land though Mr. Barnett, of the Game and Fresh Water Fish Commission, indicated that they come out of the pine flats at night to feed on the grasses on the prairie. These deer form a large portion of the food chain for the panther, and Dr. Tabb does not consider it conceivable that the project, replanted and restored, would in any way adversely impact the Florida panther or the birds in issue here. In Dr. Tabb's opinion, it is questionable whether the site comes under the jurisdiction of DER based on the grasses present because he cannot find the water connection to confer jurisdiction. Dr. Tabb has not seen standing water on the site as he has seen on two other sites within the area where DER has granted permits for rock pits. On a site like this, the vegetation changes with the seasons. This site is not now connected to the canal along Alligator Alley by vegetation. There may have been a vegetation connection in the past, but as one goes up toward the site from the canal, the grass changes gradually from low pineland grasses found on higher ground to the lower sawgrasses found on the site in question. In Dr. Tabb's opinion, if Mr. Houle's property is to be considered a wetland, it is a transitional wetland. Turning to the issue of loss of habitat, if one assumes that portion of the property that will be converted to a lake will be denied to the panther, this is not the case for the deer which, in this area, is considered to be aquatic. Any denial of the lake area would constitute a very small negative impact compared to what is going on in other areas of Collier County. Admitting that there is a requirement to consider the cumulative impact of a project, in Dr. Tabb's opinion, this project would constitute a "may impact" situation. There is no definitive evidence as to what would happen, and he would be more concerned if the area were now a good panther habitat. It is not, however, and in fact it is no more than a habitat for the grasses which grow there. As to the wetlands issue, the only sign of exotic plant invasion is in the disturbed area around the canal which was installed approximately 18 years ago. The absence of these exotic species is, in Dr. Tabb's opinion, a clear indication that there is no flowing or standing water since the site is too dry for the germination of the seeds. There will be some removal of the biomass by the excavation of the lake. This biomass, consisting of grass primarily, is consumed by fire every year or so and insects eat it as well. Admittedly, some of the biomass is being eaten by animals of some nature and that which is converted to a lake will be removed. There is a trade-off, however. Dr. Martin Roessler, a marine biologist, prepared a report, on the water quality of the adjacent 8 Mile Canal, and other water bodies in the area. In preparation of his report, he took water samples in the areas in question, read literature on the water quality in the area, and looked at water quality data provided by U.S. government agencies and private companies. On the several visits he made to the site, he has not seen any surface water. The first time he could get water only in the adjacent canal, and he also got some water from the land borings done by Dr. Missimer on the site. Dr. Roessler is familiar with State standards for water quality and, in his opinion, the turbidity standards would not be disturbed because there was no water on the ground to be sheet flow. All water was at least three feet underground and, in addition, Petitioner has agreed to properly sod or otherwise treat the berms he will build to prevent erosion and any resultant turbidity either off-site or in the 8 Mile Canal. Dr. Roessler also does not believe the project would violate the oil and grease standards. There is nothing inherent in the mining process to bring into play oils and greases except for the possible problem in refueling and maintenance operations. In that regard, Petitioner has shown how he will provide against that by placing a membrane to prevent any oil, grease or other contaminant from getting into the ground. This area does not contain the organic mulch which produces natural oils and greases. The water near the surface of the lake will contain sufficient dissolved oxygen to meet State standards without problem. In the summer months when the dissolved oxygen count is low, generally, the lake bottom water may not meet State standards, but that happens quite frequently, naturally, across the entire area. Dr. Roessler believes that the dissolved oxygen requirements of 2.5 at the surface and .5 at the bottom will most likely be met in the lake created by this project. Concerning the biochemical oxygen demand (BOD), he concludes the operation in the quarry will not artificially decrease the available oxygen below the required amount. The BOD demand in this area would not be threatened by the lake. As to the iron standard and other toxic substances, Dr. Roessler does not believe that the project will create a violation of the standard nor will any runoff increase dissolved iron in adjacent waters. Hydrogen sulfide and pharasulfide standards will similarly not be violated. Sulfides are found only in trace amounts, if at all, in natural waters. In deep limestone lakes the chemical structure is not conducive to the formation of the acidic compounds. In short, Dr. Roessler believes the water in the mine would be very similar to that found in other rock quarries in the area. These lakes are a dominant portion of the recreational fresh water fishing availability. This instant lake also will, in time, upon development of the food chain for the fish, become an equivalent fishing habitat. Dr. Roessler concurs with Dr. Tabb regarding the flora on the site, which he observed himself. This site is 15 to 18 miles from marine or estuarian waters and to reach them one would have to go down a series of canals and past a saline dam to the coast. Any runoff from the site in question would have, if any, a minuscule effect on marine waters. This site was originally a wet prairie which was drained by the Golden Gate Canal System. As such it is a relatively poor habitat for life forms generally found in cypress wetlands. Creation of this lake will, in the opinion of Dr. Roessler, enhance the game, fish, and recreational activity of the area. It would be a benefit to the animal population to have a water source for drinking during drought. There would be no adverse effect on public health, safety or welfare. Turning to the major issue of water, Dr. Thomas Missimer, a hydrogeologist specializing in ground water, visited the site, examining the canal on the east side, and the soils and rocks exposed. He took soil borings and examined the site hydrology to see what fluctuations occurred in the water levels due to rainfall. Mr. Missimer, took numerous readings from September 18 through November 5, 1987 during a period of wet weather including a tropical storm. He carefully compared the site geology to other sites he had studied and compared the flow of water through the soil. He compiled existing information on chemistry in the streams in the area to see what the natural conditions were. He looked at other man-made lakes in the area which were previously borrow pits. As a result of his studies, he concluded that the groundwater level throughout the entire period never got higher than three feet below the land's surface and often was five feet below. During the previous July through September, 34 inches of rain fell in the area which was, in his opinion, average to above average. There is some evidence, however, to indicate that rainfall in the area was approximately 33 percent below average during the period. Nonetheless, Mr. Missimer took a measurement the day after a tropical storm had deposited three inches of water on the land. The water level at that time was still three feet below land level, and there was no standing water. Both the three foot and the five foot level are well below the top of the berm sloped at 10:1 as is proposed in the restoration plan submitted by Dr. Tabb. This site has, from a hydrological standpoint, been greatly affected by the installation, of the 8 Mile Canal and the canal system to the north. As, a result of this activity, standing water has not existed for many, years since the dredging of those canals. If de-watering is a necessary portion of the mining plan, any waters removed thereby would be retained in the impoundment area described by Mr. Brundage and switched back and forth. As proposed, the plan can completely avoid any impact to off-site property by water runoff. Construction of the pit and the lowering of the water level thereby will not have a major impact on the groundwater in the surrounding areas. Any effect would taper off as the distance increased from the site and would be of little significance. This proposal would also have little, if any, impact on groundwater quality. In Mr. Missimer's opinion, water quality is currently good and will stay good. This type of rock mine is very common in the area incident to construction. Some have been used as a source of potable water by The City of Naples; by Deltona Utility Company for Marco Island; and the south area of the County. These resources are still being used. There is little difference between those currently being used as potable water sources and the proposed lake here. Mr. Missimer also indicates the project will have little impact on the sheet flow of water. Sheet flow no longer exists here because of the canals and roads already existing. If there were a sheet flow created by a very heavy rain, this pit would have no impact on it. The water level in the lake will be approximately the same as exists in the ground currently and in the 8 Mile Canal. There should be no shoaling in the canal due to the project, and the presently existing spoil bank on the west side of the canal already prevents flow into the, canal from this land. If this pit is properly constituted and maintained, and if proper mining procedures are followed there should be no effect on the 8 Mile Canal to the east or the Alligator Alley Canal to the south. There is no surface water connection currently existing between this site and either canal. As to the issue of dissolved oxygen, the currently existing groundwater on the site and in the surrounding area has little or no dissolved oxygen in it. Water coming into the lake will be groundwater low in dissolved oxygen, which is identical to the water which currently goes into the canal system. The canal gets very little oxygen from the wind because it is so narrow. The lakes to be constructed, on the other hand, will get a large amount of oxygen from the 56 acres of water exposed to the open air. Consequently, construction of the lakes would increase the dissolved oxygen content of the water in the area, at least in the lakes, down to a level of several feet. This is a positive factor. Mr. Missimer recognizes, however, that during the dry seasons, when the lake is fed solely by groundwater generally low in dissolved oxygen, the lake water which has been converted to surface water may fail to meet the Department's surface water standards for dissolved oxygen. Warmer weather generally results in lower dissolved oxygen readings and, admittedly, Respondent's readings were taken in December when the dissolved oxygen levels are higher. As a result, the comparative samples which were taken in December are not necessarily indicative of what will be the situation in the lake, year- round. Respondent's witnesses present a more dismal picture of the effect of Petitioner's proposed project. Mr. Bickner, an Environmental Supervisor with DER's Bureau of Permits and himself an expert in water quality, zoology, and ecosystem biology, first became involved with this project while the permit request was being processed in late 1986. This application was a standard form project because of the quantity of material to be excavated. As a part of his processing, Mr. Bickner requested evaluations of the project from other agencies and divisions within DER and, on the basis of his personal evaluation and the recommendations he received, concluded that the application was not permittable. He recommended it be denied. Mr. Bickner considered Petitioner's application under the provisions of Chapter 403.918, Florida Statutes, which requires a two step evaluation. In the first step, the project must be determined to meet water quality standards. If it does, as a second stage, the project must be determined not to be contrary to the public interest. The major water quality standard in issue here was that of dissolved oxygen along with that concerning BOD and other deleterious substances. The water body involved was classified as a Class III Water under the provisions of Rule 17-3.121, Florida Administrative Code, since it was designed to be a recreational, fish and wildlife habitat. The standards contained in the statute and the rule relate to surface water as opposed to groundwater and, as to the public interest question, Chapter 403 provides a list of seven factors which must be evaluated. In this determination the agency has wide latitude and no one factor is controlling. In evaluation, agency personnel try to look at the project overall. Specifically, the project cannot cause or contribute to an existing water quality violation. In evaluation, agency personnel do not look at the project by itself. They must keep in mind that other projects exist or are proposed for the area. This is known as the cumulative impact of the project which is provided for in Section 403.919, Florida Statutes. As to the variance requested, this is also provided for by statute. The criteria require that the petition be based on some specific ground. In the instant case, the ground utilized by Petitioner was that there was no alternative to the dissolved oxygen level proposed. Granting of a variance is totally within the discretion of the Department even if Petitioner can show grounds therefor. Mr. Bickner was at the site only once. He approached from the south. At the low end of the approach was a mixture of wetlands and upland vegetation, but as he got toward the site the upland species dropped off and only the wetland species only remained. These were primarily sawgrass, cattails, and the like. He was satisfied that there was no obvious break in jurisdiction, and the testimony of Mr. Beever confirmed that jurisdiction over the site was gained through the wetlands character of the property from the site down to the Alligator Alley Canal, which is considered a water of the state. The site consists primarily of sawgrass and muhli grass with minor amounts of other grasses. The site seems to rise toward the 8 Mile Canal where there is an invasion of Brazilian peppers and other exotic species. Mr. Bickner was looking for upland species and found only one specimen of one species, a few of another, and no invasion of slash pine on the site at all. As a result, he concluded that the site was not an upland site. There was no standing water on the site at the time Mr. Bickner visited it, but the soil was wet to the surface. In addition, there was a large number of recently dead shells in low spots which had held water. There were some tracks of a large animal and a large number of smaller animal tracks and scats (scats are animal droppings). He also saw some birds which were too far away to identify and observed what he thought were crayfish tunnels near the cypress trees. Mr. Bickner found evidence of dried periphyton widely scattered over the site. Periphyton, an algae which attaches itself to other plants and which in times of inundation, forms sheets across the water connecting one plant to another, is a sign of previous inundation. The other plants on the site were not showing water deprivation stress, and there was no evidence of upland species invasion. All of this leads Mr. Bickner to conclude that the area has plenty of water and this opinion was enhanced by the lushness of the plants' growth. This, along with the high diversity of plant life, indicated to him a healthy ecosystem. To Mr. Bikner, the fact that the area was not currently inundated is not significant. In this particular area there are wet and dry seasons and, even in the dry season such as existed at the time of his visit, the soil was wet. The signs he saw indicated to him there has to be standing water on the site at some time. His visit was in January, which is well within the dry season. As to water quality, Mr. Bickner does not believe that the water quality standards will not be violated. In fact, by the nature of the project, Petitioner has, in Mr. Bickner's opinion, assured that it will be violated. A 20 foot deep pit must, in his opinion, result in low levels of dissolved oxygen below standards. Any water below seven foot in depth has little dissolved oxygen. Most dissolved oxygen is in the surface water, and there is little exchange between deep and surface waters. As a result, he concludes that the groundwater has low dissolved oxygen, a fact confirmed by Mr. Missimer. Dissolved oxygen is the only source of oxygen for fish and aquatic animals. Without dissolved oxygen, the fish die. There are currently no fish on the property. Mr. Bickner was also concerned with the biochemical oxygen demand which would further reduce the oxygen levels in the water. He was further concerned with the hydrogen sulfide levels coming from deterioration of plant material in the bottom of the pit, and iron which he found to be already in the groundwater. Mr. Bickner contends that during construction of the pit petro- chemicals will be introduced into the water, and that during the construction period the on-site water will have increased turbidity which will most likely be transmitted off-site as the pit is de-watered. There are management procedures which can reduce the risk, but none can avoid it entirely. Mr. Bickner is satisfied that the water quality standards will not be met. It is so found. Mr. Bickner also evaluated the property from the public interest standpoint, and in that regard he is satisfied there is a substantial potential for damage to adjacent properties by de-watering. Based on his experience and observation of other projects, he is satisfied there is no way to keep people employed on the site from using adjacent property for parking and vehicle maintenance. The witness believes that the 56 acres of habitat removed by the lake, and the remaining acres, which will be replanted, will be permanently impacted. While he admits that the property as it currently exists, may not be a prime habitat for the panther, there is some evidence which indicates panthers do cross it. He is concerned that the applicants submission here does not sufficiently answer all the questions as to impact on the public interest. The mechanics of the maintenance yard, soil storage and other potential areas of trauma are not explained satisfactorily, and Mr. Bickner does not see how all that is proposed can fit on the site. As a result, in his opinion, there must be some off-site impact. As to cumulative impact, since the valuable rock does not lie only under Petitioner's property, owners of the surrounding property may want to mine their properties as Petitioner proposes to do. If that happens, Mr. Bickner cannot explain how the Department can deny these subsequent applications. If the current application is permitted, taken together with the others, there would be a serious effect on the panther population. This opinion is not supported by evidence, however. If the public interest test is the only basis for disqualification of the project, (here the water quality test is also not met) a permit can still be granted if the applicant agrees to take appropriate mitigation steps at the site. Mr. Bickner is of the opinion that the applicant's mitigation plan to create the 100 foot wide shelf around the lake is not the same type of system which currently exists, will not fulfill the same function as the present property, and is not sufficiently large to replace what is being lost. One basis for granting the variance suggested by the Petitioner was the public interest, (the material was to be used for a public road), and the other was that there was no alternative way to get the material. While it is possible the rock would be used for public road, Mr. Bickner was concerned no assurances were given by the Petitioner that it would be. No contract has been signed yet, and Mr. Bickner is not satisfied that the letter from the Department of Transportation, indicating the rock there would suit its purpose, is sufficient indication that a contract would be signed. There is a possibility of making the pit shallower, which would permit the dissolved oxygen content of the lake water to meet state standards, but even if that problem were solved, Mr. Bickner is not satisfied that Petitioner has met the public interest test. Respondent has granted three permits and a variance to the Department of Transportation to build a portion of I-75 across Alligator Alley in Collier County. These permits are for the dredging of canals parallel to the roadway and to develop a borrow lake of 73.1 acres to be excavated to a depth of from 6 to 9.7 feet. The variance in question applies to all three projects and relates to the dissolved oxygen level. The DOT variance was applied for on the basis that no practical means for avoidance of the pollution existed. The Department of Transportation did not request a variance for BOD or for toxic and deleterious substances or iron. Mr. Bickner, admitted that these permitted projects would possibly have the same problem of oils and greases as he foresees with Petitioner's project. Nonetheless, he concludes that Petitioner's project should not be permitted, even though the Alligator Alley canals are already below standards, because to do so would contribute to a currently existing violation. Mr. James Beever, an Environmental Specialist with the Department of, Environmental Regulation, visited the site on several occasions, both on the ground and from the air. He observed much of the same flora and fauna observed by the other visitors who testified in this case and took color photographs of the area which portray the character of the property. All of the plants he discovered on the site are on the DER jurisdictional list and, on at least one occasion, from the air, he saw standing water on the site. In his opinion, the property is a fresh water wet prairie system which is admittedly drier than it should be. The plants he saw on the site indicate the jurisdiction of DER if there is a connection to other waters of the state, and in Mr. Beever's opinion, there is connection through the flow of sheet water south from the site to the I-75 (Alligator Alley) canal; then, east to the 8 Mile Canal; then south to the Fuqua Union Canal which empties southwest to the Gulf of Mexico. In his opinion, therefore, this is definitely jurisdictional land, and it is so found. The site supports an underground system of roots as well as the upper portion of the, plants existing thereon. He observed periphyton and many other animal tracks and scats. He also saw signs of regular inundation such as numerous snail shells, and he is satisfied there is no indication of a change in the area from the wetlands to an upland area. Admittedly, the area has been dry for a while. Even after Hurricane Floyd in 1987, there was no standing water. The site is, in his opinion, definitely productive, however. The vegetation existing thereon stabilizes the soil and provides food for snails, insects and crayfish which are on the bottom of the foodchain for other life forms on the property. The grasses provide a habitat for animals such as cotton rats, roosts for birds, pollen for insects, all which, themselves, become food for the larger animals. This wetland is a part of a large wetland prairie system and part of the Fuqua Union drainage basin, and acts as a filter for the water system for the area. According to Mr. Beever, most borrow pits like this are located on uplands which then provide rain water lakes. The instant pit, however, is in a wetlands area and if built, he believes, will engender violations during the mining operation. Groundwater coming in will contain iron and hydrogen sulfide which will combine with the dissolved oxygen in the water and further deplete the already low oxygen levels. All of this will constitute a violation of the rules regarding waters of the state since the waters within the pit would fall within that category. Mr. Beever is also concerned with the `bridge over the 8 Mile Canal and the turbidity connected with its construction and removal. In substance, Mr. Beever is convinced that construction of the project will create violations of the water quality standards for the area. As to the public interest, the wetlands character of the site will be completely lost. The vegetation will be removed, and the animals utilizing it will either leave or be destroyed. After, construction, some natural healing will occur, but a long-term maintenance program will be required to provide even different functions for the land than those which currently exist. In that regard, Mr. Beever is convinced that the applicant's proposed restoration plan is not acceptable. It will not replace the lost functions of the site; it will replace the species removed with a different ecosystem; it will provide a habitat for different species of animals and birds; it will adversely affect the shoaling and erosion in the lake itself (this is found to be without merit); it will have some adverse effect on the property of others; and will have an adverse cumulative impact on the area. The habitat will not be used any more by endangered species such as the wood stork and the panther. Even assuming, arguendo, the plans were suitable, in Mr. Beever's opinion, the project would not work here because of the lack of information on what the actual water level of the lake will be. The plant species proposed may not remain because of possible changes in water level in the lake. In addition, the marl berms will dry out over the three years of their life while the pit is being worked, and form a location for a lot of invasive upland plants. Much of Mr. Beever's concern is shared by Mr. Barnett, of the Game and Fresh Water Fish Commission, who indicated that birds now frequently use the area for nesting and feeding because of its wetlands character. Endangered species such as the Florida panther cross it from time to time as does the Florida black bear. Human encroachment reduces the panther's territory and reduces the area for forage of deer, which are the principal food of the panther. The bigger issue, however, is the cumulative impact. The 80 acres is not so important by itself, but to permit its removal would set a precedent for future encroachment by others. Mr. Barnett's experience is that restoration plans are quite often not successful. Even the successful ones, however, replace the removed system with a different system, and the species which now use the property would find it much less desirable as changed. Specifically, the bear, the deer, and the panther would find it unusable as proposed. At the present time, the deer spend their days in the pines forest to the north of the property, coming out onto the area, in question only at night to feed. It is during the night that the panther stalks. As presently constituted, this property is of no benefit to the wood stork or the red cockaded woodpecker. The Cape Sable sparrow could use it but does not. The development of Golden Gate Estates to the north and east and south of the property has a two pronged effect on the area in question. The southern portion of Golden Gate Estates has been abandoned, but the central and northern portions will be developed. On the one hand, it is likely that the increased population to the north and east will make the Petitioner's property less desirable and make access to it more difficult for the wildlife currently utilizing it. On the other hand, removal of the northern and central portions of Golden Gate from usable area for the panther and other species make it more important that Petitioner's area, which Barnett claims is not likely to be developed, remain as an animal habitat to offset the encroachment of the development area. There is no evidence to support this prediction of non- development, however. History tends to indicate otherwise.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner be issued a dredge and fill permit as requested and a variance to the state water quality standards as identified in the request. RECOMMENDED this 29th day of April, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1469 AND 87-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 - 2. Accepted. 3 - 6. Accepted and incorporated herein. 7. Accepted. 8. Accepted. 9 - 14. Accepted and incorporated herein. 15. Accepted. 16 - 17. Accepted and incorporated herein. 18 - 19. Accepted and incorporated herein. 20. Accepted. 21 - 23. Accepted and incorporated herein. 24. Not a Finding of Fact. 25 - 26. Accepted and incorporated herein. 27 - 28. Accepted and incorporated herein, except for finding it is likely that more wildlife will use the site after construction. Rejected as speculation. 29 - 30. Accepted and incorporated herein. 31 - 33. Accepted and incorporated herein. 34. Accepted and incorporated herein. 35. Accepted and incorporated herein. 36 - 38. Accepted and incorporated herein. 39. Accepted and incorporated herein. 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42. Accepted. 43 - 44. Rejected as contra to the evidence. Accepted. Accepted and incorporated herein. For the Respondent 1 - 3. Accepted and incorporated herein. 4 - 8. Accepted and incorporated herein. 9. Accepted and incorporated herein. 10 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. 21. Accepted and incorporated-herein. 22 - 25. Accepted and incorporated herein. 26 - 33. Accepted and incorporated herein. 34 - 35. Accepted and incorporated herein. 36. Rejected as contra to evidence presented. 37 - 40. Accepted and incorporated herein. 41. Accepted and incorporated herein. 42 - 43. Rejected. 44. Accepted and incorporated herein. 45 - 47. Accepted and incorporated herein. 48 - 60. Accepted and incorporated herein. Rejected. Accepted in part - (temporary). Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Unproven. Accepted. Accepted and incorporated herein. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. COPIES FURNISHED: Robert Routa, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondents have violated Chapter 403, Florida Statutes by dredge and fill activities at Sampson Lake, Bradford County, Florida, and should therefore be subject to corrective action and costs, as set forth in Notice of Violation and Orders for Corrective Action, dated March 4, 1982. This case arises from Petitioner's filing of a Notice of Violation and Orders for Corrective Action against Respondent Dudley P. Hardy on March 4, 1982, alleging that he conducted dredge and fill activities on property which he owned adjacent to Sampson Lake without obtaining a departmental permit for such activities. The notice further alleged that such activities created a stationary installation reasonably expected to be a source of pollution, and sought to have the Respondent take corrective action by restoring the affected area, and also to nay investigative costs, pursuant to Chapter 403, Florida Statutes. Respondent Hardy responded to the Notice of Violation and therein requested an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. He also averred that he only owned a one-half interest in the subject property, and that the other one-half interest was owned by J. D. Odom, Jr. and Vernie Phillips Odom, his wife. Based upon Petitioner's request, a formal hearing under Section 120.57(1), Florida Statutes, was scheduled for July 14-15, 1982, but pursuant to Petitioner's Motion for Continuance, the hearing was rescheduled for August 12- 13, 1982, by Order dated May 24, 1982. Petitioner thereafter amended its notice of violation to include J. D. Odom, Jr. and Vernie Phillips Odom as Respondents in the proceeding as indispensable parties. By Order dated July 7, 1982, Petitioner's Motion for Leave to Amend was granted. By Order of Consolidation dated April 28, 1982, this case was consolidated with five other cases involving similar activities at Sampson Lake. (DOAH Cases Nos. 82-907and 02-909 - 82-912) However, prior to the scheduled hearing, counsel for Petitioner advised the Hearing Officer that the other cases had been resolved by consent orders. At the hearing, Respondent J. D. Odom, Jr. appeared without counsel and was advised of his rights in a Chapter 120 administrative proceeding. He acknowledged his understanding of such rights and elected to proceed without counsel. Petitioner presented the testimony of three witnesses and submitted ten exhibits. Respondent testified in his own behalf and submitted two exhibits. After the conclusion of the hearing, Respondent J. Odom submitted a letter to the Hearing Officer, dated August 17, 1982, which enclosed a copy of a survey which had been previously received in evidence as Petitioner's Exhibit 1, and photographs which had not been received in evidence at the hearing. Petitioner filed a Motion to Strike these matters, and the motion is hereby partially granted. The additional photographs presented by Respondent can not be taken into consideration in this Recommended Order because they were not admitted in evidence at the hearing. Petitioner's post-hearing Proposed Findings of Fact, Conclusions of Law, and Proposed Recommended Order has been fully considered, and those portions not adopted herein are deemed either unnecessary or irrelevant, or unsupported in law or fact. In like manner, the statements made by Respondent Odom in his post-hearing letter that are unrelated to the photographs have been fully considered.
Findings Of Fact By warranty deed, dated March 12, 1980, Sampson Lake Properties, Inc. conveyed a parcel of the land located in Bradford County, Florida to Respondent, Dudley P. Hardy. The property is bordered by Sampson Lake on the west and Rowell Canal on the south. By warranty deed, dated July 10, 1980, Hardy conveyed an undivided one-half interest in the property to Respondents J. D. Odom, Jr. and Vernie Phillips Odom, his wife. (Testimony of J. Odom, Petitioner's Exhibits 5-6, Respondents' Exhibit 1) Rowell Canal is a man-made canal which is designated as Class III waters of the State, and connects lakes Rowell and Sampson, also Class III waters of the State. Lakes Sampson and Rowell are natural lakes that are owned by more than one person. Each lake is larger than ten acres with an average depth of more than two feet existing throughout the year, and neither becomes dry each year. (Testimony of Scott, Farmer, Petitioner's Exhibit 1) Respondents' property lies immediately west of a railroad right-of-way, and a railroad ditch lies parallel to the property next to a railroad trestle. The ditch was approximately 45 feet wide at Rowell Canal and some 215 feet long at the time Respondents acquired the property. (Testimony of Scott, Farmer) At some undisclosed date in 1981, Respondent J. Odom widened and deepened the west side of the ditch with a backhoe in order to create a canal which would enable him to launch boats at the Rowell Canal. The dirt removed from the ditch was piled along the side of the newly created canal. When finished, the canal was some 213 feet long, 20 to 30 feet wide, with depths ranging from 2 to 7 feet. At the present time, a natural earthen plug remains between the excavated canal and the Rowell Canal. During the rainy season, water overflows the plug and any waters from the Odom Canal would interchange to some degree with those of Rowell Canal. (Testimony of Scott, Farmer, Barber, Petitioner's Composite Exhibit 2, Respondents' Composite Exhibit 2) Respondent Odom did not apply for a permit to conduct the dredging and filling activities on his property. After Petitioner became aware of the situation in September, 1981, two members of the enforcement section of Petitioner's St. Johns River Subdistrict visited the site and determined that the Department had enforcement jurisdiction due to the fact that the dominant vegetation for approximately the first hundred feet of Respondents' canal from Rowell Canal to the north was a band of cypress trees (Taxodium Sp.). Such a wetland species serves as a guide to determining the landward extent of waters of the State, pursuant to Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. There is also a large number of pine trees on the property. Thereafter, by letter of November 30, 1981, Petitioner's St. Johns River Subdistrict Manager sent a letter to Respondent Hardy placing him on notice concerning unauthorized dredging and filling activities. (Testimony of Scott, Farmer, Petitioner's Exhibits 3-4, Respondents' Exhibit 2) By warranty deed, dated July 26, 1982, Respondent Hardy conveyed his interest in the property to J. D. Odom, Jr. and Vernie Phillips Odom. (Testimony of Farmer, Petitioner's Exhibit 7) On August 10, 1982, DER personnel took dissolved oxygen readings of the dredged canal. Analysis of the water samples reflected depressed dissolved oxygen levels throughout the canal in violation of water quality standards for Class III waters. (Testimony of Farmer, Petitioner's Exhibit 9) A dead-end canal reasonably can be expected to cause pollution due to the fact that organic matter decays on the bottom and becomes a nutrient trap, thus depressing the dissolved oxygen in the water. During the inspection by DER personnel, gas bubbles were observed in the canal, thus indicating the presence of hydrogen sulphate, which is indicative of anaerobic conditions. The presence of fish in the canal at the present time indicates there is enough dissolved oxygen to sustain life, however. (Testimony of Scott, Farmer, Petitioner's Exhibit 9) Until a few years ago, Sampson Lake had not been developed. However, at the present time many canals have been built and Petitioner has issued twelve notices of violations in the area. Canals such as that of Respondents' can be expected to have an adverse cumulative impact on the waters of Rowell Canal and Sampson Lake due to the entry of water containing excessive nutrients. (Testimony of Barber) Respondent Odom Intended to remove the earthen plug at the end of his canal in order to gain access to Rowell Canal from his proposed cement boat ramp to provide access to Sampson Lake. About twelve to fifteen years ago, a dam was built on Sampson Lake to control the water level. Prior to construction of the dam, a road existed around the lake which could be driven upon approximately 50 percent of the time during dry season. At the present time, Respondent can transport a boat through his property to Rowell Canal with difficulty because of the existing trees. Prior to the dredge and fill activity of Respondent, a boat could be moved through the property to Rowell Canal, generally in the area where the present dredged canal is located. (Testimony of Respondent Odom) Petitioner expended $132.34 in costs of investigating Respondents' dredging and filling activities. (Testimony of Barber, Petitioner's Exhibit 10)
Recommendation That Petitioner issue a final order requiring Respondents to take corrective action with regard to their dredge and fill activities as specified in the Notice of Violation and Orders for Corrective Action, and to pay departmental investigative costs, but withhold the effective date thereof to provide Respondents a period of thirty days to make application for an "after- the-fact" permit pursuant to Rule 17-4.28, F.A.C. If they fail to make such application within the required period, the final order should then become effective. If application is made, the effect of the final order should be staved until conclusion of proceedings on the application. DONE and ENTERED this 7th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Assistant General Counsel and Michael Tammaro, Certified Legal Intern DePartment of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Dudley P. Hardy, Esquire Post Office Drawer 1030 Starke, Florida 32091 J. D. Odom, Jr. and Vernie Phillips Odom, his wife Post Office Box 517 Starke, Florida 32091 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 82-908 DUDLEY P. HARDY, J.D. ODOM, JR., and VERNIE PHILLIPS ODOM, Respondents. /
