The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
Findings Of Fact Findings based on stipulations The District first advertised the subject bid on September 4 and 11, 1994. Three bidders, Environmental Waterway Management, Inc., Aquatic Vegetation Control, Inc., and Arbor Tree and Land, submitted timely responses to the bid. Two of the three bidders, Environmental Waterway Management, Inc., and Arbor Tree and Land, submitted bid bonds as security although the bid documents specified certified or cashiers' checks. At the District's monthly Board of Supervisors' meeting held on September 26, 1994, the Board rejected all three bids and authorized a re- advertisement and re-bidding due to the facts set forth in paragraph 3, above. The District advertised the subject bid again on October 2 and 9, 1994. The same three bidders submitted timely responses to the bid. The District found all three bids to be responsive. The bid from Aquatic Vegetation Control, Inc., was approximately $240.00 lower than the bid of Environmental Waterway Management, Inc., while the bid from Arbor Tree and Land was substantially higher. At the District's October 24, 1994, Board of Supervisors' meeting, the Board authorized a Conditional Notice of Intent to award the subject contract to Environmental Waterway Management, Inc. On approximately October 27, 1994, Petitioner filed its Notice of Protest of the subject bid. On approximately November 4, 1994, Petitioner filed its Formal Protest. On approximately November 17, 1994, Petitioner submitted information to the District regarding past fines levied against Environmental Waterway Management, Inc., by the Environmental Protection Agency and the Department of Agriculture. At the District's November 21, 1994, Board of Supervisors' meeting, the Board reconsidered its action taken in October and then again rejected all three bids and authorized a re-advertisement and re-bidding. On approximately December 1, 1994, Petitioner filed its Amended Formal Protest. There exist no differences between the bid specification documents for which the District received two sets of bids (in 9/94 and 10/94). Petitioner is not aware of any conviction of EWM or the Cheslers specifically involving business with a public entity. Additional findings based on evidence at hearing Petitioner, AVC, is a Florida corporation with its principal place of business located in the City of Riviera Beach, Palm Beach County, Florida. Respondent, the District, is a political subdivision of the State of Florida, created by Chapter 57-646, Laws of Florida, as amended. The District's administrative offices are located in unincorporated Palm Beach County, Florida. In September 1994, the District advertised for sealed bids on a unit price basis for an aquatic weed growth control spray program and a canal bank growth control program in the District's easements and other related environmental/safety services. The bid documents that were provided to the bidders, specifically the Advertisement for Bids, General Conditions, and Bid Form, all expressly stated that the District reserved the right to reject any and all bids. The bid specifications also reserved to the District the right to waive minor irregularities in bid's received. The "Total Bid Price" from AVC in October was $322,025.00, while the "Total Bid Price" from EWM was $322,265.00. The "Total Bid Price" from Arbor was $390,005.00. Therefore, there was a $240.00 difference between AVC's and EWM's "Total Bid Prices." At the District's October 24, 1994, Board of Supervisors' meeting, the District Administrator recommended that the Board award the contract to either AVC or EWM due to the closeness of their "Total Bid Prices." The District Engineer advised the Board that the bid prices were merely "guesstimates," meaning they were projections of the proposed work to be performed, and that the exact nature and amount of the work to be actually required, depending on weather, rainfall, etc., could not be quantified at that time. Therefore, depending on these variable factors, along with policy decisions of the Board of Supervisors, as to what specific work would be undertaken, it was not possible to evaluate whether the bids of AVC or EWM would actually prove to be lower since the unit price bids by each entity varied substantially on certain individual line items, thereby resulting in "unbalanced bids." The District Engineer also advised the Board, in response to a supervisor's inquiry, that he was not personally familiar with EWM, but that AVC had provided similar services for the District in the past, and the District had had to provide "additional monitoring" of these services, costing the District additional time and money. This "additional monitoring" involved three invoices submitted to the District by AVC in March, April, and May of 1993 in which the District was charged for services which were not in fact rendered. This "additional monitoring" resulted in the District's being required to retain the services of the District Engineer's staff for extra field supervision. The Board, on a split vote, then authorized a Conditional Notice of Intent to award the subject contract to EWM. At the District's November 21, 1994, Board of Supervisors' meeting, the Board, upon advice of legal counsel, considered the following three options: 1) remain with the prior conditional award of the contract to EWM, thereby incurring the possibility of a bid protest by AVC; 2) reconsider its action taken at the October meeting and award the contract to AVC, thereby incurring the possibility of a bid protest by EWM; or 3) reconsider its action taken at the October meeting, reject all bids, and fully evaluate its alternatives. The Board, after carefully considering all the factors, chose the third option, reconsidering its award to EWM, rejecting all the bids, and directing that the subject services be re-bid. Although revised bid documents have not been finalized because of the pendency of these proceedings, the District is considering retaining the right to award the subject contract on a line-item unit price basis to one or more entities, thereby attempting to solve the "unbalanced" bid issue.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that the Indian Trail Water Control District issue a Final Order in this case denying the relief sought by the Petitioner and dismissing the petition. DONE AND ENTERED this 29th day of March 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 29th day of March 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties: Findings submitted by Petitioner Except as specifically noted immediately below, the substance of all proposed findings of fact submitted by the Petitioner has been accepted. Paragraph 5: Rejected as consisting of subordinate and unnecessary details. Paragraph 7: Rejected as consisting of subordinate and unnecessary details. First unnumbered paragraph following Paragraph 7: Rejected as consisting of subordinate and unnecessary details. Last two unnumbered paragraphs: Rejected as consisting of subordinate and unnecessary details. Findings submitted by Respondent Except as specifically noted immediately below, the substance of all proposed findings of fact submitted by the Respondent has been accepted. Paragraphs 18 and 19: Rejected as consisting of subordinate and unnecessary details. COPIES FURNISHED: Michelle Leah Azar, Esquire Patrick M. O'Hara, P.A. 100 Commerce Center 324 Datura Street West Palm Beach, Florida 33401 William P. Doney, Esquire Vance & Doney, P.A. 1615 Forum Place, Suite 200 West Palm Beach, Florida 33401 Betsy S. Burden, Esquire Charles F. Schoech, Esquire Caldwell & Pacetti 324 Royal Palm Way Palm Beach, Florida 33480-4352 John Bonde, District Administrator Indian Trail Water Control District 13476 61st Street North West Palm Beach, Florida 33412-1915
The Issue In a Notice of Proposed Rulemaking published on September 5, 2003, the Department of Environmental Protection ("DEP" or the "Department") proposed amendments (the "Proposed Rule") to an existing rule, Florida Administrative Code Rule 62- 304.700. The Proposed Rule establishes a Total Maximum Daily Load ("TMDL") for Total Phosphorus ("TP") for a number of streams (referred to in this proceeding as the Nine Northern Tributaries) in the Lake Okeechobee Basin and addresses other related matters. The issue in this proceeding is whether the Proposed Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Lake Okeechobee Of the freshwater bodies located wholly within the forty-eight contiguous states in the continental United States, Lake Okeechobee (the "Lake") is the second largest. Given its size, it is not surprising that the Lake is a water source of great import to its region. It provides drinking water for lakeside cities and towns in South Florida and is a potential backup water supply for the urban communities of Florida's southeast coast. The Lake supplies irrigation water for the Everglades Agricultural Area ("EAA") and in times of drought, it serves as a critical supplement to the rain upon which the Everglades, an ombrotrophic system, is dependent. Home to one of the nation's prized bass and speckled perch fisheries, the Lake is also an "economically important commercial fishery." Petitioners' Ex. 12, p. 9. Most significantly to this proceeding (one involving the application of Florida's water resources and environmental control laws), Lake Okeechobee is a key component of Central and South Florida's Kissimmee-Okeechobee-Everglades ecosystem which extends from the chain of lakes at the headwaters of the Kissimmee River in the north to Florida Bay in the south. As such, it has had tremendous ecological value in the past. Despite significant detrimental changes in the Lake's hydrological regime and water quality since the early 1900s, the Lake continues to "provide[] habitat for a wide variety of wading birds, migratory waterfowl, and the federally-endangered Everglades Snail Kite." Id. The Lake suffers from major impacts due to hydrologic modifications. In the making since the days of the Great Depression, these include the construction of the Herbert Hoover Dike prior to World War II and the installation of a system of canals and levees built following congressional authorization just after the war in 1948. The latter was part of a comprehensive water resources project undertaken by the United States Army Corps of Engineers and known as the Central and Southern Florida Project for Flood Control (the "C&SF Project"). Whether producing water levels too high or too low, the changes in hydrology brought about by mankind over the past century have led to various impacts that have been significantly detrimental to the ecology of the Lake and the surrounding area. Aside from hydrologic modifications, there have been other factors that have led to significant impacts detrimental to the Lake and its ecology. Excessive nutrient loading is one of them. Nutrient loading has occurred because of the conversion of much of the land around the Lake to agriculture, cattle ranches and dairy farms. The conversion is described in the Lake Okeechobee Surface Water Improvement and Management (SWIM) Plan, Planning Document dated February 28, 2003, prepared by the Lake Okeechobee Division of the Northern District Restoration Department of the South Florida Water Management District (the "SWIM Planning Document"): To the north [of the Lake], dairy farms and beef cattle ranching became the major land uses, while to the south, sugarcane and vegetable farming increased rapidly. These land use changes resulted in a large increase in the rate of nutrient (nitrogen and phosphorus) inputs to the lake, and detrimental changes occurred in the lake's water quality. Id. at 10. The inputs of phosphorus and their impact is also described in the SWIM Planning Document. Pertinent to this proceeding, in particular, the document describes the phosphorus inputs north of the Lake and their impacts: Phosphorus inputs from the northern watershed increased dramatically, and can be traced primarily to the animal agricultural activities in that watershed. Loads (concentrations times flow) of total phosphorus to the open water region of the lake nearly tripled between the early 1970s and mid-1980s, and coincident with this trend, the concentration of phosphorus in the lake itself increased from below 40 to over 100 parts per billion (ppb). Blooms of blue-green algae became more common, with particularly large blooms covering more than 40 percent of the lake surface in the 1980s. Id. at 10-11. The Nine Northern Tributaries Among the rivers, streams, creeks, canals and sloughs that comprise the Lake Okeechobee Basin are nine tributaries to the north: Taylor Creek, Nubbin Slough, the S-135 Canal, Mosquito Creek, Otter Creek, Lettuce Creek, Henry Creek, Myrtle Slough, and Chandler Hammock Slough (the "Nine Northern Tributaries"). Located in sub-basins (the S-191, S-133, S-135, and S-154 Basins) within the Lake Okeechobee Basin, the Nine Northern Tributaries contribute between five and fifteen percent of the annual water flow into the Lake. All are plagued by nutrient pollution that consists mainly of excess nitrogen and phosphorus. The Nine Northern Tributaries were relatively unpolluted prior to agricultural development in the area. In the aftermath, the environments in their respective watersheds have been profoundly altered by pollution. The pollution has been especially dramatic with regard to phosphorus. For example, phosphorus levels in the area were lower than 60 parts per billion ("ppb") in 1953. In recent years, phosphorus levels for most basins in the Lake Okeechobee water levels have been double and triple 1953 levels. In some cases phosphorus levels have been at even greater multiples of 1953 levels. One of the higher examples is the Taylor Creek/Nubbin Slough Basin where the level of phosphorus for the period 1990-1994 was 602 ppb, an increase ten-fold over that forty years earlier. Between nitrogen and phosphorus (and all other pollutants, for that matter), phosphorus is the pollutant of primary concern in the Nine Northern Tributaries. Designated Uses In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act" (the "Pollution Control Act.") Ch. 67-436, Laws of Fla. The Pollution Control Act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this purpose. Chapter 403 established a policy to "conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The Pollution Control Act empowered the Department to "develop . . . a grouping of water into classes . . . in accordance with the present and future most beneficial uses," and to "establish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enumerating five classes of beneficial uses to be protected. The Rule enumerating the five classes can now be found at Florida Administrative Code Rule 62-302.400. Water bodies not specifically identified in the Rule are listed as Class III on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62- 302.400(1) and (12). The Nine Northern Tributaries are all Class III waters. See Department's Ex. 4. The import of a Class III designation was described at hearing by Mr. Mandrup-Poulsen: The designated uses is intended as a way to describe quickly and easily to those in the profession, and to the public, as to what the intent and the use of that water body ought to be. So that for Class [III], for example, . . . we would intend to protect those [so designated] to ensure that they have a healthy and well-balanced natural population of fish and wildlife (Tr. 195-196) "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28-5 (1968). Since then, the Department has updated the criteria and added a narrative nutrient criterion that applies to Class III waters: (48)(b) Nutrients - in no case shall nutrient concentration of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 62-302. The phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, however, has not been defined by rule. The nutrient criterion also requires that the nutrient level be "limited as needed to prevent violations of other standards contained in this chapter." Fla. Admin. Code R. 62- 302. Phosphorus in Florida and Imbalance of Flora and Fauna There is a wide range of natural nutrient conditions in the state of Florida especially with regard to phosphorus. Phosphorus is common in Florida soils. In fact, some Florida soil is so rich in phosphorus that it is the site of phosphate mines, where phosphorus is mined for use in fertilizers and for other purposes. The presence of such large amounts of phosphorus is due to a combination of factors. Limestone formations, the base of Florida rock, and shallow reef systems inundated by marine waters over millions of years led to a sedimentary deposit system laden with phosphorus in the land mass that is Florida. The sedimentary system is now composed of phosphatic sands and clays. Soils laden with phosphorus contribute phosphorus to adjacent water bodies as part of a natural process independent of human activities. The presence of so much phosphorus in Florida soils and its natural leaching into water bodies poses a problem for the scientist asked to determine when phosphorus has created an imbalance in natural flora and fauna especially when other factors contribute to imbalance. There is no question, however, that there is too much phosphorus in the Nine Northern Tributaries and Lake Okeechobee to maintain a balance of natural flora and fauna and that the presence of this phosphorus is largely the result of human activity and disturbance. The Florida legislature, moreover, has said so. See Finding of Fact 36. The question for the investigator in pursuit of a TMDL for TP, such as the Department in this proceeding, is how much phosphorus can these water bodies tolerate before imbalance is reached. Another way of looking at the problem with regard to the streams at issue in this proceeding is: at what concentration level does TP allow the streams to sustain a healthy population of aquatic flora and fauna so as to avoid phosphorus impairment? Phosphorus Impairment The Nine Northern Tributaries were included on the list of impaired surface waters adopted by the Department through Secretarial Order issued August 28, 2002. They are central to this proceeding because they are the subject of the Proposed Rule by virtue of their identification in the Proposed Rule as "[o]ther waterbodies in the Lake Okeechobee Basin" subject to a TMDL set at "an annual median TP [total phosphorus] concentration of 0.159 mg/L." See Notice of Proposed Rulemaking, September 5, 2003, OR-1, Department's Exhibit No. 5, p. 3. Like the Nine Northern Tributaries, Lake Okeechobee has also been determined to be impaired due to the presence of excessive phosphorus. It is not an exaggeration to deem the Lake profoundly polluted by phosphorus. Concentrations have risen from 40 ppb in the early 1970s to 145 ppb in 2000. The Lake receives phosphorus both from external (such as the Nine Northern Tributaries) and internal sources. A large percentage of the lake bottom that was formerly covered in sand is overlain by organic mud, estimated to contain over 30,000 metric tons of phosphorus. Mud sediment accumulation and phosphorus deposition have increased significantly in the last 50 years. Phosphorus in the water column in the Lake, therefore, has an external and an internal source as well: sediment and deposition on the lake bottom. Over time, elevated phosphorus loadings from external and internal sources have intensified the eutrophication of the Lake. Eutrophication is apparent to the eye by the presence of widespread algal blooms. The algal blooms, in turn, have caused die-off of macro-invertebrate communities due to toxic byproducts of algal decay. Dense blooms of algae, moreover, adversely affects the quality of drinking water. As part of the commencement of the restoration process in the hope of overcoming the eutrophic nature of the Lake, the Department has adopted a phosphorus TMDL of 140 metric tons for the Lake. Atmospheric deposition will account for 35 metric tons of phosphorus entering the lake externally every year. The TMDL for the Lake, therefore, requires that phosphorus from surface water loading not exceed a maximum of 105 metric tons per year (the difference between the Lake's TMDL of 140 metric tons and the 35 metric tons contributed by precipitation and other contributions from the atmosphere). This limitation on surface water loading applies to the Nine Northern Tributaries and other surface waters in the Lake Okeechobee Basin. Phosphorus Impairment in the Okeechobee Basin The Lake Okeechobee Basin is heavily impacted by phosphorus. Streams within the basin are likely to be impacted by phosphorus as opposed to streams that meet reference conditions, that is, that are under minimal impacts, as explained, below. If the Lake is ever to be restored it is critical that the phosphorus that is introduced from external sources (other than atmospheric deposition) be reduced. External Phosphorus Load Reduction Four "major issues" critical to the restoration of the Lake Okeechobee ecosystem have been identified by the SWIM Planning Document. This proceeding is concerned with one of them: "[e]xternal loads of phosphorus [that] must be substantially reduced." Petitioners' Ex. 12, p. 10. Two enactments of the Florida Legislature address or relate to phosphorus pollution in the Lake and the Nine Northern Tributaries: the most recent, passed in 1999, is the Florida Watershed Restoration Act1; the other, passed in 1987, codifies the Lake Okeechobee Protection Program.2 The Lake Okeechobee Protection Program Unique among watersheds in the State, Lake Okeechobee is specially protected by the Legislature through the Lake Okeechobee Protection Program (the "Protection Program"). Under the Protection Program, the Legislature's goal is to provide "a reasonable means of achieving and maintaining compliance with state water quality standards" in conjunction with Section 403.067, Florida Statutes. See § 373.4595(1)(g), Fla. Stat. The "findings and intent" section of Section 373.4595, Florida Statutes (the "Protection Statute") bearing the catchline, "Lake Okeechobee Protection Program," sets out both the import of Lake Okeechobee to the State as well as the hydrological and water quality impacts the Lake has suffered due to the use of land in its watershed and construction of the C&SF Project. Section (1)(c) announces, moreover, the Legislature's finding "that improvement to the hydrology and water quality of Lake Okeechobee is essential to the protection of the Everglades." The statute goes on to declare "it . . . imperative for the state, local governments and agricultural and environmental communities to commit to restoring and protecting Lake Okeechobee and downstream receiving waters," Section 373.4595 (1)(d), Florida Statutes, and to develop and implement immediately a "watershed-based approach to address these issues." Id. With regard to phosphorus, the Legislature, in the Protection Statute, "finds that phosphorus loads from the Lake's watershed have contributed to excessive phosphorus levels in the Lake and downstream receiving waters and that reduction in phosphorus levels will benefit the ecologies of the systems." § 373.4595 (1)(e), Fla. Stat. This finding is supported by Petitioners' Exhibit 43, a page from the Lake Okeechobee SWIM Plan, in which it is stated: "Phosphorus is of particular concern in this system because it is an essential element that contributes to eutrophication in Lake Okeechobee [citations omitted]. Phosphorus within the Lake's water column increased dramatically from 40 ppb in the early 1970s to 145 ppb in 2000 [reference omitted]." Toward reducing phosphorus levels, the Protection Statute references a technical publication,3 South Florida Water Management District's Publication 81-2. See § 373.4595(1)(f), Fla. Stat. The technical publication is also referred to in Petitioners' Ex. 43, which describes attempts at phosphorus load reduction to the Lake that took place from the early 1980s to the early 1990s: A phosphorus load reduction goal was developed to restore the ecological condition of Lake Okeechobee. This goal requires a 40 percent reduction in phosphorus loading to the lake based on the data collected from 1973 to 1979 (Federico et al., 1981). Tributary phosphorus limitations were based upon reaching an in- lake phosphorus concentration of 40 ppb by July 1992 as recommended by a modification of the Vollenweider (1976) nutrient loading model, described in SFWMD Technical Publication 81-2 (Federico et al., 1981). As controls within the basin surrounding Lake Okeechobee increased, a noticeable decline in the phosphorus load to the lake occurred from 1983 to 1993 [reference omitted].[4] Despite this load reduction, no reduction of phosphorus occurred within the lake [reference omitted]. This in part was attributed to the huge amount of phosphorus that has accumulated over decades in sediments within this shallow lake [reference omitted]. As the external loads have declined, internal loads from the sediments have become more significant, acting as a buffer to the system and preventing the phosphorus concentration in the water column from declining. Petitioners' Ex. 43 (emphasis added). Recent data demonstrate the phosphorus pollution problem in Lake Okeechobee. The five-year moving average of the long-term phosphorus load to Lake Okeechobee (that includes an atmospheric load of 35 metric tons per year) was 554 metric tons as of 2002. According to the January 1, 2004, Lake Okeechobee Protection Plan, this included the "smallest measured historical load (169 Mtons in 2000), due to the worst drought in recent history; and the largest measured load in the past decade (780 metric tons in 1998) that was a very wet year " Petitioners' Ex. 14, p. 4. The Protection Statute also references the Legislature's call in 1999 for "subsequent phases of phosphorus load reductions [to be] determined by the total maximum daily loads [TMDLs] established in accordance with s. 403.067": "Florida Watershed Restoration Act," (or the "TMDL Act"). The Florida Watershed Restoration Act Originally passed in 1999 as Chapter 99-223, Laws of Florida, the Florida Watershed Protection Act, in its present form5 (the "TMDL Act") declares "that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted], will promote improvements in water quality throughout the state through the coordinated control of point and non-point sources of pollution." § 403.067(1), Fla. Stat. The TMDL Act requires the Department to "submit periodically to the United States Environmental Protection Agency (the "USEPA") a list of surface waters for which total maximum daily load assessments will be conducted." § 403.067(2), Fla. Stat. The parties' descriptions of the requirements of the TMDL Act are in accord: In short, the [TMDL] Act requires the Department to formulate a prioritized list of "impaired waters' (i.e., that fail to meet water quality standards) to develop TMDLs for the listed impaired waters, and to allocate pollution load reductions so as to restore all impaired waters to water quality standards. §403.067, Fla. Stat. Petitioners' Proposed Final Order, pp. 9-10. Through the TMDL Act, the Legislature directed the Department to develop a methodology to identify waters of the state that were failing to meet the state's water quality standards due to pollutants. Using that methodology, the Department has been directed to assess the waters of the state and list as impaired those waters that fail to meet water quality standards because of a particular pollutant. Once those waters and causative pollutants have been identified, the Department is to establish a TMDL. Respondent's Proposed Final Order, pp. 11-12. TMDLs Defined as "the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint source and natural background," the statutory definition of TMDLs in the chapter of the Florida Statutes that contains the TMDL Act continues, "[p]rior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated." § 404.031(17), Fla. Stat. This definition was simplified at hearing by the Department's expert in the "development of total maximum daily load, DEP's Watershed Assessment Section Administrator Jan Mandrup-Poulsen. Mr. Mandrup-Poulsen testified that a TMDL, "is quite simply the amount of a pollutant that can be assimilated by a water body without causing the water body's designated use to be exceeded." (Tr. 194) As explained in a draft publication of the USEPA's Region 4 office, TMDL formulation is a process that: establishes the allowable loadings of pollutants or other quantifiable parameters for a waterbody based on the relationship between pollution sources and in-stream water quality conditions, so that states [such as Florida] can establish water quality based controls to reduce pollution from both point and non-point sources and restore and maintain the quality of their water resources [citation omitted]. Petitioners' Ex. 3, p. 2. Establishment of the amount of a pollutant that a water body can receive without exceeding water quality standards is not the end of the TMDL process for the Department. With the establishment of a TMDL, the Department is also required to "account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." § 403.067(6)(a)2., Fla. Stat. This is what the Department has set about do for TP in the Lake Okeechobee Basin through its Proposed Rule. The Proposed Rule An Amendment to the Existing Rule The existing rule is Florida Administrative Code Rule 62-304.700 (the "Existing Rule"). The Existing Rule sets the TMDL for total phosphorus ("TP") in Lake Okeechobee at 140 metric tons. Atmospheric loading to Lake Okeechobee is considered to be 35 metric tons. That leaves 105 metric tons as the total amount of phosphorus that can flow into the Lake annually from surface sources such as the Nine Northern Tributaries. The 140-metric ton total phosphorus TMDL is to be met by the year 2015. Presently entitled "Total Maximum Daily Loads in the Southeast Florida District," the Proposed Rule will change the title of the Existing Rule to "Lake Okeechobee Basin TMDLs." In addition to a revision of the numbering scheme in the Existing Rule, the Proposed Rule adds the proposed TMDL (the "Proposed TMDL") for TP in the Nine Northern Tributaries expressed as a concentration level: 0.159 mg/L. ii. 0.159 mg/L In collaboration with the USEPA, the Department calculated the Proposed TMDL for TP in the Nine Northern Tributaries as "an annual median TP concentration of 0.159 mg/L." The Proposed Rule, § (2)(a). The Proposed Rule makes no allocation between point sources and non-point sources. The TMDL is allocated entirely to nonpoint sources because "there are currently no permitted point sources in the watershed." The Proposed Rule, § (2)(a)2. The Margin of Safety for the TMDL, required by the TMDL statute to be included in the TMDL's calculation,6 is declared to be "implicit." The following contains the textual amendments proposed by the Proposed Rule as they appear in the Proposed Rule's Notice of Proposed Rulemaking. They are underscored because they are new language added to the Existing Rule: Other Waterbodies in the Lake Okeechobee Basin Other waterbodies in the Lake Okeechobee Basin include Chandler Hammock Slough, Nubbin Slough, Mosquito Creek, Lettuce Creek, Henry Creek, S-135 Canal, Myrtle Slough, Taylor Creek, and Otter Creek. The Total Maximum Daily Load for these waterbodies is an annual median TP concentration of 0.159 mg/L, and is allocated as follows: the Wasteload Allocation for point sources is not applicable because there are currently no permitted point sources in the watershed. the Load Allocation for nonpoint sources is an annual median TP concentration of 0.159 mg/L, and the Margin of Safety is implicit. As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above. Notice of Proposed Rulemaking, published September 5, 2003, OR- 1, Tab 5, p. 3. The Challenge to the Proposed Rule On September 26, 2004, pursuant to Section 120.56, Florida Statutes, the Petitioners filed at DOAH their petition to invalidate the Proposed Rule. The petition was amended several times. The petition at issue in the proceeding is the Second Amended Petition to Invalidate Proposed Rules. It was filed June 24, 2004, just more than one month before final hearing commenced. By virtue of the filing of the petition by the three Petitioners challenging the Department's rules, there are four parties to this proceeding: Florida Wildlife Federation, Environmental Confederation of Southwest Florida, Inc., Save Our Creeks, Inc., and the Department. Identification of the Parties Florida Wildlife Federation Florida Wildlife Federation ("FWF"), one of the three Petitioners in this case, is a Florida not-for-profit corporation with its principal place of business in Tallahassee, Florida. It has approximately 14,000 members throughout the state. Its purpose is to promote the preservation, management, and improvement of Florida's fish, wildlife, soil, water and plant life. Lake Okeechobee is a particular focus of FWF as well as the adverse affects of past management practices in the Lake's watershed that threaten the continued existence of the Lake. On behalf of its members, FWF has participated and continues to participate in legal and administrative challenges to defend and otherwise support rules that protect Lake Okeechobee. The organization also brought the civil action that resulted in a Consent Decree that requires promulgation of a TMDL for TP in the Nine Northern Tributaries. A substantial number of FWF members reside near Lake Okeechobee. They use and enjoy the waters of the Lake and the waters of the Nine Northern Tributaries. They observe and enjoy wildlife that rely on these waters for habitat. If the Proposed Rule is not determined to be invalid, there will be continuing adverse impacts to the waters of Lake Okeechobee and the Nine Northern Tributaries.7 These impacts will substantially affect a substantial number of FWF's members in their ability to observe, study and enjoy the waters and wildlife of the Lake Okeechobee basin. Environmental Confederation of Southwest Florida, Inc. Environmental Confederation of Southwest Florida, Inc. ("ECOSWF"), the second of the three Petitioners, is a Florida not-for-profit corporation with its principal place of business in Sarasota, Florida. It has approximately 100 members. They are business entities, governmental agencies and other organizations, and individuals who live in South Florida. Organized for the purpose of conserving natural resources in Southwest Florida, ECOSWF has participated in numerous legal challenges with the aim of preserving Florida's waters. The members of ECOSWF use and enjoy the waters of Lake Okeechobee and the Nine Northern Tributaries. They also observe and enjoy the wildlife that depend upon the waters for habitat. If the proposed rules are not determined to be invalid, there will be continuing adverse impacts to the waters of the Nine Northern Tributaries and the Lake.8 These impacts will substantially affect a substantial number of ECOSWF's members in their ability to observe, study, and enjoy the waters and wildlife of the Nine Northern Tributaries and the Lake. Save Our Creeks, Inc. Save Our Creeks, Inc. ("SOC"), the third of the Petitioners, is a Florida not-for-profit corporation with its principal place of business in Moore Haven, Florida. It has about 100 members who reside primarily in South Florida. Organized to preserve Fisheating Creek and other South Florida water bodies for the use and enjoyment of the public and for their natural resource value, SOC has participated in legal actions with the aim of preserving the environmental integrity of South Florida's rivers, streams, and lakes. A substantial number of SOC's members use and enjoy the waters of Lake Okeechobee and its tributary waters of the Nine Northern Tributaries and also observe and enjoy the fish and wildlife depend upon these waters for habitat. Department of Environmental Protection The Department is the state agency authorized to adopt TMDLs through rulemaking under Chapter 403. See §§ 403.061 and 403.067, Fla. Stat. Standing The parties stipulated to facts related to the standing of Petitioners. See Exhibit 4 to the Pre-hearing Stipulation, paragraphs 5-7. The Elements of the Challenge or Petitions The Petitioners' challenges may be divided broadly into two categories. The first of these is that the derivation by the Department of the Proposed TMDL for TP in the Nine Northern Tributaries (0.159 mg/L.) was so flawed as to render the Proposed TMDL arbitrary and capricious ("Flawed Derivation"). The second is that the Proposed TMDL contravenes the provisions of the Lake Okeechobee Protection Program because it has been set prior to the allocation among sources in the water basin, a condition precedent to the establishment of the TMDL in the view of Petitioners, allowed by the TMDL Act ("The Lake Issue"). The first of these two categories of the challenge is further sub-divided into discreet elements as shown in the findings below. Before addressing the two main categories of Petitioners' challenge, however, there is a preliminary matter to be addressed: the Department's decision to reject water quality modeling results when water quality modeling is the only statutorily-recognized method for developing a TMDL. The Department's decision to forego water quality modeling and accept the method eventually followed for development of the Proposed TMDL must be understood in context. The context includes the TMDL Law, a lawsuit filed against the USEPA, and the various methods for establishing a TMDL. The Law, the Lawsuit and the Methods In Subsection (1) of the TMDL Act, the Legislature declares "that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted] will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution." § 403.067(1), Fla. Stat. Before 1998, the Department had not extensively implemented the TMDL requirements of the Clean Water Act. As a result of a lawsuit against the USEPA, however, a consent decree was entered by USEPA and Earthjustice, the plaintiff in the lawsuit and organization that has some relationship with the Petitioners (the "Consent Decree"). Under the Consent Decree, USEPA agreed to require the Department to evaluate the Nine Northern Tributaries for TMDL development for nutrients by 2002. The USEPA followed through on its agreement under the decree and imposed the requirement for TMDL nutrient development by 2002 on the Department. In the same year that the Consent Decree was entered, 1999, the Florida Legislature passed the TMDL Act. Subsection (6) of the TMDL Act, bearing the catchline "CALCULATION AND ALLOCATION," imposes at its outset requirements on the Department before development of a TMDL for any water body or water segment determined to be impaired. The requirements include coordination with other groups to determine the data required, the methods of collection and analysis, and requirements for quality control: Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. § 403.067(6)(a)1., Fla. Stat. The Department coordinated with groups that had data concerning the Nine Northern Tributaries. In the words of Mr. Mandrup-Poulsen, "[t]he Department considered all readily available data. The primary provider of data . . . is the South Florida Water Management District." (Tr. 204) The Department gave notice by publication on June 27, 2003, of three public workshops in Tallahassee, Perry, and Okeechobee, Florida, and public comment periods on "draft total maximum daily loads . . . for . . . the Northern Tributaries to Lake Okeechobee (nutrients and dissolved oxygen)." Department's Ex. 2. The notice set a period for acceptance of public comment on the draft TMDLs through July 31, 2003, and announced placement of the draft TMDLs on the Department's web site. The TMDL Act endorses only one principal method of analysis of TMDL data: water quality modeling.9 The TMDL Act, however, does not restrict the method of analysis to water quality modeling. In fact, there are at least three other methods that are valid, albeit not endorsed statutorily by the Florida Legislature. These methods are set out in a publication of the Office of Water and the Office of Science and Technology of the USEPA bearing a date of July 2000. The publication is entitled "Nutrient Criteria Technical Guidance Manual" (the "Guidance Manual.") Before involving itself with the three methods in the Guidance Manual or any other method not statutorily-recognized, DEP, as to be expected from the legislative endorsement, attempted to use water quality modeling. This attempt was not merely because of the statutory endorsement. Aside from being statutorily-recognized, water quality modeling was the method "routinely use[d by DEP] in developing maximum daily loads." (Tr. 197) Water quality modeling, moreover, is DEP's "standard operating procedure," id., and a method that the Department has used successfully on a number of occasions and one that, as of the date of final hearing, it continues to use. Water quality modeling requires a great deal of data. In pursuit of data collection and other activities required by water quality modeling, the Department pursued the development of TMDLs for TP in the Nine Northern Tributaries "for many months and at great expense both in personnel time and contractual time." Id. Nonetheless, on the basis of the water quality modeling results, the Department was "unable to come to a scientifically defensible conclusion." Id. Approaches to the Development of the TMDL According to Mr. Mandrup-Poulsen, in developing the TMDL for TP, the Department was not looking for a level of phosphorus that would or would not cause an imbalance in flora and fauna. Instead, the focus was "to ensure that [the Department] had evidence sufficient to support the fact that the concentrations in the TMDL were protective, conservative, and did allow for a healthy population of fish and wildlife." (Tr. 197) Presumably, this would be at a level below the concentration level at which imbalance would occur and, therefore, would comply with the narrative criterion. After the inability to reach a scientifically defensible conclusion on the basis of water quality modeling, the Department attempted alternative approaches. The first post-water quality modeling attempt was by way of an "Artificial Neural Network." (Tr. 198) The employment of a "Neural Network" required the Department to recognize certain realities. For example, the Class III criterion for dissolved oxygen ("DO") of 5.0 milligrams per liter mg/L, at present, is not achievable in the part of the watershed in which the Nine Northern Tributaries are located. Mr. Mandrup-Poulsen, the administrator of the Watershed Assessment section in the Bureau of Watershed Management within the Department's Division of Water Resource Management, therefore, set the DO criterion at a much lower level for purposes of the Neural Network approach. The criterion selected for DO was 1.5 mg/L. The selection of such a low numeric value for DO was criticized by the USEPA. In a document entitled "EPA Comments on FEDP's Nutrients and DO TMDL for the Northeast Tributaries to Lake Okeechobee [the Nine Northern Tributaries]," the EPA wrote, Please explain how the minimum DO requirement of 1.5 mg/l was selected. The DO water quality criterion for Class III fresh water in Florida is "Shall not be less than 5.0 mg/L. Normal daily and seasonal fluctuations above these levels shall be maintained." (See Section 62-302.530(31), F.A.C.) Pursuant to 40 CFR §130.7(c)(1), "TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical WQS..." If FDEP's intent is to change the DO water quality criterion for these water bodies from 5.0 mg/L to 1.5 mg/L, then a Site Specific Alternative Criterion (SSAC) must be developed through Florida normal administrative process or the State must explain how the target properly implements water quality standards. Otherwise, the stated goal of the TMDL must be to attain the 5.0 mg/L DO water quality criterion. Petitioners' Ex. 86D, para. 5 (emphasis added). The selection of 1.5 mg/L for DO was also criticized by the South Florida Water Management District as "arbitrary," see Petitioners' Ex. 86-E, page stamped 002178, and as without "acceptable justification . . . because it will not support a well-balanced community . . . of fish." Id. at pages stamped 002175 and 002176. The Department was not unaware that the DO level selected was far below the level necessary to sustain Class III water uses. Being so far below the Class III criterion referred-to by USEPA, the 1.5 mg/L., was not intended by DEP to be a replacement criterion. In Mr. Mandrup-Poulsen's view, it "was the floor . . . as low as [one should] go with this particular approach [the Neural Network approach.]" (Tr. 200) The Neural Network Approach yielded a value of 115 ppb for TP in the Nine Northern Tributaries, a lower numeric value, and hence more protective, than the Proposed TMDL of 159 ppb. Rulemaking was initiated to establish a TMDL of 115 ppb. A draft of the rule was presented at a public hearing on July 8, 2003. The value produced disagreement within DEP or as it was put in an internal DEP memorandum dated July 14, 2003, "among ourselves (DEP)." Petitioners' Ex. 96A, stamped 002063. Written evidence of the dissension is the following which appears in another memorandum internal to DEP, dated July 14, 2003, that is attached to the first July 14 memorandum: "c) It is highly unlikely that tributary concentrations of 0.115 mg/l will result in the Lake meeting its TMDL requirement, and as such will require the eventual lowering of these tributary TMDLs. Using a DO criteria of 2.0 or 2.5 mg/l might result in a tributary TP concentration more amenable to Lake restoration." Petitioners' Ex. 86-A, second page, stamped 002064, (emphasis added). The 0.115 mg/L concentration level produced by the Neural Network Approach also yielded the contradictory result that to improve the DO level necessary to sustain fish and other aquatic biota would require the addition of more phosphorus to the Nine Northern Tributaries.10 Such an outcome was neither scientifically supportable nor acceptable to the Department and so the Neural Network Approach was rejected and its concentration level abandoned. Proceedings to propose the 0.115 mg/L in rule, accordingly, were halted. Driven by USEPA-imposed requirements under the deadline set by the Consent Decree and with the results of the Neural Network Approach having proved unsatisfactory, the Department made a second attempt at water quality modeling. This attempt, just as the first, proved to be scientifically indefensible. The process was described in more detail by Mr. Mandrup-Poulsen at hearing: The Department had a comment period that extended for 30 days, and our modeling efforts were made known to both the public and to EPA. EPA was very much involved with the model development process. They were concerned because, again, they have a consent decree with Earthjustice that they were obligated to report to a judge whether they were generating the TMDLs per the consent decree and the time line in that consent decree. When the results were not satisfactory for either of those two approaches [water quality modeling and the Neural Network approach], we had advised EPA that we would continue to pursue the water quality modeling contract, and had hoped that we would be able to get improvements on that model. We provided as much data as we could, and we continued to provide our expertise to Dr. Bottcher and his staff [the water quality modelers] in hopes that we would get a better outcome. (Tr. 202) The continued resort to the water quality modeling method failed again to yield a better outcome. The Department alerted the USEPA that its models were not producing scientifically defensible results. With the Consent Decree deadline looming, the USEPA, therefore, encouraged the Department to take an approach referred to as the "Reference Stream Approach." In actuality, the USEPA's role was more than mere encouragement. Personnel from USEPA made the calculations that produced the Proposed TMDL on the basis of data submitted to USEPA by the Department. This data involved streams, most of which were initially identified by the Department, as described in more detail below. Mr. Mandrup-Poulsen's expression of this arrangement was that the Department "evaluated [the work of the USEPA] and then produced [the Proposed] TMDL in September of 2003." (Tr. 203) In other words, while the USEPA performed the calculations used to determine the 75th percentile, the Department evaluated that work, so as, in essence, to adopt the calculations of USEPA as its own in support of the Proposed TMDL derived by the 75th Percentile Method. The value ultimately derived for the Proposed TMDL, therefore, was the result of collaboration between USEPA and the Department or as the Department put it in one of its reports, "[f]or this TMDL [the Proposed TMDL], the Department worked with the Environmental Protection Agency (EPA) to determine a target TP concentration using a reference stream approach." Petitioners' Ex. 2, p. 4. Mr. Mandrup-Poulsen's concessionary opinion of the Proposed TMDL is that while it is not based on the highest quality model it is based on "the best science available at the time." (Tr. 203, (emphasis added)) He believes it provides the protection necessary "to begin the restoration process" id., for the Nine Northern Tributaries. (Id. (emphasis added)) He sees the Proposed TMDL as supported by three factors: (1) a guidance manual published by the USEPA; (2) support by USEPA's technical staff; and (3) "multiple layers of management review." Id. In its Proposed Recommended Order, the Department describes the Reference Stream Approach as follows: "The reference stream approach is one of the USEPA's recommended approaches for the development of nutrient criteria. The approach examines the phosphorus concentrations in healthy streams and designat[es] the 75th percentile of phosphorus concentrations in these reference streams as a target in the stream to be remediated." Respondent's Proposed Recommended Order, pp. 25-26. In fact, the USEPA's Reference Stream Approach is more complicated than the Department's position in this proceeding would lead one to believe. The Department's over-simplification of the Reference Stream Approach is plain from reading of the source extolled by the Department as support for the Proposed TMDL: the "Nutrient Criteria Technical Guidance Manual" for "Rivers and Streams" published in July of 2000 by the USEPA's Offices of Water and Science and Technology (the "Guidance Manual.") The Guidance Manual Chapter 7 of the Guidance Manual was admitted into evidence as Petitioners' Ex. 16. Entitled "Nutrient and Algal Criteria Development," the chapter "addresses the details of developing scientifically defensible criteria for nutrients and algae." Petitioners' Ex. 16, Page 93. Three approaches are provided by the Guidance Manual for use by states in deriving numeric criteria related to nutrients for streams in their eco-regions. These are described in the Guidance Manual as: "(1) the use of reference streams, (2) applying predictive relationships to select nutrient concentrations that will result in appropriate levels of algal biomass, and (3) developing criteria from thresholds established in the literature." Id. The Department did not attempt to derive a TMDL for TP in the Nine Northern Tributaries using either the second or the third approach offered by the Guidance Manual. The USEPA encouraged the first approach, the use of reference streams. The Department provided stream data to the USEPA and then USEPA calculated a phosphorus concentration level based on that data. (An extended discussion of the way this data was provided by the Department - a part of Petitioners' case - takes place below.) The USEPA, however, with the Department's concurrence or acquiescence, did not follow the complete methodology under the Reference Stream Approach. It followed only part of the methodology. Petitioners challenge the method used to derive the Proposed TMDL because it entailed only part of the entire, more involved, methodology. In their view, the Department's acceptance of a concentration level determined by USEPA's calculations under only part of a methodology renders the Proposed TMDL arbitrary. The Guidance Manual bears out Petitioners' assertion that the method used to derive the Proposed TMDL was, indeed, only a part of a more comprehensive methodology. The Guidance Manual's discussion of the Reference Stream Approach under the heading, "Using Reference Reaches to Establish Criteria," see Petitioners' Ex. 16, Page 94, takes up the better part of four pages of the publication, i.e., pages 94 through 97. As a preliminary matter, the use of reference streams Reference Stream Approach, "requires identification of reference reaches for each established stream class based on either best professional judgement (BPJ)or percentile selections of data plotted as frequency distributions." Id. The process of identifying reference streams "allows the investigator to arrange the streams within a class in order of nutrient condition (i.e., trophic state) from reference, to at risk, to impaired." Id. The Guidance Manual warns that when minimally- disturbed streams are rare in an ecoregion, "[c]riteria developed using reference reach approaches may require comparisons to similar systems in States or Tribes that share the ecoregion so that criteria can be validated." Id. Thus, the manual recognizes a difference between streams that exhibit reference conditions ("reference streams") and other streams that are too degraded or impaired to qualify as reference streams and, in methods using the latter types of streams, indicates the import of comparative review for purposes of validation. The difference between "reference" streams and streams that do not exhibit "reference conditions" is apparent from the definition of reference reaches or reference streams provided by the manual: "relatively undisturbed stream segments that can serve as examples of the natural biological integrity of a region." Id. Furthermore, the manual refers to reference streams elsewhere as "acknowledged to be in an approximately ideal state for a particular class of streams." Petitioners' Ex. 16, Page 95. Reference streams, therefore, do not include degraded streams or streams that are degraded even if they are the "least" impacted in an impacted region. This definition is crucial to the Petitioners' case. The reference streams chosen, as discussed below, did not meet the Guidance Manual's definition. Rather than being "relatively undisturbed stream segments" that serve as "examples of the natural biological integrity of a region," or that are "in an approximately ideal state," the reference streams chosen by the Department were "the least impacted streams for that stream class" within the area of the Nine Northern Tributaries, an area that has been greatly impacted. Use of Reference Reaches The Guidance Manual offers three methods of using reference reaches (the "Three Reference Streams Methods") to derive a numeric value for nutrients. They are: Characterize reference reaches for each stream class within a region using best professional judgement and use these reference conditions to develop criteria (the "BPJ Method"). Identify the 75th percentile of the frequency distribution of reference streams for a class of streams and use this percentile to develop the criteria ([reference omitted]) (the "75th Percentile Method"). Calculate the 5th to 25th percentile of the frequency distribution of the general population of a class of streams and use the selected percentile to develop the criteria ([reference omitted]) (the "25th Percentile Method"). Petitioners' Ex. 16, Page 94. The three methods are not three separate methodologies, however; the latter two, the "percentile" methods, are part of one methodology that is more comprehensive then either of the two percentile methods, alone. Under this comprehensive methodology, as a preliminary step, "a reference condition may be selected using either of two frequency distribution approaches." Petitioners' Ex. 16, Page 95. In the first of the two frequency distribution approaches, the 75th Percentile Method: a percentile is selected (EPA generally recommends the 75th percentile) from the distribution of primary variables of known reference systems (i.e., highest quality or least impacted streams for that stream class within a region). As discussed in Chapter 3, primary variables are TP, TN, chl a, and turbidity or TSS. It is reasonable to select a higher percentile (i.e., 75th percentile) as the reference condition, because reference streams are already acknowledged to be in an approximately ideal state for a particular class of streams [reference omitted]. Id. (emphasis added) The second of the two frequency distribution approaches, the 25th Percentile Reference Stream Method is also described in the Guidance Manual: [It] involves selecting a percentile of (1) all streams in the class (reference and non- reference) or (2) a random sample distribution of all streams within a particular class. Due to the random selection process, an upper percentile should be selected because the sample distribution is expected to contain some degraded systems. This option is most useful in regions where the number of legitimate "natural" reference water bodies is usually very small, such as highly developed land use areas (e.g., the agricultural lands of the Midwest and the urbanized east or west coasts.) The EPA recommendation in this case is usually the 5th to 25th percentile depending upon the number of "natural" reference stream available. If almost all reference streams are impaired to some extent, then the 5th percentile is recommended. Id. (emphasis added) (Although described as involving selection of a 5th to 25th percentile, for shorthand purposes, this second percentile method is referred-to in this order as the "25th Percentile Method Reference Stream Method.") There is a critical distinction between stream data used under the two percentile methods. Under the 75th Percentile Method, the streams are to exhibit reference conditions, that is, they are to be minimally impacted or in an approximately ideal state for their class. Data used for the 75th Percentile Method should not include data from streams that are impacted or degraded or the least-impacted for a region that is heavily impacted. The 25th Percentile Method, on the other hand, is expected to use data from streams that have been impacted since it uses data from the general population of streams in a region. This population would include impacted, degraded streams or, in a region that is heavily impacted, some of the least-impacted streams as well as more impacted streams. If the streams were generally impacted or impacted to a great extent, then the percentile chosen to derive a numeric value would not be the 25th percentile, but a lower percentile with a range that reaches as low as the fifth percentile if the general population is sufficiently impacted. Ultimately, the Guidance Manual points out, the 75th Percentile Method and the 25th Percentile Method are "only recommendations" because the "actual distribution of the observations should be the major determinant of the threshold point chosen." Id. An example is given in the Guidance Manual of when the 75th Percentile Method produces a concentration level of 20 ppb and the 25th Percentile Method produces a level of 25 ppb. "Because there is little distinction [in such a case], the Agency may select either 20 [ppb], 25 [ppb], or the intermediate 23 [ppb] . . . ." Id. Each state is cautioned, however, to "similarly calculate reference conditions initially using both approaches [the 75th Percentile Reference Stream Method and the 25th Percentile Reference Stream Method] to determine which method is most protective." Id. Once the calculations are made, the Guidance Manual is clear: "[t]he more conservative approach is recommended for subsequent reference condition calculations." Id. In other words, the State is to choose the lower value produced by the two methods when deriving a TMDL. Margin of Safety The margin of safety contained in the Proposed Rule (one that is implicit in the Proposed TMDL) is viewed favorably by DEP because it used the "75th Percentile Method" to establish the TMDL. Since the concentration of TP theoretically could be higher, that is at a level in excess of the 75th percentile derived from the method, the Department's view of the Proposed TMDL is that it is a conservative one. The Department's view depends, however, on the validity of using only the 75th Percentile Method to establish the Proposed TMDL and not deriving a value based on the 25th Percentile Method for purposes of comparison and selection of the more protective value. It also depends on the validity of the streams chosen as the reference streams for the purposes of data collection. In addressing the selection of reference streams by DEP for use in deriving the Proposed TMDL, it is useful to understand the background that preceded the selection of the reference streams as well as historical information about phosphorus in Florida waters. Historical Information Historical information plays a role in the analysis of appropriate nutrient levels in water bodies. Numbers for historical phosphorus levels inform the analysis or, as Dr. Boyer put it at hearing, gives the investigator "another piece of evidence as to what . . . that system had been before and what could be achieved now." (Tr. 93) Two pieces introduced into evidence by the Petitioners comprise the historical evidence in the record of this proceeding. One, not quite two decades old, is more recent, a 1986 USEPA publication for guidance to the states; the other is a report submitted to the Florida Geological Survey more than half a century ago. The report sums up the analysis of phosphorus data collected prior to many of the drastic changes in land use in the State that have contributed to so much of the problem decried by the Florida Legislature that the Proposed TMDL is intended to address. The report regarding phosphorus in Florida water bodies in the mid-20th Century was referred-to in the record as the "Odum Report." The Odum Report On January 9, 1953, Howard T. Odum of the Department of Biology at the University of Florida submitted a report (the "Odum Report") to the Florida Geological Survey. Entitled "Dissolved Phosphorus in Florida Waters," it appears as Part I in a 1953 Report of Investigations and Miscellaneous Studies published by the State through the State Board of Conservation and the Florida Geological Survey. Mean values of phosphorus in Florida streams are divided into two categories by the report: those in the Phosphate District where "streams are enormously laden with phosphorus" and those elsewhere under the category of "Other." See Petitioners' Ex. 20, p. 13. Data was collected from 18 streams in the Phosphate District and from 44 "other" streams. In the "Phosphate District," the mean value was 0.876 micrograms per liter or 876 ppb; in the "Other" streams the mean value is listed as 0.046 micrograms per liter or 46 ppb. Id. The Department considered the historical data of the Odum Report but gave it short shrift for several reasons: first, the data set is "very limited." (Tr. 206) Second, "collected back in the fifties, [it] might not have met the quality assurance that we would expect for data [today]." Id. Third, the data refers to "dissolved" phosphorus which is a fraction of total phosphorus and therefore a subset of the data needed to establish a TMDL for TP or "total" phosphorus. Most significantly, in the Department's view, the data does not assist in the Department's inquiry to "find values that are still protective of the designated use" (tr. 207) that is, a value that is higher than the historical value but one that will still support the designated use. ii. 1986 USEPA Document On May 1, 1986, the Office of Water Regulations and Standards for the USEPA published a guidance document entitled "Quality Criteria for Water 1986." See Petitioners' Ex. 19. It stated that "[t]o prevent the development of biological nuisances and to control accelerated or cultural eutrophication, total phosphates as phosphorus (P) should not exceed 50 [ppb] in any stream at the point where it enters any lake or reservoir, nor 25 [ppb] within the lake or reservoir." Id. As with other historical reporting, the 1986 Statement by the USEPA has been rejected by the Department. This time the rejection is on the ground that "it is very difficult to generalize. There is a very strong need to assess on a case-by-case basis the capacity of each water body as it enters into a different water body." (Tr. 210) Background Provided by Mr. Frydenborg Russell Frydenborg, the Department's expert in aquatic ecology (among other fields), was not involved in the selection of the Five Reference Streams. He was the main witness for the Department, however, in defense of their selection, largely on the basis of a post-proposal inquiry he conducted to confirm the validity of the Proposed TMDL. In addition to testifying about his after-the-fact justification, he provided background by way of testimony that included the Department's experience with reference streams and the Nine Northern Tributaries, in general. A Reference Stream Approach for establishing numeric criteria for nutrients had never been used prior to its use in this case. A reference site approach was used to set a phosphorus concentration level for the water bodies in the Everglades. It is an approach similar to the approach used for the Proposed TMDL.11 But a reference site approach and a reference stream approach are not precisely the same. Streams are "a whole different type of beast." (Tr. 241) For example, unlike a lake or a standing body of water, "stream biology is very dependent upon flow regime." (Tr. 246) Artificial channelization of a stream affects its habitability for biota. As explained by Mr. Frydenborg: [O]nce you channelize a stream and take out its bends, . . . you will eliminate vast quantities of habitat that the organisms can be able to colonize . . . [Y]ou'll destroy [habitat] when you channelize, and you destroy the hydrologic regime as well. [There will no longer be] microhabitats within the stream where you have different areas of different flow. [It will cause the organisms] to catastrophically drift. (Tr. 247) Bank stability is another factor important to stream evaluations. Erosion can cause sediment flow into a stream system and bring unwanted sand, silt, muck and organic debris that will cover the substrates and keep them from being suitable for macroinvertebrate colonization. The state of riparian buffer systems has an impact on stream ecological health particularly in cases of human encroachment. Likewise the riparian vegetation zone, particularly leaf-litter fall originating within the zone, has an impact on ecological stream health. The impact is detrimental when the zone is disturbed by human activities. Selection of the Reference Streams by DEP Data from five reference streams (the "Five Reference Streams") were used in deriving the Proposed TMDL by the 75th Percentile Method. The Five Reference Streams are Fish Slough, Cypress Slough, Fort Drum Creek, the Northwest Fork of the Loxahatchee River (the "NW Fork") and the North Fork of the Loxahatchee River (the "North Fork"). With the exception of Fish Slough, the reference streams were initially identified by an Environmental Manager in the Department: Julie Espy. Ms. Espy was not called by the Department to the witness stand to explain at hearing the identification of the reference streams. Her deposition was introduced into evidence, however, by Petitioners because the circumstances surrounding the identification of these four streams (the "Four Reference Streams") inform their claim that the process for the derivation of the Proposed TMDL was arbitrary and capricious. Ms. Espy was a logical person to have assisted in the selection of reference streams. Her duties includes the supervision of algal and freshwater macroinvertebrate taxonomy groups, the management of freshwater data and filed assessments and sampling of rivers, wetlands, lakes, canals, and streams. The data she manages, moreover, is collected for various programs that include TMDL programs. All in all, in her words, they include "Everglades, TMDL, small projects, like restoration projects [and] monitoring. Some of it is method development data." Petitioners' Ex. 90, p. 7. Ms. Espy was a logical choice to choose reference streams based on experience with programs and the types of data she managed. Yet, when asked to identify streams in the area in which the Nine Northern Tributaries are located, Ms. Espy was not informed of the purpose of the identification. The request was made by USEPA when Ms. Espy was contacted in mid-2003 by "David Melgaard from EPA." Id. at 10. Prior to the request by Mr. Melgaard, no one from the Department had requested or ordered that she participate in the development of the Proposed TMDL. When Mr. Melgaard asked about some "six or seven" (id. pp. 10-11) specific streams in the area of Lake Okeechobee, that included Fish Slough and Cypress Slough, he did not inform Ms. Espy why she had been contacted or the use to which the information would be put. Mr. Melgaard suggested that she search in Ecoregion 75(d). Canals were excluded because they "don't act the same as a stream echo system. With all the hydrological modification, the SCI metrics [for canals] . . . don't work the same [as for streams]." Id. at 11-12. The following colloquy took place in Ms. Espy's deposition when she was asked the basis of her recommendation for the Four Reference Streams: Q What were you looking at in making these recommendation? A I was using our GIS coverage. We have data layer that includes all of our biological stations, so that one thing I looked at, because it also had the ecoregion coverage, so I could see spatially the proximity of the sites and that type of thing. Q What else were you looking at? * * * A That's all I was looking at. He was just asking me for sites. Q You were not making an assessment about the appropriateness of the stream for any purpose? A No. Q You were strictly identifying streams that were in proximity -- A Biological samples -- where biological samples had occurred. I might add, that at the time that I requested this, he did not approach me with we are looking for streams for the Lake Okeechobee tributary TMDL. I was totally unaware of why he was asking for the information. I really didn't have any context to base that on. Q Have you ever visited any of these streams A I went -- Q I mean prior to the site visit that took place in April [of 2004]. A No. Q At the time you were making these suggestions to EPA had you ever visited any of these streams? A No. Id. at 13-15. On August 18, 2003, Ms. Espy sent an e-mail message to Mr. Melgaard. The message listed the Four Reference Streams. Ft. Drum Creek and Cypress Slough were listed as "closest to the Fish Slough site" (Petitioners' Ex. 90, Ex. 2.); the "NW Fork of the Loxahatchee River" and the "North Fork of the Loxahatchee River" were described as "further away, but . . . very good (biologically). They've been sampled numerous times but may be too large to compare to the others." Id. After informing Mr. Melgaard that they were in "ecoregion 75d," the message from Ms. Espy stated as she later confirmed at her deposition, "I haven't been to any of these sites." Id. Following the transmission of the message to EPA, Ms. Espy received an e-mail message from Mr. Melgaard. See Petitioners' Ex. 90, Ex. 3. It asked her to "ask the biologists from that area if comparing nutrient levels in the reference streams to those in the North Okeechobee Tribs is appropriate considering all the hydrological modifications in the Lake O [Lake Okeechobee] area." Id. Ms. Espy spoke to Mark Thompson, a biologist from the Department's southeast district office but Mr. Thompson "wasn't very familiar with any of the sites." Ms. Espy did not check with anyone else. She relayed the outcome of her inquiry to EPA but was not asked any further about the Four Reference Streams prior to the publication of the Proposed Rule in September 2003. In October of 2003, approximately 6 weeks after the publication of the Notice of Proposed Rulemaking with regard to the amendments to the Existing Rule that establish the Proposed TMDL, Dan Scheidt of Region 4 of the USEPA, sent an e-mail message (the "October 2003 E-Mail Message") to Ms. Espy: Julie- I am trying to follow up and close the loop on proposed stream TP reference sites for the S-191 basin. There are 5 reference sites proposed for S-191 basin TP: these four along with Fish Slough: [Code and No. IDs omitted] Ft. Drum Creek [" " " " " " " " ] Cypress Slough [" " " " " " " " ] NW Fork of the Loxahatchee River [" " " " " " " " ] North Fork of the Loxahatchee River For which of these sites does FDEP have bio data that confirms that these are in fact reference sites, ie., there is no impairment due to nutrients. Thanks Ex. 4 attached to Petitioners' Ex. 90. Not surprisingly, since the rule amendment containing the Proposed TMDL had been published more than a month earlier, Ms. Espy did not respond promptly to Mr. Scheidt. At the time of her identification of the Four Reference Streams for USEPA, Ms. Espy had not been involved in the selection of Fish Slough as the fifth reference stream. Nor did she have any familiarity with Fish Slough. Of the Four Reference Streams she identified for USEPA, Ms. Espy was familiar at the time she suggested them with only two: the NW Fork and the North Fork. Her familiarity was based on receipt of "samples from those two sites on a few occasions in the laboratory." (Petitioners' Ex. 90, p. 15). The basis of her familiarity was described in this way: "I was familiar with analyzing the samples, putting the data into the database and what those results were." Id. When the streams were recommended Ms. Espy had not examined their SCI scores nor the data that supported the scores. Ms. Espy had never looked at any bio assessment data with regard to the reference streams prior to December 16, 2003. In response to the USEPA October E-mail Message, however, Ms. Espy eventually provided Stream Condition Index ("SCI") scores. The entirety of the scores consisted of one score for Fish Slough, one score for Cypress Slough, six scores for Fort Drum Creek, 15 for the North Fork of the Loxahatchee and 16 for the Northwest Fork of the Loxahatchee. These scores were compiled from the statewide biological database. The scores were sent to USEPA in a November 2003 e- mail message. In her e-mail message, Ms. Espy wrote to Mr. Scheidt at USEPA: Attached find the macroinvertebrate data we have for these sites [the Four Reference Streams ]. These data are the Stream Condition Index scores for these sites. I would not say that because these sites have good SCI scores they have NO impairment for nutrients. These sites are just the best available for that area in the state. Ex. 4, 3rd page, attached to Petitioners' Ex. 90 (emphasis added). This message is consistent with the Department's position that the Five Reference Streams are "least impacted in the region," a status to be distinguished from the requirement that streams be minimally impacted or in a nearly ideal state to qualify as reference streams. Ms. Espy does not believe that the SCI scores confirm that there is no impairment due to nutrients to the Four Reference Streams because "[t]he SCI isn't necessarily a tool that is used just to point out or indicate nutrient impairment." (Petitioners' Ex. 90, p. 23). Mr. Frydenborg's After-the-Fact Efforts Mr. Frydenborg visited the Nine Northern Tributaries in order to collect data for purposes of supporting the Proposed TMDL after the Proposed Rule was published and challenged by Petitioners. The collection effort, as expected, revealed widespread hydrologic modification in the area of the Nine Northern Tributaries. The majority of the sites visited in the area had unacceptable, that is, "very low" (tr. 252) habitat scores. The habitat and the hydrology of the sites led Mr. Frydenborg to conclude that no matter what improvement was made to water quality with regard to TP, "you wouldn't get very good biological communities." Id. The only potential exception among the Nine Northern Tributaries is Mosquito Creek. Mosquito Creek Among the Nine Northern Tributaries, Mosquito Creek had the best habitat. Under a recalibrated Stream Condition Index ("the New SCI"), conducted by the Department, it scored a 102, just below the threshold level of 105 that is considered optimal. The scores for the other Nine Northern Tributaries ranged from 21 to 69. Mosquito Creek also enjoyed the best hydrologic score ("7") while the others all scored 9 or 10, indicating that the others enjoyed very few natural hydroperiods but rather suffered with impaired hydroperiods, "completely human-controlled." (Tr. 253) Mr. Frydenborg's assessment of Mosquito Creek does not square precisely with an earlier assessment conducted by the Department in 1999 and summarized in Petitioners' Ex. 25. Petitioners' Exhibit 25 is an Ecosummary of Mosquito Creek prepared by the Department's Southeast District's Assessment and Monitoring Program. Issued in September of 1999, it describes Mosquito Creek in much the same way as Mr. Frydenborg at hearing but with a few differences: Despite water quality problems, the creek has beautiful stretches with luxurious aquatic and riparian vegetation and an extensive and populous benthic invertebrate community, all thriving on the excessive nutrient load. Native vegetation such as maple, cypress, willow, and oak dominate the canopy while noxious and rank growths of exotics (water hyacinth, water lettuce, wild taro, and pepper trees) clog the water surface and understory. A diverse assemblage of aquatic insects, worms, and mollusks utilize the nutrient enriched water. Petitioners' Ex. 25, 1st page (emphasis added). The exhibit refers to the historical use of the watershed for dairy and beef cattle production. Although data was limited, the exhibit reflected the finding that "water quality in the creek appears to be improving." Id. This was attributed to best management practices and changes in land use away from dairy and beef cattle production. "Nevertheless," the document states, "water quality continues to be poor." Id. From 1992 to 1998, TP averaged 0.728 mg/l, or over seven times what an acceptable limit might be . . . ." Id. The document describes "Type II Error" that occurs with regard to environmental assessments: Contrary to its obvious water quality impairment (which includes very high phosphorus and nitrogen nutrient concentrations and chronically low dissolved oxygen), Mosquito Creek scored very highly (33 or "excellent") during a 1994 biological dipnet macroinvertebrate assessment using FDEP's SCI method. This misleading evaluation may have occurred due to the good habitat and flow present at the Mosquito Creek site, and illustrates the potential danger of employing "cookie-cutter" environmental assessment approaches. An incorrect assessment such as this is called a "Type II Error" wherein a polluted stream is deemed to be in "excellent" condition. * * * Failure to avoid "Type II Error" may result in a false public perception about the true condition of a polluted waterway. Petitioners' Ex. 25, 2nd page. The exhibit further warns of the effects of the excessive nutrient loading in the creek on Lake Okeechobee: Although Mosquito Creek is but a small tributary to Lake Okeechobee, many such sources combine to exacerbate the Lake's problems. Heavy loads of nutrients have resulted in massive algal blooms which can deplete dissolved oxygen levels and cause Id. fishkills. The type of algae that make up these blooms can include those which produce toxins. These Harmful Algal Blooms (HABs) can sicken, kill, and even be carcinogenic to a wide variety of organism. The exhibit, as far as its attribution of Type II error to the assessment of Mosquito Creek as "excellent" was dismissed by the Department at hearing. The exhibit was authored by a chemist who "has not passed the stream condition audit". It failed in Mr. Frydenborg's view to consider, moreover, that excessive nutrient loading may not cause poor biological health when there are other factors that would allow biological health despite excessive nutrients such as shading and the darkness of the water that would prevent the penetration of light. The exhibit pointed to other indicators of poor biological health, that in the opinion of the author of Petitioners' Exhibit 25 were overlooked: While the macroinvertebrate fauna collected from Mosquito Creek was diverse, it included many species tolerant to pollution that opportunistically exploited the conditions which pollution caused. Thus air-breathing taxa were common in Mosquito Creek (they can tolerate low dissolved oxygen). The exotic bivalve, Corbicula fluminea, was extremely abundant, but was under-reported by the dipnet method. This species thrives in areas receiving high nutrients, filtering abundant suspended organic materials that result from the over-growth of plants fertilized by runoff. Id. Whatever Mosquito Creek's status, the eight other tributaries among the Nine Northern Tributaries have major problems as all parties to this proceeding agree and as further described by Mr. Frydenborg at hearing. Problems Associated with the Nine Northern Tributaries A major problem for most of the Nine Northern Tributaries is that hydrologic modifications, such as ditching and draining, create a "spike in [the] hydrograph." Id. In rain events, they endure large influxes of water that cause turbulent flow and scouring to the stream system. The result is that the stream's ability to support benthic macroinvertebrate communities is severely reduced. At bottom, an improvement in TP concentrations for the Nine Northern Tributaries is not anticipated by the Department to lead to a normally-expected biological community because major improvements in stream habitat and hydrologic regime are also required. This expectation by the Department, however, is not supported by a Use Attainability Analysis. Use Attainability Analysis A "Use Attainability Analysis" was not done on the Nine Northern Tributaries to determine if they could attain Class III uses. A structured scientific assessment of the factors affecting the attainment of use, a Use Attainability Analysis has been adopted by the federal government. The Department conducted such an analysis of the Fenholloway River, polluted by a the point source of a pulp mill. But there was no evidence that the Department had conducted such an analysis on streams polluted by non-point sources as in the case of the Nine Northern Tributaries. Certainly, Mr. Frydenborg has never been involved in such an analysis. Without having conducted a Use Attainability Analysis, the Department nonetheless continues to anticipate that an improvement in TP concentrations in the Nine Northern Tributaries will not serve to attain Class III uses. DEP Reaction to the Rule Challenge The record does not reflect any response other than the SCI data provided by Ms. Espy to USEPA's request for "bio data that confirms that these are in fact reference sites, i.e., there is not impairment due to nutrients." When this Rule Challenge was filed at DOAH, however, Mr. Frydenborg was asked by Mr. Brooks to visit the sites of the Reference Streams and the Nine Northern Tributaries to "collect some additional data so that we had an objective evaluation . . . ." (Tr. 244) He visited the Nine Northern Tributaries and three of the Five Reference Streams in April of 2003. He was accompanied by Ms. Espy. They spent two days visiting all of the Nine Northern Tributaries but, according to Ms. Espy, we're only able to spend time at two of the reference streams and "drive-by . . . one other." (Petitioners' Ex. 90, p. 38). The reference streams not visited, according to Ms. Espy, were Fish Slough (this may be because Mr. Frydenborg knew from an earlier visit that it would not qualify as a reference stream in its present state, see Finding of Fact 165) and the Northwest Fork of the Loxahatchee. They drove by the North Fork of the Loxahatchee and actually spent time at Cypress Slough and Fort Drum Creek. Mr. Frydenborg, whether with Ms. Espy or not, did visit Fish Slough at some point. (It may be inferred from his testimony that he saw Fish Slough on the April 15-16, 2003 visit.) He was asked about it in the context of the April 15, 2003, trips taken by him and Ms. Espy: Q [C]an you describe what you saw when you visited the reference streams? A Well, when I went to Fish Slough, I immediately determined that it is not a reference site currently. It had a completely channelized system with [no] riparian zone. There were exotic plants in the water. I believe there was hydrilla. . . . I would not characterize the condition of Fish Slough as a reference community today. Gary Ritter [of the water management district] . . . was along with me. I said, "Gary, this is a bad reference site," and he said, "Well, there have been some changes in the basin around 1995," and I believe that the Department used pre-1995 data for that site because it currently would not qualify as a reference site. (Tr. 263-264) In apparent reliance on Mr. Ritter's statement and its interpretation of the statement, the Department used pre- 1995 data for Fish Slough in the calculations for the derivation of the Proposed TMDL. This is noted in the report issued by the Department through its Watershed Assessment Section on September 16, 2003. The report introduced into the record by Petitioners, describes its purpose as "[to] represent[] the efforts to develop a . . . TMDL for . . . TO for impaired waterbodies within the Lake Okeechobee Basin " Petitioners' Ex. 2, pg. 1. With regard to the present status of Fish Slough as not an appropriate reference stream the report states, It should be noted that the entire data record was not used for each station. For Fish Slough, which is within the Lake Okeechobee Watershed and which has a similar soil and topography there were phosphorus data back to 1986. However, land use changes and increased agricultural activity in the watershed since 1996 have led to the concern that Fish Slough may no longer be suitable as a reference site. For this reason, only the Fish Slough data for 1986- 1995 were used to determine the TP target. Using this shorter period of record, there were 490 TP samples for these five streams and the 75th percentile value for TP is 0.159 mg/L. Petitioners' Ex. 2, p. 4, emphasis added. The decision to accept Fish Slough as a reference stream prior to 1996 was made on the basis of Mr. Ritter's statement and the suggestion of Kim Shugar, who, like Mr. Ritter, has been involved in water quality restoration work in South Florida. Neither Mr. Ritter nor Ms. Shugar testified at hearing, however, as to the basis of their belief. Nor with one exception is there any evidence of record that Fish Slough was a reference stream prior to 1996. That exception is the following testimony of Mr. Frydenborg: Well, I did the habitat and the hydrologic index, and, interestingly, the LDI, the Landscape Development Intensity Index I believe was around 2.2 for Fish Slough, and that data that we have that's a complete data set for the State of Florida was like 1996 data. So I guess that is an independent way of confirming that at that point there was a relatively benign land use at Fish Slough ... See Respondent's Proposed Recommended Order, para. 91, p. 34. Otherwise, Mr. Frydenborg disclaimed any knowledge of whether Fish Slough would have qualified as a reference stream prior to 1996: "I really don't have the knowledge to be able to tell you what it [Fish Slough] was like before 1995 " (Tr. 267) Without doubt, however, it is "not an acceptable reference site today . . . ." Id. Infested with exotic plants such as hydrilla, Fish Slough, is a completely channelized system with no riparian zone. At Cypress Slough and Fort Drum Creek, Mr. Frydenborg and Ms. Espy "walked the system probably 200 or 300 meters down from the road crossing and then [conducted] a 100-meter stretch assessment within that." (Petitioners' Ex. 90, p. 39). The 100-meter stretch assessment was described at hearing by Mr. Frydenborg: You pull a tape measure out and you flag the site every ten meters so you can get an accurate map of the habitats, and then you do a series of evaluations. There's eight procedures that you go through for the habitat assessments. (Tr. 245) The procedures which measure "habitat parameters" (see Department Exs. 7 and 9) include an examination of substrate diversity and substrate availability. Substrate in Florida are "snags, leaf packs, root materials, aquatic vegetation" (id.) and may include limestone rock. The habitat parameters also include an examination of water velocity, habitat smothering (affects of sand or silt accumulation), the degree of artificial channelization, bank stability, riparian zone buffer, and riparian zone vegetation. The vegetation in a riparian zone is crucial to a stream's trophic system, particularly its leaf litter fall. The contribution by leaf-producing organisms in the riparian zone to stream habitat was stressed by Mr. Frydenborg at hearing: (Tr. 248) They shed their leaves periodically, and that's a very important source of habitat because organisms . . . live in those leaf packs, and [they are] also a source of organic matter that is naturally found in the systems . . . . [O]rganisms . . . called shredders . . . move in and cut . . . the leaf litter into smaller pieces and produce usable organic matter that then ... [serves] the whole community[.] [At] the base of the food web . . . the organisms . . . eat the native algae . . . the diatoms . . . the leaf litter[.] [For] aquatic macrophytes or aquatic plants in the system, [its] a source of organic production . . . used as food throughout . . . the trophic system[.] . . . [I]t is [the source of] energy [that] moves from one level to the next [within healthy stream habitat] . . . . In addition to the eight procedures for habitat assessment, Mr. Frydenborg also calculated a hydrologic modification score on a form he developed as an off-shoot of USEPA's Human Disturbance Gradient. The form had been used in the recalibration of the Old SCI that led to the New SCI. See Finding of Fact 171 below. The calculation revealed "widespread hydrologic modification in that northeastern tributary area" (tr. 251) the area of the Nine Northern Tributaries. Optimum habitat scores are in excess of 105. Eight of the Nine Northern Tributaries had scores below 69, "unacceptable habitat scores, very low." (Tr. 252) The exception with the highest score was Mosquito Creek. With regard to the Reference Streams, no SCI scores were calculated on the April, 2003 trip. No samples of the reference streams were taken because Mr. Frydenborg and Ms. Espy "didn't feel there would be sufficient time before the hearing was scheduled" (Petitioners' Ex. 90, p. 42) to analyze any such samples. Instead, Mr. Frydenborg and Ms. Espy, as they had done with regard to the Nine Northern Tributaries conducted "habitat assessment and hydrologic scoring" (tr. 261) for the two Reference Streams they visited: Fort Drum Creek and Cypress Slough. The scores for the two are found on Department Exhibit The exhibit consists of three documents for each of the Reference Streams: a "Stream/River Habitat Sketch Sheet," a "Physical/Chemical Characterization Field Sheet," and a "Stream/River Habitat Assessment Field Sheet." See Department Ex. 9. The latter sheet scores the stream on the eight habitat parameters that are included in the habitat assessment. Fort Drum Creek received a hydrologic score of five, "in [the] moderate range of disturbance . . . ." (Tr. 264) Its habitat score was "125." The Stream/River Habitat Assessment Field Sheet has four categories for each habitat parameter. They are "Optimal," "Suboptimal," "Marginal" and "Poor." The creek received optimal scores in four of them: habitat smothering, artificial channelization, riparian buffer zone width and riparian zone vegetation quality. It received suboptimal scores in three habitat parameters: substrate diversity, water velocity, and bank stability and a marginal score in substrate availability which indicates that the creek has only "6% to 15% productive habitat". Department's Ex. 9, p. 3. Cypress Slough received a slightly higher score of 127. Although it had only a marginal score of "8" in substrate availability indicating something less than 15% of productive habitat, Mr. Frydenborg described the segment of the slough in which the assessment was made as a "tropical paradise . . . [with] a beautiful riparian zone [and] nice habitats." (tr. 266) The description matches the maximum optimal scores Cypress Slough received for artificial channelization, bank stability, riparian buffer zone width and riparian zone vegetation quality. With regard to the three other habitat parameters, substrate diversity, water velocity and habitat smothering, the slough received suboptimal scores. Assessments were not taken at the Northwest and North Forks of the Loxahatchee because eight previous samplings had been taken that produced data for habitat assessment and hydrologic scoring had been done of them during the recalibration process of the SCI. In the end, the Department was satisfied with the Reference Streams used for purposes of data in calculating the 75th percentile of TP because of two reasons: (1) their high 1996 Stream Condition Index Scores and (2) their proximity to the Lake Okeechobee basin. In the Department's view, the Proposed TMDL should protect the Nine Northern Tributaries from imbalance "because that is what is represented in the reference site population data." (Tr. 270) That view was confirmed for the Department by three analyses that Mr. Frydenborg conducted after the Proposed TMDL was challenged by Petitioners. The first analysis used cases "where there was an SCI score of good, and in conjunction with [that], on that day, a total phosphorus of greater than 159 . . . ." (Tr. 134) Out of a total of 629 scores available, only 7 qualified in the analysis. Dr. Boyer, Petitioners' expert witness, explained that the analysis was scientifically invalid because it ignored the high variability of phosphorus data over time, ignored the existence of additional SCI scores (New SCI scores) for the same streams in which the streams received only "fair" or "poor" assessments, and ignored the existence of data showing that there was only one stream that had a phosphorus reading of over 159 ppb which also had a consistent New SCI scores of "good." As Dr. Boyer explained: [T]his site is Little Orange [Creek] . . . . [I]t also has TP values of 29 and 39 on different days. There is a lot of variability in the data. So to come to the conclusion that this site is good because on one day it had a high TO and it scored good is invalid . . . . (Tr. 137) The second analysis was a regression analysis, a statistical tool, that showed no relationship between total phosphorus and biological health of a system. The Department again used an approach that employed only the phosphorus level on the day the SCI score was taken and not all the data over a period of time. The approach is invalid. It inappropriately uses point data rather than all available data. The third analysis examined all "good" SCI scores in the Peninsular Region that had a phosphorus reading the same day and took the 75th percentile of the phosphorus data. It then examined all "good" and "fair" SCI scores in the same region that had a phosphorus reading the same day and took the 75th Percentile of the phosphorus data. These two produced 75th percentiles of 243 ppb and 230 ppb. Dr. Boyer criticized the third analysis because "the text category . . . were not what's used of the new method [the New SCI]." (Tr. 146) Under the new method "it dropped several goods into the fair categories and several fairs into the poor category." Id. The analysis also suffered from point phosphorus data rather than all data available for a stream as required under the USEPA's 75th Percentile Method. The limitation of the data set, moreover, because of the point data used rather than all data, produced a result with a large confidence level that fell anywhere between 31 ppb and 441 ppb, hardly a confirmation of the Proposed TMDL. If one categorizes the streams according to their New SCI rating (good, fair, poor and very poor), and takes a mean of the phosphorus data, an entirely different conclusion is reached about the relationship between TP and biological health. The mean phosphorus for good systems is 31 ppb, for fair 88 ppb, for poor 141 ppb and very poor is 193 ppb. Maximum phosphorus for a good system would be 78 ppb. One concludes from this analysis that there is a definite relationship between TP and the health of a biological system. As Dr. Boyer put it, "you're not going to find a . . . system . . . that's consistently good that has high phosphorus." (Tr. 145) The New SCI assesses ten metrics of macroinvertebrate community health. The ten metrics "represent a category of biological attributes so that you can get the best holistic data set [for] an accurate evaluation of the biological community." (Tr. 302) The New SCI also is based on a Human Disturbance Gradient ("HDG"). At the end of the calculation, a stream falls into one of four categories: good, fair, poor or very poor. The scores span a scale from 1 to 100 with 100 being the best. A score of 73 and above qualifies a stream as "good." Of "[t]he sites that got zero on the Human Disturbance Gradient . . ., no observable type of human disturbance . . ., only about 25 percent . . . exceeded . . . 73 . . . ." The remainder fell into the fair category, an indication that a rating of "fair" may not indicate impairment, according to Mr. Frydenborg. Petitioners' Ex. 98, a publication of DEP's bearing a revision date of February 1, 2004, however, indicates otherwise in its description of the SCI category "Fair:" "Significantly different from natural conditions; 20-30% loss of Ephemeroptera, Trichoptera and long-lived taxa; 40% loss of clinger and sensitive taxa; percentage of very tolerant individuals double." Petitioners' Ex. 98, p. 21 of 32, (emphasis added). In addition to testifying about the reference streams, Mr. Frydenborg explained why the Department did not calculate a TMDL under the 25th Percentile Method recommended by the USEPA. The Department regarded the recommendation of that method as a disservice by the USEPA. "Disservice by the USEPA?" As discussed above, the Guidance Manual published by the USEPA suggests that in addition to the "75th Percentile Reference Stream Approach" that the Department should have also applied the 25th Percentile Method and compared the results as part of a comprehensive and protective "frequency distribution" methodology. After comparing the results from the two methods, USEPA recommends selecting the lower result in order to ensure that a TMDL is protective. The 25th Percentile Method was conducted by the USEPA in its Ecoregion XII, described in a document published in December of 2000 by the USEPA's Office of Water as encompassing "the southeast corner of Georgia (excluding the immediate coastline) and a large segment of central and Gulf of Mexico coastal Florida." See Petitioners' Ex. 17, p. 7. This Ecoregion is primarily north of Ecoregion XIII, which is the Southern Florida Coastal Plain. Maps in the document show that Lake Okeechobee is in Ecoregion XIII, but the Nine Northern Tributaries are located in Ecoregion XII. Ecoregion XII contains a sub-ecoregion, sub-ecoregion 75. Testimony at hearing indicated that the Nine Northern Tributaries are at the southernmost end of Sub-ecoregion 75. Employing the 25th Percentile Method, the reference conditions for both "aggregate Ecoregion XII streams" and "level III ecoregion 75 streams" with regard to total phosphorus were 40 ppb or 0.040 mg/L. See Petitioners' Ex. 17, Table 2 and 3, at pp 13 and 14, respectively. Also see id. "Executive Summary," pp. vi and (tr. 92). The concentration level of 40 ppb (or 40 micrograms per liter) produced by USEPA for streams in the Nine Northern Tributaries ecoregion using the 25th Percentile Method was rejected by the Department for purposes of proposing a TMDL for TP in the Nine Northern Tributaries. Despite the USEPA recommendation in the Guidance Document, the Department does not have faith in the 25th Percentile Method for establishing a level at which imbalance occurs. It views USEPA as having done a "huge disservice . . . to the states when they promulgated [the Guidance Document that recommends employment of the 25th Percentile Method]." (Tr. 286) At hearing, Mr. Frydenborg described the Department's view of the flaw in the 25th Percentile Method for establishing imbalance. In his words, the 25th Percentile Method takes, "sites of completely unknown quality - - they could all be excellent quality biologically, no imbalances whatsoever, and by arbitrarily selecting the lower 25th percentile, [it] automatically [makes] any site above that impaired with no evidence to support that there is actually imbalances of biological communities . . . ." (Tr. 286) While theoretically, the 25th Percentile Method could use streams with "excellent" biological quality, that is, streams that were impacted at most minimally, the description of the method in the Guidance Manual makes clear that the precise opposite is the case; the method will typically use streams that are degraded. The potential for degraded streams to be used by the 25th Percentile Method is precisely why the USEPA methodology that employs the 25th Percentile Method recommends that an even lower percentile, down to the fifth percentile, be considered for obtaining a nutrient value for setting a numeric criteria. The method in which one would expect only streams of excellent biological quality to be used is the 75th Percentile Method. This is why the 75th Percentile Method, in contrast to the 25th Percentile Method, is described by the USEPA as "the preferred method to establish a reference condition." Id. at A discussion of the comparison of the two indicates that while the 75th Percentile Method is preferred, the hope is that the two methods will produce similar values for a reference condition: EPA's Technical Guidance Manual for Developing Nutrient Criteria for Rivers and Streams describes two ways of establishing a reference condition. One method is to choose the upper 25th percentile (75th percentile [the 75th Percentile Method]) of a reference population of streams. This is the preferred method to establish a reference condition. The 75th percentile was chosen by EPA since it is likely associated with minimally impacted conditions, will be protective of designated uses, and provides management flexibility. When reference streams are not identified, the second method is to determine the lower 25th percentile of the population of all streams within a region [the 25th Percentile Method]. The 25th percentile of the entire population was chosen by EPA to represent a surrogate for an actual reference population. Data analyses to date indicate the lower 25th percentile from an entire population roughly approximates the 75th percentile of the population for a reference population [citations to case studies in Minnesota and Tennessee omitted]. New York State has also presented evidence that the 25th percentile [method] and the 75th percentile [method] compare well based on user perceptions of water resources [citation omitted]. Id. This discussion also shows that values with a variance from 40 ppb (as produced by USEPA for the Ecoregion in which the Nine Northern Tributaries are located employing the 25th Percentile Method) and 159 ppb (produced by the Department in collaboration with USEPA in employing the 75th Percentile Method) are unexpected. It also explains why the USEPA in the Reference Stream Approach urges that when the values produced by the 75th Percentile Method and the 25th Percentile Method are at a sufficient variance that the lower, more protective, value be chosen for purposes of deriving a TMDL for a nutrient. A Numeric Value at Great Variance When a frequency distribution analysis produces a value that is at great variance with another frequency distribution analysis, it causes the scientific investigator to pause in progress toward the goal. Instead of attempting to proceed toward the ultimate goal of arriving at a numeric criterion, the next step for the investigator is to determine the cause for the variance between the analyses. This is particularly true when the analysis with the higher value is at odds as well with other data, such as historical data. The step for determining the basis of the discrepancy between values produced by various analyses was described by Dr. Boyer at hearing when asked, "What would you do if you found one [a value] that was totally different from the others?" (Tr. 94) Dr. Boyer answered that it would require the scientific investigator to re-examine the result, "either the data are bad or [the] analysis is wrong," id., or the investigator did not account for some factor. While a result at great variance with other results would not necessarily mean that the result was inaccurate, it is a "red flag," id., that requires re-examination. The high value in the Proposed TMDL is indeed a "red flag." It calls into question the streams chosen by the Department as reference streams for the 75th Percentile Method. The legitimacy of the reference status of the streams chosen by the Department was cast into further doubt by the testimony of Petitioners' witness whose fields of expertise include water quality analysis relating to nutrient loading: Jean Marie Boyer, Ph.D. Dr. Boyer's Testimony As referenced above, Fish Slough, at the time of hearing, would not have qualified as a reference stream because of impacts. Whether it was one or not prior to 1996, the end date for Fish Slough data used by the Department for derivation of the Proposed TMDL, is less than clear from the record. The Department relied on statements from water management district personnel. None of those personnel testified at the hearing in this proceeding. There was no other evidence in the proceeding, documentary or otherwise, to support Fish Slough's reference stream status prior to 1996 aside from Mr. Frydenborg's reference to a LDI reading that exceeded the range into which a reference stream would have fallen. It is Dr. Boyer's opinion, moreover, that none of the Five Reference Stream supporting the Proposed TMDL are legitimate reference streams, in part, because of the scores received on the Old SCI and the New SCI. In her opinion, Cypress Slough, furthermore, is more than minimally-impacted so that it does not qualify as a reference stream. Located in the proximity of several dairy farms from which it receives direct drainage, Cypress Slough is "impacted and it is disturbed." (Tr. 102) When the initial SCI report was prepared it was not on the "preferenced stream list." Id. It is listed as "fair" on the New SCI with a modification score of 6. Fort Drum Creek is "less disturbed than Fish Slough or Cypress Slough" id., but still Dr. Boyer "wouldn't consider [Fort Drum Creek] minimally impacted . . . ." Among six RSCI scores, Fort Drum Creek received 5 "fairs" and 1 "good." It was explained at hearing, that a rating of "fair" on the New SCI does not necessarily mean that the stream is more than "minimally impacted." On the Land Development Index, however, Fort Drum Creek scores a 2.9, a number that is higher than "zero to two [which is] considered a good number for the Landscape Development Index." (Tr. 103) The LDI, therefore, indicates that Fort Drum Creek does not qualify as a reference stream. The Northwest Fork of the Loxahatchee (the "Northwest Fork") appears to be in pretty good shape" to Dr. Boyer, except that "there is development upstream." Id. Under the New SCI, the Northwest Fork is shown to be "in very poor shape." (Tr. 104) This is because its "macroinvertebrate community isn't in very good shape." Id. The North Fork of the Loxahatchee (the "North Fork") is in a state park and does not have development upstream but under the New SCI "it hasn't done very well . . . ." Id. Dr. Boyer's opinion, at least so far as three of the streams (Fish Slough, Cypress Slough, and Fort Drum Creek) are concerned, is supported by evidence of record that pre-dated the Proposed Rule and this challenge. A report dated May 31, 1996, that relates the development of the SCI, described as "a primary indicator of ecosystem health and to identify impairment with respect to the reference (or natural) condition" (Petitioners' Ex. 29, Executive Summary, p. 2) was admitted into evidence as Petitioners' Ex. 29. The report in Chapter 3 entitled the "Selection and Geographic Distribution of Reference Sites," id., p. 5, states: Reference stream sites have been sampled by FDEP since summer 1992, using standardized biological methods and habitat evaluations at each site. Reference sites were chosen to represent the least impaired streams throughout Florida. * * * FDEP sample reference streams in all nine subecoregions from 1992 to 1994. * * * For inclusion in the reference stream database, sites had to be wadeable (first- to-third order), meet reference criteria of minimal disturbance, and have a drainage within the subecoregion. Id. at 5-7. (Emphasis added) Twelve reference sites are listed from Subecoregion 75d, the subecoregion in which the Nine Northern Tributaries and the Five Reference Streams are located. Of the twelve, only two are any of the Five Reference Streams: the NW Fork the North Fork of the Loxahatchee River. See id. at 7-9. Dr. Boyer's opinion is also supported, at least in part, by the updated SCI, re-calibrated in 2004 (the "New SCI") referred to in Petitioners' Ex. 46B as the "New SCI." (The 1996 SCI is referred to as the "Old SCI.") Cypress Slough, in a modified state hydrology-wise, rated only "Fair" under the New SCI whereas it had an excellent rating under the Old SCI. Fort Drum Creek, in contrast to its scores in the "excellent" range under the Old SCI, had five "fair" scores, ranging from 53.0 to 59.9 under the New RSCI and only one "good "score" under the New SCI. Under the Old SCI, the Northwest Fork of the Loxahatchee received 14 "excellent" scores and 3 "good" scores. Under the New SCI, it received 2 "very poor" scores, 8 "poor scores" and 7 "fair" scores. It received no "good" scores based on 17 ratings. See Petitioners' Ex. 46B. A similar result, although not as dramatic as in the case of the Northwest Fork, applied to the North Fork of the Loxahatchee. Whereas it had received 8 scores of "excellent," 5 scores of "good" and only one of "poor" under the Old SCI, under the New SCI, it had 7 scores of "poor," 6 scores of "fair" and only one of "good." See id. Mr. Frydenborg did not conduct stream habitat assessments on the two forks of the Loxahatchee that served as reference streams because "[w]e were running out of time that day," (tr. 266) and because he felt he had sufficient data otherwise. The assertion is odd when one considers that Mr. Frydenborg and Ms. Espy conducted habitat assessments of all of the Nine Northern Tributaries, declared impaired by the Department. Dispatched to conduct habitat assessments in the wake of the challenge to the Proposed Rule, it seems that Mr. Frydenborg would have chosen to spend time on the Five Reference Streams rather than the Nine Northern Tributaries if time were an issue. Elaboration on Frydenborg Opinion It is Mr. Frydenborg's opinion that the Proposed TMDL is a valid number from the perspective of protection of the resources for a number of reasons. In his view, there "might be a potential issue with phosphorus when it gets above . . . 250 micrograms per liter . . . ." (Tr. 269) Nonetheless, he has observed levels of above 250 micrograms where no imbalance of flora and fauna occurred because of flow characteristics and prevention of light penetration by shading associated with canopy or dark water caused by tannins leaching from leaf litter. One such example is Flat Creek next to Torreya State Park. It always receives an "excellent" on the SCI and its phosphorus levels average 244. Another reason Mr. Frydenborg believes the Proposed TMDL to be protective is that "nutrients are so complicated. We don't have a real clear cause-and-effect relationship between . . . nutrient concentration in a stream . . . [and] imbalance." (Tr. 269) Mr. Frydenborg summed up his thoughts on the contribution that reducing phosphorus in the Nine Northern Tributaries would make: Well, I guess the better way to think of it would be is, if you were somehow magically able to reduce phosphorus in those areas to make it an exceedingly low amount . . . it's my professional opinion, due to the other modifications in those sites, with the exception of Mosquito Creek, that you would not see any improvements in biological health because they're already significantly stressed for these other factors. I think that's the best way to look at it . . . I'm not saying we shouldn't try our best to reduce the phosphorus in those systems . . . but . . . if we're able to reduce that phosphorus, I wouldn't expect to see an actual beneficial environmental effect. (Tr. 281-282) Mr. Frydenborg stressed that the Proposed TMDL is adequate because "it's similar to the reference conditions in that particular area." (Tr. 282), (emphasis added). Mr. Frydenborg also responded on behalf of the Department to Dr. Boyer's assertion that the 75th Percentile Approach required the use of reference streams identified in the 96 Stream Condition Index located in Sub-ecoregion 75D: the eastern flatwoods region that is on the eastern side of the state. This sub-ecoregion was described as "up in Orlando all the way south of Jacksonville, south of Clay County anyway, ... but only on the eastern side of the state." (Tr. 291) The Nine Northern Tributaries are located in the "very southern extent" of Sub-ecoregion 75D. South of them is another sub-region associated with the Everglades where there is "a paucity of streams . . . maybe even no natural streams . . . south of Lake Okeechobee for the original Stream Condition Index." (Tr. 292) "Non-metric multidimensional scaling" (tr. 290), a statistical tool, was used to analyze how predictive the sub- regions were in showing the differences in populations of the aquatic communities. Because of the lack of differences among certain sub-ecoregions, the analysis led to an aggregation of them with the result that the State could be divided into three bio-regions: "the Panhandle, the peninsula, and the northeast." Id. This analysis shows that there is no basis for using a particular sub-ecoregion. With respect to the water basin in which the Nine Northern Tributaries are located, "leav[ing] that immediate geographic basin for TMDL purposes" (id.) would lead to an evaluation of peninsular sites, that is, an evaluation of one of the three bioregions into which the State divides rather than an evaluation of any one sub-ecoregion. An evaluation of peninsular sites, is similar what the Department did in developing the TMDL for TP in the Nine Northern Tributaries. It took "the sites that are unimpaired in the new [re-calibrated] SCI and looked at the phosphorus levels there." Id. There are differences between the northern end of Sub-ecoregion 75 and the southern end climatologically. The main reason to reject limiting candidate streams for use in the Reference Stream Approach to those in Sub-ecoregion 75, however, is that it is more appropriate to use an aggregate of "the entire sub-region," that is, the Peninsula Bio-region. The bio- region includes the southern end of Sub-ecoregion 75 but does not include the northern end of Sub-ecoregion 75. The phosphorus levels of the peninsula, according to Mr. Frydenborg, have a 75th percentile of 243 ppb. Using Peninsular Florida streams to calculate a 75th percentile of TP contrasted dramatically with Dr. Boyer's approach. According to Dr. Boyer, the three approaches she recommended produced concentration levels of around 57 ppb ("historical" levels), 40 ppb (the 25th percentile of all reference streams in ecoregion XII) and 73.5 ppb (the 75th percentile of reference streams she chose in subecoregion 75d.12) Dr. Boyer would be comfortable with a "73.5 part" TMDL for TP in the Nine Northern Tributaries because of "the data behind it." (Tr. 126) Between Mr. Frydenborg's defense of the Proposed TMDL and Dr. Boyer's defense of 73.5 ppb using reference streams, there is no question that Dr. Boyer's is superior. Her use of reference streams in the same ecoregion as the Nine Northern Tributaries makes sense because those reference streams were minimally impacted. Mr. Frydenborg's attack on Dr. Boyer's choice of reference streams for the 75th Percentile Method shows a fundamental misunderstanding of the concept of reference streams. Mr. Frydenborg and the Department have chosen to use as reference streams, streams that are not minimally impacted but rather that are the least impacted in Peninsular Florida, an area heavily impacted when it comes to excess phosphorus. The Guidance Manual demonstrates that the Department either does not understand the type of streams to be used in the 75th Percentile Method and the 25th Percentile Methods or, for some reason, has confused them. The 75th Percentile Method uses reference streams, that is, streams that are minimally impacted or approximately ideal in natural biology. In contrast, in its employment of the 75th Percentile Method, the Department chose streams that were least impacted in a heavily impacted region. The 25th Percentile Method, on the other hand, uses streams that are both in reference and non-reference condition. Data from degraded streams may be used to calculate a proposed value under the latter method. The more degraded the streams and the greater the number of degraded streams used to produce data for the 25th Percentile Method, the lower that actual percentile used to propose a TMDL. If the data is from a sufficient number of degraded streams then the fifth percentile should be used to produce a TP value. In contrast, Mr. Frydenborg rejected the 25th Percentile Method because it might have used data from only excellent streams - streams the Department should have used in calculating the 75th percentile to propose a TMDL for TP in the Nine Northern Tributaries. In point of fact, the 25th Percentile Method, not designed to be limited to streams of excellent condition, would almost assuredly not use data confined to production from streams of excellent condition. The Lake Issue In enacting the Protection Statute, the Legislature directed that the Protection Program should be implemented through a variety of programs, that is, unlike the TMDL Act, the Protection Program should not be solely regulatory: This program shall be watershed-based, shall provide for consideration of all potential phosphorus sources, and shall include research and monitoring, development and implementation of best management practices, refinement of existing regulations, and structural and nonstructural projects, including public works. § 373.4595(1)(j), Fla. Stat. The intent of the Legislature that the approach of the Protection Program be a multi-faceted one is reiterated specifically with regard to phosphorus. Under the Protection Statute's subsection (3), entitled "LAKE OKEECHOBEE PROTECTION PROGRAM," which details the specifications for the implementation of the Protection Program, there is a specification with regard to phosphorus reduction: The Lake Okeechobee Watershed Phosphorus Control Program is designed to be a multifaceted approach to reducing phosphorus loads by improving the management of phosphorus sources within the Lake Okeechobee watershed through continued implementation of existing regulations and best management practices, development and implementation of improved best management practices, improvement and restoration of the hydrologic function of natural and managed systems, and utilization of alternative technologies fro nutrient reduction. The coordinating agencies shall facilitate the application of federal programs that offer opportunities for water quality treatment, including preservation, restoration, or creation of wetlands on agricultural lands. § 373.4595(3)(c), Fla. Stat. The Legislature made its intent clear that phosphorus reduction in the Lake is dependent on federal projects as well as the TMDL Program: It is the intent of the Legislature that the Lake Okeechobee Protection Program be developed and implemented in coordination with and, to the greatest extent practicable, through the implementation of the Restudy project components and other federal programs in order to maximize opportunities for the most efficient and timely expenditures of public funds. § 373.4595(1)(k), Fla. Stat. (emphasis added) These federal efforts include projects conducted by the United States Army Corps of Engineers. The Department's understanding from its reading of the Protection Statute is that it rely as much as possible on projects conducted by the United States Army Corp of Engineers in its efforts to reduce the phosphorus load in and to Lake Okeechobee. The Department's plan to reduce phosphorus loads, therefore, calls for reductions in phosphorus loading through TMDLs placed on the Nine Northern Tributaries and other tributaries to the Lake as well as through federal projects. Lake Okeechobee TMDL As a result of the 1999 Consent Decree between USEPA and Earthjustice, the Department established a TMDL for Lake Okeechobee in August, 2001. The TMDL set an "in-lake" target restoration goal of 40 ppb total phosphorus for Lake Okeechobee based upon an examination of "pre-impact" phosphorus concentration data. The data was from studies that used "chlorophyll a" as an indicator of algal biomass which in turn acted as a surrogate for excessive nutrient concentration, and studies that examined the algal response to in-lake phosphorus concentrations. Upon comparing the results of these analyses, the Department determined that the total annual phosphorus load that would meet the 40 ppb restoration goal was 140 metric tons (the "Lake Okeechobee TMDL"). The Lake Okeechobee TMDL includes 35 metric tons from atmospheric deposition. Excluding the 35 metric tons of atmospheric deposition load of total phosphorus leaves 105 metric tons as the maximum load that is allowed from surface water inflows into the lake. The September 16, 2003, report of the Department admitted into evidence as Petitioners' Exhibit 2 recognizes that the Proposed TMDL cannot be inconsistent with the Lake Okeechobee TMDL. It also claims that the Proposed TMDL is consistent with the Lake Okeechobee TMDL because the Proposed TMDL will only allow 19.05 metric tons of TP to enter the Lake, well below the 105 metric tons allowed from surface water inflows under the Lake Okeechobee TMDL : This TMDL is specifically designed to protect the designated uses of the water bodies within the S-191 watershed [the watershed in which the Nine Northern Tributaries are located]. However, the load from these water bodies, as tributaries to Lake Okeechobee, must also be consistent with the TP TMDL for Lake Okeechobee in order to be adequately protective of the designated uses of the lake. Based on the Lake Okeechobee TMDL documentation, the total load for water discharged to the lake from all tributaries must not exceed 105 tonnes [metric tons] on an annual average basis. To determine whether the concentration-based TMDL for the tributaries is consistent with the lake TMDL, the Department calculated the load from the tributaries using a concentration of 0.159 mg/L and an average discharge of 97,154 acre feet (the average flow for 1995- 2000). Using these numbers, the allowable load is 19.05 tonnes, which well below the allowable load to the lake. Petitioners' Ex. 2, pp. 6-7 In keeping with the legislative intent and the observations of the Department, the Proposed Rule requires that the Proposed TMDL be consistent with the TMDL for TP for Lake Okeechobee: "As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above." Proposed Rule, Section (2)(b). Under the TMDL Act, allocations of load may be between sources or basins so that the burden of reduction may fall on one source or basin more than on another: The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards . . . . § 403.067(6)(b), Fla. Stat. (emphasis added). In an August 2001 report entitled "Total Maximum Daily Load for Total Phosphorus Lake Okeechobee, Florida," prepared by the Department and submitted to the USEPA, it was reported that a restoration target of 40 ppb TP for the lake was suggested by certain studies. After discussion of the "different analysis methods" that "all encompass the 40 ppb concentration target," the report states that "if 40 ppb is met at the eight pelagic13 stations (which represent the mid-lake) we can expect total phosphorus concentrations of below 40 ppb in the near-shore during certain years." Petitioners' Ex. 13, p. 32 of 53. Petitioners interpret this to be the setting by the Department of a restoration target of "40 ppb in-lake." Petitioners' Proposed Recommended Order, p. 50. The Department conceded during hearing that "you do, in fact, need to achieve an average of 40 ppb [inflow concentration into the lake]." (Testimony of Mr. Brooks, tr. 358). The Department argued vigorously, however, that the Proposed TMDL at 159 ppb does not necessarily violate a target restoration for the lake of 40 ppb or an average inflow concentration of 40 ppb. This is because future treatment works, in the words of Mr. Brooks, "are going to, in fact, affect both concentration and volume delivered to the lake. Id. And depending upon where those go, those are going to have a very significant effect in terms of how you balance to achieve that overall 40." The issue is directly addressed by the Protection Statute. It requires the water management district in cooperation with other coordinating agencies and the United States Army Corps of Engineers to develop an implementation plan for Phase II of the Lake Okeechobee Construction Plan by January 1, 2004. See §.373.4595(3)(b)2., Fla. Stat. The implementation plan is required to: dentify Lake Okeechobee Construction Project facilities to be constructed to achieve a design objective of 40 parts per billion (ppb) for phosphorus measured as a long-term flow weighted average concentration, unless an allocation has been established pursuant to s. 403.067 for the Lake Okeechobee total maximum daily load. § 373.4595(3)(b)2.a., Fla. Stat. (emphasis added). Petitioners present evidence that the actual loading from the Nine Northern Tributaries would be 33.44 metric tons of TP per year because the Department's calculation failed to account for discharges from tributaries in certain sub-basins. Whether the annual load from the Nine Northern Tributaries is the higher number posited by Petitioners or the lower number of approximately 19 metric tons claimed by the Department, the load is substantially below the 105 allowed by the Existing Rule. Petitioners also claim that the Proposed TMDL, 159 ppb, almost four times the 40 ppb limit for average lake inflows, is invalid because it could not lawfully become effective until the Department has met its legal obligation to offset the Nine Northern Tributaries load with reductions from other sources so that the average load expressed as a concentration level meets the target of 40 ppb.
The Issue The issue in this case is whether the Southwest Florida Water Management District (SWFWMD) should grant Individual Environmental Resource Permit (ERP) Application No. 4316067.00 for approval of a proposed surface water management system (SWMS) for a planned road improvement project.
Findings Of Fact County Line Road extends a short distance east from its intersection with U.S. 41, approximately along the boundary between Pasco County and Hillsborough County. It currently serves as access to residential and rural areas in its vicinity but does not connect with any major road east-west roadway at its eastern end. Since at least 1995, Pasco County's Metropolitan Planning Organization (MPO) has considered it necessary by 2020 to connect County Line Road to Collier Parkway (which runs north and south to the east and north of County Line Road but connects at its southern end to Hillsborough County Road, which extends from there to the east) to create and serve as another major east-west roadway to alleviate traffic congestion on State Road 54 to the north. The MPO's plans are updated continually, most recently in 1998. The MPO's current plans call for building a half-mile segment of two-lane roadway by 2000 to connect County Line Road to Collier Parkway and widening it to a four-lane road by 2010. Once these plans were made, and the general corridor for the new roadway chosen by the MPO, Pasco County conducted a route study and decided to utilize and improve the existing County Line Road to the extent possible consistent with traffic safety considerations before routing the new roadway to the northeast towards a connection with existing roadway (known as Willow Bend Road), which in turn connects with Collier Parkway. In so doing, Pasco County would improve County Line Road where it now crosses 13-Mile Run Creek. 13-Mile Run Creek is the name for the water body and wetland area crossed by County Line Road. It is part of a system of connected lakes, wetland areas, and various natural and man- made water conveyances known as the 13-Mile Run that begins to the north of County Line Road in Pasco County and flows south into Cypress Creek and the Hillsborough River in Hillsborough County. After completing the route study, Pasco County surveyed the project area and identified wetlands in the project area. Then, the road improvements and new roadway, including the surface water management system, were designed. Pasco County designed its road project to accommodate widening to four lanes in 2010 without further direct impact to wetlands. This will allow traffic to flow much more safely on the two lanes built in 2000 while the additional two lanes are built in 2010. As part of this design, the culverts that will provide for north-to-south flow of 13-Mile Run under the roadway, as well as the animal-crossing tunnels under the roadway, will be oversized to accommodate the four-lane roadway in 2010. As a result, all direct impacts to wetlands from the ultimate four- lane road construction (approximately 1.5 acres of direct impact) will occur during the initial construction of two lanes in 2000; there will not have to be any additional wetland impacts in 2010. The Petitioner and Intervenors contend that Pasco County did not prove a need for the four-lane road Pasco County proposes for 2010. They point to evidence that Florida Department of Transportation (DOT) 1995 maps did not "code" the proposed road segment as a four-lane road in 2010, as well as evidence that in 1995 Hillsborough County objected (based on the DOT coding) to Pasco's plans for a four-lane road in 2010. But Pasco County proved that DOT's failure to code the proposed road segment as a four-lane road in 2010 was a mistake. Since 1995, DOT has corrected the error. When Pasco County's MPO updated its transportation plan in 1998, neither Hillsborough County nor anyone else objected to the plans for a four-lane road in 2010, despite Pasco County's solicitation of comments and advertised public workshops and hearings. The Intervenors in particular also point to evidence that the DOT has published "Standards for Low and High Volume Highways in Annual Average Daily Volumes" in a Manual of Uniform Minimum Standards for Design, Construction and Maintenance for streets and Highways (1994)(also known as the "Green Book"). These standards characterize a two-lane urban collector highway with less than 11,000 AADT and a four-lane urban collector highway with less than 37,000 AADT as low-volume facilities and characterize a two-lane urban collector highway with more than 16,000 AADT and a four-lane urban collector highway with more than 45,000 AADT as high-volume facilities. Meanwhile, there was evidence was that, using a regional traffic demand forecasting model developed by DOT to determine future transportation needs for planning purposes: (1) Pasco County's MPO forecasts approximately 12,500 to 13,000 vehicles per day on the road in 2010 and 16,000 vehicles per day on the road in 2020; and (2) in 1997, the MPO forecasts 12,000 vehicles per day (1078 peak hour) on the road by 2015. But the only explanation of this evidence was the testimony of the MPO's transportation planner that the "Green Book" is not used for purposes of planning to meet future transportation needs. There was no other evidence as to the significance or proper use of the "Green Book." Assuming that AADT means "annual average daily trips" (there was no evidence as to what it stands for), there was no evidence that the Pasco County MPO's plan to four-lane County Line Road in 2010 is inconsistent with the "Green Book." The Intervenors also contend that the planned widening of State Road 54 will eliminate the need to four-lane the proposed road improvements at County Line Road. But the MPO's transportation planner testified that the MPO's forecast of the need to do so took into account the planned State Road 54 improvements. The Intervenors also contend that the proposed road improvements at County Line Road will not serve as an alternative to State Road 54 because Collier Parkway is a north-south highway, not an east-west highway. But, as indicated in Finding 1, supra, utilizing Collier Parkway for a short, north-south jog will connect the east-west roadways on either side of Collier Parkway. The Petitioner and Intervenors contend that Pasco County's design does not minimize direct impacts to wetlands precisely because it is designed to accommodate the four-lane widening project in 2010. Clearly, the direct impact to wetlands in 2000 could be reduced if Pasco County's design only accommodated a two-lane road. But it is not clear that the cumulative impact to the wetlands through the year 2010 will be less if the wetlands have to be impacted twice, once in 2000 for two lanes of roadway and again in 2010 for the other two lanes. A Department of Environmental Protection (DEP) witness for the Intervenors believed that it was preferable not to accommodate two additional lanes during the initial construction. But his familiarity with Pasco County's application was limited (in part because DEP has no regulatory jurisdiction), and several other experts testified persuasively that Pasco County's design would be better in terms of minimizing total, cumulative direct and secondary impacts to the wetlands. It also would cost significantly less to build the four-lane road in two stages if the first stage of construction of two lanes accommodates the subsequent stage of construction of the two additional lanes. In addition, traffic flow would be safer during construction of the two additional lanes if the first stage of construction accommodates the subsequent stage. Given the plan to accommodate a four-lane road in 2010, Pasco County designed its road project to minimize direct impacts on wetlands. First, the design uses the existing road in the wetland area. Second, the design uses concrete retaining walls instead of earthen berms in the wetland areas, which reduces the direct impact to the wetland areas by 30 percent. Third, the design was modified to further reduce the direct impact to wetlands by reducing the width of the median and eliminating one of two sidewalks at the creek crossing. The only way to further reduce the direct impacts to wetlands would have been to design and construct a bridge to cross the wetlands. The Intervenors called their DEP witness to testify in support of their contention that Pasco County should be required to bridge the wetlands. But again, the DEP witness's knowledge of Pasco County's application was limited, and several other witnesses testified persuasively that such a requirement for this road improvement project would be unreasonable in light of the existing County Line Road (which is a fill road.) In addition, bridging 13-Mile Run would create water flow and quantity problems that would have to be addressed, since it would remove the existing roadbed that serves to stop flow in times of high water. See Finding 19, infra. Pasco County's design provides for two wet detention ponds, one at either end of the project area, that will treat one-inch of runoff from the project area and will retain all of the runoff from a 25-year, 24-hour storm (nine inches of runoff.) As a result, there are reasonable assurances that there will be no adverse impact on water quality from the project; to the contrary, water quality probably will improve since the existing County Line Road does not provide any water treatment. Likewise, Pasco County has provided reasonable assurances that water discharges from the project area will not increase. As a result of the project, approximately 3.5 acre-feet of flood plain storage will be eliminated. To more-than- compensate for this loss of flood plain water storage area, Pasco County's design includes a flood plain mitigation area of approximately 4.5 acre-feet with a connection to 13-Mile Run Creek. The flood plain mitigation area also will serve as the project's wetland mitigation area at a ratio of approximately 4- to-1, i.e., four acres of created wetland for each acre of direct wetland impact. (Wetlands disturbed by the illegal installation of a Florida Gas Transmission pipeline just north of County Line Road and now under court-ordered restoration are considered pristine wetlands for purposes of the wetland mitigation ratio.) While wetland restoration has a mixed record of success, and it may be difficult to restore all of the values of the original wetland, the prospects for success of Pasco County's proposed wetland mitigation area are reasonably good. The mitigation plan calls for planting 780 emergent woody species per acre. To the extent that the mitigation plan for this project will replace disturbed wetlands and wetlands not successfully restored by the restoration of the area impacted by the Florida Gas Transmission pipeline (which appears to have been either inadequately planned or poorly implemented), the project may well result in a net improvement of the wetlands in the 13-Mile Run Creek area. Impacts from the roadway immediately to the west of the project area have been addressed in the SWMS permit for construction at the intersection of U.S. 41 and County Line Road. Impacts from Hillsborough County's planned widening of the roadway immediately to the west of the project area will be addressed in the SWMS for that widening project. The Petitioner in particular raised the question of flooding in the vicinity--at the U.S. 41/County Line Road intersection and along the shores of Hog Island Lake to the southeast of the creek crossing. The Intervenors initially also raised those questions but have been satisfied by the assurances given by Pasco County that the proposed project will not increase flooding in those areas. The SWMS associated with construction of the U.S. 41/County Line Road intersection appears to have been successful in alleviating flooding there, and Pasco County has given reasonable assurances that the proposed road project in this case will not increase flooding in the Hog Island Lake area. The generous flood retention compensation proposed by Pasco County may alleviate flooding in the Hog Island Lake area to some extent. It also is noted that, if the project were modified to bridge the creek crossing (without any other modifications), flooding in the Hog Island Lake area could increase. See Finding 13, supra. The Petitioner also opposed Pasco County's SWMS application on the ground that no minimum surface or ground water levels or minimum surface water flows have been established in the area under Section 373.042, Florida Statutes (1997). But Pasco County provided reasonable assurances that, regardless where the minimum levels ultimately are set, the proposed project will have no appreciable effect. Pasco County has designed the project to maintain water current flows and quantities. It is found that Pasco County has implemented practicable design modifications to reduce or eliminate adverse impacts of the proposed project. (As used here, the term "modification" does not include the alternative of not implementing the SWMS in some form, nor the alternative of a project that is significantly different in type or function from that proposed.) As used in the preceding finding, the term "practicable" would eliminate modifications which would adversely affect public safety through the endangerment of lives or property. For example, one modification suggested by the Petitioner and Intervenors would have been to have the new road follow existing County Line Road further to the east. However, that would have made the connection between the new road and what would remain of County Line Road hazardous at the design speed of the new road and, depending on how much further east the new road follow existing County Line Road, there would be the hazard of residential driveways connecting to the new road. As used in Finding 21, the term "practicable" also would eliminate modifications which are not technically capable of being done or not economically viable. While there was no evidence that alternatives considered in this case were either not technically capable of being done or not economically viable, general consideration was given to the higher total project costs of not accommodating the planned addition of two lanes in 2010 (with no appreciable environmental benefit). Likewise, general consideration was given to the significantly higher cost (approximately two to three times as much, depending on whether the construction of the first two lanes accommodates the subsequent construction of the two additional lanes) to bridge the wetlands in an attempt to reverse direct wetland impacts from the existing fill road and somewhat decrease additional direct wetland impacts, as well as the dubious benefits of increasing the flow of 13-Mile Run, which certainly would not reduce (and might well increase) flooding in the Hog Island Lake area. In addition, bridging the creek crossing would create traffic engineering problems in providing access to residential areas in the vicinity, especially the Foxwood subdivision. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not violate state water quality standards applicable to waters as defined in Section 403.031(13), Florida Statutes (1997). Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions, will not be contrary to the public interest, considering and balancing the following factors: Whether the proposed project will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, Florida Statutes (1997); and The current condition and relative value of functions being performed by areas affected by the proposed activity. To the extent that the proposed project may not meet one or more of the public interest test criteria, Pasco County proposes mitigation measures that will offset any adverse effects. Pasco County provided reasonable assurances that its proposed SWMS, with SWFWMD's general and specific conditions: will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on- site or off-site property; will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, Florida Administrative Code, including any antidegradation provisions of sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, Florida Administrative Code, will be violated; will not cause adverse secondary impacts to the water resources; will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes (1997); will not cause adverse impacts to a work of the District established pursuant to Section 373.086; is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed; and will be conducted by an entity with financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. Pasco County provided reasonable assurances that that its proposed SWMS, with SWFWMD's general and specific conditions, will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), Florida Statutes (Supp. 1998).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order granting ERP Application No. 4316067.00. DONE AND ENTERED this 18th day of March, 1999, 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 18th day of March, 1999. COPIES FURNISHED: Charles J. Traina, Esquire Post Office Box 625 Brandon, Florida 33509-0625 Margaret Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara Wilhite, Esquire Pasco County West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, Florida 34654 David and Sheryl Bowman, pro se Post Office Box 1515 Lutz, Florida 33548-1515 E. D. Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues presented for decision in this case are whether Petitioner, Crystal Springs Recreational Preserve (the "Preserve") has provided reasonable assurances, on an individual and cumulative basis, that it has satisfied the conditions for permit issuance set forth in Rule 40D-2.301(1), Florida Administrative Code, with respect to Water Use Permit ("WUP") Modification Application No. 209132.03 (the "Application").
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES The Preserve is a Florida corporation that is the owner of 540 acres of land encompassing Crystal Springs, located in Pasco County, Florida. The Preserve was the applicant for the WUP modification that is the subject of this proceeding, and is therefore a substantially affected person. The District is a water management district in the State of Florida created pursuant to Section 373.069(1)(d) and (2)(d), Florida Statutes. The District is the governmental agency charged with the responsibility and authority to review and act upon water use permit applications, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code. Intervenor Stewart Loeblich is a resident of Pasco County, a citizen of the State of Florida, and has standing to intervene in this proceeding. Intervenor Tampa Bay Water is a regional water supply authority created pursuant to Sections 373.1962 and 163.01, Florida Statutes. Tampa Bay Water was originally created as the "West Coast Regional Water Supply Authority" by an interlocal agreement among Hillsborough County, Pasco County, Pinellas County, the City of Tampa and the City of St. Petersburg. The City of New Port Richey was later added as a party to the original interlocal agreement. Tampa Bay Water has standing to intervene in this proceeding. CRYSTAL SPRINGS AND THE HILLSBOROUGH RIVER The Hillsborough River is approximately 54 miles long and flows through Pasco and Hillsborough Counties from the Green Swamp to Hillsborough Bay. The Hillsborough River tends to be a "gaining" river, meaning that the flow increases as it moves downstream. The Green Swamp serves as the Hillsborough River’s headwaters when rainfall causes water levels to rise. The Green Swamp is thus a major high-flow surface water source to the Hillsborough River. However, until the swamp is filled to the point where it overflows into the river, there is no observable surface water input from the Green Swamp into the Hillsborough River. The City of Tampa maintains a dam on the Hillsborough River at Rowlett Park, approximately 10 river miles upstream from the mouth of the river. Behind the dam is the City of Tampa’s reservoir, which runs approximately 12 miles farther up the river. The dam is the commonly accepted demarcation between the upper and lower Hillsborough River. The City of Tampa draws much of its water supply from the Hillsborough River, via the reservoir. The City’s WUP from the District allows it to withdraw 82 million gallons per day ("mgd") from the river. In recent years, the City has withdrawn an average of about 65 mgd from the Hillsborough River. Crystal Springs is a natural spring in Pasco County that discharges to the Hillsborough River near the headwaters of the river, southwest of the Green Swamp. During periods of low-flow, Crystal Springs serves as the major source of the Hillsborough River. During the dry year of 1990, Crystal Springs provided 93 percent of the river’s flow above the dam. Crystal Springs is located 37 river miles upstream from the dam and discharges an average of 38 mgd, or 44 cubic feet per second ("cfs") into the Hillsborough River. The source of the water discharged from Crystal Springs is the upper Floridian aquifer. Most of this flow comes from the northwest, toward the Pasco High. Crystal Springs has a dam structure that forms a spring pool. The dam was built in the 1940s, with boards that can be removed to alter the level of the spring pool. All of the experts who testified on the matter agreed that both Crystal Springs and the Hillsborough River have experienced declining flows since the 1940s. Discharges from Crystal Springs have declined 25-30 percent, and flows in the Hillsborough River have declined 28 percent. Dr. Robert Perry, a senior water resource analyst with the District, testified that there has also been a long-term decline of potentiometric or water flow levels in the aquifer in this area. Dr. Perry also noted that there has been no long-term decline in annual rainfall in the same area. He concluded that the declines in potentiometric surface and the declines in flows in Crystal Springs and the Hillsborough River must be the result of groundwater withdrawals. Dr. James Mercer, the Preserve’s expert in hydrogeology, agreed with this conclusion, at least as it relates to flows in Crystal Springs. John Parker, the District’s expert in hydrology and groundwater flow, also testified that the predominant cause of the declining flows has been withdrawals of water. THE EXISTING WUP The Preserve holds WUP No. 209132.02, issued July 3, 1989 and renewed on June 15, 1994, which allows an industrial/commercial use of water withdrawn from Crystal Springs at an average annual quantity of 301,000 gpd with a peak monthly average of 452,000 gpd. The water withdrawn from Crystal Springs is pumped through a 10-inch stainless steel pipe directly to the Zephyrhills Bottled Water plant for processing and bottling. Zephyrhills Bottled Water Company is a subsidiary of Perrier, which markets 10 to 15 brands of bottled water under various names throughout the United States. Crystal Springs is the sole source for Zephyrhills brand natural spring water. THE PROPOSED WUP MODIFICATION On January 16, 1997, the Preserve applied to the District to modify its existing WUP from 301,000 gpd to 1.9 million gpd (annual average daily) for the next six years, and 2.6 million gpd (annual average daily) over the following four years. On February 14, 1997, the District sent a Request for Additional Information ("RAI") to the Preserve. Among the relevant data requested in the RAI are the following: Please provide reasonable assurances as to how the conditions for issuance set forth in Chapter 40D-2.301(1)(a) through (n) will be met, on both an individual and cumulative basis. Please refer to the performance standards set forth in Sections 4 and 5 of the Basis of Review for Water Use Permits. Please be particularly attentive to (b) [will not cause quantity or quality changes which adversely impact the water resources, including both surface and groundwaters], (c) [will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources] and (i) [will not adversely impact an existing legal withdrawal] as mentioned above in responding to this and the following questions, and include any plans or programs which will mitigate for the effects of the proposed increase in withdrawal from the spring. River flows and levels for the Hillsborough River reservoir published by the U.S. Geological Survey ["USGS"] show that there are zero or very low releases from the City of Tampa’s reservoir for prolonged periods during the dry season. Water level records for the reservoir show that water levels are below the spillway crest for prolonged periods of time. During such periods, there is no excess water flowing in the Hillsborough River and the City must withdraw water from storage in the reservoir system. During these periods of low-flows and levels in the Hillsborough River, increased withdrawals from Crystal Springs will diminish water supplies available to the City of Tampa. How does the applicant intend to avoid interfering with the existing utilization of the Hillsborough River by the City of Tampa? Flow data for Crystal Springs show a declining trend in flow from the spring during the period of record from the 1930s to present. Please address the range and trends of spring flow, and describe any cause and effect relationships which have been observed or studied. What data or analyses is the applicant using to evaluate the potential effects of increased withdrawals on the hydrologic systems, environmental features, and existing water users? By what amounts will this proposed withdrawal reduce flows in the river immediately below the spring? What are the plans of the applicant to mitigate any impacts to the flow regime or ecology of the river below the spring resulting from the proposed increased withdrawals? The RAI also requested verification of the maps provided by the Preserve, production well specifications, and missing data from the pumpage reports provided in the application. On July 15, 1997, the Preserve provided its Response to the RAI. The responses to the questions quoted above are as follows, in relevant part: As to quantity or quality changes which adversely impact the water resources:] The diversion of water from the spring will not cause quality changes to the surface and groundwater systems. The potential for a small change in the overall quantity of flow in the river will be evaluated during a year long study by the consultants that have been retained by the applicant. This change will be evaluated by detailed flow measurements of the spring and the river immediately downstream. As to adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources:] The diversion amount will produce an insignificant and unobservable flow reduction in the Hillsborough River. At low-flow conditions, the stage reduction in the river at Hillsborough River State Park will be less than 0.03 feet (3/8 inch). As to adverse impact on an existing legal withdrawal:] The yearlong study is intended to thoroughly analyze the existing extensive public and private data base and supplement any gaps in information necessary for the analyses with the collection of additional field data. We propose to conduct the following investigative tasks: Correlation of Tampa diversions and river flow at Morris Bridge and Hillsborough River State Park. Determination of spring pool level control on pond spring flow. Determination of Florida Aquifer water levels in wells near to Crystal Springs. [After describing an attached graph of no-flow periods at the City of Tampa dam during the last nine years, and a table summarizing river flow statistics above the dam:] We are planning to evaluate the flow conditions of the Upper Hillsborough River during these periods and to compare the flows with the revised withdrawal projections from Crystal Springs. After completing this comparison, we will evaluate possible further steps to mitigate any determined effects on the City of Tampa. While the flow data as measured by the USGS does show a downward trend from 1987 to 1995, data from 1996 and 1997 show increased flows and a changed trend . . . The applicant is not aware of the cause for this trend which appears to follow variations in the Potentiometric Surface of the Floridan Aquifer. We also believe that the USGS measuring procedure does not account for higher spring flows when the Hillsborough River is also in high flow conditions. The proposed field data collection program of our study will provide the information for the subsequent integrated hydrogeological and surface water analyses to provide the answers to this question. We also propose to compare the spring flow data with monitoring well data in the surrounding area of Southeast Pasco and Northeast Hillsborough Counties. This will be determined after the field data collection and analysis program are completed. This evaluation will also include the revised withdrawal projections for monthly withdrawals and annual projections for Zephyrhills Spring Water Company. We do not believe that there are any impacts to the ecology of the river due to the withdrawals. See Table 5 for evaluation of the river stage changes to be caused by the maximum withdrawals. We plan to investigate the possible quantity reductions to the river flow at the Tampa diversion during the low-flow conditions. The Response to the RAI also verified that the maps included in the application were accurate, and corrected the production well and pumpage report information. On July 15, 1998, the Preserve submitted a "Final Response" to the RAI, reflecting the results of the year long study referenced in its initial Response. The Preserve concluded that its proposed withdrawal would not cause quantity or quality changes that adversely impact the water resources. The Preserve concluded that it would not cause adverse environmental impacts because the withdrawal would not reduce the rate of flow by more than 10 percent at any point in the drainage system at the time of withdrawal, which the Preserve stated was within the normal rate and range of fluctuations. The Preserve stated that the proposed withdrawal will not cause the water table at any nearby wetland to be lowered by more than one foot, which should lead the District to presume that the withdrawal would not cause an unacceptable environmental impact. As to the potential impacts on the City of Tampa’s water supply, the Preserve disputed the "assumption" that its proposed withdrawal would diminish the City of Tampa’s water supply. The Preserve stated that it had nonetheless met with officials of the City of Tampa regarding the flow conditions of the upper Hillsborough River and the proposed withdrawal projections. The Preserve stated its offer to "lower the spring pool dam to increase the Crystal Springs flow by the amount of the extra diversion to mitigate any possible effects on the City of Tampa." The Preserve stated that the proposed withdrawal will cause a flow reduction in the Hillsborough River, but only immediately downstream from the spring pool. The Preserve concluded that the flow reduction would not be detectable downstream beyond a gaging station 0.2 miles below the spring pool discharge, due to the range of natural fluctuations in the river flow. On August 14, 1998, the District sent to the Preserve a Request for Clarification ("RFC") of Additional Information. In addition to a detailed series of questions regarding the Preserve’s mitigation proposal to offset the impact of its proposed withdrawals by lowering the spring pool, the District asked the Preserve to provide supporting data and explanations of its otherwise unexplained demand projections. On December 4, 1998, the Preserve filed its response to the RFC. It included a Proposed Operating Plan for the mitigation proposal. It also included a letter, dated December 2, 1998, from Stephen M. Bendix, Director of Manufacturing of Perrier Group of America, revising the demand projections of the application. The revised projections indicated a demand of 1.8 mgd average daily withdrawal in the year 2008. Mr. Bendix wrote that the average historical growth rate of Zephyrhills bottled water has been 22 percent annually since 1989. This growth rate was applied to the actual average daily withdrawal from Crystal Springs in 1997 to arrive at the 1.8 mgd request. On December 8, 1998, the District deemed the Preserve’s application complete. Though the RAI and RFC process is intended to address all deficiencies in the WUP application noted by the District, neither the RAI or the RFC requested the Preserve to address issues concerning the lower Hillsborough River, dissolved oxygen, or potential saline water intrusion that might be caused by the proposed withdrawals. John Parker, the water use regulation supervisor who oversaw the review of the Preserve’s application, testified that the District considered sending a second RFC, and that a draft letter was prepared, but that he ultimately decided not to send it. Mr. Parker also recalled a draft denial letter that found the Preserve had met the District’s saline water intrusion criterion. This letter was never sent. On January 26, 1999, the District issued its Notice of Proposed Agency Action of denial (the "Notice"), finding that the Preserve failed to meet all of the permitting criteria of Rule 40D-2.301(1), Florida Administrative Code. The Staff Report attached to the Notice stated that the Preserve had failed to provide reasonable assurances that the proposed WUP modification met the following criteria of Rule 40D-2.301(1), Florida Administrative Code: Is necessary to fulfill a certain reasonable demand; Will not cause quantity or quality changes which adversely impact the water resources, including both surface and groundwaters; Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources; (f) Will not significantly induce saline water intrusion; and (i) Will not adversely impact an existing legal withdrawal. During the discovery process, the District filed admissions indicating that the Preserve had provided reasonable assurances that its application met all the other criteria of Rule 40D-2.301(1), Florida Administrative Code. However, information obtained during discovery led the District to change its position on reasonable assurances as to Rule 40D-2.301(1)(k), regarding incorporation of water conservation measures, and Rule 40D-2.301(1)(m), regarding whether the proposed use would cause water to go to waste. On September 17, 1999, an order was entered allowing the District to withdraw its admissions as to those provisions, with the proviso that the Preserve would be allowed to call witnesses on those issues at the final hearing. CONDITIONS FOR ISSUANCE OF PERMIT An applicant for a WUP must demonstrate that the proposed use of water is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances on both an individual and a cumulative basis that the proposed use of water satisfies the fourteen specific conditions set forth in Rule 40D- 2.301(1)(a)-(n), Florida Administrative Code, which are identified in the subheadings below. The parties stipulated that seven of the fourteen conditions were met. Extensive testimony was elicited from several expert witnesses with respect to the seven disputed conditions, which deal with demand, water quantity and quality changes, environmental impacts, saline water intrusion, adverse impacts on existing users, water conservation, and waste. Some of these criteria overlap. For example, saline water intrusion is also a matter of water quality and bears on the question of environmental impacts. The placement of a finding of fact under a particular subheading below does not imply that it supports only the particular condition for issuance under which it is discussed. Necessary to Fulfill a Certain Reasonable Demand Crystal Springs water is the sole source of the brand Zephyrhills Natural Spring Water. Perrier also sells distilled water and drinking water under the name "Zephyrhills," but the Crystal Springs water is used only in the product marketed as Zephyrhills Natural Spring Water. More than 94 percent of Zephyrhills Natural Spring Water is sold in Florida. Perrier began bottling Zephyrhills Natural Spring Water from Crystal Springs in the middle of 1989. The quantity of water initially requested by the Preserve in its Application would have peaked at 2.6 mgd ten years after the date of application. During the RAI and RFC process, the Preserve reduced its request to 1.8 mgd at the end of ten years, which amounts to an increase of roughly 1.5 mgd over its currently permitted withdrawal of 0.3 mgd. Margaret Andronaco, the natural resource manager at the Zephyrhills bottling plant, testified that the reduction in the request was due to a change in marketing strategy. Perrier originally planned to expand the Zephyrhills brand into the entire Southeastern United States, and to use Crystal Springs water as a source for Zephyrhills distilled and drinking water as well as for Zephyrhills Natural Spring Water. Ms. Andronaco testified that the reduction of the request resulted from Perrier’s decision not to expand the Zephyrhills brand beyond Florida, and to continue using municipal water from the City of Zephyrhills as the source for its distilled and drinking water. Jeffrey Caso, vice president of marketing for Perrier, testified that the Zephyrhills brand is growing at a rate of 20 percent annually, based on the numbers available for 1999. Eighty-five (85) percent of the Zephyrhills brand consists of Zephyrhills Natural Spring Water. Mr. Caso further testified that single serving bottled water is the fastest growing segment of the brand, at a rate of 40-45 percent annually. All of this segment is Zephyrhills Natural Spring Water. Mr. Caso testified that it is highly desirable in the industry to market a brand of spring water as coming from a single source. He attributed much of Zephyrhills’ dominance of the Florida market to the fact that the public has come to understand that Zephyrhills Natural Spring Water comes from a single source, "the deepest source of spring water in the State of Florida." He testified that if the WUP modification is not permitted, Zephyrhills will be forced either to curtail its growth or consider using water from spring sources other than Crystal Springs, neither of which is desirable from a marketing standpoint. Ms. Andronaco testified that she calculated the demand projection reflected in the reduced request. She used the company’s monthly production reports for the years 1991 through 1997, which showed a growth rate of 22 percent annually. She assumed that the 22 percent growth rate would continue over the next ten years, using the 1997 actual average daily use of 203,000 gpd as the starting point for her projection. The actual monthly production numbers were not provided at the hearing. Ms. Adronaco testified that she did not use the monthly production figures for 1989 because that was the year her company began bottling at Crystal Springs, and the numbers were for less than a full year. She testified that she did not use the production figures for 1990 because she could not find all the monthly data and did not want to use numbers for an incomplete year. During the RAI and RFC process, the Preserve provided the District with no supporting documentation or data and analysis for its demand projection, beyond the simple mathematical results derived from applying an assumed 22 percent annual growth rate over the course of a ten-year period. John Parker, the District’s water use regulation manager, testified that this lack of supporting data led District staff to use information on hand to attempt its own independent estimate of future demand. Zephyrhills meters gallons of water withdrawn from Crystal Springs, and also tracks the number of gallons produced at its plant on a monthly basis. It was the latter tracking numbers that Ms. Andronaco used in projecting demand. Also available to her, but not used in her demand projection, were the complete numbers for the entire period of record showing the amount of water withdrawn from Crystal Springs by Zephyrhills. For the period 1989 through 1998, Zephyrhills’ withdrawals from Crystal Springs have increased at an annual rate of 17.5 percent. Mr. Parker testified that the 17.5 percent figure drawn from Zephyrhills’ statistics confirmed the independent analysis undertaken by District staff. The Preserve did not dispute these withdrawal numbers. The District argues that this creates an unexplained discrepancy between the 22 percent annual rate of production growth claimed by Zephyrhills and the 17.5 percent annual rate of withdrawal growth. It is found that no discrepancy has been established, because the production numbers claimed by Zephyrhills were for the years 1991-1997, whereas the withdrawal numbers cover the entire period of record. No valid comparison can be made between the two numbers because they are derived from different data sets. Had the production numbers also been available for the entire period of record, then such a comparison might be possible. Nonetheless, it is found that the 17.5 percent annual rate of withdrawal growth is a more appropriate basis for demand projections, for two reasons. First, the 17.5 percent number includes the entire period during which Zephyrhills has been taking water from Crystal Springs, and therefore provides a more complete picture of the history of the Zephyrhills Natural Spring Water product and a more accurate basis for projecting its future. Second, for purposes of a WUP, the District’s concern is with the amount of water being withdrawn from the water resource, not the amount of water ultimately produced for sale by the permittee. As will be discussed more fully below, the parties agree that not all the water withdrawn from Crystal Springs finds its way into Zephyrhills Natural Spring Water bottles. The impact, if any, of this proposed WUP modification on the Hillsborough River and the City of Tampa will be caused by the amount of water taken from Crystal Springs, not the amount of water sold by Perrier Group of America. Mr. Parker testified that he had concerns about making demand projections in the bottled water market, given its volatility and competitiveness. He testified that a three to five-year projection can be relied upon with a degree of certainty. Mr. Parker conceded that he is not an expert in this field. However, Mr. Caso expressed similar reservations about the reliability of projections beyond three years. He stated that he could be "relatively confident" about three-year projections, but not about projections over a longer period of time. Mr. Parker testified that he would project ahead for five years based on Zephyrhills’ historic 17.5 percent annual withdrawal rate. This would result in 670,000 gpd average annual rate of withdrawal in five years, with a peak month of about 1 mgd. He testified that the applicant did not provide reasonable assurances that it has a certain reasonable demand for 1.8 mgd ten years into the future. At the hearing, the Preserve presented the testimony of Michael Bellas, chairman and chief executive officer of Beverage Marketing Corporation and an expert in the beverage industry, including bottled water. Using production numbers provided by Zephyrhills and his own detailed understanding of trends in the industry, Mr. Bellas arrived at a demand projection showing Zephyrhills Natural Spring Water growing at a compound annual growth rate of 16.3 percent over the next ten years. This projection computed to a demand of about 603,000 gpd in five years and 1.14 mgd in ten years. Mr. Bellas testified that this projection was conservative, and that Zephyrhills Natural Spring Water could continue to grow at the 20 percent rate that it has shown in the years 1993-1998. However, Mr. Bellas also expressed the same sentiment as Mr. Parker and Mr. Caso regarding long-term projections. Mr. Bellas stated that his company historically made ten-year projections, but that in recent years they have cut those down to five years "just to be safer, because there are a lot of underlying variables." The Preserve argues that Mr. Bellas’ projection supports its request because his projection was based on production numbers, not withdrawal numbers. Given the fact that more water is inevitably withdrawn than is produced, the Preserve argues that Mr. Bellas’ projection of 1.14 mgd of production at the end of ten years is in line with its own demand projection of 1.8 mgd in withdrawals at the end of ten years. The Preserve’s argument on this point is rejected for the simple reason that, as discussed above, its own demand projection was also based on production numbers, not withdrawal numbers. Here, an accurate comparison can be made. Mr. Bellas’ demand projection based on production is significantly lower than the projection offered by the Preserve. Mr. Bellas’ projection is also based on a more sophisticated analysis than the simple assumption of continuous 22 percent growth made by Ms. Andronaco. Indeed, Mr. Bellas’ expert methodology in making projections is the relevant datum to be drawn from his testimony. He began by examining growth rates in the bottled water industry as a whole. Then he divided the industry into sparkling, non- sparkling, and import segments and examined the growth within those segments. He focused on the non-sparkling category that includes Zephyrhills Natural Spring Water and further divided it into retail premium, retail 1-2 gallon, and direct delivery bulk segments. He then examined regional growth in those segments, and further examined Florida specifically, finally focusing on the Zephyrhills Natural Spring Water brand in Florida. The projection offered by Mr. Bellas is based on a thorough market analysis and bears more indicia of reliability than that of the Preserve, which simply assumed that growth would continue for the next ten years precisely as it did for the selected years 1991-1997. Though it demonstrated a need for some additional withdrawals in the future, the Preserve failed to demonstrate that its proposed WUP modification is necessary to fulfill a certain reasonable demand. Quantity/Quality Changes Adversely Impacting Water Resources The Preserve presented the testimony of Dr. James Mercer, an expert in hydrogeology. Dr. Mercer began his examination of potential impacts by assessing the groundwater system. He observed that Crystal Springs is a naturally discharging spring, meaning that capturing the water with a pipe will have no effect on the groundwater system because the captured water would have discharged in any event. Thus, he concluded that the requested increase in withdrawals would have no impact on the groundwater system. Dr. Mercer next examined the impact of the proposed withdrawals on the surface water system, primarily the Hillsborough River. Dr. Mercer calculated that the proposed withdrawal would reduce the river stage by 0.06 feet in the upper Hillsborough River. Dr. Mercer also reviewed more extensive calculations performed by the Preserve’s consulting firm, Schreuder & Associates, as part of the RAI/RFC process. John Dumeyer of Schreuder & Associates concluded that the range of stage changes would be from 0.02 feet to 0.06 feet, providing independent verification of Dr. Mercer’s calculation. Dr. Mercer also noted that the Schreuder & Associates report indicated that the daily fluctuation in the stage of the upper Hillsborough River just below Crystal Springs is in the range of 0.03 to 0.04 feet, which is on the same order of stage change predicted for the proposed withdrawals from Crystal Springs. He further cited United States Geological Survey (USGS) river stage measurement reports indicating a range of error from 5 to 8 percent. Dr. Mercer concluded that because the additional withdrawal would essentially be lost in the daily fluctuations of the river, and because it is within the range of error of stream-flow measurements in the area, the additional withdrawal would not cause an impact on the upper Hillsborough River, and would likely be undetectable. Dr. Mercer’s analysis is credible and was not seriously contested by the District or the Intervenors. In fact, M. Sidney Flannery, the District’s expert in stream ecology, agreed that the proposed withdrawals would cause no adverse impacts to the upper Hillsborough River. Thus, it is found that the proposed withdrawals would not cause quantity or quality changes adversely impacting the upper Hillsborough River. More hotly contested was the question of the potential adverse impacts to the lower Hillsborough River. Of special concern was the area just below the City of Tampa dam, and the number and impact of "no-flow" days, i.e., days when little or no water flows over the dam from the upper Hillsborough River into the lower river. The District’s major concern was the impact of increased no-flow days that could be caused by the increased withdrawals from Crystal Springs, the major source of base flow to the Hillsborough River in dry times. Because Tampa Bay tidally influences the lower Hillsborough River, the salinity of the water below the dam is affected by the amount of fresh water flowing over the dam. Dr. Mercer began his analysis of the issue by observing that high rainfall events push water over the dam and essentially flush much of the lower Hillsborough River. As rainfall decreases, flow over the dam decreases, and tidal effects begin to take over, causing an increase of salinity in the lower Hillsborough River. The dam prevents salinity from increasing further upstream, meaning that most or all of the water behind the dam remains fresh at all times. Dr. Mercer stated that the flow over the dam controls the salinity of the lower river. He stated that the flow over the dam is controlled by the operation of the reservoir behind the dam, and by rainfall. He confirmed these observations by examining rainfall and USGS river gaging data indicating a general correspondence between the end of no-flow days at the dam and high rainfalls. Dr. Mercer then took the number of no-flow days at the dam for the period 1977-1997, assuming "no-flow" to mean flows of 10 cfs or less, and subtracted from those flows the additional amount of water proposed to be withdrawn from Crystal Springs. This subtraction was done on a worst case, "gallon for gallon" basis, meaning that Dr. Mercer assumed that every gallon withdrawn from Crystal Springs would be mirrored by a one gallon reduction in the flow of the Hillsborough River at the dam. The "gallon for gallon" assumption was the basis of most of the opinions offered on this subject. It must be noted, however, that this is merely an assumption. In the 37 river miles from Crystal Springs to the base of the dam, there are any number of diversions of water by way of evaporation, transpiration, recharge, withdrawals, and diversions to the Tampa Bypass Canal, among others. Dr. Mercer concluded that the number of no-flow days at the dam would increase by an average of 1.4 days per year, based on data from the period 1977-1997. Had he based his conclusion only on the years 1988-1997, the number of no-flow days would be shown to increase by an average of 2.3 days per year. To place these numbers in perspective, it must be noted that the number of actual no-flow days at the dam (10 cfs flow or less) have ranged from a low of 93 days to a high of 255 days since 1988. For the period 1977-1997, the average number of no- flow days at the dam is 153, based on Dr. Mercer’s information. Dr. Robert Perry, senior water resource analyst for the District, performed a statistical analysis of the effect of the proposed additional withdrawals at the City of Tampa dam. Dr. Perry testified that the Preserve’s proposed increased withdrawals would cause an average of an additional two to four no-flow days per year at the dam, depending on how much water the City of Tampa withdraws from the reservoir for public use. M. Sidney Flannery, the District’s expert in stream and estuarine ecology, testified regarding an in-stream reservoir model designed by Hung Nguyen. Mr. Nguyen is a professional engineer with the District who credibly testified as to the validity and uses of his model. Mr. Flannery testified that the model results indicated the additional withdrawals could increase the number of no-flow days over the dam by about 4.5 days per year, with a high of eleven additional days in some dry years. No evidence was presented to demonstrate that one gallon of water removed at Crystal Springs will necessarily result in one less gallon of water going over the dam 37 miles downstream. Nonetheless, the evidence demonstrates that Crystal Springs is the major source of the Hillsborough River’s base flow, and therefore of the City of Tampa’s water supply, during low-flow periods. The Application makes no provision for lesser withdrawals during low-flow periods on the Hillsborough River. Thus, the Preserve could take up to 1.8 mgd from Crystal Springs at the very times the City of Tampa is most reliant on those spring flows. The actual quantity changes at the dam that would be caused by the proposed withdrawals was not quantified. However, all the experts agreed there would be some quantity change, and it was shown that any quantity change during low-flow periods would adversely impact the water resource. In summary, the evidence demonstrates that the Preserve’s proposed withdrawals would cause quantity changes adversely impacting the water resource, to the extent that withdrawals during low-flow periods would have some impact on freshwater flow over the City of Tampa dam. Whether the impact on the flow over the dam would have water quality impacts was a topic of expert dispute. Mr. Flannery testified as to long term problems with low dissolved oxygen concentrations and high salinity in the lower Hillsborough River. He stated that there are substantial tidal fluctuations throughout the entire lower river, with tidal amplitudes of two to three feet all the way up to the dam. Mr. Flannery observed that the lower river is highly urbanized, with its natural portions nearer the dam. He testified that these more natural areas are the most heavily impacted in terms of water quality. Referencing USGS and District studies, Mr. Flannery testified that there is a declining trend in mean annual flows at the dam, especially as to "annual seven day low-flow" measurements that document the lowest seven-day period during the year. He testified that in recent years, the seven-day low-flow measurement has been zero. There have also been as many as 200 total no-flow days in recent years. Mr. Flannery testified that the lower Hillsborough River has a very erratic salinity regime due to the high variation in freshwater flows that the lower river receives. During high-flow periods, abundant fresh water flow goes over the dam and the river can be fresh some distance downstream from the dam. During low-flow periods, saline water can reach to the base of the dam. Mr. Flannery testified that this saltwater penetration makes the area of the dam unsuitable for freshwater organisms, which he called "an important component of the total biological system of the lower Hillsborough River." Mr. Flannery testified extensively as to a minimum-flow study performed by the District as part of its responsibility pursuant to Section 373.042, Florida Statutes, to establish minimum flows and levels for the Hillsborough River. The statute defines a "minimum flow" as "the limit at which further withdrawals would be significantly harmful to water resources or ecology of the area." The District has published a proposed rule setting the minimum flow on the Hillsborough River at 10 cfs, but the final establishment of the minimum flow awaits the results of an independent peer review, not yet completed at the time of the hearing. The status and applicability of the minimum-flow rule was extensively contested at the final hearing, and is discussed in subsection (d) below. Mr. Flannery testified that the emphasis of the minimum-flow study was to evaluate the response of the lower Hillsborough River to different quantities of freshwater flow. The study found that the salinity regime below the dam is very responsive to relatively small quantities of freshwater flow. As compared to no-flow conditions, relatively low levels of flow over the dam (10-30 cfs) significantly improved salinity distributions in the lower Hillsborough River. Further modeling confirmed the study’s findings. Mr. Flannery testified that decreasing the freshwater flow over the dam would cause negative impacts to salinity levels, increasing the existing long periods of high salinity and making the river less capable of supporting the variety of organisms it could otherwise support. Mr. Flannery testified as to a similar relationship between freshwater flows and dissolved oxygen in the lower Hillsborough River. Dissolved oxygen is critical for aquatic organisms. Mr. Flannery testified that it was the principal ecological criterion for the District to consider in establishing minimum flows. He testified that the state instantaneous standard for dissolved oxygen is 4.0 milligrams per liter (mg/l), and that the daily average is 5.0 mg/l. Mr. Flannery stated that there is a lack of circulation in the lower river when there is no water running over the dam, and that lack of circulation is a major cause of problems with dissolved oxygen in the area. Near the dam during periods of low-flow, many of the dissolved oxygen measurements are below 3.0 mg/l, which some researchers define as the level indicating hypoxia. These low dissolved oxygen levels are alleviated when there is flow over the dam, even at relatively low levels, from 10-40 cfs. Mr. Flannery conceded that "many factors" can affect dissolved oxygen levels, including dead algae settling in the sediment and stormwater flowing into the lower Hillsborough River. The District’s own minimum-flow study states that 114 major stormwater outfalls enter the river below the dam. Nonetheless, Mr. Flannery concluded that increasing the duration of no-flows or low-flows at the City of Tampa dam would increase the duration of low dissolved oxygen conditions, which would hurt the biological integrity of the system. Roy Robert Lewis, an expert in marine life, disputed Mr. Flannery’s conclusions both as to salinity and to dissolved oxygen. As to dissolved oxygen, he pointed to a section of the minimum-flow study discussing the reservations of the technical advisory group that provided recommendations to the District for ecological criteria for setting minimum flows for the Hillsborough River. The technical advisory group noted that it used several analytical tools for evaluating potential effects of various flows on the salinity and dissolved oxygen in the Hillsborough River, including regression based empirical models developed by Coastal Environmental (a consultant on the project) and a two- dimensional deterministic model developed by District staff. The technical advisory group noted that the analytical tools and the usefulness of their results were limited by two things: the paucity of data on salinity and dissolved oxygen for low-flow conditions (between 1 and 30 cfs) at any point along the Hillsborough River downstream of the dam; and that the regressions derived by the models for dissolved oxygen and flow generally had low coefficients of determination, meaning that a relatively low percentage of the variation in dissolved oxygen was explained as a function of flow. Mr. Lewis concluded that the minimum-flow study indicated that "everybody is suggesting more monitoring at low- flow conditions because nobody is comfortable at this point in making predictions about dissolved oxygen at the kinds of ranges of values that we’re talking about here, in the 10 cfs, 20 cfs range." Mr. Flannery testified that the statements by the technical advisory group did not dispute the strong relationship between dissolved oxygen and flow. The group simply did not think the predictive models were accurate enough for the District to use those models to predict dissolved oxygen as a function of flow. Mr. Flannery’s observation is credited, but does not contradict the essential point that there is apparently insufficient data extant to allow a model to predict dissolved oxygen levels at low-flows of the Hillsborough River. Thus, while it may be reasonable to speculate that a reduction in flow will reduce dissolved oxygen as a general matter, it is not possible to predict an actual impact at the low levels of flow under discussion. As to salinity, Mr. Lewis reviewed modeling data generated by John Hamrick, an environmental engineer working for the Preserve. Mr. Hamrick used the Environment Fluid Dynamics Code ("EFDC") model that he developed over a ten-year period. The EFDC is a three-dimensional hydrodynamic and transport model that simulates salinity, and was applied by Mr. Hamrick to develop an understanding of how salinity responds downstream of the dam under various flow scenarios. Based on the quality of input information, Mr. Hamrick characterized his modeling run as a "roughly calibrated model" in which he had a "moderate level of confidence." Mr. Hamrick’s model showed that under low-flow conditions there will be salinity intrusion all the way to the dam, regardless of the proposed additional withdrawal. The proposed withdrawal might cause the salinity wedge to extend further upstream than it would otherwise, depending on the time of year and other conditions such as the salinity in the bay. Mr. Hamrick concluded that his model showed no increase in salinity caused by the proposed withdrawals. The model did show that the withdrawals might cause a longer duration of high salinity levels in the lower Hillsborough River because of the expected reduction in no-flow days at the dam that he presumed the withdrawals would cause. Mr. Hamrick testified that he had seen no biological information to allow him to draw an opinion on whether the longer duration of high salinities would have an adverse impact on the lower Hillsborough River. From his review of Mr. Hamrick’s modeling and his own work, Mr. Lewis concluded that under normal conditions there is salt water below the dam "pretty routinely," at levels that are not conducive to the survival of the freshwater fish that were Mr. Flannery’s concern. Mr. Lewis concluded that the proposed withdrawals would have "absolutely no measurable impact" on the lower Hillsborough River. This conclusion was also based on Mr. Lewis’ observation that the river is subject to dramatic variations in flow over the dam, which can increase by several orders of magnitude. Mr. Lewis noted that the annual average flow over the dam is in the range of 100-300 cfs, but that on an almost annual basis there are flow events in the thousands of cfs, with velocities that push everything in front of the dam downstream. Mr. Lewis testified that these flushing events would make it impossible to establish a viable freshwater fish community below the dam. While he did not agree with Mr. Lewis’ conclusions as to its impact on potential freshwater fish communities, Mr. Flannery essentially agreed that saline water is periodically flushed out by high-flow events. These high-flow events would not be measurably affected by the proposed withdrawals. Mr. Lewis agreed with Mr. Hamrick that the proposed withdrawal could extend the duration of high salinity below the dam, and that there is no information to determine the point at which additional no-flow days would have a negative impact on the lower Hillsborough River. The Preserve credibly demonstrated that there is no scientific evidence that the proposed withdrawals would cause quality changes adversely impacting the water resources, and the District failed to counter this demonstration. Mr. Flannery’s testimony is credited as to the general proposition that the lower Hillsborough River is a stressed resource, and that any withdrawal that has the effect of increasing the number of low-flow or no-flow days at the City of Tampa dam cannot improve the river below the dam. However, the weight of the evidence did not establish that the proposed withdrawal would either diminish dissolved oxygen levels or increase salinity levels in the lower Hillsborough River. At best, the evidence established that the proposed withdrawals could theoretically decrease levels of dissolved oxygen and might increase the duration of the existing periods of high salinity in the affected area. The Preserve offered competent substantial evidence that the marginal number of additional no-flow days, estimated by the experts to be at most four days per year on average, and the consequent marginal increase in the existing periods of low dissolved oxygen and high salinity, would not adversely impact the water resource beyond the already stressed levels described by Mr. Flannery. The District failed to rebut this evidence. In summary, the Preserve demonstrated that the proposed WUP modification would not cause quality changes which adversely impact the water resources, but failed to demonstrate that the proposed WUP modification would not cause quantity changes which adversely impact the water resources. Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resource The findings regarding dissolved oxygen and salinity levels in the previous section are also relevant here, where the testimony as to environmental impacts focused on the impact of the proposed withdrawal on fish habitats. Mr. Lewis, an expert in marine life with respect to impacts on water, estuaries, fish, wildlife, and other natural resources, has participated in studies on the Hillsborough River since the early 1980s. While working for Mote Marine Laboratory, he performed a shoreline inventory of the lower Hillsborough River from the dam to the river’s mouth. He mapped the seawalls, vegetation types, and shoreline modifications. Mr. Lewis has walked and surveyed the river below the dam, and concluded there will be no measurable ecological impacts to the lower Hillsborough River with respect to the proposed withdrawals. Mr. Lewis testified that the first part of assessing the ecological impact of the proposed withdrawals is to observe the interplay between the "dynamic" and "static" portions of the habitat, because the combination of the two makes up the fisheries habitat. Mr. Lewis stated that in this instance, the static portion is the vegetation along the shoreline and on the bottom of the river. The dynamic portion is the salinity zone, which moves up and down the river. Mr. Lewis testified that salinity would be lower during high-flow conditions, and higher during low-flow conditions. The parameters of salinity, as well as dissolved oxygen, change rapidly depending on flow conditions. Mr. Lewis noted that the habitats occurring below the dam are heavily impacted. He observed a "tremendous amount of introduced exotic vegetation" along this part of the river. Mr. Lewis estimated that as much as 50 percent of the entire shoreline from Rowlett Park to Rowlett Park Drive just below the dam is exotic vegetation such as elephant ear, Brazilian pepper, and primrose willow. Mr. Lewis opined that exotic vegetation is not good fisheries habitat because the fish are not used to it and cannot feed on it. Even if the water quality is good, the lack of proper vegetation can result in poor fisheries habitat. Mr. Lewis referred to a study entitled "Second Interpretive Report, Tampa Bypass Canal and Hillsborough River Hydro-Biological Monitoring Program," prepared in March 1995 for the predecessor agency of Tampa Bay Water by Water and Air Research, Inc. of Gainesville. This study is commonly referred to as the "WAR Report." The WAR Report included a shoreline inventory indicating the presence of no exotic vegetation in this portion of the river and stating that nearly 90 percent of the area was native, natural shore. Mr. Lewis was surprised by this mistake, because the exotic vegetation in the area has been there for a long time and is not difficult to identify. Mr. Lewis stated that this mistake does not affect the conclusions of the WAR Report, but that the District and others have relied on the error to classify this reach of the river as relatively pristine when in fact it is heavily impacted by exotic vegetation. While stating that he believed the vegetation characterizations in the WAR Report to be "fairly accurate," Mr. Flannery conceded that there is exotic vegetation below the dam, though he estimated the amount to be less than 25 percent. Mr. Flannery testified that his estimate was based only on his general recollections of the area, and not on a specific effort to quantify the amount of exotic vegetation in the area. Mr. Flannery disputed Mr. Lewis’ conclusion that the large amount of exotic vegetation rendered the area inhospitable as fisheries habitat. He testified that exotics can provide some of the same ecological function as native vegetation, such as cover and shade. Mr. Flannery concluded that the presence of "selected exotic plants" does not necessarily cause great impact to the function of the vegetative zone in the water body. To the extent there is a conflict in the testimony, that of Mr. Lewis is credited as regards the extent of exotic vegetation on the shoreline of the lower Hillsborough River. Mr. Lewis has personally studied and surveyed the area. It is accepted that Mr. Flannery is also familiar with the area, but he admitted that he had not done the same kind of detailed field work as Mr. Lewis. Mr. Lewis’ analysis of Mr. Hamrick’s salinity modeling was discussed above and will not be repeated in-full here. In summary, Mr. Lewis concluded that salt water is routinely present below the dam at levels that are not conducive to the survival of a freshwater fish population, and that in any event the periodic flushing events that sweep everything away from the dam make it impossible to establish a viable freshwater fish population there. Mr. Flannery’s discussion of the importance of dissolved oxygen and salinity also will not be repeated in-full here. As noted above, Mr. Flannery convincingly demonstrated the principle that dissolved oxygen levels and salinity are related to freshwater flows, but did not offer hard data on the actual impact the proposed withdrawals would have on dissolved oxygen and salinity levels in the lower Hillsborough River. Mr. Flannery testified that he did not perform a species-by-species comparison of the proposed withdrawal on fish populations. He testified that the District has not performed studies determining fish mortality in the lower Hillsborough River when dissolved oxygen is between 4 and 2 mg/l, and was unaware of any study correlating low-flows to fish kills. Dr. Thomas Fraser is an expert in fisheries, ichthyology, and water quality. He testified as to the importance of freshwater inflow to fish populations in tidal areas such as the lower Hillsborough River. Dr. Fraser discussed the types of fish he would expect to find in a tidal reach of a West Central Florida river, based on his extensive experience and study: freshwater fish; estuarine fish that use a portion of the river during some part of their life history or at certain times of the year; and diagenous fish, those that spend their juvenile period in saltwater and then their adult lives in freshwater, or vice versa. Dr. Fraser testified that the lower Hillsborough River contains a much lower diversity in the number of species than he would expect to find in this type of river. Based on the literature that he examined and the list of fish that have been reported in the river below the dam, Dr. Fraser stated that there are about 50 percent fewer freshwater fish than would be expected in a typical freshwater tidal system, and 30 to 40 percent fewer estuarine fishes than would typically be found in a natural tidal system. Dr. Fraser also testified that the lower Hillsborough River has a lower relative abundance of fishes than is found in other adjacent river systems. Dr. Fraser listed several reasons for the lower diversity and abundance of fishes in the lower Hillsborough River. He testified that the lower Hillsborough River is in an urban setting, and has been highly modified over the last century of occupation by humans along its banks. Therefore, it lacks much of the wetland riparian vegetation that would normally be found in a tidal river system, with the exception of the area from Rowlett Park up to the dam, where the shoreline is mostly in natural condition. Dr. Fraser testified that he was retained to look at fish, not vegetation, and did not conduct any independent study or survey of the vegetation in the Rowlett Park area. He testified that he relied on the WAR Report for his data. For the reasons cited above, the WAR Report’s vegetative survey is not reliable as to this portion of the shoreline. Thus, Dr. Fraser’s statement regarding the "natural condition" of the shoreline from Rowlett Park up to the dam cannot be credited. Dr. Fraser testified that the hardened shoreline in much of the lower Hillsborough River has led to the presence of hard-bottom habitat that would otherwise be found only in limited areas of a natural river system. He stated that the lower Hillsborough River lacks emergent or submergent aquatic vegetation, except for the area directly beneath the dam. Dr. Fraser stated that the central, deeper part of the river is probably not a good habitat for a lot of fish, because of the water quality and sediment composition. He testified that the water column itself and the sides of the river form a habitat. Dr. Fraser also stated that the area below the dam is a habitat. He stated that this area is a much more natural looking system as regards the shoreline and the river bottom. This statement is credited insofar as "natural looking" was intended to contrast to the hardened shoreline farther downstream, not to contradict the accepted testimony regarding the extent of exotic vegetation on the shore below the dam. Dr. Fraser stated that because of the dam, the river has a very compressed salinity gradient, resulting in reduced living space for many kinds of fish, particularly freshwater fish that might be present in a free-flowing, unimpeded tidal river. Dr. Fraser added that the lack of freshwater flow coming over the dam changes the distribution of the salinity gradients and reduces important areas for estuarine fish that would normally exploit some of these habitats. Dr. Fraser testified that the lower Hillsborough River does not currently receive a sufficient amount of freshwater inflow for a diverse and abundant fish population. However, he also stated that the river is not beyond remediation, and that more freshwater flow over the dam would improve the diversity and abundance of fishes. Dr. Fraser concluded that a decrease in freshwater inflows would have a negative impact on the diversity and abundance of fishes in the lower Hillsborough River. He stated that at current no-flow levels, some fish that could exploit the area are not there because of the lack of living space. Further reductions in flows would reduce the already small living space for freshwater fish in the dry season. The salinity zone would become further truncated for the estuarine fish, again resulting in less area for these animals to exploit. As noted in subsection (b) above, Mr. Lewis testified that in his opinion it is not possible to establish a viable freshwater fish community in the lower Hillsborough River. Some members of the minimum-flows advisory group shared Mr. Lewis’ opinion. One of the group’s recommendations was that the District "maintain a freshwater segment below the dam to provide a refuge for freshwater biota." However, a comment to that recommendation stated, "Some members of the Group questioned the ecological value of maintaining freshwater biota below the dam." Dr. Fraser admitted that all the freshwater fish currently in the area below the dam probably came from above the dam during high-flow periods. The Preserve offered competent substantial evidence that the viability of a freshwater fish community is dubious in the river below the dam, and that in any event the incremental increase in the number of low-flow days that might be caused by the proposed withdrawals would not have a measurable effect on the factors affecting the environmental resources of the lower Hillsborough River. The District failed to rebut this evidence. Dr. Fraser offered compelling testimony as to the poor quality of the existing habitat, but along with Mr. Flannery simply assumed that any increase in no-flow days at the dam would exacerbate the problems in that habitat. As noted above, Mr. Flannery’s generic concerns are credited as to the fact that the lower Hillsborough River is a stressed resource, and that any withdrawal that may increase the number of low-flow or no-flow days at the dam cannot improve the ecology of the river below the dam. However, it was not the Preserve’s burden to prove that its withdrawal would improve the water quality and ecology of the lower Hillsborough River. Mr. Flannery’s generic observations are not a substitute for specific evidence rebutting the Preserve’s prima facie case that its withdrawals would have no discernible adverse impact on the water quality or ecology of the lower Hillsborough River. Deviation from Water Levels or Rates of Flow In the Notice, the District expressly stated that this rule criterion was inapplicable. No minimum flow requirement is currently in effect, though the District is in the rulemaking process to establish a minimum flow for the lower Hillsborough River, tentatively set at 10 cfs. The Preserve agreed that this rule criterion was not applicable, but went on to argue that once the proposed rule is adopted, consideration as to the river below the dam will be moot. The Preserve’s logic was that a minimum flow will ensure that there are never any no-flow days below the dam, and therefore the rule will guarantee that the Preserve’s proposed withdrawals will have no impacts. The Preserve did not support this argument with competent substantial evidence, and it is therefore rejected. When the minimum-flow rule takes effect, it will be the responsibility of the City of Tampa to ensure that flow is maintained, and to augment the flow if it falls below the specified level. The District offered credible, unrebutted testimony that the proposed withdrawals could prolong the periods during which the City would be required to augment the river’s flow. Subsequent to the final hearing, the Preserve filed a motion to supplement the record with the "Final Report" by the Lower Hillsborough River Minimum Flow Scientific Review Panel, dated October 28, 1999. The motion was granted in the Preliminary Statement above. The Preserve contends that the Final Report of the peer review committee establishes that the science behind the District’s policy decision to establish the minimum flow of the lower Hillsborough River at 10 cfs is "arbitrary and flawed." The Final Report does indeed state that "there is little scientific support for selection of 10 cfs." It states that the choice of 10 cfs is "arbitrary," and states that "There is no link between the data presented and the decision processes used to arrive at 10 cfs." However, the Final Report also recognizes that the "choice of an initial minimum-flow rate is inescapably arbitrary and a value above 10 cfs is almost certainly more likely to produce significant detectable change than the proposed minimum." (Emphasis added.) The Final Report urges the District to set management goals and criteria, so that it can understand whether the minimum flow is achieving the desired effect. "In the absence of a [clearly stated, quantifiable] goal, it is impossible to determine if 10 cfs is adequate, because there are no criteria to judge it by." The Preserve correctly notes that the Final Report questions the scientific basis for the establishment of the 10 cfs minimum flow, but overlooks that the main thrust of the peer review panel’s criticism was to question whether 10 cfs is a sufficient minimum flow. The District’s clear position throughout this proceeding, supported by the testimony of Mr. Parker and Mr. Flannery, is that the 10 cfs minimum-flow rule is not yet finally in place and played no part in the District’s decision to deny the proposed WUP modification. The Preserve’s consistent position has been that the 10 cfs minimum-flow rule will obviate any concerns about no-flow days at the City of Tampa dam. In response, the District has pointed out that the 10 cfs flow will have to come from somewhere during low-flow periods, and that the Preserve’s additional withdrawals will only aggravate the City’s scramble to find water. The Final Report supports the District’s response. The peer review panel advocates evaluating the options of 20 and 30 cfs flows. Should one of those higher minimum flows ultimately be determined correct and adopted by rule, the City’s problems during dry periods will be further increased. In answer to the District’s argument that the additional withdrawals will prolong those periods that the City will have to augment the river after adoption of the minimum-flow rule, the Preserve offered only the testimony of its president, Richard Thomas, that some discussions were held regarding an offer by the Preserve to absorb the City’s costs in pumping water to maintain the river’s flow. Mr. Flannery of the District correctly noted that "dollars do not create water." Even if the Preserve reimbursed the City its costs of pumping, the water would still have to come from some alternative supply source. Mr. Flannery further observed that, given the strains on the water supply in the Tampa area, it cannot be assumed that such alternative supplies will always be available. Utilization of Lowest Quality of Water The parties stipulated that the proposed WUP modification utilizes the lowest quality of water that the Preserve has the ability to use. Saline Water Intrusion The findings of fact as to salinity in subsection (b) above are also relevant to this subsection and will not be repeated here, except in summary form. The District’s Notice stated that "It is not anticipated that the proposed withdrawal would significantly induce saline water intrusion in aquifers . . ." Thus, the only issue as to saline water intrusion is the extent to which the proposed withdrawals would exacerbate any existing saltwater encroachment in the lower Hillsborough River during low-flow periods. Because the lower Hillsborough River is tidally influenced, saltwater naturally migrates up and down the river. There are substantial tidal fluctuations throughout the entire lower river, with tidal amplitudes of two to three feet all the way up to the dam. The dam itself prevents saltwater from entering the upper Hillsborough River. Mr. Flannery testified as to the physical influence of tides in the water levels of the river. He stated that the first zone encountered in a tidal river, moving from the freshwater end toward the bay, is a tidal freshwater zone. He characterized this as a zone in which the water moves up and down with the tides, and may even have current reversals, but remains fresh. Continuing toward the bay, various salinity zones are encountered. The first, lowest salinity zone is called the oligohaline, with salinities ranging from 0.5 to 5 ppt. Next is the mesohaline zone, with salinities from 5 to 18 ppt. Finally comes the polyhaline zone, with salinity greater than 18 ppt. Mr. Flannery testified that an important factor in tidal river environments is that these salinity zones can move back and forth "quite some distance" with changes in freshwater inflows. Mr. Flannery testified that the lower Hillsborough River has a very erratic salinity regime, largely due to the high variation in freshwater flows it receives. During high-flow periods, abundant freshwater flows over the dam and the river can be fresh some distance downstream. During times of no-flow over the dam, saline water can reach very close to the base of the dam. As noted above, Mr. Lewis testified that under normal conditions, there is saltwater below the dam "pretty routinely," at levels above 0.5 ppt for very extended periods of time. Mr. Hamrick’s model confirmed Mr. Lewis’ testimony. It is found that the weight of the evidence demonstrates that the proposed withdrawals would not increase the salinity levels in the lower Hillsborough River. At worst, the proposed withdrawals would incrementally extend the duration of the existing periods of high salinity during low-flow periods. There was no competent substantial evidence to establish that this marginal impact would significantly induce saline water intrusion in the lower Hillsborough River, if it induces such intrusion at all. Mr. Parker of the District admitted that a draft version of the Notice, dated January 19, 1999, stated that the Preserve’s Application met the saline intrusion criterion. District staff changed this draft finding before the Notice was made final. Mr. Parker testified that the decision to change this finding in the draft Notice was due to consultation with District technical staff, not due to discussions with District legal counsel as intimated by the Preserve. Mr. Parker’s testimony on this point is credited. No evidence was presented that the change in the draft Notice was based on anything other than the good faith efforts of the District’s technical staff. The fact that the draft Notice found compliance with the saline intrusion criterion played no part in the overall finding that the Preserve’s Application indeed met that criterion. Pollution of the Aquifer The parties stipulated that the proposed WUP modification will not cause pollution of the aquifer. Adverse Impacts to Existing Offsite Land Uses The parties stipulated that the proposed WUP modification will not adversely impact offsite land uses existing at the time of the application. (i) Adverse Impacts to Existing Legal Withdrawals The findings of fact in subsection (b) above regarding water quantity are also relevant to this subsection. The City of Tampa holds a WUP authorizing withdrawals of 82 mgd of water from the Hillsborough River reservoir that is located immediately upriver of the City of Tampa dam. The City of Tampa is the only existing legal user potentially affected by the proposed WUP modification. The reservoir is the City of Tampa’s major source of water supply. During dry periods, Crystal Springs contributes a large majority of the flow of the Hillsborough River and therefore of the water supply of the City of Tampa. As found above, flows have been declining over time in both the Hillsborough River and from Crystal Springs. The experts generally agreed that rainfall has not declined over the period of record, and that the reductions in flow of the Hillsborough River are best explained by increases in withdrawals from the river. The Application does not propose any variations in withdrawals based on the stage of the Hillsborough River or any other indicator of water levels. The Preserve proposes to withdraw 1.8 mgd from Crystal Springs regardless of whether the Hillsborough River is in a high or low-flow period. The District’s primary concern is the impact the proposed withdrawals would have on the City of Tampa’s water supply during low-flow periods, when the City is most dependent on flow from the Hillsborough River. The Preserve presented evidence that the City in recent years has withdrawn only 65 mgd from the reservoir, less than the 82 mgd permitted. The Preserve also presented evidence that the City sells large quantities of water to Coca-Cola, Pepsi Cola, Anheuser-Busch, and other entities that use for water for the same purpose as Zephyrhills, i.e., processing and packaging it for resale. The Preserve’s point as to the use of City of Tampa water by other bottling entities might be relevant had the District cited Zephyrhills’ use of Crystal Springs water as a reason for denial of the proposed WUP modification. However, the District’s denial, and the evidence it presented at hearing, focused on the amount of water proposed to be withdrawn. The District did not disparage the purpose to which the Preserve will put the water. The Intervenors’ attempts to do so are disregarded as irrelevant to the issues presented for decision. In summary, the fact is noted that the City of Tampa and the Preserve both sell water to companies that in turn bottle and resell it, but is not relevant to the decision in this case. The Preserve’s point that the City of Tampa does not withdraw all the water it is permitted to use implies that there is some unused cushion in the City’s water supply. However, even the Preserve’s hydrogeology expert, Dr. James Mercer, conceded that the City’s current demand exceeds the amount it is permitted to withdraw and that the City is seeking water from sources other than the Hillsborough River. Mr. Parker of the District confirmed that there are times when the City of Tampa uses all of the flow from the Hillsborough River for its water supply. The City is also authorized to withdraw water from the Tampa Bypass Canal and Sulphur Springs to augment the supply in the reservoir. Mr. Parker testified that there are times when the supply from the reservoir is insufficient and the City must take water from Tampa Bay Water, the regional water supply authority. John Dumeyer, the Preserve’s consulting water resources engineer, testified that he has also performed consulting work for the City of Tampa in relation to its efforts to increase the flow to Sulphur Springs for the City’s use. As noted above, some of the models run by the experts in this proceeding assumed a gallon-for-gallon displacement of water at the City of Tampa dam caused by the proposed withdrawals, but the evidence did not establish that this would in fact be the impact. However, as also found above, the evidence demonstrates that Crystal Springs is the major source of the Hillsborough River’s base flow, and therefore of the City of Tampa’s water supply, during low-flow periods. The Application makes no provision for lesser withdrawals during low-flow periods on the Hillsborough River. Thus, the Preserve could take up to 1.8 mgd from Crystal Springs at the very times the Hillsborough River and by extension the City of Tampa are most reliant on those spring flows. The Preserve points to Dr. Mercer’s conclusion that the proposed withdrawals will be within the range of normal fluctuation of the river, and within the range of error of the recorded measurements of river stage, leading to the conclusion that the impact of the withdrawals will be undetectable. Even Dr. Perry for the District agreed that the proposed withdrawals will not have much visible impact on average. However, Dr. Mercer’s conclusion was in reference to the upper Hillsborough River, not the river below the dam. Dr. Perry emphasized that the District’s concern was not with "average" flows, but with the impact on the City of Tampa’s water supply during low-flow periods. Based on all the evidence presented as to water quantity, it is found that the proposed withdrawals would have an adverse impact on the existing legal withdrawals of the City of Tampa during low-flow periods. Here, the reduction of flow is itself the impact and was proven, unlike the previously discussed issues of water quality and ecology, where the asserted impacts of the reduced flow on the dissolved oxygen, salinity, and biota of the lower Hillsborough River were not proven. While the various models arrived at different conclusions as to the extent of the flow reductions, they all agreed there would be some level of reduction caused by the proposed withdrawals. Any reduction in flow during the critical dry periods would perforce have an adverse impact on the City of Tampa’s already scrambling efforts to provide sufficient water to satisfy demands within its jurisdiction. Without conceding that its withdrawals would have any adverse impact on the City of Tampa’s water supply, the Preserve proposed what it called an "Operating Plan," designed to mitigate any possible impact. Mr. Thomas, the president of the Preserve, testified that the germ of the idea came from David Tippin, director of the City of Tampa Water Department, in 1985. Mr. Tippin suggested that the Preserve remove one of the log stops in the wooden dam at Crystal Springs, to induce more flow into the river. Mr. Tippin’s theory was that lowering the height of the spring pool would also lower the hydraulic pressure on the spring head and cause more water to flow from the spring into the river. The proposed Operating Plan would take effect once the diversion of water from Crystal Springs to Zephyrhills exceeded the current level of 301,000 gpd. The Preserve would monitor the daily flow of the Hillsborough River at the Hillsborough River State Park gaging station. Whenever the flow at that station is less than 70 cfs (45.5 mgd), and the City of Tampa is diverting the entire flow of the Hillsborough River (as evidenced by no- flow over the City of Tampa dam), the Preserve will lower the outlet control level of the spring pool to allow additional spring flow to enter the Hillsborough River. The spring pool level would be raised again whenever the Hillsborough River flow exceeded 70 cfs or there was flow over the dam for longer than two days. The proposed Operating Plan states that the release rate from the spring pool would be a sufficient flow to replace the amount diverted to Zephyrhills exceeding 301,000 gpd. Mr. Sinclair, the consulting hydrogeologist, conducted a test intended to assess the validity of the theory that lowering the level of the Crystal Springs pool would increase the amount of water flowing into the Hillsborough River. The volume of spring discharge was determined by measuring the discharge of the Hillsborough River about 400 feet upstream and 400 feet downstream of the Crystal Springs dam. The Crystal Springs discharge was calculated by subtracting the upstream from the downstream measurement. On April 16, 1998, the spring discharge was measured in this fashion. The boards were then removed from the dam, lowering the spring pool by about two feet, from 54.49 feet above the National Geodetic Vertical Datum ("NGVD") to 52.50 feet NGVD. The dam was held at this lower level until May 5, 1998, when it was returned to its original level. The spring discharge was measured again on April 30, 1998, fourteen days after the dam was lowered, and again on May 14, 1998, nine days after the dam was restored to its original level. The first measurement on April 16 measured the flow at 58.4 cfs. The second measurement on April 30, 1998, while the dam was lowered, was 60.8 cfs. The third measurement on May 14, nine days after the dam was restored, was 55.0 cfs. Mr. Sinclair’s report stated that the trend from the first to the third measurement showed a natural decline of 1.7 cfs at the time of the second measurement. Subtracting the first from the second measurement, Mr. Sinclair’s report stated that the difference in discharge caused by lowering the dam was an increase of 2.4 cfs. Mr. Sinclair added the 2.4 cfs to the natural decline of 1.7 cfs to conclude that the total effect on spring discharge from lowering the spring pool elevation by 2 feet was an increase of 4.1 cfs, or 2.65 mgd. The test led the consultants to conclude that the "spring coefficient" of Crystal Springs was 1.32 mgd per foot of water level variation in the Floridan aquifer. This means that for each one-foot drop in the level of the spring pool, there would be an increased discharge from the spring of 1.32 mgd. Dr. Mercer testified that there is uncertainty associated with the spring coefficient number. It could be higher or lower than 1.32 mgd per foot. Documentary evidence and testimony at hearing revealed that the upstream measurement on April 16, 1998, was taken three hours after the boards were removed from the dam, not prior to their removal as indicated in the report. However, both Dr. Mercer and Mr. Sinclair convincingly demonstrated that any error caused by this late measurement would result in an underestimate of the increased flow from Crystal Springs as a result of the lowering of the spring pool. In addition to spring discharge, levels were monitored on four observation wells. Well No. 1 was located 2,250 feet northwest of Crystal Springs. Well No. 2 was located 3,000 feet northeast of Crystal Springs. Well No. 3 was located 1,700 feet south of Crystal Springs, 20 feet from the river’s edge downstream of the spring. Well No. 4, a deep well, was located 100 feet northeast of the main spring vent. The lowering of the spring pool caused measurable effects on Well No. 1 and Well No. 4, but no effect on Well No. 2 and Well No. 3. These effects led Mr. Sinclair to conclude that the aquifer is in hydraulic contact with Crystal Springs to the northwest, with no apparent effects on the aquifer in a northeasterly or southerly direction from the main spring. Mr. Sinclair testified that he had never before conducted this type of test on a spring. Dr. Mercer, too, testified that he had never seen this type of test performed on a spring, but that the test is similar to specific capacity tests commonly conducted on wells. Dr. Mark Stewart, chair of the Geology Department at the University of South Florida, concluded that the test was a "reasonable way to approach the problem." Dr. Stewart agreed generally with the theory that lowering the spring pool would increase spring discharge. Mr. Parker of the District, an expert in hydrology and groundwater flow, also did not contest the theory behind the Operating Plan. However, Mr. Parker testified that the test as conducted did not sufficiently demonstrate that lowering the dam at Crystal Springs will have the effect of offsetting the proposed increased withdrawals. As an initial matter, Mr. Parker observed that the proposed triggering event of no-flow over the City of Tampa dam is too late. Zero flow at the dam means that all inputs to the reservoir are being exceeded and the City is capturing the entire river flow, a condition that is already unacceptable. Mr. Parker criticized the test because only three measurements were taken, which was insufficient to determine that the system had reached equilibrium after the dam was lowered. During the 14-day period when the dam was lowered, multiple measurements should have been taken to document a decline in discharge and provide assurances that the purported equilibrium measurement on April 30 was in fact an equilibrium condition. Mr. Parker noted that one of the reasons for performing the test was to address low-flow in the Hillsborough River and its impact on the City of Tampa, but the test was not performed in low-flow conditions. Mr. Parker noted that the winter of 1997-1998 was part of the El Nino period, when there was enough water in the system to overcome the effects of pumping and temporarily reset the system to levels comparable to historic highs. Mr. Parker also noted that the period of no-flow at the City of Tampa dam has been as long as 243 days in a year. In his opinion, the brief period of the test did not make the required demonstration that the proposed method would continue to function over a long period of time. Mr. Parker stated that the Operating Plan would have to be shown to work under a wide range of hydrologic conditions and for a long period of time. Also, the measurements taken of the increased flow to the Hillsborough River were in the vicinity of Crystal Springs. No effort was made to quantify how much if any of the additional water would actually reach the City of Tampa dam during low-flow conditions. Mr. Parker observed that discharge to the Hillsborough River in the area of Crystal Springs comes from multiple spring vents. He stated that by focusing on the single vent at Crystal Springs, the test did not account for the possibility that manipulation of one spring vent could cause others to compensate. Mr. Parker stated that water follows the path of least resistance. Decreasing the resistance to one vent could capture water at the expense of other vents. He testified that the test did not prove that the increased flow from the Crystal Springs vent was not at the expense of other vents that also reach the Hillsborough River. Dr. Stewart similarly stated that even if the flow of water coming out of the spring can be manipulated by lowering the dam, the result would not be a true increase in water because the additional water flowing from Crystal Springs would be coming from somewhere else in the same system. Even Mr. Sinclair testified that there are many small springs in the river bed itself that are sustained in part by the higher hydraulic head behind the dam, and that lowering the spring pool would likely cause these springs to diminish in flow. In summary, the Preserve failed to demonstrate that the proposed Operating Plan would add any real flow to the Hillsborough River or improve the conditions at the City of Tampa dam that the proposed additional withdrawals would exacerbate. The District provided credible reasons for its rejection of the proposed Operating Plan. Because the Preserve could not demonstrate that its Operating Plan would offset the demonstrated impacts to the City of Tampa’s water supply that the proposed increased withdrawals would cause during times of low- flow, it is found that the proposed WUP modification would adversely impact an existing legal withdrawal. Utilization of Local Resources to Greatest Extent Practicable The parties stipulated that the proposed WUP modification will utilize local resources to the greatest extent practicable. Incorporation of Water Conservation Measures Not Cause Water to Go to Waste The District considers these two criteria in tandem during the application process. They were treated together at the final hearing and thus are discussed here under a single heading. In its Notice, the District found that these criteria were met. These findings were based on the Preserve’s representations in its application that Zephyrhills Bottled Water Company had undertaken extensive conservation measures to reduce water losses, including pipeline replacement and multiple metering, and that all of the water withdrawn from Crystal Springs "goes to its intended use," which the District interpreted to mean that all the water goes into Zephyrhills Natural Spring Water bottles. During discovery, the District learned information that caused it to change its position. The District filed a motion to withdraw its admissions that the Preserve had met the requirements of Rule 40D-2.301(1)(k) and (m), Florida Administrative Code. The motion was granted by order entered on September 17, 1999. At the final hearing, the Preserve presented credible, undisputed evidence that in about 1997 Zephyrhills Bottled Water Company replaced the 6-inch PVC pipe leading to its plant from Crystal Springs with a 10-inch stainless steel pipe. PVC pipe is fragile, breaks easily, and is more subject to contamination than is stainless steel pipe. Winnie Louie, the quality assurance manager for Zephyrhills, testified that there have been no problems with pipe leakage or contamination since the new pipe was installed. Zephyrhills meters water withdrawals at Crystal Springs, and meters the water as it comes into the bottling plant. Ms. Andronaco, as natural resources manager for Zephyrhills, testified that 11 to 12 percent of the spring water is "lost" during the production process. Zephyrhills’ production numbers do appear to show that substantially less water is bottled than is withdrawn from Crystal Springs. Ms. Louie disagreed with the characterization of the water as "lost," because Zephyrhills knows where the water goes. She testified that the production numbers are misleading, because of Zephyrhills’ "net fill" program. The net fill program is a process whereby Zephyrhills guarantees that its bottles contain the amount of water indicated on the label by intentionally overfilling them. Thus, a bottle of Zephyrhills water that is labeled to contain a "gallon" actually holds more than a gallon of water. The production numbers reflect the label, not the actual amount of water in the bottles. Through its net fill program, Zephyrhills does track the amount of overfill by net weight. A sample of these tracking statistics indicates that each five-gallon bottle contains an average of 340 extra grams, or 11 ounces, of water. Ms. Louie also testified that the spring water is stored in a 30,000 gallon tank that must be cleaned on a monthly basis. She stated that the rinsing process in this cleaning must be done with the natural spring water because of the higher dissolved solids content of the alternative, the municipal water supply. Ms. Louie testified that using municipal water would alter the mineral content of the natural spring water stored in the tank. Ms. Louie testified as to the daily checks she makes for leakage, and stated that the production line is automatically shut down if a leak is found. She also testified as to the regular inspections of the plant performed by Perrier, the Florida Department of Agriculture, and the National Sanitation Foundation. The Zephyrhills plant consistently receives the highest ratings on these inspections, which Ms. Louie testified would not be the case if there were problems with leakage. The District’s conclusion that water is wasted and not conserved was premised entirely on Ms. Andronaco’s statement that 11 to 12 percent of the water withdrawn from Crystal Springs is "lost" in the production process. Mr. Parker testified that if the District had known of this "loss" during the application process, it would have required the Preserve to draw up a water budget and account for the lost water. Mr. Parker is correct in stating that the Preserve should have given the District notice of the water loss. The District is also correct in stating that Ms. Louie did not completely quantify the amounts of water used in the net fill program and the rinsing of the storage tank. Nonetheless, it is found that the evidence and testimony presented by the Preserve at the hearing provided reasonable assurances that water conservation measures have been incorporated and that water does not go to waste in the Zephyrhills production process. Incorporation of Reuse Measures In its Notice, the District explicitly stated that this criterion is not applicable to the proposed WUP modification. Not Be Otherwise Harmful to Water Resources The parties stipulated that the proposed WUP modification will not otherwise be harmful to the water resources within the District. CUMULATIVE IMPACTS The Notice found that the Preserve had not provided reasonable assurances that the criteria of Rule 40D- 2.301(1)(b),(c),(f)&(i), Florida Administrative Code, were met. The reasons set forth in the proposed agency action indicate that the District’s main concern was with cumulative impacts rather than any particular aspect of this application: Will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters: Not met. Due largely to the cumulative effects of existing withdrawals of water on the Hillsborough River, the existing condition of the lower river below the base of the Hillsborough Reservoir dam is one of essentially zero flow for prolonged periods. The low-flow condition is a contributing factor to degradation of water quality in the lower river. This existing condition does not meet the performance standards for acceptable environmental impacts to streams. The existing low-flow condition, and the potential measures and feasibility of maintaining and improving the hydrologic and environmental conditions of the lower Hillsborough River, are being addressed by conditions of existing water use permits and the development of minimum flows and levels. New withdrawals which affect the upper Hillsborough River have the potential to affect the rate of flow and/or cumulative flow to the lower river, thereby exacerbating an existing condition that has not yet been rectified with regard to the needs of the environment and existing legal users. The application does not provide reasonable assurances that the proposed increased withdrawal, combined with existing withdrawals, will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources: Not met. See also (b) above. New withdrawals which affect the upper Hillsborough River have the potential to affect the rate of flow and/or cumulative flow to the lower river, thereby exacerbating or prolonging a condition which is already beyond performance standards for acceptable impacts under low-flow conditions. The application does not provide reasonable assurances that the proposed increased withdrawal, combined with existing withdrawals, will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources. (f) Will not significantly induce saline water intrusion: Not met. It is not anticipated that the proposed withdrawal would significantly induce saline water intrusion in aquifers, but the Applicant did not provide reasonable assurances that the proposed withdrawals would not further reduce flows to the lower Hillsborough River, exacerbating any existing saltwater encroachment condition which may occur during periods of low-flows. (i) Will not adversely impact an existing legal withdrawal: Not met. The City of Tampa has an existing legal withdrawal from the Hillsborough River Reservoir, to which flow from Crystal Springs contributes. The application does not provide reasonable assurances that the proposed withdrawal, combined with other existing withdrawals, will not interfere with the City’s existing legal withdrawal by reducing the existing water supply available to the City, or by causing the City to increase measures to augment the volume of water in the reservoir and/or maintain flows to the river below the reservoir. At the hearing, the undersigned raised the question whether the District’s stated reasons for denying this application amount to the declaration of a moratorium on additional withdrawals from the Hillsborough River. This question was inspired by the Notice’s focus on cumulative impacts and the generic nature of the reasons for denying this proposed additional withdrawal. It appeared to the undersigned that these reasons would apply to any proposed new withdrawal, thus raising the question whether the District had imposed a moratorium or, as urged by the Preserve, whether the District was singling out the Preserve’s application for rejection based on generic objections that could be applied to any application. The District satisfied these concerns. This proposed WUP modification is distinguished from other applications the District has recently approved in that it proposes constant withdrawals regardless of the stage of the Hillsborough River. Mr. Flannery testified that there are times during high-flow periods of the Hillsborough River when withdrawals could occur without adverse impacts. He discussed a recent WUP issued to Tampa Bay Water that allows withdrawals from the Tampa Bypass Canal, but only when flows of the Hillsborough River reach 100 cfs or greater. In contrast, the Preserve proposes to make withdrawals at all times, including during low-flow periods of the Hillsborough River. The Preserve presented its case without specific reference to cumulative impacts, but the evidence presented applied to cumulative as well as individual impacts. The issue of low-flows in the lower Hillsborough River, the key issue in the case, could not be addressed at all without accounting for the cumulative impacts of withdrawals from the Hillsborough River. The findings made above as to individual impacts apply equally to cumulative impacts: the Preserve satisfactorily demonstrated that its proposed WUP modification provides reasonable assurances as to Rule 40D-2.301(1)(c),(f),(k) and (m), but not as to Rule 40D-2.301(1)(a),(b) and (i), Florida Administrative Code, on a cumulative basis.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order determining that Crystal Springs Recreational Preserve, Inc., has failed to satisfy the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of water use permits, and deny Water Use Permit Modification Application No. 209132.03. DONE AND ENTERED this 27th day of January, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of January, 2000. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Mark F. Lapp, Esquire Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 John H. Rains, III, Esquire Jodi L. Corrigan, Esquire Annis, Mitchell, Cockey, Edwards & Roehm, P.A. Post Office Box 3433 Tampa, Florida 33601 Dominick J. Graziano, Esquire Bavol, Bush & Sisco, P.A. Post Office Box 3423 Tampa, Florida 33601 A. Christopher Kasten, II, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Tampa, Florida 33601-2111 Stewart Loeblich Post Office Box 507 Crystal Springs, Florida 33524 Donald D. Conn, Esquire Tampa Bay Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761
Findings Of Fact Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/ By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that: the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property; the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions: for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons; no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.; surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner; artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each the submission of monthly reports of total monthly pumpages and total monthly flows; and permit for the withdrawal of surface and artesian water to expire on January 15, 1979. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of: the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM); the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property); the expiration date of January 15, 1979. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources." On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns: the low water quality and quantity of the St. Johns River and its marshes; the decline in hunting and fishing because of agricultural activities in the St. Johns River valley; the loss of marsh land due to agricultural activity; the lack of a basic water management program for the area; the lack of remedial measures should degradation of the water occur; and the lack of an expiration date for the surface water management system permit.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following: In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;" Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following: "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation." Add as paragraph 7 on page 15 the following: "7. This permit shall expire on January 15, 1979." Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue is whether to approve an application by Respondent, I.M. Collier, J.V. (Collier), to modify its Environmental Resource Permit (ERP) No. 11-02031P (2002 Permit) by changing the surface water management system (SWMS) for a proposed residential and golf course development in Collier County (County), Florida, known as Mirasol.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties National Audubon Society, Inc. is a not-for-profit corporation (incorporated outside the State of Florida) while Collier County Audubon Society, Inc., Florida Wildlife Federation, and Conservancy of Southwest Florida are Florida not-for-profit corporations. All are environmental organizations. Franklin Adams is a resident of the County and a member of each of the above organizations. Respondents have not contested Petitioners' standing based upon the stipulated facts set forth in the parties' Pre-Hearing Stipulation. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. Collier is the holder of the 2002 Permit authorizing the construction of a SWMS to serve the Mirasol project, a large development located in the County. The parties have stipulated that Collier has the administrative, legal, and financial capabilities to undertake the proposed activity. Fla. Admin. Code R. 40E-4.301(1)(j). The Project Site The Mirasol project consists of approximately 1,713.45 acres located on the north side of Immokalee Road and the Cocohatchee Canal (Canal) in the northern half of the County, approximately three miles east of the intersection with Interstate 75. The property spans three sections of land, the northern third of the property encompassing Section 10, the middle third encompassing Section 15, and the southern third encompassing most of Section 22. The site also includes a peninsula of land extending east of Section 10, encompassing the northernmost quarter of Section 11. The site is bounded on the south by the Canal and Immokalee Road and on the east by an existing residential development known as Heritage Bay, which was previously a rock- mining quarry. To the west of the site, running north to south, are two other proposed residential developments known as Parklands Collier and Terafina/Saturnia Falls and an existing residential and golf course community known as Olde Cypress. There are other existing and proposed residential developments and farm fields to the north of the site. The site is located southwest of the Corkscrew Swamp Sanctuary (Corkscrew Swamp), which is owned by the National Audubon Society, Inc., and appears to stretch from Immokalee (in the northeastern part of the County) south and southwestward through parts of the County. Corkscrew Swamp sits roughly at the center of a 315-mile watershed, much of which is comprised of short hydroperiod wetlands which dry down completely during the late winter and spring and become inundated again in the late summer and fall during the wet season. This water gradually sheet flows down a very slight downhill gradient toward the south and west. A portion of the sheet flow travels southwest in the vicinity of the site. The region has experienced occasional floods, the most severe of which occurred in 1995. At the direction of the District, the cause of the flooding was investigated in the South Lee County Watershed Study (Study), which concluded that the watershed discharges through a variety of outfalls, but that historic connections to downstream conveyances like the Canal were severed by the construction. While downstream conveyances exist, the Study concluded that connections between upstream flows and downstream conveyances should be enhanced or restored. In the late 1990s, the Canal was improved to increase its conveyance capacity. A berm was constructed by the Big Cypress Basin Board (Basin Board), a legislatively-created entity which manages water resources in the County, on the northern bank in the vicinity of, and across from, the Mirasol site. This berm prevented historic wet season sheet flow from reaching the Canal through the project site, except for a few culverts located along that water body. The Basin Board also built a 1,000-foot-long hardened concrete weir on the north side of the Canal a few thousand yards west of the project site. This weir provides the primary outlet for sheet flow in and around the Mirasol site. Currently, upstream drainage flows in a southwesterly direction across Section 10. As the water moves south to the Canal, the flow becomes constricted down to a 580-foot wide gap between the Olde Cypress residential development and commercial developments along Immokalee Road to the east. This constricted area further narrows to a 270-foot wide opening before the sheet flow reaches the 1,000-foot weir and discharges into the Canal. During a 3-day, 25-year storm event, a combined peak flow of 553 cubic feet per second (cfs) of water is discharged into the Canal through the 1,000-foot weir, but the Mirasol property only conveys a small portion of this water (around 20 cfs) through culverts in the Canal berm. Most of the water flows to the west of Mirasol where it passes through the narrow gap and over the 1,000-foot weir. Around 1,431 acres of the 1,714-acre site are jurisdictional wetlands. However, these wetlands are in poor condition due to existing impediments to sheet flow, artificially high water levels during the wet season, and heavy infestation of exotic species, principally melaleuca. Permit History In February 2002, the District issued the 2002 Permit approving the construction of a SWMS to serve two 18-hole golf courses, a single-family residential community, a golf course clubhouse and parking area, golf course maintenance facilities, sales facility, and parking area. The issuance of the 2002 Permit was not challenged. The SWMS included a 36.5-acre flow-way (Flow-Way) that encircled the northern boundary of the development in Section 15 and extended off-site and across adjacent properties to the west. (If constructed, the Flow-Way would be a 200-foot wide, 4-foot deep, 89-acre channel, more than half of which would have been located on the Saturnia Falls/Terafina and Olde Cypress properties.) Besides providing a conveyance function for the Mirasol site, the Flow-Way also enhanced flood protection for other properties by accelerating conveyance of floodwaters to the Canal and reducing peak flood stages by 0.4 feet during a three-day, 25-year storm event. The District included Special Condition 26 in the 2002 Permit, which required construction of the Flow-Way before the remainder of the project could be constructed. The 2002 Permit authorized Collier to directly impact (fill or excavate) 568.66 acres of wetlands within the footprint of the development. Additionally, 39.5 acres of wetlands, which were isolated remnant strips along the golf courses within the development, were considered secondarily impacted and assessed a thirty-three percent reduction in functional value. Mitigation for the project consisted of preservation and enhancement of wetlands and uplands on site. Enhancement of the preserve areas was primarily credited to the eradication of malaleuca and other exotic species and replanting with appropriate native vegetation. Permit conditions required management of the preserve areas to prevent a recurrence of exotic species. The preserve areas included an 846.95-acre external preserve area to the north and northeast of the area to be developed. It was anticipated that this northern preserve area would ultimately be donated to an existing mitigation area known as the Corkscrew Regional Ecosystem Watershed, along with an interest-bearing fund to ensure perpetual management. In December 2005, the United States Army Corps of Engineers (Corps) denied Collier's federal wetlands permit application for the project and the Flow-Way. Because of this denial, in May 2006 Collier submitted an ERP application with the District seeking to modify the 2002 Permit by revising the SWMS and removing the Flow-Way. On October 12, 2006, the District Governing Board approved a modification to the 2002 Permit, which authorized an alternate SWMS to serve the golf course and residential development (2006 Permit). Petitioners' challenge to the proposed modification followed. The 2006 Modification Because of the Corps' denial of its application, Collier was required to remove the Flow-Way and redesign the project's SWMS. The most substantial change in the project was the removal of the Flow-Way and associated control structures and its replacement with a series of interconnected lakes running from north to south through the property allowing for the pass-through of surface waters from the area north of the development site into the Canal. The modification does not alter the boundaries and location of the development. However, the revised SWMS includes: five controlled basins with a total area of 718.43 acres, each of which provides treatment of stormwater prior to discharging into the pass-through system; 45.16 acres of interconnected lakes serving as a pass-through for surface waters from the north; 2.12 acres of perimeter berm backslope/ buffers/spreader swales; and 7.27 acres along the Canal for the existing 100-foot wide canal easement and proposed canal contouring. These changes also required elimination of the 39.5 acres of remnant wetlands inside the development that had previously been assessed as secondarily impacted. Also, there were 0.68 acres of additional impacts resulting from slight changes in the internal site design due to the SWMS. To partially offset these impacts, the internal wetland preserves were enlarged by 13.32 acres. The remaining impacts were mitigated with mitigation credits from the Panther Island Mitigation Bank (PIMB). (The PIMB holds a mitigation bank permit issued by the District for a wetland restoration project in Southwest Florida.) The main preserve was left unchanged, except that 36.5 acres previously dedicated to construction of the Flow-Way will be added to the main preserve and similarly enhanced and preserved. In summary, as modified under the 2006 Permit, the total onsite mitigation consists of the preservation and enhancement of 830.89 acres of wetlands, preservation of 109.58 acres of uplands, and the purchase of a total of 5.68 credits from the PIMB. At hearing, Collier also agreed to purchase from the PIMB an additional 5.68 credits within the Basin for a total of 11.36 credits. The ERP Permitting Criteria To obtain an ERP, an applicant must satisfy the conditions in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality, while the second rule generally requires that a public interest balancing test be made, that cumulative impacts, if any, be considered, and that the District consider past violations, if any, by the applicant of District or Department of Environmental Protection (DEP) rules. (The parties have cited no prior violations by the applicant that should be considered.) Besides these two rules, a number of BOR provisions which implement the rule criteria must also be taken into account. If an applicant proposes to modify an existing ERP, as it does here, Florida Administrative Code Rule 40E-4.331(2)(a) comes into play and requires that the District review the application to modify the ERP "using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification." Under this rule, those portions of the project altered or affected by the modification are reviewed under the current ERP criteria, but otherwise the 2002 Permit is not the subject of review in this case. Therefore, the District's review includes only that portion of the existing permit that is proposed to be modified or affected by the modification. In this case, the 2006 design is very similar to the 2002 design, and the project's footprint, control elevations, roadway network, southern outfall, and main preserve are unchanged. However, as pointed out below, since most of the engineering-related components of the SWMS were affected by the Flow-Way's removal, the District reassessed the hydrologic components of the internal water management system and the pass- through lake system for levels of flood protection and water quality treatment. Because most of the engineering-related components of the SWMS for the project were modified as a result of the removal of the Flow-Way, the District staff reassessed the project's hydrologic calculations associated with levels of flood protection and reassessed the project's water quality treatment volumes applying the currently existing ERP criteria. As to wetland impacts and mitigation, review of the wetland impacts for the 2006 Permit was limited to an analysis of additional wetlands impacts associated with the modification. This was primarily the elimination of the previously permitted, secondarily impacted wetlands. Thus, only the additional wetlands impacts due to the revised SWMS are considered under the currently existing ERP criteria. The 2006 Permit made only slight changes to the project's wetland impacts and mitigation components authorized under the 2002 Permit. The project's footprint was not changed and the main mitigation area (the Northern Preserve) was unaffected by the changes except that 36.50 acres were actually added to that preserve as a result of the removal of the Flow- Way. Collier did not receive any credit in its mitigation analysis for the additional acreage that will become part of the preserve due to the removal of the Flow-Way. Surface Water Management Criteria As noted above, the ERP criteria in Florida Administrative Code Rule 40E-4.301 focus primarily on three areas of concern: water quantity, environmental impacts, and water quality. Related BOR provisions must also be considered. These areas of concern are discussed below. Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that an applicant provide reasonable assurance that the construction of a SWMS "[w]ill not cause adverse water quantity impacts to receiving waters and adjacent lands." BOR Section 6.2 implements that provision and requires that a project be designed so that it is consistent with the downstream carrying capacity of the receiving waters. In other words, it must not exceed the capacity of downstream receiving waters, which in this case is the Canal. In making this determination, Section 6.3 of the BOR requires that the 25-year, 3-day design storm event be used. Collier complied with this requirement through an extensive hydrologic study conducted by its expert, Richard S. Tomasello, a former District employee. Applying a hydrologic model simulation known as S2DMM, the witness determined the appropriate amount of upstream sheet flow that would need to be routed through the project to avoid adverse water quantity and flooding impacts and calculated the correct dimensions of the intake weir to admit that flow into the project's pass-through system. The S2DMM model is a combination of other accepted models including the Sheet 2d, Massmod, and MBR models, which were developed by Mr. Tomasello, and they have been evaluated and used by the District on numerous occasions. In addition, the S2DMM model has been used for other flood studies in Collier and Lee Counties, and it will be used on a restoration project in Martin County. Based upon Mr. Tomasello's analysis, Collier incorporated a 100-foot-long intake weir with a crest elevation of 14.95 NGVD (National Geodetic Vertical Datum) along the northern boundary of the project to maintain existing upstream water elevations. Collier also complied with BOR Section 6.3, which requires the use of a 25-year, 3-day storm event to be used when computing the discharge rate for the project. The modified intake weir on the northern boundary includes two 3.5-foot wide rectangular notches set at an elevation of 14.00 NGVD, which will provide a "base flow" of up to 20 cfs into the pass-through lakes to mimic the current flow through the property. The determination of this base flow was made through an analysis of the existing culverts at the southern end of the property. While not required by the ERP criteria, Collier also performed a long-term analysis (using a four-year period of record) of the SWMS's effect upon water levels. This analysis demonstrated that the modified system would leave water levels in the wetland areas upstream of the project unchanged during normal rainfall and low-flow periods. This analysis provides additional assurances that the modifications to the SWMS will not affect the Northern Preserve. While Petitioners questioned the accuracy and reliability of the hydrologic study, and its specific application to this project, the criticisms are considered to be vague and unsubstantiated. As noted above, the model has been previously accepted for use in South Florida, and Petitioners' expert conceded he did not have enough information to determine the model's accuracy. The more persuasive evidence established that the hydrologic study submitted by Collier included the relevant available data and was prepared by competent professionals knowledgeable in the field. The claim of Petitioners' experts that they lacked sufficient information to form an opinion on the accuracy of the modeling is not a sufficient basis to overcome the evidence submitted by Collier to meet this criterion. The project's discharge rate in 2006 will not exceed what was permitted in the 2002 Permit. During the 25-year, 3-day storm event, the existing discharge from the project site and the natural area west of the project site into the Canal is 553 cfs. Based on modeling of the modified SWMS, the total discharge from the pass-through system will be 529 cfs, or 24 cfs less than the project's existing pre-development discharge. The discharges resulting from the project as modified in 2006 will not exceed the capacity of the Canal as required by Section 6.3 of the BOR. Accordingly, Collier has provided reasonable assurance that the discharge rate allowed for its project would not be exceeded, as required in Section 6.2 of the BOR. Section 6.8 of the BOR requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving water bodies are not being adversely affected. Collier complied with this provision by conducting the hydrologic analysis using the 25-year, 3-day design storm event, which demonstrated that the discharge rate would be directed to the southern discharge point allowing for the passage of drainage from offsite areas to the downstream areas. The evidence also shows that the current predominant sheetflow from areas outside the project passes through a narrowly constricted area west of the project and discharges into the Canal over an existing concrete weir. See Finding of Fact 9, supra. Only a small portion of the upstream waters currently discharge through the Mirasol site. Petitioners' allegation that the construction of the project will further constrict the sheetflow area is rejected, as the constriction of sheetflow will continue to exist whether the project is built or not. The evidence also shows that the project will not further constrict the flow because it will allow for the pass-through of water from outside the project area. Under the 2002 Permit, the Flow-Way was designed to aid in the diversion of upstream flows around the project. Under the 2006 modifications, the pass-through lake system will convey up to forty percent of the upstream flow through the development which complies with the provisions of Section 6.8 of the BOR. As indicated above, during periods of lower water levels, the notches in the weir along the northern boundary will allow for the flow to pass onto the project site consistent with existing conditions. During major storm events, water will pass over the weir into the pass-through lake system to be conveyed to the Canal. Therefore, Collier has provided reasonable assurance that the criteria in Section 6.8 have been met. Section 6.10 of the BOR requires that the project be designed to conserve water and site environmental values and not lower the water table or groundwater or over-drain wetlands. Section 6.11 of the BOR provides that the control and detention elevations for the project must be established at elevations to accomplish the objectives of Section 6.10. The latter section is adhered to when the control elevations proposed for a project are established consistent with the onsite wetland conditions. In this case, the control elevations for the wetlands and surface water management lakes are essentially the same as the design in the 2002 Permit. Collier has set the control elevations above the average wet season water table (WSWT) for the area, thereby ensuring that the SWMS will not over-drain and will conserve fresh water. Section 6.11 of the BOR addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. The SWMS design control elevation maintains the detention component and the control (wetland protection) elevations in the previously approved SWMS. The control elevations were set by the design engineers in consultation with Collier's wetland ecologist taking into account the ground elevations and biological indicators. The control elevation for the pass-through system and internal drainage basins work in conjunction with the control elevation along the northern boundary of the project and the control elevation for the discharge point along the southern boundary to ensure that the project does not overdrain the wetlands and to preserve the project site's environmental values. By setting the control elevation above the WSWT, the design ensures that the wetlands will not be drawn down below the average WSWT and the SWMS will not over-drain them. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, based on the control elevations, the water table is not expected to be lowered so there should be no effect on the existing rights of others. Collier must further demonstrate that the site's groundwater recharge characteristics will be preserved through the design of the SWMS. Collier complied with this requirement by setting the control elevations above the average WSWT, allowing standing water in the wetland preserves to recharge the groundwater. The ability of the SWMS to accept flows from the Northern Preserve conserves freshwater by preventing that water from being discharged downstream. The SWMS leaves water elevations in the Northern Preserve unchanged. Consequently, water will remain in the wetlands for the same duration and elevations as in the existing conditions, thereby preserving groundwater recharge characteristics. Section 6.12 of the BOR prohibits lake designs that create an adverse gradient between the control elevations of the lakes and the adjacent wetlands. To satisfy this requirement, Collier set all control elevations at 13.4 - 13.5 NGVD while controlling the internal wetland preserves at a slightly higher elevation. Consequently, there is no adverse gradient and no potential for an adverse effect upon the internal preserves from adjacent lakes. Petitioners argued that the pass-through system would quickly lower water levels in the internal wetland preserves. However, the internal wetlands are still protected from drawdown because there are control structures set at or above the wet season elevation between the pass-through lakes and internal wetlands. They also argued that the internal wetlands would be overdrained during the dry season by the deep lakes. However, no witness presented any real analysis to back up this contention. Indeed, the pass-through lakes are only twelve feet deep, and the wetlands are separated from all the lakes by protective berms to avoid any drawdown. In summary, Collier has provided reasonable assurances that the proposed modification in the 2006 Permit will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not exceed the capacity of the downstream receiving waters (the Canal). Flooding Florida Administrative Code Rule 40E-4.301(1)(b) requires Collier to demonstrate that the project "[w]ill not cause adverse flooding to on-site or off-site property." BOR Section 6.4 sets forth criteria and standards for implementing this requirement and provides that building floors be designed to be protected from a 100-year, 3-day storm event. BOR Section 6.5 provides criteria and standards for flood protection for the project's roads and parking lots. Collier complied with these provisions by providing construction plans demonstrating that the building floors and roads will be built higher than the 100-year, 3-day storm event. BOR Section 6.6 provides that a project may not result in any net encroachment into the 100-year floodplain. Collier was also required to comply with the historic basin provision in Section 6.7 of the BOR, which requires the project to replace or otherwise mitigate the loss of historic basin storage provided by the site. The level of encroachment into the 100-year flood plain and loss of historic basin storage attributed to the project are essentially unchanged from the 2002 design. The only difference between the 2002 Permit and the 2006 Permit is how the conveyance of flood water is provided. In 2002, the Flow-Way served this function, while the pass-through system provides it in the 2006 Permit. Collier's flood simulations demonstrated that the project will not alter flood stages during the 25-year and 100- year design storms, while the testimony of witnesses Tomasello and Waterhouse established that the project will not have adverse flooding impacts on adjacent properties, either alone or in conjunction with neighboring developments. Storage and Conveyance Florida Administrative Code Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development "[w]ill not cause adverse impacts to existing surface water storage and conveyance capabilities." This criterion is closely related to paragraph (1)(b) of the same rule, which prohibits adverse flooding to onsite or offsite property. Section 6.6 of the BOR implements this provision and specifies the parameters for applying this criterion and prohibits a net encroachment between the WSWT and the 100-year event which will adversely affect the existing rights of others. Collier addressed this criterion through the hydrologic analysis submitted. As previously found, that model is the appropriate model to determine flood stages and to calculate the floodplain. Engineering Design Principles Florida Administrative Code Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS "[w]ill be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Section 7.0 of the BOR contains the specific standards and criteria to implement this rule. The evidence demonstrates that the SWMS is based on generally accepted engineering and scientific principles and is capable of performing and functioning as proposed. Section 8.0 of the BOR includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the design, Collier complied with Section 8.0. Water Quality Impacts Florida Administrative Code Rule 40E-4.301(1)(e) requires that the proposed modification "[w]ill not adversely affect the quality of the receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated." Stated more plainly, the proposed modifications must not adversely affect the quality of the Canal's waters such that State water quality standards will be violated. Section 5.2 of the BOR describes the District's standard water quality criteria. This provision, which requires a minimum of one-inch detention of stormwater, is referred to as a "presumptive criteria" because it is presumed that if an applicant provides the required one inch of detention, it meets Class III water quality standards, thereby satisfying the rule. As it did under the 2002 Permit, Collier satisfies the presumptive criteria with the 2006 design by providing the one- inch wet detention in its lake system. In fact, the system is designed to provide one and a half inches of treatment in the lake system thereby providing additional treatment. The receiving body of water for the project is the Canal. When the 2002 Permit was issued, the Canal was classified as a Class III water body. It is now classified by DEP as impaired for iron and dissolved oxygen. Because of this new classification, Collier must now comply with Section 4.2.4.5 of the BOR, which reads as follows: If the site of the proposed activity currently does not meet water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. Collier demonstrated that neither short-term (during construction) nor long-term (during operation) water quality impacts will occur. It complied with the short-term requirements by submitting a Construction Pollution Prevention Plan detailing how water quality will be protected during the construction process. As to long-term impacts, the Terrie Bates Water Quality Memorandum (Bates Memo) prepared by District staff on June 11, 2004, provides guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired water body. The document sets forth a number of design and operational criteria for the types of additional measures that can be incorporated into a project design to provide the necessary reasonable assurance. The Bates Memo suggests that an additional fifty percent of treatment be incorporated into a SWMS. Collier complied with this suggestion by designing the treatment lakes to provide an additional one-half inch of treatment for the additional fifty percent treatment. In addition to the one and one-half inch treatment, Collier is implementing six of the seven items the Bates Memo lists as potential options to consider. The long-term water quality requirement is addressed by Collier, in part, through an Urban Stormwater Management Plan, which details various source controls or best management practices to be implemented once the project is built and operating. Best management practices assist in ensuring that pollutants will not enter into the lake system. Collier is also implementing a stormwater pollution prevention plan and will utilize the lake system for additional treatment downstream. Collier has further agreed to planting the littoral zones as part of its design of the treatment lakes to provide additional pollutant removal. The design calls for an amount of littoral zones equal to twenty percent of the surface area of the treatment lakes. Collier has agreed to make a Water Quality Monitoring Plan a permit condition, even though such a condition was not included in the staff report. See Collier Exhibit 25. The Bates Memo includes as an option for meeting the long-term requirement a site-specific water quality evaluation of pre vs. post-development pollutant loadings. Collier has presented several such analyses, all of which indicate the post- development pollutant discharges from the site will be less than the pre-development. Mr. Barber prepared a pre vs. post- analysis using a 2003 methodology developed by Dr. Harper. The 2003 version of the Harper methodology is currently accepted by the Corps. (Although Petitioners' witness, a former Corps employee, suggested that the Corps' acceptance of the study was a "political" rather than a scientific decision, there is insufficient evidence to support this contention.) Besides his first analysis, at the direction of the District staff, Mr. Barber prepared a second analysis using the 2003 methodology with certain conservative assumptions that limited the pollutant residents time to fifty days and utilized lower starting concentrations for phosphorous and nitrogen than were recorded in the nearby monitoring stations. Based upon those reports, the District's staff concluded that Collier had provided reasonable assurances that the project met the criteria in BOR Sections 5.2 and 4.2.4.5. At the hearing, Mr. Barber presented a third analysis utilizing an updated methodology developed by Dr. Harper in February 2006. The 2006 methodology was developed after Dr. Harper conducted a study of water management district criteria throughout the state for DEP. All three of the analyses prepared by Mr. Barber concluded that the project would discharge less nitrogen and phosphorous into the receiving body in the post-development condition than is currently being discharged in the pre-development condition. In addition to the three water quality submittals from Mr. Barber, Collier provided an additional water quality analysis specific to the project prepared by Dr. Harper. See Collier Exhibit 26, which is commonly referred to as the Harper Report. The analysis evaluated the project's pre vs. post- development water quality loads and also concluded the project would not contribute to the impairment of the Canal. In preparing his analysis, Dr. Harper relied solely on the lakes for estimating removal of pollutants without accounting for any of the additional treatment expected to occur from the source control best management practices contained in the Urban Stormwater Management Plan, which means his report errs on the conservative side. The Harper Report concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/L. Petitioners presented no specific evidence to counter these conclusions. Petitioners questioned the Harper Report's use of wetlands as part of the loading calculations and attacked his underlying methodology. However, the evidence is clear that wetlands contribute to the water quality constituents in the pre-development condition. This finding is based on data from monitoring stations located in the middle of Corkscrew Swamp, a statewide study on stormwater treatment and wetlands, and the United States Environmental Protection Agency's (EPA) assignment of nutrient loading rates to wetlands in its regional pollutant loading model. Ignoring the actual water quality in pre-development conditions would not be a true pre vs. post-development analysis. Finally, Petitioners' contention that the Harper methodology should not be considered as admissible evidence because it constitutes "novel" (and therefore unreliable) scientific evidence under the rationale of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), has been rejected. To begin with, the Frye test has not been accepted in Florida administrative proceedings. Moreover, the methodology is the basis for a new statewide rulemaking effort, has been accepted by the EPA, the Corps, and by the Division of Administrative Hearings in at least two proceedings, and has been subjected to two peer reviews. Petitioners also alleged that Collier failed to show that it complied with Florida Administrative Code Rule 62- 40.432(2)(a)1., a rule administered by DEP which requires that a new SWMS "[a]chieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards." However, this is a broad overstatement of DEP's rule. Also, there is no eighty percent removal efficiency requirement adopted or incorporated into any District rule or BOR criteria. See, e.g., Conservancy of Southwest Florida, Inc. v. G.L. Homes of Naples Associates II, LTD et al., DOAH Case No. 06-4922 (DOAH May 15, 2007, SFWMD July 11, 2007). Instead, the District's "presumptive criteria" is that one inch of volumetric treatment required in Section 5.2 of the BOR meets the Class III standards. If, as in this case, additional assurances are required, those assurances are met through implementation of the BOR Section 4.2.4.5. Finally, Florida Administrative Code Rule 62-40.110(2) provides that Rule Chapter 62-40 is "intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Also, Florida Administrative Code Rule 62- 40.110(4) states that "[t]his chapter, in and of itself, shall not constitute standards or criteria for decisions on individual permits. This chapter also does not constitute legislative authority to the Districts for the adoption of rules if such rules are not otherwise authorized by statute." Even if an eighty percent reduction standard applied, Collier has demonstrated that the project very likely will remove eighty percent or more of pollutants when additional low-impact development techniques, pollutant source reduction practices, and additional uncredited wet and dry detention capacity are considered. Based upon the evidence presented, Section 4.2.8 of the BOR regarding cumulative impacts for water quality is not applicable in this case. Collier's submittals provide reasonable assurances that the project will not be contributing to the water quality impairment of the Canal or contribute to any other water quality violation. Indeed, the information submitted indicates there will be an incremental improvement in the post-development condition as compared to existing. Since no contribution or impacts to water quality are expected, a cumulative impact analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, demonstrates that the 2006 Permit will not adversely affect the quality of receiving waters such that state water quality standards will be violated. Therefore, reasonable assurance has been given that Florida Administrative Code Rule 40E-4.301(1)(e) will be satisfied. Wetland Impacts Florida Administrative Code Rule 40E-4.301(1)(d) requires Collier to provide reasonable assurance that the modification of the SWMS "[w]ill not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." In determining whether this criterion has been satisfied, it is also necessary to determine whether any 2002 permitted impacts should be subject to a second review in this case. Mitigation is a method by which an applicant can propose to impact certain wetlands on the project site in exchange for providing compensation in the form of preserving, enhancing, restoring, or creating wetlands or uplands to offset those impacts. As noted earlier, there has been no change to the wetland impacts or mitigation proposal as it relates to the Northern Preserve. See Findings of Fact 27 and 28, supra. As a result of the modified SWMS, there has been some additional impact to wetlands within the development area of the project. An additional 40.18 acres will be impacted under the 2006 Permit mostly due to the modified SWMS system. However, 39.5 acres of those wetlands were already considered secondarily impacted under the 2002 Permit. In addition, the preserve areas were expanded by 13.32 acres in the 2006 design. Thus, a portion of the impacts to those wetlands was already factored into the mitigation plan that was developed and approved for the 2002 Permit. As a result, there are 26 acres for which mitigation is necessary under the 2006 Permit. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Collier has proposed an acceptable mitigation plan for the new wetland impacts that will result from the project due to the proposed modifications incorporated in the 2006 Permit. Except for the mitigation for the additional wetland impacts, the mitigation plan for the 2006 Permit remains essentially unchanged from the 2002 Permit, including the Grading and Planting Plan, Monitoring Plan, and Mitigation, Monitoring, and Maintenance Plan. The onsite mitigation proposal includes preservation and restoration of wetlands through the removal of melaleuca and other exotic plants and replanting in areas of dense exotic species coverage. Significantly, Collier has not proposed any modifications that would change the effectiveness of the Northern Preserve in providing mitigation for the wetland impacts proposed and approved in the 2002 Permit. While Petitioners claim that the wetlands in the Northern Preserve may be subject to some changes in the level and seasonality of inundation as a result of the SWMS modifications, the evidence does not support those assertions. The revised SWMS will continue to allow water to flow through the Northern Preserve in a manner consistent with existing conditions while providing some flood control protection for extreme rainfall events. Petitioners also suggest that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts of the modified SWMS on the wetlands. However, the more persuasive testimony indicates that the timing and levels within the wetlands will not be affected by the revised SWMS. The control elevations within the development area have not changed from the 2002 Permit, and these protect the onsite wetlands and ensure that those wetlands will function as expected. With respect to the internal wetlands within the development area, the control elevations have not changed from the 2002 Permit and the evidence establishes that the internal wetlands will continue to function and operate as contemplated in the 2002 Permit. There has been some relocation and reconfiguration of the internal wetland preserve areas that will actually enhance the value of the mitigation by connecting those wetland areas to other preserve areas. Petitioners further suggested that the wetland mitigation within the development area would not function as permitted in the 2002 Permit due to the spill over from the lakes to the wetlands. However, when the water reaches those internal wetland preserves, it has been treated to Class III water quality standards. Therefore, the mitigation values of those wetlands preserves will not be changed or affected due to water quality. Petitioners' objections to the wetland impacts and mitigation were primarily directed at the overall impacts rather than to the 2006 modifications. However, their witness was unaware of the values provided by the additional acres that will be impacted through the 2006 Permit. Therefore, a challenge to 2002 permitted wetlands impacts and mitigation is inappropriate in this proceeding. Functions To Fish and Wildlife and Listed Species Section 4.2.2 of the BOR implements Florida Administrative Code Rule 40E-4.301(1)(d) and provides that an applicant must provide reasonable assurances that a project will not cause adverse impact to the abundance and diversity of fish, wildlife, and listed species or their habitat. With respect to the 586.66 acres of wetland impacts permitted in the 2002 Permit, the 2006 Permit does not modify or affect the values that the wetlands provide to either the abundance or diversity of fish and wildlife. Review of the wetlands criteria as to those acres was finally determined in the 2002 Permit and should not be reopened. By relocating thirteen of the previously impacted acres so they are most closely connected to other wetlands, their value to fish and wildlife will increase. As explained by the District's witness Bain, if Collier had moved the preserve area and changed its functional value, the District would have been required to reevaluate the mitigation that had been accepted for the wetland impacts in the 2002 permit. In this case, however, because the Northern Preserve area did not change, the District's review is limited to the newly impacted wetlands internal to the development for which mitigation was not provided in the 2002 Permit. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the project's wetlands. The only wetland values assessed in the 2006 Permit were the additional wetland impacts that were not mitigated in the 2002 Permit. The evidence establishes that the current value of the wetlands is low due to the heavy melaleuca infestation, which is greater than fifty percent coverage in most locations and seventy-five percent or more in much of the area. Melaleuca has the effect of draining short hydroperiod wetlands. While Petitioners may disagree with how the wetlands were previously evaluated, nothing in the 2006 modification allows or requires a reassessment of their value. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod (the depth, duration, or frequency of inundation) of wetlands or other surface waters. Subsection (a) of this standard applies if the project is expected to reduce the hydroperiod in any of the project's wetlands. Conversely, subsection (b) applies if the project is expected to increase the hydroperiod through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Again, there is no basis for the District to reopen and reevaluate the wetlands for which mitigation has already been permitted. No evidence was presented to indicate that there would be any obstacles or problems to accomplishing the mitigation that was proposed and accepted in 2002. In any event, the engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Northern Preserve will occur from what was permitted in the 2002 Permit. By analyzing the various biological indicators onsite and setting the control elevations within the SWMS and the wetlands (both the Northern Preserve and onsite preserve wetlands) above the WSWT, the project ensures that the appropriate hydrology will be maintained. Though the fish and wildlife are not expected to be adversely affected by the 2006 Permit, Collier will be conducting monitoring of plants and animals on the site as an extra measure of assurance as contemplated under BOR Section 4.2.3.4(c). Focusing on just the changes from 2002 to 2006, Petitioners' two experts conceded that the hydrology in the Northern Preserve and its value to wildlife and listed species (including the wood stork) would be benefited in the 2006 Permit over that contemplated in the 2002 Permit due to the removal of the Flow-Way. Secondary Impacts to Water Resources Florida Administrative Code Rule 40E-4.301(1)(f) requires a demonstration that the proposed activities "[w]ill not cause adverse secondary impacts to the water resources." A similar demonstration is required by Sections 4.1.1(f) and 4.2.7 of the BOR. In this case, the secondary impacts considered by the District were potential impacts due to the relocation and expansion of the buffer preserve areas to the perimeter of the project site. In conducting a secondary impact analysis, BOR Section 4.2.7 requires that the District consider only those future projects or activities which would not occur "but for" the proposed system. Here, the evidence demonstrated that no wetlands or other surface waters will be secondarily impacted by the modifications to the SWMS as part of the 2006 Permit. The undersigned has rejected Petitioners' contention that a proposed extension of County Road 951 through the development site should be considered a secondary impact in evaluating this project. This extension has been proposed for at least fifteen years and its precise configuration is unclear. It is not required to be built as a result of the project and there are no firm plans or contracts in place to construct the road. Although the road is listed on the County's transportation plan, it remains speculative as to if and when it will be built. Additionally, there is no evidence the County has any ownership interest in property for a road in the area identified by Petitioners. Witness Bain testified that the District examined the Collier County Public Records and an easement had not been granted to the County to build the road. i. Elimination and Reduction Florida Administrative Code Rule 40E-4.301((3) provides in part that "the provisions for elimination or reduction of impacts contained in the [BOR] shall determine whether the reasonable assurances required by subsection 40E- 4.301(1) and Rule 40E-4.302, F.A.C., have been provided." Section 4.2.1.1 of the BOR implements that provision and provides that elimination and reduction of impacts is not required when: The ecological value of the function provided by the area of wetland or other surface water to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3 and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected; . . . In accordance with that section, Collier was not required to implement practicable design modifications to reduce or eliminate impacts. The District did a site-specific analysis of the quality of the 39.5 acres of adversely affected wetlands, taking into consideration the condition of the wetlands, hydrologic connection, uniqueness, location, and fish and wildlife utilization. The unrebutted testimony is that the quality of the 39.5 acres of wetlands to be impacted by the 2006 Permit is low and these wetlands were already previously authorized to be secondarily impacted. The low quality wetlands are melaleuca dominated making them not unique. The mitigation will provide greater long-term ecological value than the impacted wetlands. As noted on page 10 of the Staff Report, there will be a larger, contiguous mitigation area to offset direct impacts to previously preserved, but secondarily impacted wetlands and the preservation/enhancement of the external preserve area. The 2006 Permit provides that 5.68 credits are required to be purchased in the PIMB. Collier has advised the District that 27.68 credits are being purchased pursuant to its Corps permit. Thus, Collier will be purchasing more credits than required by the District. Witness Bain took this additional mitigation into account in determining whether the proposed mitigation will provide greater long term ecological value than the area impacted. While the Corps permit is an entirely separate permit action, Collier has agreed to include an additional 5.68 credits within the Basin beyond what is required in the Staff Report as a condition to this 2006 Permit. Therefore, the mitigation is clearly of greater long-term ecological value than the area impacted. Additional Requirements Florida Administrative Code Rule 40E-4.302 imposes additional requirements on an ERP applicant, including a cumulative impact assessment, if appropriate, and satisfaction of a public interest test. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant demonstrate the project "[w]ill not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the [BOR]." Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin, and a cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. See Florida Wildlife Federation et al. v. South Florida Water Management District et al., 2006 Fla. ENV LEXIS 49 at *49, DOAH Case Nos. 04-3064 and 04-3084 (DOAH Dec. 3, 2006, SFWMD Dec. 8, 2006). Also, Section 373.414(8)(a), Florida Statutes, requires the District to consider the cumulative impacts upon surface water and wetlands within the same drainage basin. Thus, the cumulative impact analysis applies only when mitigation is proposed outside of the drainage basin within which the impacts are to occur. Broward County v. Weiss et al., 2002 Fla. ENV LEXIS 298 at *29, DOAH Case No. 01-3373 (DOAH Aug. 27, 2002, SFWMD Nov. 14, 2002). In this case, all of the proposed mitigation associated with the 2006 Permit modifications is located within the West Collier Basin. The evidence shows that the mitigation will offset the impacts to wetlands proposed in the 2006 Permit. Therefore, since the mitigation will be performed in the same Basin as the impacts and will offset the adverse impacts, the District must "consider the regulated activity to meet the cumulative impact requirements" of Section 373.414(8)(a), Florida Statutes. A new cumulative impacts analysis based on removal of the Flow-Way is not necessary because the modification does not change the cumulative impacts analysis conducted in the 2002 Permit. Since the Flow-Way was not considered a wetland impact or contributing to the mitigation in the 2002 Permit, its removal does not affect the adequacy of the previously conducted cumulative impacts analysis or the mitigation. Accordingly, there is no need for a new cumulative impact analysis with regards to the Northern Preserve. Finally, contrary to Petitioners' assertion, there is no rule or BOR provision which requires Collier to mitigate for the alleged prior impacts of other projects. Public Interest Test In addition to complying with the above criteria, because the project is located in, on, or over wetlands or other surface waters, Collier must also address the criteria contained in the Public Interest Test in Florida Administrative Code Rule 40E-4.302(1) and Section 4.2.3 of the BOR by demonstrating that the project is not contrary to the public interest. See also § 373.414(1)(a), Fla. Stat. Since the project does not discharge into an OFW or significantly degrade an OFW, the higher standard of "clearly in the public interest" does not apply. In determining compliance with the test, Florida Administrative Code Rule 40E-4.302(1)(a) requires that the District do so by "balancing the [seven] criteria [in the rule]." Findings with respect to each of the seven criteria are set out below. (Except for pointing out that the District does not have an adopted rule which provides more specific detail on how to perform the balancing test than is now found in paragraph (1)(a), and a contention that witness Bain's testimony was insufficient to explain how the staff balanced those factors, Petitioners did not present any evidence at hearing or argument in their Proposed Recommended Order in support of their contention that the above rule, BOR section, or the associated statute have been applied by the District in an unconstitutional manner.) Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.) Collier provided reasonable assurances that the project will not cause any onsite or offsite flooding nor cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria. Also, the post- development peak rate of discharge does not exceed the allowable discharge rate. Further, the project will not cause any environmental hazards affecting public health, safety, or welfare. The project is considered neutral as to this factor. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.) For the direct wetland impacts under the 2006 Permit, Collier proposes mitigation which has not changed from the 2002 Permit. The mitigation proposed was previously determined to offset potential impacts to fish and wildlife and particularly wood stork habitats. The evidence indicates that the mitigation plan for the Northern Preserve will improve wood stork habitat from its current melaleuca infested condition. For the additional 40.18 acres of wetland impacts authorized in 2006, the mitigation is of greater long-term value. Thus, the project should be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.) The parties have stipulated that the project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the project's construction would result in harmful erosion or shoaling. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.) The project does not provide any fishing, recreational values, or marine productivity. Therefore, the project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.) It is undisputed that the project is permanent in nature. Even though the project is permanent, it is considered neutral as to this factor because mitigation will offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.) The parties have stipulated that no significant archeological or historical resources have been identified on this site. Therefore, the project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.) The current condition and relative value of functions being performed by the areas affected by the project is low due to the melaleuca infestation. Project mitigation will restore 940 acres of poor quality wetlands and uplands, greatly enhancing their function and value. Therefore, the project should be considered positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value. Summary of Public Interest Factors Overall, the project is no worse than neutral measured against any one of the criteria individually. Therefore, the project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting the application of I. M. Collier, J.V. for a modification to Environmental Resource Permit No. 11-02031P. DONE AND ENTERED this 24th day of July, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 24th day of July, 2007.
The Issue The issues are whether Respondent, Mosaic Fertilizer, LLC (Mosaic), has provided reasonable assurances that the proposed mining and reclamation of the South Fort Meade Mine in Hardee County can be conducted in a manner that comports with the applicable statutes and rules such that the proposed Environmental Resource Permit (ERP), Conceptual Reclamation Plan (CRP), variance from minimum standards for dissolved oxygen, and variance from littoral zone percentage provisions for the Project should be issued by Respondent, Department of Environmental Protection (Department).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mosaic is a limited liability company authorized to do business in the State of Florida and is the applicant in these proceedings. It was formed by the merger of IMC Phosphates Company and Cargill, Inc., in 2004. Mosaic has applied for permits to mine, reclaim, and conduct associated activities on property in Hardee County, Florida, known as the South Fort Meade Hardee County tract. These activities are referred to in this Recommended Order as the "Project" or "site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, Chapter 373, Florida Statutes, for phosphate mining activities with jurisdiction over phosphate mining reclamation under Part III, Chapter 378, Florida Statutes, and with jurisdiction over variances associated with phosphate mining under Section 403.201, Florida Statutes. Pursuant to that authority, the Department reviewed the ERP, CRP, DO Variance, and Zone Variance applications for the Project. Lee and Sarasota Counties are political subdivisions of the State of Florida. Both Counties have filed challenges to other mining applications and have been found to have standing in those cases. The site is located within the Greater Charlotte Harbor Basin, approximately sixty percent of which lies within Lee County. In this case, Lee County is concerned about the potential destruction of stream and wetlands in the mine area and the impact of mining and its effects on Charlotte Harbor and the Peace River. Sarasota County is a member of the Peace River Manasota Regional Water Supply Authority, and they jointly hold a water use permit, which authorizes them to withdraw water from the Peace River for potable supply. Sarasota County operates a water treatment plant on the Peace River downstream from the site and is concerned with potential impacts to water quality and wetlands. After three years of data collection and site analysis, on October 13, 2006, Mosaic filed applications with the Department's Bureau of Mine Reclamation for an ERP/Water Qualify Certification for the disturbance of approximately 7,756 acres of uplands, wetlands, and other surface waters within a 10,856– acre area which makes up the site; a CRP for the same parcel; and the associated Zone and DO Variances. Three sets of additional information were requested by the Department, and on January 31, 2008, the applications were deemed to be complete. On June 30, 2008, the Department issued Notices of Intent to issue the permits and grant the variances. The Project is located within the Peace River Basin. Little Charlie Creek, a tributary to the Peace River, enters the site in the northeast part of the tract and flows diagonally across the tract in a general southwest direction. The Project is located to the east of the Peace River, east of the town of Bowling Green, northeast of the City of Wauchula, and just south of the Polk-Hardee County Line in Hardee County, Florida. The Project site is twenty-nine miles from the Sarasota County line and fifty-three miles from the Lee County line. The Peace River eventually empties into Charlotte Harbor near Port Charlotte in Charlotte County. The Project consists of approximately eighty percent of upland land cover types, including large acreages converted to agricultural uses, such as cattle grazing, citrus production, and row crop production. The Project site consists primarily of citrus groves and pasture. Richard W. Cantrell, Deputy Director of Water Resources for the Department, has extensive experience and knowledge concerning agricultural parcels of this size in Central Florida. Based on his familiarity with the site, he indicated that all the streams have been impacted, the impacts to some areas of the site are severe, and the "site contains some of the most polluted streams with respect to sedimentation that I have ever seen." The other Mosaic and Department ecological experts familiar with the site concurred in that assessment, and the substantial data collections and application information support that assessment of the site. Of the 2,590.7 acres of wetlands on the property, approximately 751 acres of wetlands and other surface waters will be impacted. Of that 751, 91 are upland cut ditches or cattle ponds, 108 acres are other surface waters, and 274 acres are herbaceous wetlands. Virtually all of the native upland vegetation on the site has been destroyed due to the agricultural activities that have been undertaken on the site over time. Only remnant patches of native upland remain on the site. These comprise approximately nine percent of the site and are predominantly within the riparian corridors of Little Charlie Creek and the Peace River and are proposed to be preserved. The evidence established that the majority of the wetlands and streams proposed for impact are lower in quality; the higher quality wetlands are typically associated with the riparian stream corridors and are proposed to be preserved. The preserved uplands are primarily pasture but also include one hundred thirty-nine acres of upland forest. Twenty-nine distinct vegetative communities were mapped on the site during approximately two years of evaluation and assessment utilizing the Florida Land Use, Cover and Classification System (FLUCCS). There are numerous natural stream segments that were mapped on the parcel including the primary drainage systems on site, consisting of the Peace River, Little Charlie Creek, Lake Dale Branch, Parker Branch, and Max Branch. Substantial portions of the natural streams and their flood plains will be preserved; sixty-two natural stream segments totaling 58,769 linear feet will be mined. No sovereign submerged lands are proposed to be impacted by the activities. The Peace River to its ordinary high water line is sovereign submerged lands; however, no other streams on site are claimed as sovereign. Therefore, no authorization to utilize or impact sovereign submerged lands is required. The field work assessing the ecological condition of the site's wetlands, streams, and surface waters consisted of detailed quantitative and qualitative assessments using FLUCCS, the Wetland Rapid Assessment Procedure, and the Uniform Mitigation Assessment Methodology (UMAM) codified in Florida Administrative Code Rule Chapter 62-345. The level of assessment expended in evaluating the native upland and wetland habitats on the site was considerable and provided reasonable assurances that the current condition and relative value of the systems were adequately considered in the permitting process. From 2002 to 2004, Mosaic conducted intense ecological evaluations of the site, evaluating historical and aerial photography and other site documentation and conducting extensive examinations in the field, including vegetative, macroinvertebrate, and fish sampling and surveying, surface and ground water quality and quantity monitoring, wildlife observations, surveys and trapping, stream mapping and evaluation, soil analysis, and other efforts, both in areas to be mined and areas to be preserved, and in both uplands and in wetlands. The ecological assessments were primarily conducted prior to the hurricane events of 2004, although additional field work was conducted following the hurricanes. Mosaic and the Department's experts revisited the site in the fall of 2008 and agreed that the various ecological and biological assessments conducted prior to the hurricanes would tend to overstate the quality of the site as compared to its current condition. The hurricanes caused a significant amount of damage to the remaining forested habitats on the site. A formal wetland jurisdictional determination was issued and published without challenge in 2007 and therefore conclusively establishes the boundaries of the wetlands and surface waters on the site for permitting purposes. Seasonal surveys for wildlife on the site were conducted in 2003-2004 using the wildlife survey methodology prescribed and approved by the Florida Fish and Wildlife Conservation Commission. Specialized wildlife surveys and night-time surveys were also conducted. A total of 4,600 man hours of effort were expended to evaluate the presence of fish and wildlife, including threatened and endangered species, on the site. The entire site was surveyed, with over 2,600 miles of wildlife transects, to assess the presence of wildlife, and detailed information was recorded for all wildlife observations, including anecdotal observations by the ecologists performing the wetland assessments. Mosaic also engaged in an extensive effort to identify the natural stream channels proposed for impacts on the site. After discussion with the Department staff, Mosaic distinguished the natural streams in accordance with FLUCCS codes 511, 512, 513, and 514, as required by Florida Administrative Code Rule 62C-16.0051(4). Streams are a subset of the term "other surface waters" for ERP purposes. Although streams are defined in Section 373.019(18), Florida Statutes, as are other watercourses and surface waters, there is no operative use of, or reference to, streams in Part IV, Chapter 373, Florida Statutes, governing ERP permits. Also, there are no specific ERP mitigation requirements applicable to streams. Thus, the only specific regulatory use of the word "stream" occurs in the context of Florida Administrative Code Rule 62C-16.0051, and not the ERP rules. The Department and Mosaic established that the delineation of streams proposed for impact by mining on the site was sufficient and adequate for purposes of the CRP rules. In addition, Mr. Cantrell stated that, for purposes of the acre- for-acre, type-for-type (for wetlands) and linear foot (for streams) reclamation requirements in Florida Administrative Code Rule 62C-16.0051, the Department required Mosaic to delineate a stream as such until the point it enters or after it leaves a wetland area and to delineate the wetland polygon itself as a wetland, not a stream. This is true even if water continues to flow through the wetlands and reform as a stream at the other side. If the stream will not be impacted, then nothing in either the ERP or CRP rules requires its precise delineation, because the CRP rules apply only to reclamation of impacted areas. Thus, Lee County's assertion that "streams" has some special status by virtue of the definition in Section 373.019(18), Florida Statutes, has not been accepted. Mr. Cantrell further testified that the Department utilizes a substantially similar definition to delineate "streams" pursuant to Florida Administrative Code Rule 62C-16.0051(4), but as noted in Findings of Fact 44-46, subsection (5) of the rule requires restoration on a linear foot basis only of natural streams. Lee County contended that over 12,000 feet of natural streams were omitted or misidentified in the application. However, based upon the evidence presented, both historical and current, and applying the applicable regulations and statutes, this argument has been rejected. This contention was based on after-the-fact approximation of stream locations and lengths plotted from memory in a desktop analysis. Further, during his site visit to mark stream locations, Lee County's expert failed to use a handheld GPS device or maps. Therefore, the evidence submitted by Mosaic and the Department as to the location and length of the streams proposed for impact has been credited. Mr. Cantrell testified that even the best of the streams proposed for impact have been subjected to at least sixty years of agricultural disturbance and manipulation. For example, the system 22 series of stream segments will be impacted and replaced by the clay settling areas. While the witness characterized segment 22(o) as the most stable and least impacted of the streams to be mined, that segment is 376 feet long and located at the uppermost reach of the 22 systems. It is an extremely small percentage of the overall 12,000 plus feet of less stable and more severely impacted parts of system 22. Mosaic and the Department analyzed the origins and current condition of the streams to be impacted, most of which are less than three-to-four feet wide and one foot or less deep and flow only intermittently and seasonally. The ecological and hydrologic conditions of the site and its fish and wildlife populations and habitat values were assessed for purposes of the ERP and CRP regulatory criteria. Respondents' characterization of the functional value of the wetlands, streams, and surface waters is supported by a preponderance of the evidence. Lee and Sarasota Counties' assertion that the site wetlands and streams are in "good" condition and can be easily restored is not credited in light of the lack of empirical data to support this contention. The only way to recover the phosphate ore is through mining to remove the overburden layer and expose the phosphate matrix with a dragline. The first step prior to any land disturbance associated with phosphate mining is the installation of a "ditch and berm" system, which is recognized as a best management practice (BMP) by the Department and the United States Environmental Protection Agency. Installation of the ditch and berm system proceeds in phases to protect unmined wetlands and habitats from mining impacts as mining progresses; it is not constructed all at once. The ditch and berm remains in place around an individual mining unit until mining and reclamation have been completed and monitoring indicates the revegetation is sufficiently established such that no violations of water quality standards will occur upon re-connection to adjacent and downstream waters. It is then removed in accordance with the reclamation plan. The system serves a number of purposes described below. Berms are required to be constructed in accordance with specific design criteria. The height of the berm will be designed in accordance with rules specific to such structures to prevent water from overtopping the berm during a 25-year, 24- hour storm event, even if the ditch becomes blocked. Following installation of a ditch and berm system, bulldozers clear the mining area of vegetation. Up to three large electrically powered draglines operate generally in parallel rows to remove the overburden layer (the upper layer of sand and clay soil), which is approximately 23.6 feet thick on average, to expose the phosphate matrix, which is approximately 13-to-15 feet thick on average. The overburden is cast to the side in piles to be later reused in reclamation. The phosphate matrix is a mixture of sand, clay, and phosphate, which must be separated after mining. At the beneficiation plant, washing, screening, and flotation processes are used to separate the phosphate rock from the sand and clay. After washing and screening, the sand is pumped back to the mine cuts for use in reclamation, and the clay is pumped to clay settling areas (CSAs) in slurry form to decant. Both the transport of sand back to the mine areas for use in reclamation and the transport of clays to CSAs are considered "mining operations," not "reclamation." See Peace River/Manasota Regional Water Supply Authority, et al. v. IMC Phosphates Company, et al., DOAH Case No. 03-0791 (DOAH June 16, 2006; DEP July 31, 2006); Fla. Admin. Code R. 62C-16.0021(10) and (15). Thus, contrary to Lee County's allegation, the transportation of clays and sand is not a valid consideration in the financial responsibility required for mitigation. Through testimony and its materials balance tables, which are part of the application, Mosaic demonstrated that it has sufficient sand tailings and other waste materials to meet all of its reclamation requirements mine-wide, including both the Polk side and the Project site. However, while there is sufficient sand available to create the proposed reclamation topography and contours, the tables and testimony demonstrated a need, on a mine-wide basis, for lakes, as voids will remain otherwise. There will be only a very small pile of available sand remaining after all reclamation obligations on both the Polk side and the Project are met, an insufficient amount to eliminate the need for deep lakes as proposed. Mr. Myers, Mosaic's Vice-President of Mining, testified as to the three basic ways the waste materials generated by the beneficiation plant are disposed of on-site to facilitate reclamation. Sand tailings will be utilized in areas to be reclaimed as native habitats, wetlands, and streams. Clays will be disposed of in CSAs. However, based on the materials balance and logistical issues, the "land and lakes" reclamation method, which utilizes only the available overburden material remaining on-site after mining, will be used for the lake reclamation. This method allows sand tailings preferential use in reclamation of native habitats and use of shaped and contoured overburden in areas not proposed for wetland mitigation. Such is the case for the proposed reclaimed lakes. A CSA is an above-grade impoundment to hold clay slurry pumped from the beneficiation plant. This clay slurry is pumped into one side of a CSA in the form of muddy water. The clay settles to the bottom, and the clear water remains at the top. The clear water is drawn out from the opposite side of the impoundment, where it is recycled back to the beneficiation plant and mine for reuse. Over time, the clay consolidates and solidifies to form a solid soil, the surface area is drained, and the impoundment reclaimed. Three CSAs will be constructed on the northern portion of the site to hold the clay that cannot be stored in already- permitted CSAs in Polk County. The use of stage filling has allowed Mosaic to have additional usable space in its CSAs, minimizing the footprint of new CSAs in Hardee County. In addition, approximately fifty percent of the clay waste from the site will be disposed of at the Polk site to further minimize the clay disposal footprint and eliminate and reduce impacts. To evaluate the number of CSAs required, Mosaic asked Ardaman & Associates, a consulting firm, to examine different clay generation scenarios when predicting the CSAs required by mining and beneficiation. The life of mine waste disposal plan, most recently updated in September 2008, indicated that, in all but one scenario (the seventy percent clay containment scenario), all three CSAs would be required. However, Mosaic witness Garlanger established that all three CSAs in Hardee County would be necessary based on the best available information as to the amount of clays reasonably likely to be generated by mining; the seventy percent scenario is not likely. No evidence was presented to rebut that testimony. A diversion system was also voluntarily included for the CSAs by Mosaic. In the highly unlikely event of a dam failure, this system will re- direct any escaped water and/or clay materials to adjacent open mining cuts where they can be safely stored. The diversion system will be reclaimed when the CSAs are reclaimed. The evidence established that the ditch and berm system, CSAs, and diversionary structure are capable of being constructed and functioning as designed. The reclamation plan includes avoidance (no mining) of approximately 3,100 acres, or twenty-nine percent, of the site, including more than seventy-one percent of the total wetlands on-site. Of this, 2,100 acres will be placed in a perpetual conservation easement. There is a wide gamut of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the preserve area. The project includes disturbance of 751.3 acres of wetlands and other surface waters, which include non-wetland floodplains, cattle ponds, and upland-cut ditches, and mining of 58,769 linear feet of natural and modified natural streams. An additional 1,661 linear feet of stream channel will be disturbed but not mined for six temporary crossings for dragline/utility/ pipeline corridors. To mitigate for impacts to streams and wetlands under the ERP rules, Mosaic will create 641 acres of wetlands and other surface waters and 67,397 feet of stream channel and will also provide a conservation easement to the Department on 2,100 acres of unmined wetland and upland habitat associated with the major riparian systems. The conservation easement area will be permanently preserved and protected from secondary impacts. The UMAM rule is applied to ERP applications to measure the functional loss to wetlands and other surface waters proposed for impact and the functional gain associated with the proposed mitigation. Functional loss is compared to functional gain to determine whether sufficient mitigation has been offered that offsets the proposed impacts. The proposed preservation and wetland and surface water creation, along with certain upland enhancements, will provide more than enough UMAM mitigation "lift" (with 48 excess credits) to satisfy the ERP mitigation obligations and offset those wetland impacts that cannot be eliminated or reduced. The UMAM scores for the reclaimed areas are conservative, that is, using higher risk factors by assuming muck or other appropriate topsoil will not be available, and take into account the risk or difficulty associated with creation of a particular system, based on actual UMAM scores for existing reclaimed systems. Time lag, which is normally a factor considered in the UMAM mitigation equation, expressly does not apply to phosphate mines pursuant to Florida Administrative Code Rule 62-345.600. Thus, Lee County's attempt to argue that some greater amount of mitigation of streams is required to account for the time required to construct and reinstate flow and vegetation to the streams is not credited. Mr. Cantrell confirmed that "fat" was built into the foot-for-foot stream reclamation because 7,000 more feet of stream will be reclaimed beyond the amount impacted; some "stream" segments, specifically, stream segment 18(i), probably should not have been required to be reclaimed at all. Under Florida Administrative Code Rule 62C-16.0051, the 511 and 512 classified "natural" streams are the only streams warranting reclamation as streams under the Department's reclamation rules. Only natural streams currently existing immediately prior to mining are required to be reclaimed on a linear foot basis. Reclamation meeting the requirements of Florida Administrative Code Rule 62C-16.0051 is adequate mitigation under the ERP program in Part IV, Chapter 373, Florida Statutes, if it maintains or improves the functions of the biological systems currently existing onsite. See § 373.414(6)(b), Fla. Stat. Mr. Cantrell established that, under subsection (5) of the rule, the Department has discretion to request the applicant to restore wetlands and streams to a different type of system than existing on the site if "mitigating factors indicate that restoration of previously modified streams as a different type of lotic system would produce better results for the biological system and water quality." The evidence established that the rules do not require reclamation of artificially created water courses or remnant stream segments that lack the functions or landscape position one normally associates with natural streams. Instead, a better lotic system will be created that will improve existing functions and water quality, consistent with Section 373.414(6)(b), Florida Statutes, and the CRP rules. In addition to the wetlands and surface waters created to meet mitigation requirements, the Project will also reclaim uplands and will include what is known as "land and lakes" reclamation in the southeastern portion of the site. Utilizing shaped and contoured overburden, Mosaic will create four lakes totaling 180 acres and 43 acres of associated herbaceous littoral zone as CRP reclamation. This is based predominantly on the mine-wide materials balance showing a need for reclaimed lakes to account for mine voids on the Hardee site, the Polk site, or both. As a result, Mosaic has proposed 180 acres of reclaimed lakes in Hardee County in lieu of 500 acres of reclaimed lakes in Polk County, as this results in eliminating overall reclaimed lake acreage while satisfying Hardee County's request for deep lakes. In addition, timing and property logistics in that portion of the site make transport of tailings to the area from the beneficiation plant problematic. As the site is an extension of the existing South Fort Meade Mine in Polk County, Mosaic possesses permits that are not at issue in this proceeding, but are relevant to the project. Discharges from a mine recirculation system require a National Pollutant Discharge Elimination System (NPDES) permit. Discharges may only occur at specified discharge points upon verification that the discharge meets stringent water quality conditions in the permit, which are set to ensure that water quality standards in the receiving water are met at the point of discharge (without mixing) and that downstream water quality will be protected. A separate NPDES permit is not needed for the Project, because Mosaic already has a valid NPDES permit for the Polk County beneficiation facility, which will serve the site. Mosaic currently has a Water Use Industrial Permit (WUP) issued by the Southwest Florida Water Management District (SWFWMD). The WUP includes both the Polk County and Hardee County portions of the South Fort Meade mine and governs both dewatering of the mine area prior to mining and operation of water supply wells located in Polk County that will be used to provide supplemental water to the recirculation system. Mosaic's evidence demonstrated that the Project will not cause adverse water quantity impacts, consistent with Florida Administrative Code Rules 40D-4.301(1)(a), 40D-4.302(1), and 62C-16.0051 and related BOR provisions. Mosaic presented evidence concerning the potential long term impacts of the proposed project on surface and ground water quantities and flows both during active mining and reclamation activities, and after reclamation is complete. Extensive analyses were presented by Mosaic's expert witnesses and evaluated by the Department. Such analyses showed no adverse impacts to water quantity on the site, adjacent properties, or in the Peace River or Charlotte Harbor. The site was studied extensively by Mosaic, and detailed hydrology characteristics were assessed as part of the preparation of the ERP and CRP applications. Various surface water stations, topographic maps, and ground water sampling points were utilized and geologic information was developed by evaluation of various borings across the site. Mosaic witness Burleson, a professional engineer, further considered soil types, land use and vegetative cover, and existing site hydrologic factors such as culverts, bridges, and other such changes to the site by the prior owners. Mosaic's modeling expert, Dr. Mark Ross, considered these factors on a regional scale in his integrated modeling for the 360 square mile regional basin. In the region of Florida that encompasses the site, there are three major hydrogeologic layers that are significant to a hydrologic analysis: (1) the surficial aquifer system, comprised of the overburden (the top layer of soil) and the phosphate matrix; (2) the confining layer and intermediate aquifer system; and (3) the Floridan, or deep, aquifer system. The confining layer separates the surficial from the intermediate and Floridan aquifer systems. By understanding the surface and ground water systems and physical characteristics of the site, the Mosaic experts were able to apply appropriately-calibrated hydrologic models to assess (1) pre-mining and post-reclamation floodplains and storm event runoff comparisons; (2) base flows to reclaimed streams; (3) potential hydrologic impacts of stream crossings; (4) effectiveness of the perimeter "recharge ditches"; (5) hydroperiod of reclaimed wetlands; and (6) potential impacts of the project on flows in the Peace River. These models were used to predict with reasonable certainty the effect of the Project on water quantity on-site, off-site, and on a regional scale. As set forth below, the evidence established that water quantity and flows in adjacent unmined wetlands and streams will be maintained during mining activities as a result of the installation of the ditch and berm system as proposed. Before the ditch and berm system is constructed, Mosaic will refine the design of the system based on actual geological data and gradient information to assure the ditch and berm will function as proposed and modeled. The ditch and berm system is inspected regularly. Recharge wells within the recharge ditch are not required unless localized conditions dictate use of the wells. Contrary to Lee County's assertions, this site is distinguishable from the Ona mine site (which is also in Hardee County), and the depth of mining is far more shallow with relatively few areas mined to a depth of fifty feet, which was common at the Ona mine site. Additionally, Mosaic must install perimeter monitor wells at regular intervals adjacent to and downgradient of the ditch and berm system prior to mining. These wells are monitored prior to mining to establish a baseline and regularly throughout mining in accordance with the requirements of Mosaic's WUP and the ERP to assure that the water table in adjacent areas is not adversely affected by mining activities. The water in the ditch portion of the perimeter system must be maintained at levels sufficient to maintain groundwater levels in undisturbed areas. Maintaining water in the ditch at appropriate levels precludes drainage of groundwater from adjacent sites into open mine cuts. Mosaic witness Pekas, a professional engineer, conducted modeling to determine whether adequate base flow will be provided to protected streams and reclaimed streams during mining. Provided the ditch and berm system is operated properly, proper base flows will be maintained. All of the hydrologic experts agreed that proper operation of a ditch and berm system assures that adequate groundwater outflow, or base flow, is available to support adjacent streams and wetlands during mining. During active mining operations, the ditch and berm system collects rainfall on areas within the system. The ditch and berm system temporarily detains this rainfall, preventing the direct discharge of untreated, turbid runoff to adjacent wetlands and waters, but does not permanently retain the rainfall. The evidence demonstrated that most of the rainfall that falls on areas disturbed by mining and mining-related activities is detained by the perimeter ditches, routed to the mine recirculation system, and is subsequently discharged, when it meets water quality standards, through NPDES-permitted outfalls to waters of the state. This will serve to attenuate surface water flows, allowing surface water retained during storm events to be discharged during extreme low flow events, providing for less "flashiness" in the streams. Lee County's assertion that runoff will be permanently retained is not credited; the evidence clearly established that controlled releases of treated stormwater occur through the permitted NPDES outfalls. The evidence shows that Mosaic will re-connect mined and reclaimed areas at the mine in Polk County at a rate exceeding the rate at which the Project's mine areas will be diverted by the ditch and berm system. Thus, any potential downstream impact of the ditch and berm construction on the site will be offset and buffered beyond the safeguards incorporated in the project design. The evidence demonstrated that the proposed ditch and berm recharge and monitoring system described here is capable, based upon generally accepted engineering principles, of being effectively performed and functioning as proposed and will preclude any adverse impact on the surficial aquifer beneath the preserved areas and adjacent properties and on adjacent surface waters and wetlands. The Department will apply the relevant BOR criteria concerning water quantity impacts on a pre-mining/post- reclamation basis consistent with the application of these same criteria to other non-mining ERP applicants. In this case, the Department reviewed Mosaic's submittals, assessed the impacts, and determined no adverse impacts to water quantity would occur during mining. Mosaic submitted a detailed analysis of potential surface water quantity impacts that may occur after reclamation is complete. This analysis included evaluation of post- reclamation floodplains and storm event run-off compared to pre- mining patterns, and characteristics of reclaimed natural systems. Floodplains, run-off, and reclaimed natural systems were assessed in the manner described below. Mosaic modeled potential impacts of the project on surface water flow using existing site conditions to calibrate and verify the model. Mr. Pekas developed a water balance hydroperiod spreadsheet model calibrated using existing, on-site wetlands to evaluate the expected hydroperiods of various types of wetland systems proposed to be reclaimed at the site. The evidence shows that the Pekas spreadsheet model was an appropriate model for predicting hydroperiods for reclaimed wetlands. Appropriate ranges for the expected hydroperiods and other hydrological characteristics needed for the different types of wetland systems to be created in the post-reclamation landscape were established. In order to reflect natural conditions, the Department specifically requested that the targets for expected hydroperiods of reclaimed wetlands vary across the established range of the hydroperiod for the type of wetland at issue, and these target hydroperiods are summarized in Table E-6 to the draft ERP. Mosaic demonstrated and verified that the Pekas spreadsheet reasonably predicts the hydroperiods to be expected from a given design for a proposed reclaimed wetland. After mining, site-specific conditions such as hydraulic conductivity will be reassessed and final design parameters will be developed accordingly. Lee County's witness Jonas demonstrated the importance of hydraulic conductivity when she adjusted the value for wetland 2-1C (one of Mr. Pekas' verification wetlands) from 0.5 to 30, based on a value not from the Project site, but from an off-site reclamation project. Not surprisingly, she concluded that a conductivity of 30 would not provide hydrology to support the wetland functionality. Her analysis demonstrates the importance of requiring reclamation of subsurface hydrology not based on an off-property conductivity value, but on site- specific hydraulic conductivity information. In his own analysis, Mr. Pekas relied on actual soil borings on-site, and at wetland 2-1C the average hydraulic conductivity was 0.5, which when modeled, provided appropriate hydrology for that wetland. Furthermore, ERP Specific Condition 11 requires Mosaic to reclaim wetlands with functionally equivalent hydraulic conditions based on verified field information as to site- specific hydrologic properties existing after mining, and the wetlands will not be released until functioning as required. The preponderance of the evidence demonstrates that reclaimed wetland can be designed and built in a manner that will achieve the required hydroperiods for each wetland type proposed to be disturbed and reclaimed at the site, including the bay swamps. In addition, each of the wetlands must be individually evaluated immediately prior to construction to provide additional verification of site-specific hydrologic conditions to assess, re-model, and verify the final wetland designs prior to construction. Condition 11c of the draft ERP also requires Mosaic to mimic the existing hydraulic conductivity and gradients near streams to ensure that base flows will be present post-reclamation. All of this will ensure that reclaimed streams will be hydrologically supported, and wetlands with the target hydroperiods requested by the Department will be constructed. The contrary testimony of Lee County's hydrologists does not credibly rebut this evidence. In performing their calculations, they utilized unrealistic numbers. The claim of Lee and Sarasota Counties' experts that they lacked sufficient information to form an opinion as to the accuracy of the modeling is not sufficient to overcome the evidence submitted by Mosaic to meet this criterion. See, e.g., National Audubon Society, et al. v. South Florida Water Management District, et al., DOAH Case No. 06-4157, 2007 Fla. ENV LEXIS 164 at *21 (DOAH July 24, 2007, SFWMD Sept. 13, 2007). Mr. Burleson determined that the original drainage patterns of the site would be restored post-reclamation. Mosaic provided reasonable assurances that the proposed reclamation is capable of being constructed and functioning as proposed. The preponderance of the evidence demonstrated that the proposed mining and reclamation of the site will not cause adverse water quantity impacts post-reclamation, as addressed by Florida Administrative Code Rules 40D-4.301(1)(a) and (c), associated BOR provisions, and Florida Administrative Code Rule 62C-16.0051(8)(b). Mosaic presented evidence demonstrating reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, consistent with Florida Administrative Code Rules 40D-4.301(1)(b) and 62C- 16.0051(8) and associated BOR provisions. During mining, there is no reasonable likelihood that active mining and reclamation activities at the site will result in any increased flooding conditions upstream of, on, or downstream of the site. The ditch and berm system reduces direct surface water runoff from areas disturbed by mining operations during peak rainfall events. Subsequent NPDES discharges of water typically lag slightly behind the rainfall events. This lag during mining decreases peak discharges in adjacent streams while augmenting lower flows slightly, thereby attenuating peak flows. Mr. Burleson evaluated the pre-mining and post- reclamation peak flow analyses for the project site to determine whether the post-reclamation topography, soils, and vegetative cover would result in flooding, using the Interconnected Pond Routing program or "ICPR" model, an accepted model for stormwater modeling, as required by the BOR. Mosaic's evidence established that the Project will not adversely impact existing surface water storage and conveyance capabilities, consistent with Florida Administrative Code Rule 40D-4.301(1)(c) and related BOR provisions. Additionally, Mosaic proposes to preserve from mining the 100-year flood plain of Little Charlie Creek and the Peace River and most of the higher quality small tributaries on the site. The smaller streams to be mined will be restored in a way that maintains or improves pre-mining conditions and will not cause harmful or erosional flows or shoaling. The federal Hydrologic Engineering Center Reservoir Analysis System and the National Flood Frequency Program were used by Mr. Burleson to verify the floodplains are accurately mapped and also that there will not be an increase in flood risk in the post-reclamation condition. The preponderance of the evidence demonstrates reasonable assurances that the proposed mining and reclamation activities at the site will not result in adverse flooding impacts, consistent with Florida Administrative Code Rules 40D- 4.301, 40D-4.302(1)(a)3., and 62C-16.0051(8), and the BOR, including water quality standards in Chapter 4. The evidence presented by Dr. Ross established that the proposed mining and reclamation activities on the site will not adversely impact flows in the Peace River. No adverse effects of the Project will be observable at the Zolfo Springs United States Geological Survey (USGS) gauging station. A minimum flow for the Upper Peace River has been established pursuant to Section 372.042, Florida Statutes. A minimum low flow of 45 cfs from April to June (Upper Peace MFL) was established at Zolfo Springs by the SWFWMD; since the MFL has not been met since adoption, a recovery plan has been instituted. See Fla. Admin. Code R. 40D-8.041(7). Lee County asserts that the Project will violate the Upper Peace MFL and the recovery plan, arguing that a reduction in average annual flow, regardless of how infinitesimal, constitutes a violation of Florida Administrative Code Rule 40D-4.301(1)(g). This argument was refuted by Dr. Ross, who established that the project would increase flows during low flow periods. The Department concurred with, and the evidence supports, Dr. Ross' assessment that the project would not exacerbate the Upper Peace MFL or interfere with the recovery plan. Dr. Ross created a regional-scale integrated model utilizing public domain computer programs in an iterative fashion that coupled surface water and ground water to comprehensively evaluate the effects of the project on the flows in the Peace River post-reclamation. The regional approach included a full range of upstream and downstream influences on the site, not simply mining, that could affect the hydrologic evaluation of any impacts from the Project on the Peace River. The model domain included 360 square miles. To account for site-specific impacts in the model, Dr. Ross increased the refinement and discretization over the site. Thus, the model was capable of considering impacts from the site in its entirety within the region as measured at the Zolfo Springs USGS gauging station. Zolfo Springs is the first USGS gauging station directly downstream of the site and is the point of compliance for minimum flows adopted for the Upper Peace River system. The regional model predicted virtually no change in flows at the Zolfo Springs gauging station after the project as proposed is reclaimed, and that both the high and low flows observed at Zolfo Springs would be maintained post-reclamation. Dr. Ross concluded that there would not be any reduction of low flows at Zolfo Springs due to the Project. He further concluded that the Project will not impact or affect the recovery of minimum flows. Dr. Ross calculated the differences between the model- predicted high flows and low flows from the observed flows and found that the modeled high flows were slightly attenuated and the modeled low flows were slightly augmented at Zolfo Springs. The attenuation is consistent with the increased storage for water in the post-reclamation system. Consistent with Florida Administrative Code Rule Chapter 40D-8, the Department considered potential impacts to low flows as the determining factor in determining whether a minimum low flow requirement like the one set for the Upper Peace MFL will be met. It concluded that the project is consistent with the Upper Peace MFL and its recovery strategy. The recovery strategy discusses projects which, like the one proposed, would yield a long-term increase in low flow conditions by storing some peak flow volumes and releasing them in low flow conditions. The Department's interpretation of its ERP rules and BOR provisions regarding MFLs, as well as other governing rules, is reasonable and has been accepted. Lee County's experts based their MFL testimony on an inappropriate use of annual average flow information and improper interpretation of Mosaic's data. Further, they inappropriately attempted to reach conclusions by estimates and extrapolation, and the overall weight of the evidence supports Mosaic's evidence that mining and reclamation will not cause a violation of the Upper Peace MFL. Accordingly, Mosaic has provided reasonable assurances that the requirements of Florida Administrative Code Rule 40D- 4.301(1)(g) and associated BOR provisions have been satisfied. The ditch and berm system and other proposed BMPs, such as silt fences, at the site will provide water quality protection to adjacent undisturbed surface waters and wetlands during mining and reclamation activities. The actual construction of the ditch and berm and stream crossings will be conducted using BMPs to avoid adverse construction-related impacts. During mining, the ditch and berm system will preclude uncontrolled releases of turbid water to adjacent un-mined areas. The evidence established that the proposed Project will not cause a violation of water quality standards, either in the short-term or long-term. Dr. Durbin, an ecologist, evaluated water quality data from the existing South Fort Meade mine in Polk County and compared data from the 10-year period before the mine opened against the 10-year period after the mining began, finding water quality to be equivalent or better after mining began in Polk County. This allowed him to conclude that water quality on the site will not be adversely affected and, in light of existing agricultural activities, will be maintained or improved both during mining and post-reclamation; water quality in reclaimed systems will be sufficient to maintain designated uses of the systems. Dr. Durbin opined that the ERP contains detailed water quality monitoring requirements that, based on his long experience, are sufficient to establish a baseline, assess compliance, and detect significant trends. Sarasota County's witness has no experience in ERP or CRP permitting and his suggestion for far more frequent monitoring is not credited. No additional monitoring conditions or criteria are warranted. For the above reasons, Mosaic has demonstrated by a preponderance of the evidence that reasonable assurances that water quality standards will not be violated either during mining, while reclamation is underway, or post-reclamation. The evidence further established that accepted BMPs will be used during mining to protect the water quality of adjacent and downstream waters, and that these measures can be expected to be effective to prevent any violations of water quality standards. Dr. Durbin provided unrebutted evidence that water quality standards in waters of the state and downstream of the project will be met post-reclamation and existing water quality in the unmined and reclaimed wetlands and waters will be maintained or improved post-reclamation. Thus, no adverse water quality impacts to the Peace River or Charlotte Harbor will occur during mining or post-reclamation. Therefore, reasonable assurances have been given that the requirements of Sections 373.414(1) and 373.414(6)(b), Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(e) and 62C-16.0051(7), and associated BOR provisions are satisfied as to water quality. There is a wide range of habitat types on the site that will be preserved and not mined, including both streams and wetlands. The most complex and least impacted habitats on the site have generally been included in the no-mine and preserved areas. Mosaic does not propose to mine all or even most of the jurisdictional wetland and surface waters. In fact, seventy-one percent will be avoided. When developing a mining plan, Mosaic considers how to eliminate or reduce proposed impacts to waters and wetlands. The evidence established that Mosaic and the Department engaged in a protracted elimination and reduction discussion throughout the review process associated with the site's ERP/CRP applications. BOR Section 3.2.1 emphasizes the effort required to assess project design modifications that may be warranted to eliminate and reduce impacts to ecological resources found on the site. This effort was undertaken with the Department as early as 2004 during the DRI pre-application conferences. The major project design modifications involved the preservation of the named stream channels, the 100-year floodplain of the Peace River and Little Charlie Creek, and the 25-year floodplain of the other named tributaries. These areas will be permanently preserved by a 2,100-acre conservation easement; 1,000 additional acres will remain unmined. Also, the project design was modified and developed to maximize resource protection by integrating the Polk and Hardee mining operations. The testimony established how the activities at the Hardee operation will be greatly facilitated by relying upon and using the beneficiation plant and infrastructure already in place and permitted at the Polk site. Almost fifty percent of the clays generated at the Hardee mine will be disposed of in the existing Polk County CSAs, thereby eliminating one CSA altogether and substantially reducing the footprint needed for CSAs on the site. Likewise, the Department established that mine-wide, approximately 320 acres of lakes were eliminated. The Department discussed further modifications to the mine plan with Mosaic throughout the lengthy review process, doing a wetland and stream-by-stream assessment of the functions provided and the reclamation capability to maintain or improve the functions of the biological systems present prior to mining. The balance was struck between temporary resource extraction, recognized by Florida law as inextricably related to wetland disturbance, and the significantly altered natural resource features found on the site. In light of the 3,100 acres already eliminated and reduced from impact consideration, the Department in its discretion did not find it necessary to pursue economic data or analysis on the "practicability" of any further reductions. The highly disturbed nature of the wetlands and other surface waters being impacted gave the Department a high degree of confidence that mitigation and reclamation of these areas would in fact maintain and improve the functions provided prior to mining. Specifically, Mosaic has eliminated impacts to stream systems to the greatest extent practicable. Based on a Department field evaluation in late August 2008, Mosaic was directed to revise the no-mine line in the 3A stream system to more accurately reflect the floodplain of the stream draining the two bay heads north of the stream. In October 2008, Mosaic made the revision to add approximately 2.7 acres to the no-mine area. The majority of the streams proposed for impact by mining cannot be avoided, given the location of the three CSAs that are required for clay disposal associated with mining. The evidence established that there is no other location for the three CSAs that will have a lesser ecological or public health, safety, or welfare impact than the proposed location, given the site topography. As noted above, the volume of clays to be disposed of on the site has been reduced by half, and three CSAs are still needed. The location was chosen to move the CSAs as far from the Peace River and Little Charlie Creek as possible in light of the site topography, and this location avoids all impacts to named stream systems. As set forth above, Mosaic has demonstrated by a preponderance of the evidence that the best and most complex habitats on the site have been preserved at the expense of a loss of a significant amount of phosphate reserves in the preserved areas. All significant stream systems have been avoided to the extent practicable in light of the necessary CSAs. Both Mosaic and Department witnesses testified that the proposed no-mine area was the result of design modifications to eliminate or reduce impacts to wetlands to the greatest extent practicable. This satisfies the requirements of applicable rules and Section 373.414(1)(b), Florida Statutes. Florida Administrative Code Rule 62C-16.0051(4) and (5) provides specific guidance on the classification and reclamation of natural streams. The Department provided direction to the applicant through the review process in the identification of natural streams and the design guidance manual to ensure foot-for-foot replacement and functional replacement or improvement. The permit reflects the 58,769 feet of the streams identified as numbers 511 and 512 to be impacted, and Mosaic has proposed approximately 65,700 feet of restored stream. Lee County's assertion that 2.3 miles of additional unmapped streams should be added to the reclamation obligation has been rejected. It is clear many of the areas alleged to be unmapped streams were depressions, low lying areas, or standing water within wetland areas more accurately identified as marshes or swamps. The fact that a discernible natural stream channel exists upstream and downstream of a wetland did not change the accuracy of acknowledging the different structure, form, and functional attributes that result in the wetland being distinct from the stream. Also, many of the alleged unmapped streams were located in the no-mine areas, and thus the alleged lack of delineation is of no consequence. Lee County's witness Erwin admittedly took no measurements of the alleged streams. Also, he provided no evidence that he or his staff delineated the alleged streams on- site. Rather, he reconstructed where they were located as a desktop exercise from memory, without any aids or tools used in the field. He then superimposed an alignment and put it on a GIS layer over an aerial photograph, resulting in an electronically generated approximation. The witness offered no physical evidence of depth, width, length, or bankfull width of stream function, but merely an assertion as to areas that appeared to have a bed or channel, even if dry, and the attributes or functions of a stream were immaterial or irrelevant to his analysis. No other independent witness attested to the alleged stream discrepancy, whereas both Mosaic's expert, Mr. Kiefer, a recognized fluvial geomorphologist, and the state's expert on jurisdictional delineations, Mr. Cantrell, who was the author of the applicable rules, expressly disagreed with these allegations. The testimony of Mosaic and the Department is found to be the most persuasive on this issue. Mosaic and the Department established that the proposed stream restoration plan is more than adequate to meet the requirements of Florida Administrative Code Rule 62C- 16.0051(5) and will ensure the reclaimed streams maintain or improve the biological function of the streams to be impacted. Dr. Janicki, a scientist who testified on behalf of Lee County, was critical of the stream restoration plan. However, he acknowledged he was not an expert in stream restoration and that part of his job was to "look at how we might improve . . . on some of those shortcomings in the [stream] restoration plan." Dr. Janicki incorrectly assumed the design curve numbers were based on regional curves from north and northwest Florida rather than site-specific measurements. He stated that the guidance document was generalized and lacking specificity, but Table 4 contained in the guidance document contains nineteen stream morphological parameters for all forty- nine of the stream segments to be reclaimed. Dr. Janicki has never designed nor implemented a stream restoration project, and he acknowledged that he is not a fluvial geomorphologist. Conversely, Mosaic witnesses Boote and Kiefer, both accepted in this area, stated unequivocally that the plan was sufficiently detailed and that a qualified restoration and construction contractor could implement the plan in the field with appropriate field adjustments and construction level refinements based on site conditions. The allegation that the plan does not comport with ERP and CRP requirements because it lacks sufficient specificity is not credited. First, the ERP rules do not contain stream-specific restoration criteria. Second, the CRP stream rules adopted in May 2006 have never been applied in a prior case, and in this case the Department determined in its discretion that the plan as proposed meets the stream reclamation requirements of the CRP rules. Similarly, the stream restoration plan was criticized because measurements from every single segment or reach of stream were not used to develop the post-mining stream. However, Mr. Boote and Mr. Kiefer confirmed that only the most stable and least impacted of the stream segments on site were used as templates for stream reclamation. None of the recognized stream experts suggested that erosive, unstable "F" and "G" classified stream segments should be replaced in that unstable form or used as the template for reclamation. By a preponderance of the evidence, Mosaic has established that the reclamation plan for the site will more than offset any adverse impacts to wetlands resulting from the mining activities, because it will maintain or improve water quality and the functions of biological systems present on the site today, as required by Sections 373.414(1) and 373.414(6)(b), Florida Statutes. The evidence established that applicable Class III water quality standards will not be violated and that the water in wetlands and surface waters on-site post-reclamation will maintain or improve and be sufficient to support fish and wildlife in accordance with Florida Administrative Code Rules 62C-16.0051 and 40D-4.301(1)(e) and relevant BOR provisions. The proposed mitigation will also restore a more appropriate or more natural hydrologic regime that will allow for a better propagation of fish and invertebrates in reclaimed systems. The reclamation plan will maintain the function of biological systems of wetlands to be mined on-site by replacing the wetlands to be impacted with wetlands of the same type and similar topography and hydrology in the post-reclamation landscape. In many cases, it will enhance the function of those systems by improving the landscape position of the wetlands, relocating them closer to the preserved Little Charlie Creek corridor, and moving cattle ponds and pasture away from the corridor. Likewise, the existing streams proposed for mining will be replaced with stream reaches modeled on streams that are comparable or better than the existing, unstable, and eroded streams. The Department has determined that Mosaic can reclaim the streams and wetlands to at least as good as or better than existing condition on the site. Mosaic has provided reasonable assurances that the proposed reclamation plan will maintain or improve the existing function of biological systems. Mosaic's reclamation plan for the site therefore satisfies the mitigation requirements of Part IV, Chapter 373, Florida Statutes, and the implementing regulations and the BOR, as applied to phosphate mining activities through Section 373.414(6)(b), Florida Statutes. Through the testimony of witnesses Durbin, Kiefer, and Simpson, as well as documentary evidence, Mosaic has established that the proposed project, as reclaimed, will cause no adverse impacts on the value of functions provided to fish and wildlife and will not adversely affect the conservation of fish and wildlife, including endangered or threatened species and their habitats, as required by Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D- 4.301(1)(d) and 40D-4.301(1)(a)2., as well as the associated BOR Section 3.2.2 provisions. Likewise, the CRP criteria pertaining to fish and wildlife will be met. See Fla. Admin. Code R. 62C- 16.0051(11). Mosaic's reclamation and site habitat management plan will maintain or improve the functions of the biological systems on the site with respect to fish and wildlife, including threatened and endangered species and their habitat. Mosaic witness Simpson provided unrebutted testimony that the proposed mining and reclamation will not have adverse impacts on wildlife populations or conservation of wildlife including threatened or endangered species and their habitats and that proposed reclamation would maintain or improve wildlife habitat values. The evidence shows that the mining and reclamation will not have adverse impacts on fish populations or conservation of fish. The fish habitat on the site will either be preserved or, if mined, will be replaced with in many cases superior habitat. There will be a net increase in suitable fish habitat post-reclamation. The wetland and stream fish habitats on the site will provide appropriate habitat for the fish and wildlife that can be expected to occur in the region. The sampling described above can be expected to reflect the majority, if not all, of the fish species reasonably expected to be present on the site. Mosaic witness Durbin further confirmed that the fish species collected on-site are consistent with similar sites in the immediate vicinity with similar agricultural usage with which he is familiar. In August and September 2008, verification of that fish sampling effort was performed by Dr. Durbin, an outside consulting firm (ECT), and the Department. They confirmed that the fish collection efforts reasonably reflect the native and exotic fish species that are likely to occupy the site. Through the testimony of Dr. Fraser, Lee County compared two streams on the Ona mine site with three stream segments on the Project site. However, the sole basis of the witness' comparison was recollections of field work he participated in over four years ago and photos taken at that time compared with photos taken at the new site. The witness conceded that he did not consider or compare sedimentation levels in the two stream systems. On the other hand, Department witness Cantrell established that the streams compared by Dr. Fraser were dissimilar. In fact, one of the streams Dr. Fraser held up as an apparent example of prime aquatic habitat was Stream 20C, which Mr. Cantrell demonstrated is nearly completely choked by sand and sedimentation. All of the streams proposed for impact are first or second order streams; most of them are intermittent, carrying flow only seasonally and therefore are only periodically occupied by fish and macroinvertebrate communities. The fish that do tend to utilize such systems in the wet season tend to be very small, usually less than one inch in size. The proposed preservation will preserve the best aquatic habitat on the property; the streams to be preserved are the main pathways and aquatic habitats utilized by fish. Mosaic witnesses Durbin, Keenan, and Kiefer all testified that the reclamation plan will restore better aquatic habitat for fish and other aquatic organisms than exists presently on site on a greater than acre- for-acre, type-for-type and linear foot basis. They further testified that the proposed reclamation will provide better aquatic habitat for fish and wildlife than currently provided, consistent with both ERP and CRP requirements. In addition, Dr. Fraser's suggestion that the fish sampling done on the site was insufficient and that the ERP should be modified to require fish collection as a success criterion for the reclaimed streams is not credited. This is because such a proposal is not a requirement of the ERP or CRP rules. Dr. Fraser's comparisons of reclaimed to unmined streams were inconsistent with his own anecdotal fish observations, and he testified as to the difficulty of ensuring adequate fish sampling or knowing where fish will be on any given day, given their mobility. Also, he provided no comparisons as to how the reclaimed streams sampled are constructed compared to the plan for the site and admitted he did not know how or when they were built. Dr. Fraser's discussion of fish in basins where mining has occurred was discredited by his own data showing that no reduction in the number of native fish species has occurred over time in those basins. Mosaic's reclamation plan, which consolidates the native upland and wetland habitats along the Little Charlie Creek corridor, will improve the fish and wildlife function of those systems and increase fish and wildlife abundance and diversity, as set forth above. There will be no adverse impacts to fish and wildlife and their habitat or to the conservation of fish and wildlife, including listed species, post-reclamation, because the fish and wildlife function of the tract will be maintained and in many cases improved by the reclamation and habitat management plans. This is particularly true in light of the existing condition, hydrologic connection, location, and fish and wildlife utilization of the wetlands and surface waters on site. Therefore, Mosaic has provided reasonable assurances that the requirements of Section 373.414(1)(a)2., Florida Statutes, Florida Administrative Code Rules 40D-4.301(1)(d) and 40D- 4.302(1)(a)2., and the relevant BOR provisions have been satisfied. Mosaic demonstrated that it has reclaimed wetlands, uplands, and streams consistent with the regulatory requirements and permit conditions in place at the time the area was reclaimed. Indeed, many of these reclaimed areas, whether or not under different ownership and control or whether released from further regulatory requirements, continue to demonstrate that they are successful and functioning ecosystems. The reclamation proposed for the site is state-of- the-art, reflecting the most recent evolution of reclamation techniques for uplands, wetlands and streams, with more planning and detail that should achieve the reclamation goals faster. Many older wetland projects were designed to meet a +/- 1-foot contour and were designed with older generations of equipment and survey techniques. However, Mosaic's third party contractor's bulldozers/tractors are now equipped with GPS and sensors to enable grade tolerances within two inches, allowing for much more accurate backfilling and wetland construction. Accordingly, Mosaic's newer wetlands contain both deep and shallow areas with gradation/zonation in between. Hydrologic regimes and hydroperiods can thus be effectively created to target and achieve more specific hydrologic conditions required by certain wetland systems such as seepage slopes and wet prairies. Nonetheless, the projected UMAM scores for the reclaimed systems take into account a higher risk factor for systems that historically were more difficult to reclaim. Mosaic has provided reasonable assurances of its ability to restore the hydrology and types of vegetation found on the site and of its ability to create ecosystems that will maintain or improve the function of the biological systems proposed for mining on the site. Mosaic has restored wetlands in a variety of configurations ranging from small round depressions of less than a few acres to large complex polygons in excess of two hundred acres, as well as wetlands with low slope gradients. For example, Mr. Kiefer described and depicted Mosaic's ability to restore a bay swamp at point 84(5) at the Fort Green Mine and at Alderman Bay. Lee and Sarasota Counties focused on bay swamps in particular, but failed to acknowledge that Mosaic will be reclaiming 98.5 acres of bay swamps while only impacting 62.1 acres. Mosaic demonstrated that herbaceous and forested wetlands can be and have been restored by Mosaic and its predecessors. Mosaic has demonstrated that it can restore the various zones and depths of freshwater marshes, including shrub marshes, from the deep emergent zone to the wet prairie fringe, and has demonstrated that these zones in reclaimed marshes are providing important and key wetland functions, such as water quality, food chain support, habitat, and other functions, similar to those functions provided by site marshes. This evidence was not effectively rebutted by Lee or Sarasota Counties. In fact, Sarasota County witness Lipstein acknowledged Mosaic is proposing to mitigate for all impacts. When asked if the proposed bay swamps will be successful or unsuccessful, she replied that she did not know and, "you will have to just wait and see if it reaches that success criteria." There have been different success criteria applied in Department permits over the years, and Mosaic has demonstrated the ability to meet those changing and more stringent criteria. In the past, stream restoration was accomplished relatively simply by contouring the stream valley and floodplain to support wetland vegetation, then allowing a flow channel to self-organize. While this technique has resulted in successful streams that met Department permit criteria, it can take many years to occur. For example, Dogleg Branch (which is located on the site of another mining operation) took almost twenty years to achieve success. Mosaic has previously developed successful stream restoration projects which have been documented to provide flow regimes similar to that of natural flatwoods streams, with in- stream aquatic habitat diversity similar to or better than the stream segments proposed for mining at the site and which met reclamation criteria. Mosaic witness Kiefer demonstrated this with evidence of the functions that various reclaimed streams provided. He also showed that, in newer stream restoration projects, like Maron Run, certain functions and form, such as habitat availability, bank stability, meander, and pool-riffle sequence, are developing rapidly. Also, Department witness Rivera testified to Mosaic's commitment to achieving stream success in its efforts to retrofit certain of these earlier reclaimed streams to achieve greater function and habitat diversity. Using an average sinuosity of 1.35, over 65,700 linear feet of streams will be created as part of the mitigation plan. The foot-for-foot requirement for the reclaimed streams will be exceeded by 7,000 feet. Mosaic's mitigation proposal incorporates state-of- the-art stream restoration techniques and the post-reclamation topography to be used as guidance for the final construction plans. The guidance is based on extensive data collected from twenty-one cross sections of reference reaches within the project area, including measurements for channel dimensions, sinuosity, bankfull, and entrenchment ratios. Snags, debris, and other woody material will be placed at appropriate intervals within the channel to provide in-stream habitat and aid in-channel stabilization and development. Restored streams will have primarily forested riparian zones. Trees will be planted using techniques that will assist rapid canopy closure and aid in rapid bank stabilization. Biodegradable erosion control blankets will be used to control erosion. The streams will be designed such that the stream morphology fits within the Rosgen Stream Classification System (Rosgen) described in the reference reaches. To create a design template, Mosaic's experts carefully measured the important geomorphic characteristics of the stream segments to be disturbed. The plan incorporates, among other factors, design specifications for meander patterns, longitudinal valley and bed slopes, bank slopes, cross-sectional area, widths, depths, large woody debris, pools, riffles, bends, and sediment composition. It is the second known low-order stream creation plan in Florida to provide this level of detail. The stream plan represents an overall improvement upon the existing conditions at the site, as Mosaic is generally only mining small, shallow, intermittent stream segments of significantly lower ecological value and will create streams that are less erosive and will have greater in-stream habitat diversity and availability than the segments to be mined. Accordingly, the reclaimed streams segments will at least maintain and in many cases improve the ecological functions served by the existing segments. Special emphasis has been placed on assuring that post-reclamation soils are a suitable growing medium for the proposed reclaimed habitat. Soils will be used to closely mimic the native Florida soils profile. Mosaic witness Schuster established that proposed reclaimed soil conditions do not pose limitations on Mosaic's ability to create upland and wetland ecosystems. The soil reclamation plan uses parent materials available after mining in a sequence similar to the textural or horizon sequence in soils present at the site before mining. This soil profile will have a created topsoil layer as a suitable growing medium and subsurface layers whose thicknesses can be adjusted to achieve the drainage class, that is, hydraulic conductivity or permeability, that is needed to support the post-reclamation hydrology. The overburden used to form the lower part of the reclaimed soil sequence is native Florida soil and underlying geologic material. The overburden is excavated so that the matrix can be mined, but then the material is put back in the mined areas in a sequence that resembles native soil horizons. Where available, the top layer of the soil sequence will be a direct transfer of muck/topsoil pursuant to the permit conditions. Where donor topsoil is not available, other appropriate materials can be used if approved by the Department. Possible methods may include establishment of cover crops, green manuring, mulching, and sod placement, all of which have been demonstrated to provide organic matter and a suitable growing medium for reclaimed wetlands and will facilitate success of the wetlands. These methods comport with the requirements of Florida Administrative Code Rule 62C-16.0051(3). For reclamation, Mosaic will use various thicknesses of materials including sand tailings and overburden, depending on the area to be reclaimed and the needed hydraulic conductivity as dictated by the modeling that is required. Sand tailings will be utilized in native habitats. Sand tailings have a much higher rate of hydraulic conductivity than overburden, which is low, but not impermeable. Reclaimed soils behave similarly to native soils. On site development of soil morphology at reclaimed sites has occurred, including organic matter accumulation in the topsoil formation of redox concentrations, and other components of soil structure, which evidence that the same natural processes are present in both reclaimed and native soils. Lee County's witnesses incorrectly assumed an overburden cap that will not be present. Mosaic has provided appropriate cost estimates for financial assurances of reclamation and has satisfied the BOR requirements of providing third-party estimates and draft financial assurance documentation. The first three years of mitigation at one hundred ten percent is $3,957,356.00. This amount is determined to be sufficient. Lee and Sarasota Counties' witnesses could provide no contrary cost estimates of actual comparable large-scale projects. The proffered costs of Lee County witness Erwin were rejected in another mining case (the Ona case), they ignore the definitions of "waste" and "mining operations," and they assume mitigation requirements not found in the BOR. The evidence supports a finding that all adverse impacts, including any secondary impacts, associated with the Project will be temporary and will be offset by the proposed reclamation. All of the proposed impacts from the Project will occur within the Peace River Basin, and Mosaic's proposed mitigation will all occur within the Peace River Basin as well. Therefore, the cumulative impacts review requirements of Section 373.414(8)(a), Florida Statutes, and Florida Administrative Code Rule 40D-4.302(1)(b) are satisfied. The BMPs put into place will prevent adverse secondary impacts from occurring during mining, and no adverse secondary impacts are expected from the project post- reclamation. No secondary impacts to listed wildlife are reasonably expected to occur, based on the buffers and on the post-reclamation habitat that will exist. In summary, Mosaic has demonstrated by a preponderance of the evidence that the proposed project meets the permitting criteria of Florida Administrative Code Rule 40D-4.301 and associated BOR provisions. Florida Administrative Code Rule 40D-4.302(1)(a) requires reasonable assurances the proposed activities "will not be contrary to the public interest" as determined by balancing seven factors. See also § 373.414(1), Fla. Stat. For the reasons set forth below, the preponderance of evidence supports a finding that the public interest factors set forth in the statute and rule weigh in favor of issuing the permit. The Florida Legislature has recognized that phosphate mining "is important to the continued economic well-being of the state and to the needs of society." See § 378.202(1), Fla. Stat. Mosaic has demonstrated by a preponderance of evidence that both the public and the environment will benefit from the project as described above. Mining of the site will also result in a more general benefit to the public, including local residents. It is estimated that mining of the site will result in fifty million tons of recoverable phosphate rock reserves, which will be used to make fertilizer. Mosaic employs 272 people at its South Fort Meade facility and spends approximately $75,000.00 per employee per year for direct wages, benefits, and compensation. In addition, it has been estimated there are four to five persons employed in support industries for each direct Mosaic employee, considering contractors, vendors, and suppliers. The site project is expected to generate up to $23 million in severance taxes, tangible taxes, property taxes, and other benefits to Hardee County over the life of the mine. The evidence shows that the proposed activities will not cause adverse impacts to the public health, safety, or welfare or to the property of others. Fla. Admin. Code R. 40D- 302(1)(a)1. Witness Burleson established that the water quantity criteria in BOR Chapter 4 have been satisfied and that no flooding problems will occur. No environmental hazards or public health and safety issues have been identified. Section 373.414(1)(a)1., Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a)1., and BOR Section 3.2.3.1 have accordingly been satisfied. The evidence established that the proposed mining and reclamation will not cause adverse impacts to the conservation of fish and wildlife or their habitat, including endangered or threatened species, satisfying Florida Administrative Code Rule 40D-4.302(1)(a)2. and BOR Sections 3.2.2, 3.2.2.3, and 3.2.3.2. The evidence shows that the proposed activities will not cause adverse impacts to navigation or flow and will not cause harmful erosion or shoaling. Fla. Admin. Code R. 40D- 4.302(1)(a)3. The evidence shows that the proposed activities will not cause adverse impacts to fishing or recreation or marine productivity, and the lakes will enhance fishing and recreation. Fla. Admin. Code R. 40D-4.302(1)(a)4. As a matter of law, Section 378.202(1), Florida Statutes, provides that phosphate mining is a temporary activity. Fla. Admin. Code R. 40D-4.302(1)(a)5. The parties have stipulated that there will be no adverse impacts on historical or archaeological resources. Fla. Admin. Code R. 40D-4.302(1)(a)6. The evidence shows that the current condition and relative value of functions of the site landscape have been significantly affected over time by agricultural activities, causing alteration of natural streams and wetlands and low fish and wildlife utilization. A preponderance of the evidence established that these negative impacts will be ameliorated by the proposed reclamation. Fla. Admin. Code R. 40D-4.302(1)(a)7. In light of the above, Mosaic has provided reasonable assurances that Section 373.414(1)(a), Florida Statutes, Florida Administrative Code Rule 40D-4.302(1)(a), and associated BOR requirements for the public interest test have been satisfied, and those criteria weigh in favor of issuing the permit. Section 373.414(6)(b), Florida Statutes, establishes the appropriate mitigation for wetland and surface water impacts associated with phosphate mines as follows: "Wetlands reclamation activities for phosphate and heavy minerals mining undertaken pursuant to chapter 378 shall be considered appropriate mitigation for this part if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities." Part III of Chapter 378, Florida Statutes, addresses phosphate land reclamation, and the Department has adopted specific regulations pursuant to this part, which are found in Florida Administrative Code Rule 62C-16.0051. For the reasons set forth below, Mosaic has demonstrated by a preponderance of the evidence that the reclamation and restoration standards in Florida Administrative Code Rule 62C-16.0051 have been met. The parties stipulated the Project will meet the safety standards in subsection (1) of the rule. Any temporary structures will be removed following mining and the area then reclaimed. Appropriate BMPs will also be installed. The Project will meet the backfilling and contouring requirements of subsection (2). Specifically, the evidence shows that the area will be backfilled and contoured to achieve the desired landforms; slopes will be no steeper than a 4:1 ratio; bank stabilization techniques will be used; and post- reclamation contouring and topography will help ensure that the reclamation plan and hydrologic response is successful. The reclamation will meet the requirement in subsection (3) that Mosaic use good quality topsoil when available and other suitable growing media to achieve the planned vegetative communities. The Project will meet the acre-for-acre requirement for wetlands because more acres of wetlands and surface waters are being proposed to be restored than will be impacted. The Department uses FLUCCS Category II to determine whether the minimum type-for-type requirement is met. Thus, the type-for-type requirement is met by looking at the forested wetlands acreage overall and the herbaceous wetlands acreage overall. Subsection (4) has been satisfied by the proposed CRP. While the herbaceous wetland fringe of the lakes is included in the acre-for-acre, type-for-type calculation, the open waters of the lake are not. The Project will meet the type-for-type requirement in the rule because, category-by- category, type-for-type, more than a 1:1 ratio of forested and herbaceous wetlands are being restored. As noted above, the wetlands and streams were mapped during the application process in accordance with the directives of the Department and the requirements of subsection (4). Where wetlands are directly associated with or adjacent to streams, restoration of both is integrated and included in the restoration plan. Non-wetland and wetland floodplains will be restored as directed by the Department in accordance with this rule. No natural lakes or ponds exist on site, thus the portion of this rule related to natural lakes does not apply. All natural streams proposed for impact will be restored foot-for-foot based on Rosgen Level II. More stream linear feet (65,700 feet) are being replaced than are being mined (58,769 feet). Therefore, the requirements of subsection (5) have been met. Subsection (6) has been satisfied after accounting for the Littoral Zone Variance described below authorized by Florida Administrative Code Rule 62C-16.0051(13). The design of the reclaimed wetlands and lakes will maximize beneficial drainage, provide fish and wildlife habitat, maintain downstream water quality, and incorporate a variety of vegetation and hydraulic zones. Greenbelts of vegetation are incorporated. Subsection (7) has been satisfied. There will be no water quality concerns either during mining or post-reclamation with the reclaimed streams, lakes, wetlands or other surface waters. Subsection (8) has been met; the Project is not expected to cause flooding, and the original drainage pattern will be restored to the extent possible. Subsection (9) has been satisfied with respect to waste disposal. Areas used for clay settling will be minimized, and only three CSAs are proposed for the site, as fifty percent of the clays generated at the site will be disposed of in previously-permitted CSAs in Polk County. Backfilling of mine cuts is the highest priority use for the site's sand tailings. No tailings will be sold. The evidence showed that sand tailings will not be permanently stored above natural grade, although temporary stock piles are authorized to facilitate reclamation. Reclamation of CSAs will occur as expeditiously as possible. Solid waste was not an issue in this proceeding. The revegetation proposed for the Project will succeed to achieve permanent revegetation and meets the requirements of subsection (10). Mosaic has submitted a plan for revegetation that lists species by species what will be replaced through planting or seeding into each of the different types of wetlands. The revegetation plan and planting tables provide clear guidance to the entire reclamation plan and will minimize erosion, conceal the effects of mining, and recognize the requirements for fish and wildlife habitat. Upland cover and forested upland requirements in the rule will be met under the CRP; the appropriate forested densities are set forth in the CRP and can reasonably be expected to be established within one year. Likewise, the wetland vegetative cover requirements in the CRP meet the rule requirements and can be easily met. As set forth above, the wetlands to be created are of the types Mosaic has successfully recreated in the past, and advances in reclamation and maintenance techniques will further ensure the vegetation plan is successfully implemented. The vegetative plans, including the stream plan, provide appropriate habitat for fish and wildlife. The best available technologies will be used to restore and revegetate wetlands. Furthermore, the vegetation plan meets and exceeds the requirements for the use of indigenous species. Native plants and grasses will be used in all native habitats. As required by subsection (11), measures have been identified and incorporated into the CRP to offset fish and wildlife values lost as a result of mining operations. Special programs to restore and/or reclaim particular habitats, especially for endangered and threatened species have been identified. A Site Habitat Management Plan has been incorporated to prevent adverse impacts to threatened and endangered species, and the proposed conservation easement and reclamation plan will protect and restore currently impaired habitat to a better condition. Specifically, Dr. Durbin testified with respect to the CRP requirements for aquatic species, including fish and macroinvertebrates; the best fish and wildlife habitat onsite will be preserved. Mr. Simpson testified regarding habitat preservation and reclamation activities, the proposed wildlife management plans, and the proposed enhancements to habitat that will benefit wildlife, including listed wildlife. Mosaic has sufficiently addressed the requirements of subsection (11) of the rule in the CRP. Subsection (12) has been satisfied. The proposed mining and reclamation schedule in the application documents comports with the rule requirements by including time schedules for mining, waste disposal, contouring, and revegetation, and the completion dates for such activities comport with the rules. Mosaic has proposed, and the DEP has indicated an intent to issue, the Littoral Zone Variance as an experimental technique to improve the quality of the reclaimed lakes pursuant to this subsection and Section 378.212(1)(e), Florida Statutes. Given the depth of the proposed reclamation lakes, Mosaic applied for, and the Department has proposed to grant, a variance from the water quality standard for DO in the lower portions of the lakes. The DO Variance from Florida Administrative Code Rule 62-302.530(31) is being sought pursuant to Sections 373.414(6)(a), 373.414(17), and 403.201(1)(a), Florida Statutes, which provide the minimum standards for DO levels in surface waters. Class III freshwater water quality standards apply to those portions of the site that constitute surface waters as defined by Florida law. For at least those reclaimed lakes that will connect offsite to downstream waters or wetlands (Lakes 1, 3, and 4), there is no dispute that Class III water quality standards would apply. The minimum water quality standard for DO in freshwater systems is 5.0 milligrams per Litre (mg/L). The evidence demonstrated that alternatives to the lakes in terms of both size and location were considered. The Department considered the proposed lakes as part of the elimination and reduction of overall wetland impacts on both South Fort Meade Polk and Hardee. On balance, it is a preferable alternative to use the available sand resulting from mining of the Hardee County portion of the South Fort Meade mine to eliminate lakes and create additional wetlands on the Polk County portion of the mine rather than utilize that sand to eliminate all lakes on the Hardee County portion of the site. This is especially true given the desire of Hardee County for recreational lakes and the Department's preference to reduce the overall acreage of the reclaimed lakes at the South Fort Meade mine. It is not feasible to make the lakes shallower given the available materials. There is no practicable means known or available for increasing DO in the deep pockets of lakes of the proposed depths that would not have a potential negative effect. This fact has been established and recognized by the Florida Legislature in Section 373.414(6)(a), Florida Statutes, which provides that the deep pits left by mining operations may not meet the DO criteria below the surficial layers of the lakes. The Legislature has further provided that a variance from the DO standard can be issued where deep lakes must be left as part of the reclamation plan. Id. The evidence established that lower DO levels may at times occur in the deep pockets of some of the reclaimed lakes to the same extent and effect as those lower levels occur in natural lakes of similar depths. This effect will occur only in the hypolimnion, or lower levels, of the lakes in the hotter summer months. The evidence likewise established that it is very unlikely that DO levels below 1.0 mg/L will occur at any time in any of the proposed reclaimed lakes. Provided the DO levels do not drop below 1.0 mg/L for any extended period of time, the only expected effect of the occasional seasonal reduction in DO in the lowest level of the reclaimed lakes will be to temporarily exclude fish from those lower portions of the lake during the summer months, which is also true of natural deep lakes. The evidence established that reclaimed lakes function well and provide habitat for fish and wildlife. Water quality standards will be met in all of the lakes other than occasional seasonal DO violations in the lower portions of the deepest lake. All water quality standards, including DO, will be met at all lake outlets and discharge points. All other applicable regulatory criteria will be met in the reclaimed lakes. Dissolved oxygen levels in the upper layers of the lakes are expected and required to meet the minimum DO criteria in Florida Administrative Code Rule 62- 302.530 and will be adequate to support healthy fish populations. The evidence showed no downstream impacts will occur due to the DO Variance for the lakes. The evidence showed reclaimed lakes support healthy fish and macroinvertebrate communities and provide recreational fishing opportunities. Even older lakes, such as the Tenoroc lakes (located in an old mining area in Polk County), provide substantial recreational fishing and wildlife utilization opportunities. This testimony was not rebutted. The evidence offered by Lee and Sarasota Counties as a means to increase DO levels in the reclaimed lakes actually demonstrated that artificially attempting aeration of a deeper lake can have negative environmental effects. Therefore, the testimony of witnesses Janicki and Merriam has not been credited. By a preponderance of the evidence, Mosaic proved entitlement to the DO Variance for the lakes pursuant to Sections 373.414(6)(a) and 403.201(1)(a), Florida Statutes. Given the location of the reclaimed lakes and as a means of experimenting with different reclamation planting techniques to create a variety of shorelines, Mosaic also applied for, and the Department has proposed to grant, a variance from the reclamation requirements in Florida Administrative Code Rule 62C-16.0051 pertaining to the planting of littoral shelves or zones around reclaimed lakes. The Littoral Zone Variance is being sought under Section 378.212(1)(e), Florida Statutes, from Florida Administrative Code Rule 62C-16.0051(6)(a) and (b), which provides minimum water zones for emergent and submerged vegetation, known as the littoral zones of the lakes. Subsection (6) of the rule provides for a twenty-five percent high-water zone of water fluctuation to encourage emergent and transition zone vegetation, and that a twenty percent low water zone between the annual low water line and six feet below the annual low water line to provide fish bedding areas and submerged vegetation zones. These vegetative zones are collectively known as the littoral zone of a lake. Traditionally, these percentages have been met in reclaimed lakes by sloping and creation of a uniform fringe of herbaceous wetland vegetation completely encircling the lake; however, such uniform fringes are not typical around natural lakes, which vary in composition and width. Rather than create a uniform band of vegetation around the lakes, Mosaic has proposed to reclaim the littoral zones around the reclaimed lakes by concentrating them in several broad, shallow areas, including the outlets of the lakes where such outlets occur (Lakes 1, 3 and 4). Of the proposed lakes, one will meet the littoral zone requirement, two will have over twenty percent of the total area in littoral zone, and the remaining lake will have a littoral zone of just under fourteen percent of the total area. The littoral zones will be reclaimed by constructing broad shelves of differing depths and planting the shelves with herbaceous wetland plant species. This design provides the environmental benefit of herbaceous vegetation at the outlet to provide increased filtration of nutrients or sediments of any water overflowing from the lakes during other high water events. This increases environmental benefits at the outlet of the lakes and has the potential to improve water quality downstream. Further, the proposed clustering of the littoral zones in several broad shallow shelves, rather than creation of a thin fringe around the lakes as is customary, will benefit wildlife and fish by creating a more extensive wetland ecosystem in lieu of the monoculture typically created by the thin littoral fringe. The proposed littoral zone clustering also creates more useable shoreline for boating, fishing, and recreational activities in the areas where the littoral zones are not clustered, with the added benefit of tending to separate the wildlife usage in the littoral zone clusters from the human usage in the upland forested areas of the shoreline where minimal littoral zones are planned. This is an experimental technique that advances reclamation methods by balancing habitat, water quality, and recreational considerations. Mosaic has demonstrated that the Littoral Zone Variance comports with Section 378.212(1)(e), Florida Statutes, and may be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mosaic's applications for the requested permits and variances. DONE AND ENTERED this 18th day of December, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 18th day of December, 2008.
