Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made to supplement the factual stipulations contained in the parties' Prehearing Stipulation: State TMDL Legislation Over the last 30 years, surface water quality management in Florida, like in the rest of the United States, has focused on the control of point sources of pollution (primarily domestic and industrial wastewater) through the issuance, to point source dischargers, of National Pollutant Discharge Elimination System (NPDES) permits, which specify effluent-based standards with which the permit holders must comply. Although "enormously successful in dealing with . . . point sources" of pollution, the NPDES program has not eliminated water quality problems largely because discharges from other sources of pollution (nonpoint sources) have not been as successfully controlled. In the late 1990's, the Department recognized that, to meet Florida's water quality goals, it was going to have to implement a TMDL program for the state. Wanting to make absolutely sure that it had the statutory authority to do so, the Department sought legislation specifically granting it such authority. Jerry Brooks, the deputy director of the Department's Division of Water Resource Management, led the Department's efforts to obtain such legislation. He was assisted by Darryl Joyner, a Department program administrator responsible for overseeing the watershed assessment and groundwater protection sections within the Division of Water Resource Management. Participating in the drafting of the legislation proposed by the Department, along with Mr. Brooks and Mr. Joyner, were representatives of regulated interests. No representatives from the environmental community actively participated in the drafting of the proposed legislation. The Department obtained the TMDL legislation it wanted when the 1999 Florida Legislature enacted Chapter 99-223, Laws of Florida, the effective date of which was May 26, 1999. Section 1 of Chapter 99-223, Laws of Florida, added the following to the definitions set forth in Section 403.031, Florida Statutes, which define "words, phrases or terms" for purposes of "construing [Chapter 403, Florida Statutes], or rules or regulations adopted pursuant [t]hereto": (21) "Total maximum daily load" is defined as the sum of the individual wasteload allocations for point sources[11] and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. Section 4 of Chapter 99-223, Laws of Florida, added language to Subsection (1) of Section 403.805, Florida Statutes, providing that the Secretary of the Department, not the Environmental Regulation Commission, "shall have responsibility for final agency action regarding total maximum daily load calculations and allocations developed pursuant to s. 403.067(6)," Florida Statutes. The centerpiece of Chapter 99-223, Laws of Florida, was Section 3 of the enactment, which created Section 403.067, Florida Statutes, dealing with the "[e]stablishment and implementation of total maximum daily loads." Section 403.067, Florida Statutes, was amended in 2000 (by Chapter 2000-130, Laws of Florida) and again in 2001 (by Chapter 2001-74, Laws of Florida). It now reads, in its entirety, as follows: LEGISLATIVE FINDINGS AND INTENT.-- In furtherance of public policy established in s. 403.021, the Legislature declares that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution.[12] The Legislature finds that, while point and nonpoint sources of pollution have been managed through numerous programs, better coordination among these efforts and additional management measures may be needed in order to achieve the restoration of impaired water bodies. The scientifically based total maximum daily load program is necessary to fairly and equitably allocate pollution loads to both nonpoint and point sources. Implementation of the allocation shall include consideration of a cost- effective approach coordinated between contributing point and nonpoint sources of pollution for impaired water bodies or water body segments and may include the opportunity to implement the allocation through nonregulatory and incentive-based programs. The Legislature further declares that the Department of Environmental Protection shall be the lead agency in administering this program and shall coordinate with local governments, water management districts, the Department of Agriculture and Consumer Services, local soil and water conservation districts, environmental groups, regulated interests, other appropriate state agencies, and affected pollution sources in developing and executing the total maximum daily load program. LIST OF SURFACE WATERS OR SEGMENTS.-- In accordance with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., the department must submit periodically to the United States Environmental Protection Agency a list of surface waters or segments for which total maximum daily load assessments will be conducted. The assessments shall evaluate the water quality conditions of the listed waters and, if such waters are determined not to meet water quality standards, total maximum daily loads shall be established, subject to the provisions of subsection (4). The department shall establish a priority ranking and schedule for analyzing such waters. The list, priority ranking, and schedule cannot be used in the administration or implementation of any regulatory program. However, this paragraph does not prohibit any agency from employing the data or other information used to establish the list, priority ranking, or schedule in administering any program. The list, priority ranking, and schedule prepared under this subsection shall be made available for public comment, but shall not be subject to challenge under chapter 120. The provisions of this subsection are applicable to all lists prepared by the department and submitted to the United States Environmental Protection Agency pursuant to s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., including those submitted prior to the effective date of this act, except as provided in subsection (4). If the department proposes to implement total maximum daily load calculations or allocations established prior to the effective date of this act, the department shall adopt those calculations and allocations by rule by the secretary pursuant to ss. 120.536(1) and 120.54 and paragraph (6)(d). ASSESSMENT.-- Based on the priority ranking and schedule for a particular listed water body or water body segment, the department shall conduct a total maximum daily load assessment of the basin in which the water body or water body segment is located using the methodology developed pursuant to paragraph (b). In conducting this assessment, the department shall coordinate with the local water management district, the Department of Agriculture and Consumer Services, other appropriate state agencies, soil and water conservation districts, environmental groups, regulated interests, and other interested parties. The department shall adopt by rule a methodology for determining those waters which are impaired. The rule shall provide for consideration as to whether water quality standards codified in chapter 62- 302, Florida Administrative Code, are being exceeded, based on objective and credible data, studies and reports, including surface water improvement and management plans approved by water management districts under s. 373.456 and pollutant load reduction goals developed according to department rule. Such rule also shall set forth: Water quality sample collection and analysis requirements, accounting for ambient background conditions, seasonal and other natural variations; Approved methodologies; Quality assurance and quality control protocols; Data modeling; and Other appropriate water quality assessment measures. If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. APPROVED LIST.-- If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology- based effluent limitations[13] and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated. In association with this updated list, the department shall establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations. If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard. This updated list shall be approved and amended by order of the department subsequent to completion of an assessment of each water body or water body segment, and submitted to the United States Environmental Protection Agency. Each order shall be subject to challenge under ss. 120.569 and 120.57. REMOVAL FROM LIST.-- At any time throughout the total maximum daily load process, surface waters or segments evaluated or listed under this section shall be removed from the lists described in subsection (2) or subsection (4) upon demonstration that water quality criteria are being attained, based on data equivalent to that required by rule under subsection (3). CALCULATION AND ALLOCATION.-- Calculation of total maximum daily load. Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. The analysis may include mathematical water quality modeling using approved procedures and methods. The department shall develop total maximum daily load calculations for each water body or water body segment on the list described in subsection (4) according to the priority ranking and schedule unless the impairment of such waters is due solely to activities other than point and nonpoint sources of pollution. For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required. A total maximum daily load may be required for those waters that are impaired predominantly due to activities other than point and nonpoint sources. The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards, and shall account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. The total maximum daily load may be based on a pollutant load reduction goal developed by a water management district, provided that such pollutant load reduction goal is promulgated by the department in accordance with the procedural and substantive requirements of this subsection. Allocation of total maximum daily loads. The total maximum daily loads shall include establishment of reasonable and equitable allocations of the total maximum daily load among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities, provide for the attainment of water quality standards and the restoration of impaired waters. The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards and shall be based on consideration of the following: Existing treatment levels and management practices; Differing impacts pollutant sources may have on water quality; The availability of treatment technologies, management practices, or other pollutant reduction measures; Environmental, economic, and technological feasibility of achieving the allocation; The cost benefit associated with achieving the allocation; Reasonable timeframes for implementation; Potential applicability of any moderating provisions such as variances, exemptions, and mixing zones; and The extent to which nonattainment of water quality standards is caused by pollution sources outside of Florida, discharges that have ceased, or alterations to water bodies prior to the date of this act. Not later than February 1, 2001, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives containing recommendations, including draft legislation, for any modifications to the process for allocating total maximum daily loads, including the relationship between allocations and the watershed or basin management planning process. Such recommendations shall be developed by the department in cooperation with a technical advisory committee which includes representatives of affected parties, environmental organizations, water management districts, and other appropriate local, state, and federal government agencies. The technical advisory committee shall also include such members as may be designated by the President of the Senate and the Speaker of the House of Representatives. The total maximum daily load calculations and allocations for each water body or water body segment shall be adopted by rule by the secretary pursuant to ss. 120.536(1), 120.54, and 403.805. The rules adopted pursuant to this paragraph shall not be subject to approval by the Environmental Regulation Commission. As part of the rule development process, the department shall hold at least one public workshop in the vicinity of the water body or water body segment for which the total maximum daily load is being developed. Notice of the public workshop shall be published not less than 5 days nor more than 15 days before the public workshop in a newspaper of general circulation in the county or counties containing the water bodies or water body segments for which the total maximum daily load calculation and allocation are being developed. IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- The department shall be the lead agency in coordinating the implementation of the total maximum daily loads through water quality protection programs. Application of a total maximum daily load by a water management district shall be consistent with this section and shall not require the issuance of an order or a separate action pursuant to s. 120.536(1) or s. 120.54 for adoption of the calculation and allocation previously established by the department. Such programs may include, but are not limited to: Permitting and other existing regulatory programs; Nonregulatory and incentive-based programs, including best management practices, cost sharing, waste minimization, pollution prevention, and public education; Other water quality management and restoration activities, for example surface water improvement and management plans approved by water management districts under s. 373.456 or watershed or basin management plans developed pursuant to this subsection; Pollutant trading or other equitable economically based agreements; Public works including capital facilities; or Land acquisition. In developing and implementing the total maximum daily load for a water body, the department, or the department in conjunction with a water management district, may develop a watershed or basin management plan that addresses some or all of the watersheds and basins tributary to the water body. These plans will serve to fully integrate the management strategies available to the state for the purpose of implementing the total maximum daily loads and achieving water quality restoration. The watershed or basin management planning process is intended to involve the broadest possible range of interested parties, with the objective of encouraging the greatest amount of cooperation and consensus possible. The department or water management district shall hold at least one public meeting in the vicinity of the watershed or basin to discuss and receive comments during the planning process and shall otherwise encourage public participation to the greatest practical extent. Notice of the public meeting shall be published in a newspaper of general circulation in each county in which the watershed or basin lies not less than 5 days nor more than 15 days before the public meeting. A watershed or basin management plan shall not supplant or otherwise alter any assessment made under s. 403.086(3) and (4), or any calculation or allocation made under s. 403.086(6). The department, in cooperation with the water management districts and other interested parties, as appropriate, may develop suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for nonagricultural nonpoint pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be adopted by rule by the department and the water management districts pursuant to ss. 120.536(1) and 120.54, and may be implemented by those parties responsible for nonagricultural nonpoint pollutant sources and the department and the water management districts shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the department or the water management districts shall institute a reevaluation of the best management practice or other measures. 1. The Department of Agriculture and Consumer Services may develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be implemented by those parties responsible for agricultural pollutant sources and the department, the water management districts, and the Department of Agriculture and Consumer Services shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. In the process of developing and adopting rules for interim measures, best management practices, or other measures, the Department of Agriculture and Consumer Services shall consult with the department, the Department of Health, the water management districts, representatives from affected farming groups, and environmental group representatives. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the Department of Agriculture and Consumer Services shall institute a reevaluation of the best management practice or other measure. 2. Individual agricultural records relating to processes or methods of production, or relating to costs of production, profits, or other financial information which are otherwise not public records, which are reported to the Department of Agriculture and Consumer Services pursuant to this paragraph or pursuant to any rule adopted pursuant to this paragraph shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Upon request of the department or any water management district, the Department of Agriculture and Consumer Services shall make such individual agricultural records available to that agency, provided that the confidentiality specified by this subparagraph for such records is maintained. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. The provisions of paragraphs (c) and (d) shall not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality. Additionally, paragraphs (c) and (d) are applicable only to the extent that they do not conflict with any rules promulgated by the department that are necessary to maintain a federally delegated or approved program. RULES.-- The department is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 for: Delisting water bodies or water body segments from the list developed under subsection (4) pursuant to the guidance under subsection (5); Administration of funds to implement the total maximum daily load program; Procedures for pollutant trading among the pollutant sources to a water body or water body segment, including a mechanism for the issuance and tracking of pollutant credits. Such procedures may be implemented through permits or other authorizations and must be legally binding. No rule implementing a pollutant trading program shall become effective prior to review and ratification by the Legislature; and The total maximum daily load calculation in accordance with paragraph (6)(a) immediately upon the effective date of this act, for those eight water segments within Lake Okeechobee proper as submitted to the United States Environmental Protection Agency pursuant to subsection (2). APPLICATION.-- The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section. CONSTRUCTION.-- Nothing in this section shall be construed as limiting the applicability or consideration of any mixing zone, variance, exemption, site specific alternative criteria, or other moderating provision. IMPLEMENTATION OF ADDITIONAL PROGRAMS.-- The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation. In order to provide adequate due process while ensuring timely development of total maximum daily loads, proposed rules and orders authorized by this act shall be ineffective pending resolution of a s. 120.54(3), s. 120.56, s. 120.569, or s. 120.57 administrative proceeding. However, the department may go forward prior to resolution of such administrative proceedings with subsequent agency actions authorized by subsections (2)-(6), provided that the department can support and substantiate those actions using the underlying bases for the rules or orders without the benefit of any legal presumption favoring, or in deference to, the challenged rules or orders. Key Provisions of Law Referenced in Section 403.067, Florida Statutes Section 403.021, Florida Statutes Section 403.021, Florida Statutes, which is referenced in Subsection (1) of Section 403.067, Florida Statutes, provides, in pertinent part, as follows: The pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water. It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water. * * * It is hereby declared that the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development. The Legislature further finds and declares that: Compliance with this law will require capital outlays of hundreds of millions of dollars for the installation of machinery, equipment, and facilities for the treatment of industrial wastes which are not productive assets and increased operating expenses to owners without any financial return and should be separately classified for assessment purposes. Industry should be encouraged to install new machinery, equipment, and facilities as technology in environmental matters advances, thereby improving the quality of the air and waters of the state and benefiting the citizens of the state without pecuniary benefit to the owners of industries; and the Legislature should prescribe methods whereby just valuation may be secured to such owners and exemptions from certain excise taxes should be offered with respect to such installations. Facilities as herein defined should be classified separately from other real and personal property of any manufacturing or processing plant or installation, as such facilities contribute only to general welfare and health and are assets producing no profit return to owners. In existing manufacturing or processing plants it is more difficult to obtain satisfactory results in treating industrial wastes than in new plants being now planned or constructed and that with respect to existing plants in many instances it will be necessary to demolish and remove substantial portions thereof and replace the same with new and more modern equipment in order to more effectively treat, eliminate, or reduce the objectionable characteristics of any industrial wastes and that such replacements should be classified and assessed differently from replacements made in the ordinary course of business. * * * It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. The department, as the state water quality protection agency, shall compile, correlate, and disseminate available information on any contaminant which endangers or may endanger existing or potential drinking water resources. It shall also coordinate its regulatory program with the regulatory programs of other agencies to assure adequate protection of the drinking water resources of the state. It is the intent of the Legislature that water quality standards be reasonably established and applied to take into account the variability occurring in nature. The department shall recognize the statistical variability inherent in sampling and testing procedures that are used to express water quality standards. The department shall also recognize that some deviations from water quality standards occur as the result of natural background conditions. The department shall not consider deviations from water quality standards to be violations when the discharger can demonstrate that the deviations would occur in the absence of any human-induced discharges or alterations to the water body. Rule Chapter 62-302, Florida Administrative Code Rule Chapter 62-302, Florida Administrative Code, which is referenced in Subsection (3)(b) of Section 447.067, Florida Statutes, contains Florida's "[s]urface water quality standards." Rule 62-302.300, Florida Administrative Code, is entitled, "Findings, Intent, and Antidegradation Policy for Surface Water Quality," and provides as follows: Article II, Section 7 of the Florida Constitution requires abatement of water pollution and conservation and protection of Florida's natural resources and scenic beauty. Congress, in Section 101(a)(2) of the Federal Water Pollution Control Act, as amended,[14] declares that achievement by July 1, 1983, of water quality sufficient for the protection and propagation[15] of fish, shellfish, and wildlife, as well as for recreation in and on the water, is an interim goal to be sought whenever attainable. Congress further states, in Section 101(a)(3), that it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. The present and future most beneficial uses of all waters of the State have been designated by the Department by means of the Classification system set forth in this Chapter pursuant to Subsection 403.061(10), F.S.[16] Water quality standards[17] are established by the Department to protect these designated uses.[18] Because activities outside the State sometimes cause pollution[19] of Florida's waters, the Department will make every reasonable effort to have such pollution abated. Water quality standards apply equally to and shall be uniformly enforced in both the public and private sector. Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. The Commission, recognizing the complexity of water quality management and the necessity to temper regulatory actions with the technological progress and the social and economic well-being of people, urges, however, that there be no compromise where discharges of pollutants constitute a valid hazard to human health. The Commission requests that the Secretary seek and use the best environmental information available when making decisions on the effects of chronically and acutely toxic substances and carcinogenic, mutagenic, and teratogenic substances. Additionally, the Secretary is requested to seek and encourage innovative research and developments in waste treatment alternatives that might better preserve environmental quality or at the same time reduce the energy and dollar costs of operation. The criteria set forth in this Chapter are minimum levels which are necessary to protect the designated uses of a water body. It is the intent of this Commission that permit applicants should not be penalized due to a low detection limit associated with any specific criteria. (10)(a) The Department's rules that were adopted on March 1, 1979 regarding water quality standards are designed to protect the public health or welfare and to enhance the quality of waters of the State. They have been established taking into consideration the use and value of waters of the State for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. Under the approach taken in the formulation of the rules adopted in this proceeding: The Department's rules that were adopted on March 1, 1979 regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and The mixing zone,[20] zone of discharge, site specific alternative criteria, exemption, and equitable allocation provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, natural background,[21] and detectability. This is an even-handed and balanced approach to attainment of water quality objectives. The Commission has specifically recognized that the social, economic and environmental costs may, under certain special circumstances, outweigh the social, economic and environmental benefits if the numerical criteria are enforced statewide. It is for that reason that the Commission has provided for mixing zones, zones of discharge, site specific alternative criteria, exemptions and other provisions in Chapters 62-302, 62-4, and 62-6, F.A.C. Furthermore, the continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideration environmental, technological, social, economic and institutional factors. The companion provisions of Chapters 62-4 and 62-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the State's comprehensive program for the control, abatement and prevention of water pollution. Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above nor determined that they are attainable as generally applicable water quality standards. Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters. The Department shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources, and all cost- effective and reasonable best management practices for nonpoint source control. For the purposes of this rule, highest statutory and regulatory requirements for new and existing point sources are those which can be achieved through imposition of effluent limits required under Sections 301(b) and 306 of the Federal Clean Water Act (as amended in 1987) and Chapter 403, F.S. For the purposes of this rule, cost-effective and reasonable best management practices for nonpoint source control are those nonpoint source controls authorized under Chapters 373 and 403, F.S., and Department rules. The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man-induced nutrients into waters of the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further nutrient concentrations and sensitive to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enrichment of those waters presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus. Existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use. Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge. If the Department finds that a proposed new discharge or expansion of an existing discharge will not reduce the quality of the receiving waters below the classification established for them, it shall permit the discharge if such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met. Projects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S.; also projects permitted under the grandfather provisions of Sections 373.414(11) through (16), F.S., or permitted under Section 373.4145, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of Rule 62-312.080(2), F.A.C. (18)(a) Except as provided in subparagraphs (b) and (c) of this paragraph, an applicant for either a general permit or renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. If the Department determines that the applicant has caused degradation of water quality over and above that allowed through previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. These circumstances are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge. If the new or expanded discharge was initially permitted by the Department on or after October 4, 1989, and the Department determines that an antidegradation analysis was not conducted, then the applicant seeking renewal of the existing permit shall demonstrate that degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Rule 62-302.400, Florida Administrative Code, classifies all surface waters of the state "according to designated uses." The rule provides for five classifications: Class I ("Potable Water Supplies"); Class II ("Shellfish Propagation or Harvesting"); Class III ("Recreation, Propagation of a Healthy, Well-Balanced Population of Fish and Wildlife": Fresh and Marine); Class IV ("Agricultural Water Supplies"); and Class V ("Navigation, Utility and Industrial Use").22 See Rule 62-302.400(1), Florida Administrative Code. These "[w]ater quality classifications are arranged in order of degree of protection required, with Class I water having generally the most stringent water quality criteria23 and Class V the least. However, Class I, II, and III surface waters share water quality criteria established to protect recreation and the propagation and maintenance of a healthy well-balanced population of fish and wildlife." Rule 62-302.400(4), Florida Administrative Code. Waters designated as "Outstanding Florida Waters and Outstanding National Resource Waters" are given "special protection." See Rule 62-302.700(1) and (7), Florida Administrative Code ("It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. . . . The policy of this section shall be implemented through the permitting process pursuant to Section 62-4.242, F.A.C.").24 According to Subsection (5) of Rule 62-302.400, Florida Administrative Code, Criteria applicable to a classification are designed to maintain the minimum conditions necessary to assure the suitability of water for the designated use of the classification. In addition, applicable criteria are generally adequate to maintain minimum conditions required for the designated uses of less stringently regulated classifications. Therefore, unless clearly inconsistent with the criteria applicable, the designated uses of less stringently regulated classifications shall be deemed to be included within the designated uses of more stringently regulated classifications. "The specific water quality criteria corresponding to each surface water classification are listed in Rules 62-302.500 and 62-302.530," Florida Administrative Code. Rule 62- 302.400(3), Florida Administrative Code. Subsection (1) of Rule 62-302.500, Florida Administrative Code, sets forth what are known as the "free froms." It provides as follows: Minimum Criteria. All surface waters of the State shall at all places and at all times be free from: Domestic, industrial, agricultural, or other man-induced non-thermal components of discharges which, alone or in combination with other substances or in combination with other components of discharges (whether thermal or non-thermal): Settle to form putrescent deposits or otherwise create a nuisance; or Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance; or Are acutely toxic; or Are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring, wildlife or aquatic species, unless specific standards are established for such components in Rules 62-302.500(2) or 62-302.530; or Pose a serious danger to the public health, safety, or welfare. Thermal components of discharges which, alone, or in combination with other discharges or components of discharges (whether thermal or non-thermal): Produce conditions so as to create a nuisance; or Do not comply with applicable provisions of Rule 62-302.500(3), F.A.C. Silver in concentrations above 2.3 micrograms/liter in predominantly marine waters. Rule 62-302.530, Florida Administrative Code, has a table that contains both numeric and narrative surface water quality criteria to be applied except within zones of mixing. The left-hand column of the Table is a list of constituents [or parameters] for which a surface water criterion exists. The headings for the water quality classifications are found at the top of the Table. Applicable criteria lie within the Table. The individual criteria should be read in conjunction with other provisions in water quality standards, including Rules 62- 302.500 and 62-302.510, F.A.C. The criteria contained in Rules 62-302.500 or 62-302.510 also apply to all waters unless alternative or more stringent criteria are specified in Rule 62-302.530, F.A.C. Unless otherwise stated, all criteria express the maximum not to be exceeded at any time. In some cases, there are separate or additional limits, such as annual average criteria, which apply independently of the maximum not to be exceeded at any time. The following are the specific parameters listed in the table: Alkalinity; Aluminum; Ammonia (un-ionized); Antimony; Arsenic (total and trivalent); Bacteriological Quality (Fecal Coliform Bacteria); Bacteriological Quality (Total Coliform Bacteria); Barium; Benzene; Beryllium; Biological Integrity; BOD (Biochemical Oxygen Demand); Bromine (free molecular); Cadmium; Carbon Tetrachloride; Chlorides; Chlorine (total residual); Chromium (trivalent and hexavalent); Chronic Toxicity; Color; Conductance (specific); Copper; Cyanide; Detergents; 1,1- Dichloroethylene (1,1-di-chloroethene); Dichloromethane (methylene chloride); 2,4-Dinitrotoluene; Dissolved Oxygen; Dissolved Solids; Fluorides; Halomethanes; Hexachlorobutadiene; Iron; Lead; Manganese; Mercury; Nickel; Nitrate; Nuisance Species;25 Nutrients;26 Odor; Oils and Greases; Pesticides and Herbicides (2,4,5-TP; 2-4-D; Aldrin; Betahexachlorocyclohexane; Chlordane; DDT; Demeton; Dieldrin; Endosulfan; Endrin: Guthion; Heptachlor; Lindane; Malathion; Methoxychlor; Mirex; Parathion; Toxaphene); pH; Phenolic Compounds; Phosphorous (Elemental); Polycyclic Aromatic Hydrocarbons; Radioactive Substances; Selenium; Silver; 1,1,2,2-Tetrachloroethane; Tetrachloroethylene; Thallium; Total Dissolved Gases; Transparency; Trichloroeylene (trichloroethene); Turbidity; and Zinc. Rule 62-302.800, Florida Administrative Code, provides for the establishment of "[s]ite [s]pecific [a]lternative [c]riteria" where a water body, or portion thereof, does "not meet a particular ambient water quality criterion specified for its classification, due to natural background conditions or man- induced conditions which cannot be controlled or abated."27 Section 303(d) of the Clean Water Act Section 303(d) of the Clean Water Act (33 U.S.C. Section 1313(d)), which is referenced in Subsections (1), (2), (9), and (11) of Section 447.067, Florida Statutes, provides as follows: Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision (1)(A) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 1311 of this title are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D) of this title, for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. Limitations on revision of certain effluent limitations Standard not attained For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations established under this section. Standard attained For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. Development of Proposed Rule Chapter 62-303, Florida Administrative Code The rule development process that culminated in the adoption of proposed Rule Chapter 62-303, Florida Administrative Code, began shortly after the enactment of Chapter 99-223, Laws of Florida, when the Department decided, consistent with its routine practice in complex rulemaking cases, to form a technical advisory committee (TAC) to assist the Department in developing an "identification of impaired surface waters" rule by rendering advice to the Department concerning technical and scientific matters.28 The Department solicited nominations for TAC membership from stakeholder groups, but ultimately rejected the nominations it received and instead selected individuals it believed were best qualified to contribute based upon their expertise (in areas including water quality monitoring, water quality chemistry, water quality modeling, estuarine ecology, wetland ecology, analytical chemistry, statistics, bioassessment procedures, limnology, coastal ecology, fish biology, and hydrology). The first TAC meeting was held August 12, 1999. There were 12 subsequent TAC meetings, the last two of which were held on August 4, 2000, and August 28, 2000. The TAC meetings were held in various locations throughout the state (Pensacola, Tallahassee, Jacksonville, Gainesville, Orlando, Tampa, St. Petersburg, and West Palm Beach) and were open to public, with members of the public able to make comments. All 13 TAC meetings were noticed in the Florida Administrative Weekly. The TAC meetings were chaired by Mr. Joyner, who was the Department employee primarily responsible for drafting an "identification of impaired surface waters" rule. Mr. Joyner emphasized to the TAC members that their role was simply to give advice and make recommendations to the Department and that their advice and recommendations might not be followed. As it turned out, there were several instances where the Department rejected a TAC recommendation. In addition to seeking the advice of experts on technical and scientific matters, the Department wanted to hear from stakeholders regarding policy issues. Towards that end, it took steps to establish a Policy Advisory Committee (PAC). An organizational meeting of the PAC was held on March 24, 2000, in Tallahassee, the day after the seventh TAC meeting (which was also held in Tallahassee). After being told about the government in the sunshine and public records laws with which they would have to comply as PAC members, "no one wanted to be on the PAC." The consensus of those present was to "just have public meetings [to elicit stakeholder input] and not have a formal PAC." The Department acted accordingly. Following this March 24, 2000, meeting, the Department abandoned its efforts to form a PAC and instead held four public meetings to obtain input from the public regarding policy questions involved in crafting an "identification of impaired surface waters" rule. The last two of these public meetings were combined with the last two TAC meetings (held on August 4, 2000, and August 28, 2000). Each of the five "policy" public meetings held by the Department (including the March 24, 2000, PAC organizational meeting) were noticed in the Florida Administrative Weekly. The Department also held two rule development workshops (one on September 7, 2000, and the other on December 7, 2000), both of which were also noticed in the Florida Administrative Weekly. Between the time these two rule development workshops were held, Mr. Joyner met with representatives of regulated interests and the environmental community to discuss their thoughts regarding what should be included in an "identification of impaired surface waters" rule. Throughout the rule development process, the Department also received and considered written comments from interested persons. Information about the rule development process was posted on the Department's web site for the public to read. The Department e-mailed approximately 350 persons (whose names were on a list of interested persons compiled by the Department) to notify them in advance of any meetings and workshops on proposed Rule Chapter 62-303, Florida Administrative Code. Proposed Rule Chapter 62-303, Florida Administrative Code, underwent numerous revisions during the rule development process. Whenever a revised version of the proposed rule chapter was prepared, the Department sent a copy of it, via e-mail, to the persons on the Department's 350 "interested persons" e-mail list. Changes to proposed Rule Chapter 62-303, Florida Administrative Code, were made not only in response to comments made by members of the TAC and stakeholders, but also in response to comments made by staff of the Region IV office of the United States Environmental Protection Agency (EPA), with whom Department staff had extensive discussions regarding the proposed rule chapter. The Environmental Regulation Commission (ERC) "exercise[s] the standard-setting authority of the [D]epartment."29 In March of 2001, approximately 19 months after the first TAC meeting, the Department was ready to present its most recent version of proposed Rule Chapter 62-303, Florida Administrative Code, to the ERC for adoption. Accordingly, it published a Notice of Proposed Rulemaking in the March 23, 2001 (Volume 27, Number 12) edition of the Florida Administrative Weekly announcing that a hearing on the proposed rule chapter would be held before the ERC on April 26, 2001. The Notice contained the complete text of the proposed rule chapter, as well as the following statement of “[p]urpose, effect, and summary”: The purpose of the proposed new rule is to establish a methodology to identify impaired waters that will be included on the State's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads, pursuant to subsection 403.067(4), Florida Statutes (F.S.), and which will be submitted to the United States Environmental Protection Agency pursuant to subparagraphs 303(d)(1)(A) and 303(d)(1)(C) of the Clean Water Act. As directed by 403.067, F.S., the development of the State's 303(d) list will be a two-step process; waters will first be identified as potentially impaired and then any impairment will be verified before listing the water. The rule implements this statutory direction by providing a methodology to identify surface waters of the state that will be included on a "planning list" of waters. Pursuant to subsection 403.067(2) and (3), F.S., the Department will evaluate the data used to place these waters on the planning list, verify that the data meet quality assurance and data sufficiency requirements of the "verified list," and collect additional data, as needed, to complete the assessment. The rule also provides information about the listing cycle, the format of the verified list, and delisting procedures. At the ERC's regularly scheduled March 29, 2001, meeting, Mr. Joyner formally briefed the ERC on the status of the rule development process (as he had previously done at ERC's regularly scheduled meetings on June 29, 2000, August 24, 2000, December 5, 2000, and January 25, 2001). At the March 29, 2001, meeting, Mr. Joyner went through the proposed rule chapter with the ERC "paragraph by paragraph." As noted above, prior to the scheduled April 26, 2001, ERC hearing, petitions challenging the proposed rule chapter (as published in the March 23, 2001, edition of the Florida Administrative Weekly) were filed with the Division by Petitioner Lane (on April 10, 2001) and by all Joint Petitioners excluding Save Our Suwannee, Inc. (on April 13, 2001). On April 21, 2001, all Joint Petitioners excluding Save Our Suwannee, Inc., filed a Request with ERC asking: that rulemaking proceedings regarding proposed Rule 62-303 be conducted under the provisions of Sections 120.569 and 120.57, Florida Statutes, as to all parties, or alternatively at least to the six petitioners; that the evidentiary processes involved under the provisions of Sections 120.569 and 120.57, Florida Statutes, be combined with the already pending DOAH proceedings of all parties, or at least the six petitioners; and that rulemaking proceedings, as to proposed Rule 62-303, be suspended pending completion of the evidentiary processes before DOAH as well as the DOAH ruling on the pending petitions, as to all parties or at least the six petitioners. The Request was considered and denied by the ERC at the outset of its hearing on the proposed rule chapter, which was held as scheduled on April 26, 2001. That same day, the ERC issued a written order denying the Request, which read, in pertinent part as follows: But for their request to combine the requested evidentiary proceeding with the existing rule challenges pending before DOAH, Petitioners have requested conversion of the instant rulemaking proceeding to an evidentiary hearing or "draw out." A draw out is authorized under proper circumstances by Section 120.54(3)(c)2, Florida Statutes, which states: "Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that the person's substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect the person's interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of ss. 120.569 and 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed." A participant in the rulemaking proceeding who requests such relief is asking to "draw out" of the rulemaking proceeding and for the agency to afford the party an evidentiary hearing in lieu thereof.[30] A copy of each of the six petitions filed by the parties with DOAH was attached to the joint notice now before the Commission. But for minor variations in allegations to establish standing, each of the six petitions sets out seventeen (17) counts with each count asserting that a particular provision, or provisions, of proposed Rule 62-303 is an invalid exercise of delegated legislative authority or otherwise a violation of Section 403.067, F.S., or the federal Clean Water Act. None of the individual petitions, or the joint notice, demonstrate that the pending rulemaking proceeding fails to protect the petitioners' substantial interests, nor have petitioners raised any factual issues that would require a separate evidentiary hearing beyond the scope of the DOAH proceedings already pending. Under these circumstances, Section 120.56(2)(b), F.S., specifically allows an agency to proceed with all other steps in the rulemaking process, except for final adoption, while a DOAH rule challenge is pending.[31] In view of the foregoing, and in exercising its discretion as afforded by Section 120.54(3)(c)2., F.S., the Commission has determined that the rulemaking proceeding adequately protects the interests asserted by each of the six petitioners who joined in the joint notice as filed April 20th, 2001. Accordingly, the petitioners' joint request for relief therein is denied. The version of the proposed rule chapter published in the March 23, 2001, edition of the Florida Administrative Weekly, with some modifications, was adopted by the ERC at its April 26, 2001, meeting (at which members of the public were given the opportunity to comment prior to ERC deliberation). The modifications were noticed in a Notice of Change published in the May 11, 2001, edition (Volume 27, Number 19) of the Florida Administrative Weekly. Contents of the ERC-Adopted Version of Proposed Rule Chapter 62- 303, Florida Administrative Code Proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Identification of Impaired Surface Waters." It is divided into four parts. Part I: Overview Part I of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following "general" provisions: Proposed Rules 62-303.100, 62-303.150, and 62- 303.200, Florida Administrative Code. Part I: Proposed Rule 62-303.100, Florida Administrative Code Proposed Rule 62-303.100, Florida Administrative Code, is entitled, "Scope and Intent." It provides an overview of the proposed rule chapter and reads as follows: This chapter establishes a methodology to identify surface waters of the state that will be included on the state's planning list of waters that will be assessed pursuant to subsections 403.067(2) and (3), Florida Statutes (F.S.). It also establishes a methodology to identify impaired waters that will be included on the state's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads (TMDLs), pursuant to subsection 403.067(4) F.S., and which will be submitted to the United States Environmental Protection Agency (EPA) pursuant to paragraph 303(d)(1) of the Clean Water Act (CWA). Subsection 303(d) of the CWA and section 403.067, F.S., describe impaired waters as those not meeting applicable water quality standards, which is a broad term that includes designated uses, water quality criteria, the Florida antidegradation policy, and moderating provisions. However, as recognized when the water quality standards were adopted, many water bodies naturally do not meet one or more established water quality criteria at all times, even though they meet their designated use.[32] Data on exceedances of water quality criteria will provide critical information about the status of assessed waters, but it is the intent of this chapter to only list waters on the verified list that are impaired due to point source or nonpoint source pollutant discharges. It is not the intent of this chapter to include waters that do not meet water quality criteria solely due to natural conditions or physical alterations of the water body not related to pollutants. Similarly, it is not the intent of this chapter to include waters where designated uses are being met and where water quality criteria exceedances are limited to those parameters for which permitted mixing zones or other moderating provisions (such as site-specific alternative criteria) are in effect. Waters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants shall be noted in the state's water quality assessment prepared under subsection 305(b) of the CWA. This chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established. It is not the intent of this chapter to establish new water quality criteria or standards, or to determine the applicability of existing criteria under other provisions of Florida law. In cases where this chapter relies on numeric indicators of ambient water quality as part of the methodology for determining whether existing narrative criteria are being met, these numeric values are intended to be used only in the context of developing a planning list and identifying an impaired water pursuant to this chapter. As such, exceedances of these numeric values shall not, by themselves, constitute violations of Department rules that would warrant enforcement action. Nothing in this rule is intended to limit any actions by federal, state, or local agencies, affected persons, or citizens pursuant to other rules or regulations. Pursuant to section 403.067, F.S., impaired waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA. Specific Authority 403.061, 403.067, FS. Law Implemented 403.021(11). 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.100, Florida Administrative Code, refers to the narrowing and winnowing process (more fully described in subsequent portions of the proposed rule chapter) that will yield the Department's "updated list" of waters for which TMDLs will be calculated, which list will be submitted to the EPA in accordance with Section 303(d) of the Clean Water Act. (The Department last submitted such a list to the EPA in 1998. This list is referred to by the Department as its 1998 303(d) list.) The Department's intent not to include on its "updated list" of waters for which TMDLs will be calculated those "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants," as provided in Subsection (2) of proposed Rule 62- 303.100, Florida Administrative Code, is consistent with the view expressed in Section 403.067, Florida Statutes, that TMDLs are appropriate only where there is man-induced pollution involving the discharge (from either a point or nonpoint source) of identifiable pollutants. See, e.g., Section 403.067(1), Florida Statutes ("[T]he development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution"); Section 403.067(4), Florida Statutes ("If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard."); and Section 403.067(6)(a)2., Florida Statutes ("For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required."). While "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants" will not appear on the Department's "updated list" of waters for which TMDLs will be calculated, they will be included in the "water quality assessment prepared under subsection 305(b) of the CWA" (305(b) Report), which provides as follows: Each State shall prepare and submit to the Administrator by April 1, 1975, and shall bring up to date by April 1, 1976, and biennially thereafter, a report which shall include-- a description of the water quality of all navigable waters in such State during the preceding year, with appropriate supplemental descriptions as shall be required to take into account seasonal, tidal, and other variations, correlated with the quality of water required by the objective of this chapter (as identified by the Administrator pursuant to criteria published under section 1314(a) of this title) and the water quality described in subparagraph (B) of this paragraph; an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water, have been or will be achieved by the requirements of this chapter, together with recommendations as to additional action necessary to achieve such objectives and for what waters such additional action is necessary; an estimate of (i) the environmental impact, (ii) the economic and social costs necessary to achieve the objective of this chapter in such State, (iii) the economic and social benefits of such achievement, and (iv) an estimate of the date of such achievement; and a description of the nature and extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources, including an estimate of the costs of implementing such programs. The Administrator shall transmit such State reports, together with an analysis thereof, to Congress on or before October 1, 1975, and October 1, 1976, and biennially thereafter. The declaration made in Subsection (3) of proposed Rule 62-303.100, Florida Administrative Code, that "[t]his chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established" is similar to that made in Subsection (9) of Section 403.067, Florida Statutes, that "[t]he provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards." Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, together with proposed Rule 62-303.600, Florida Administrative Code (which will be discussed later), are designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." Section 403.061, Florida Statutes, which is cited as the "[s]pecific [a]uthority" for proposed Rule 62-303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter), authorizes the Department to, among other things, "[a]dopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of [Chapter 403, Florida Statutes]." See Section 403.061(7), Florida Statutes. Section 403.062, Florida Statutes, which is included among the statutory provisions cited in proposed Rule 62- 303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter) as the "[l]aw [i]mplemented," reads as follows: Code Pollution control; underground, surface, and coastal waters.-- The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them. Part I: Proposed Rule 62-303.150, Florida Administrative Proposed Rule 62-303.150, Florida Administrative Code, explains the "[r]elationship [b]etween [p]lanning and [v]erified [l]ists." It provides as follows: The Department shall follow the methodology in Section 62-303 300 to develop a planning list pursuant to subsection 403.067(2), F.S. As required by subsection 403.067(2), F.S., the planning list shall not be used in the administration or implementation of any regulatory program, and shall be submitted to EPA for informational purposes only. Waters on this planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach. During this assessment, the Department shall determine whether the water body is impaired and whether the impairment is due to pollutant discharges using the methodology in Part III. The resultant verified list of impaired waters, which is the list of waters for which TMDLs will be developed by the Department pursuant to subsection 403.067(4), will be adopted by Secretarial Order and will be subject to challenge under subsection [sic] 120.569 and 120.57 F.S. Once adopted, the list will be submitted to the EPA pursuant to paragraph 303(d)(1) of the CWA. Consistent with state and federal requirements, opportunities for public participation, including workshops, meetings, and periods to submit comments on draft lists, will be provided as part of the development of planning and verified lists. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The initial drafts of proposed Rule Chapter 62-303, Florida Administrative Code, provided for merely a single list of impaired waters needing TMDLs. It was only after the last TAC meeting (and before the first rule development workshop) that the concept of having two lists (a preliminary, "planning list" of potentially impaired waters requiring further assessment and a final, "verified list . . . of waters for which TMDLs will be developed by the Department") was incorporated into proposed Rule Chapter 62-303, Florida Administrative Code, by Department staff (although the idea of having a "potentially impaired subset" of impaired waters was discussed at TAC meetings). Such action was taken in response to concerns raised during the rule development process that the proposed rule chapter, as then drafted with its one-list methodology, "was too restrictive, that it would only get a small subset of waters on [the Departments 303(d)] list." To decrease, in a manner consistent with the provisions of Section 403.067, Florida Statutes, the chance that an impaired water needing a TMDL would be erroneously excluded, Department staff revised the proposed rule chapter to provide for a two-step listing process where potentially impaired waters would first be placed on a "planning list" based upon criteria generally less "restrictive" than the listing criteria contained in the previous drafts of the proposed rule chapter and then further tested (if necessary) and assessed to verify if, based upon criteria generally more rigorous than the "planning list" criteria, they should be included on a "verified list" of waters needing TMDLs (to be submitted to the EPA as the state's "updated" 303(d) list). Weighing against Department staff making it any easier for a water to be placed on the "verified list" was the significant regulatory consequence of such action. Erroneously listing a water as needing a TMDL would result in the unnecessary expenditure of considerable time, money, and effort. The more rigorous the listing criteria, the less likely it would be that a water would be listed erroneously and such unnecessary expenditures made. Subsequent to the ERC's adoption of proposed Rule Chapter 62-303, Florida Administrative Code, the National Research Council (NRC),33 through one of its committees,34 acting at the request of Congress to analyze the scientific basis of the nationwide TMDL program, issued a report entitled, "Assessing the TMDL Approach to Water Quality Management" (NRC Publication). In the NRC Publication, the committee endorses a "two-list process" like the one incorporated in proposed Rule Chapter 62-303, Florida Administrative Code, explaining as follows: Determining whether there should be some minimum threshold of data available when evaluating waterbodies for attainment of water quality standards is an issue of great concern to states. On the one hand, many call for using only the "best science" in making listing decisions, while others fear that many impaired waters will not be identified in the wait for additional data. The existence of a preliminary list addresses these concerns by focusing attention on waters suspected to be impaired without imposing on stakeholders and the agencies the consequences of TMDL development, until additional information is developed and evaluated. According to Subsection (1) of proposed Rule 62- 303.150, Florida Administrative Code, "[w]aters on th[e] planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach." The following are the major concepts incorporated in the "Department's watershed management approach": The basin management unit is the geographic or spatial unit used to divide the state into smaller areas for assessment- -generally groups of Hydrologic Unit Codes (HUCs)[35] . . . . The basin management cycle is the five- year cycle within which watersheds are assessed and management plans developed and implemented. The Management Action Plan (MAP), a document developed over the five-year cycle and subsequently updated every five years, describes the watershed's problems and how participants plan to address them. Forums and communications networks allow participants to collect and evaluate as much information as possible on their individual basins and to reach a consensus on strategic monitoring, priority water bodies, and management strategies. The statewide basin management schedule establishes the proposed sequence for assessing individual watersheds. . . . Each individual basin cycle under the "Department's watershed management approach" takes five years to complete, and is "repeated every five years." It is, in other words, an iterative process. The five phases of the cycle are as follows: Phase I: Preliminary Basin Assessment; Phase II: Strategic Monitoring; Phase III: Data Analysis and TMDL Development; Phase IV: Management Action Plan; and Phase V: Implementation. The first two phases of the cycle are discussed in greater detail in proposed Rule 62-303.700, Florida Administrative Code. Part I: Proposed Rule 62-303.200, Florida Administrative Code Proposed Rule 62-303.200, Florida Administrative Code, contains definitions of various terms and phrases used in proposed Rule Chapter 62-303, Florida Administrative Code. It provides as follows: As used in this chapter: "BioRecon" shall mean a bioassessment conducted following the procedures outlined in "Protocols for Conducting a Biological Reconnaissance in Florida Streams," Florida Department of Environmental Protection, March 13. 1995, which is incorporated by reference. "Clean techniques" shall mean those applicable field sampling procedures and analytical methods referenced in "Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels, July 1996, USEPA. Office of Water, Engineering and Analysis Division. Washington, D.C.," which is incorporated by reference. "Department" or "DEP" shall mean the Florida Department of Environmental Protection. "Designated use" shall mean the present and future most beneficial use of a body of water as designated by the Environmental Regulation Commission by means of the classification system contained in Chapter 62-302, F.A.C. "Estuary" shall mean predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, and lagoons. "Impaired water" shall mean a water body or water body segment that does not meet its applicable water quality standards as set forth in Chapters 62-302 and 62-4 F.A.C., as determined by the methodology in Part III of this chapter, due in whole or in part to discharges of pollutants from point or nonpoint sources. "Lake Condition Index" shall mean the benthic macroinvertebrate component of a bioassessment conducted following the procedures outlined in "Development of Lake Condition Indexes (LCI) for Florida," Florida Department of Environmental Protection, July, 2000, which is incorporated by reference. "Natural background" shall mean the condition of waters in the absence of man- induced alterations based on the best scientific information available to the Department. The establishment of natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data. "Nuisance species" shall mean species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters. "Physical alterations" shall mean human-induced changes to the physical structure of the water body. "Planning list" shall mean the list of surface waters or segments for which assessments will be conducted to evaluate whether the water is impaired and a TMDL is needed, as provided in subsection 403.067(2), F.S. "Pollutant" shall be as defined in subsection 502(6) of the CWA. Characteristics of a discharge, including dissolved oxygen, pH, or temperature, shall also be defined as pollutants if they result or may result in the potentially harmful alteration of downstream waters. "Pollution" shall be as defined in subsection 502(19) of the CWA and subsection 403.031(2), F.S. "Predominantly marine waters" shall mean surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 milligrams per liter. "Secretary" shall mean the Secretary of the Florida Department of Environmental Protection. "Spill" shall mean a short-term, unpermitted discharge to surface waters, not to include sanitary sewer overflows or chronic discharges from leaking wastewater collection systems. "Stream" shall mean a free-flowing, predominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies. "Stream Condition Index" shall mean a bioassessment conducted following the procedures outlined in "Development of the Stream Condition Index (SCI) for Florida," Florida Department of Environmental Protection, May, 1996, which is incorporated by reference. "Surface water" means those waters of the State upon the surface of the earth to their landward extent, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be classified as surface water when it exits from the spring onto the earth's surface. "Total maximum daily load" (TMDL) for an impaired water body or water body segment shall mean the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. A TMDL shall include either an implicit or explicit margin of safety and a consideration of seasonal variations. "Verified list" shall mean the list of impaired water bodies or segments for which TMDLs will be calculated, as provided in subsection 403.067(4), F.S., and which will be submitted to EPA pursuant to paragraph 303(d)(1) of the CWA. "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports the present and future most beneficial uses. "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating provisions (mixing zones, site-specific alternative criteria, and exemptions) contained in Chapter 62-302, F.A.C., and in Chapter 62-4, F.A.C., adopted pursuant to Chapter 403, F.S. "Water segment" shall mean a portion of a water body that the Department will assess and evaluate for purposes of determining whether a TMDL will be required. Water segments previously evaluated as part of the Department's 1998 305(b) Report are depicted in the map titled "Water Segments of Florida," which is incorporated by reference. "Waters" shall be those surface waters described in Section 403.031(13) Florida Statutes. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New There are some high salinity waters of the state that, although they do not have riverine input, nonetheless meet the definition of "estuary" found in Subsection (5) of proposed Rule 62-303.200, Florida Administrative Code, because they are "bays" or "lagoons," as those terms are used in the second sentence of Subsection (5). Rule Chapter 62-4, Florida Administrative Code, which is referenced in Subsections (6) and (23) of proposed Rule 62- 303.200, Florida Administrative Code, addresses the subject of "[p]ermits." According to Subsection (1) of Rule 62-4.210, Florida Administrative Code, "[n]o person shall construct any installation or facility which will reasonably be expected to be a source of . . . water pollution without first applying for and receiving a construction permit from the Department unless exempted by statute or Department rule." Subsection (1) of Rule 62-4.240, Florida Administrative Code, requires that "[a]ny person intending to discharge wastes into the waters of the State shall make application to the Department for an operation permit." An "operation permit" must: Specify the manner, nature, volume and frequency of the discharge permitted; Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the Department; and Contain such additional conditions, requirements and restrictions as the Department deems necessary to preserve and protect the quality of the receiving waters and to ensure proper operation of the pollution control facilities. Rule 62-4.240(3), Florida Administrative Code. "An operation permit [will] be issued only if all Department requirements are met, including the provisions of Rules 62-302.300 and 62-302.700 and Rule 62-4.242, F.A.C." Rule 62-4.240(2), Florida Administrative Code. Subsection (1) of Rule 62-4.242, Florida Administrative Code, describes "[a]ntidegradation [p]ermitting [r]equirements." It provides as follows: Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300 and, if applicable, Rule 62- 302.700. In determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the department shall consider and balance the following factors: Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in Rules 62- 302.100, 62-302.300, and, if applicable, 62- 302.700); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. In addition to subsection (b) above, in order for a proposed discharge (other than stormwater discharges meeting the requirements of Chapter 62-25, F.A.C.), to be necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the permit applicant must demonstrate that neither of the following is economically and technologically reasonable: Reuse of domestic reclaimed water. Use of other discharge locations, the use of land application, or reuse that would minimize or eliminate the need to lower water quality. Subsections (2) and (3) of Rule 62-4.242, Florida Administrative Code, prescribe "[s]tandards [a]pplying to Outstanding Florida Waters" and "[s]tandards [a]pplying to Outstanding National Resource Waters," respectively. Subsection (4) of Rule 62-4.242, Florida Administrative Code, "prescribe[s] the means by which the Department, upon the petition of a license applicant, will equitably allocate among such persons [directly discharging significant amounts of pollutants into waters which fail to meet one or more of the water quality criteria applicable to those waters] the relative levels of abatement responsibility of each for abatement of those pollutants." Subsection (1) of Rule 62-4.244, Florida Administrative Code, provides that the Department, upon application, may "allow the water quality adjacent to a point of discharge to be degraded to the extent that only the minimum conditions described in subsection 62-302.500(1), Florida Administrative Code, apply within a limited, defined region known as the mixing zone"; provided, that the "mixing zone" does not "significantly impair any of the designated uses of the receiving body of water." Subsection 502(6) of the Clean Water Act (33 U.S.C. Section 1362(6)), which is referenced in Subsection (12) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) "sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. Subsection 502(19) of the Clean Water Act (33 U.S.C. Section 1362(19)), which is referenced in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. In Chapter 403, Florida Statutes, the definition of "pollution" is found, not in Subsection (2) of Section 403.031, Florida Statutes, as indicated in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, but in Subsection (7) of the statute. The "water segments" referenced in the second sentence of Subsection (24) of proposed Rule 62-303.200, Florida Administrative Code, are, for the most part, either approximately five linear miles each (in the case of streams) or approximately five square miles each (in the case of waters not in a defined channel). Subsection (13) of Section 403.031, Florida Statutes, which is referenced in Subsection (25) of proposed Rule 62- 303.200, Florida Administrative Code, provides that "'[w]aters' include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." The other terms and phrases defined in proposed Rule 62-303.200, Florida Administrative Code, will be discussed, where appropriate, later in this Final Order. Part II: Overview Part II of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "planning list" of potentially impaired waters and how the list will be compiled: Proposed Rules 62-303.300, 62- 303.320, 62-303.330, 62-303.340, 62-303.350, 62-303.351, 62- 303.352, 62-303.353, 62-303.360, 62-303.370, and 62-303.380, Florida Administrative Code. Code Part II: Proposed Rule 62-303.300, Florida Administrative Proposed Rule 62-303.300, Florida Administrative Code, is entitled, "Methodology to Develop the Planning List." It provides as follows: This part establishes a methodology for developing a planning list of waters to be assessed pursuant to subsections 403.067(2) and (3), F.S. A waterbody shall be placed on the planning list if it fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part. It should be noted that water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62- 303.310-353, or to protect human health, which is addressed in sections 62-303.360- 380. Waters on the list of water segments submitted to EPA in 1998 that do not meet the data sufficiency requirements for the planning list shall nevertheless be included in the state's initial planning list developed pursuant to this rule. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second sentence of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be placed on the "planning list." At the April 26, 2001, rule adoption hearing, the ERC initially voted to delete from proposed Rule Chapter 62-303, Florida Administrative Code, the language in Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code. The ERC, however, later in the hearing, reversed itself after learning of a letter, dated April 26, 2001, that was sent to the Department by Beverly H. Bannister, the Director of the EPA's Region 4 Water Management Division. Ms. Bannister's letter read, in pertinent part, as follows: EPA expressed significant concern that, under earlier versions of the IWR [Impaired Waters Rule], waters currently identified as impaired on the State's 1998 Section 303(d) list which were determined to have "insufficient data" would be removed from the State's Section 303(d) list and also not appear on the State's planning list with its associated requirement for additional data collection. As a result of EPA concerns, the latest version of the IWR provides that waters on the current 1998 Section 303(d) list that do not meet the data sufficiency requirement of the planning list will be placed on the IWR's planning list, and sufficient data will be collected to verify the water's impairment status. In further discussions with the State regarding the EPA's concern about the 2002 Section 303(d) list, the State has committed to review all waters on the 1998 303(d) list and include all waters that meet the verification requirements of the IWR on the State's 2002 list. In addition, the State will also review all available data from 1989 to 1998 for development of a statewide planning list and include on the 2002 list any additional waters that meet the verification requirements, based on data from 1994 to 1998. (The State is unable to do a complete assessment for data gathered in 1999, 2000, and 2001 because of a national problem in the upload of data into the new Federal STORET data system.) Those waters on the 1998 303(d) list that do not meet the verification requirements will be de-listed for "good cause" and placed on the State's planning list as insufficient to verify the water's use-support status according to the methodology in the IWR. The "good cause" justification for de- listing the waters is based on several factors: 1) the requirements of the State Rule that these waters be moved to a planning list for additional data collection and assessment that will occur within a reasonable period of time; 2) a determination will be made that the waters are either impaired (and placed on the 303(d) list) or attaining its uses; and 3) the State's commitment to EPA that waters on the planning list that appeared on the State's 1998 Section 303(d) list will be monitored and assessed during the first or second rotation through the State's Watershed Management Process consistent with the schedule for TMDL development in EPA's consent decree with Earthjustice. High priority water/pollutant combinations will be monitored and assessed during the first rotation of the watershed cycle (i.e., within 5 years of 2001), and low priority water/pollutant combinations will be monitored and assessed during the second rotation of the watershed cycle (i.e., within 10 years of 2001). After this additional data collection and assessment, the water will be added to the appropriate future 303(d) list if the water is verified to be impaired, or the water will be "de- listed" based on the "good cause" justification that the water is attaining its uses. Waters on the 1998 303(d) list where sufficient data exists to demonstrate the water is meeting the IWR's planning list criteria for use support will be de-listed in the 2002 303(d) list submittal. It is EPA's view that this process will achieve the intent of the CWA and will provide sufficient documentation of the waters still requiring TMDLs by FDEP. Together with the data collection requirements found in Part III of the proposed rule chapter, Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, ensures that all waters on the Department's 1998 303(d) list (which list is referenced in Subsection (2)(c) of Section 403.067, Florida Statutes) will be assessed by the Department and that they will not be eliminated from consideration for TMDL development simply because there is not enough data to determine whether a TMDL is needed. Part II: Proposed Rule 62-303.310, Florida Administrative Code Proposed Rule 62-303.310, Florida Administrative Code, is entitled, "Evaluation of Aquatic Life Use Support." It provides as follows: A Class I, II, or III water shall be placed on the planning list for assessment of aquatic life use support (propagation and maintenance of a healthy, well-balanced population of fish and wildlife) if, based on sufficient quality and quantity of data, it: exceeds applicable aquatic life-based water quality criteria as outlined in section 62-303.320, does not meet biological assessment thresholds for its water body type as outlined in section 62-303.330, is acutely or chronically toxic as outlined in section 62-303.340, or exceeds nutrient thresholds as outlined in section 62-303.350. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New This proposed rule, like Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability." A water need meet only one of the four listed benchmarks to be placed on the "planning list for assessment of aquatic life use support." Each of these benchmarks is discussed at greater length in one or more of the subsequent sections of Part II of the proposed rule chapter. Part II: Proposed Rule 62-303.320, Florida Administrative Code Proposed Rule 62-303.320, Florida Administrative Code, addresses the "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" benchmark described in Subsection (1) of proposed Rule 62-303.310, Florida Administrative Code. It cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw[s] [i]mplemented" by the proposed rule. Proposed Rule 62-303.320, Florida Administrative Code, establishes a statistical method (involving "data modeling," as that term is used in Subsection (3)(b)4. of Section 403.067, Florida Statutes) for use in determining whether a water should be placed on the "planning list." It is not feasible, due to limited resources, to examine a water body at every point to determine its true overall condition. Rather, samples must be taken over time and inferences drawn from the sampling results, taking into consideration the "variability [of water quality] occurring in nature" and "that some deviations from water quality standards occur as the result of natural background conditions" (as the Legislature observed in Subsection (11) of Section 403.021, Florida Statutes). The process is, necessarily, characterized by a lack of certainty and the possibility of error. As stated in the NRC Publication: Given the finite monitoring resources, it is obvious that the number of sampling stations included in the state program will ultimately limit the number of water quality measurements that can be made at each station. Thus, in addition to the problem of defining state waters and designing the monitoring network to assess those waters, fundamental statistical issues arise concerning how to interpret limited data from individual sampling stations. Statistical inference procedures must be used on the sample data to test hypotheses about whether the actual condition in the water body meets the criterion. Thus, water quality assessment is a hypothesis-testing procedure. A statistical analysis of sample data for determining whether a water body is meeting a criterion requires the definition of a null hypothesis; for listing a water body, the null hypothesis would be that the water is not impaired. The analysis is prone to the possibility of both Type I error (a false conclusion that an unimpaired water is impaired) and Type II error (a false conclusion that an impaired water is not impaired). . . . The TAC and Department staff had extensive discussions regarding the issue of what particular type of "statistical analysis" to incorporate in the proposed rule chapter before deciding on a binomial distribution analysis. The binomial model is a time-tested nonparametric statistical method that is used where there are two possible outcomes, such as, in the case of water quality sampling, whether a water quality criterion has been exceeded or not. A parametric statistical analysis, based upon an assumption of normal distribution, which, unlike the binomial model incorporated in the proposed rule chapter, takes into account the magnitude of exceedances,36 was considered, but reasonably rejected by the TAC and Department staff because it was anticipated that, in many instances, the number of samples available to the Department would not be adequate to make the underlying distributional assumption with the requisite degree of certainty. The binomial model, which takes sample size into consideration, offers greater certainty with a limited number of samples than does the parametric statistical analysis that the TAC and Department staff rejected. Nonetheless, even in the case of the binomial model, the more samples there are, the more precise the analysis will be. Both Type I errors (false positives) and Type II errors (false negatives) decrease as sample size increases. To ensure greater analytic precision, proposed Rule 62-303.320, Florida Administrative Code, and its counterpart in Part III of the proposed rule chapter (proposed Rule 62-303.420, Florida Administrative Code) contain reasonable minimum sample size requirements (ten, with limited exceptions, for placement on the "planning list," and 20 for placement on the "verified list," which is ten more than the TAC recommended37). The NRC Publication contains the following discussion regarding the appropriateness of employing a binomial model to identify impaired waters needing TMDLs: The committee does not recommend any particular statistical method for analyzing monitoring data and for listing waters. However, one possibility is that the binomial hypothesis test could be required as a minimum and practical first step (Smith et al., 2001). The binomial method is not a significant departure from the current approach--called the raw score approach--in which the listing process treats all sample observations as binary values that either exceed the criterion or do not, and the binomial method has some important advantages. For example, one limitation of the raw score approach is that it does not account for the total number of measurements made. Clearly, 1 out of 6 measurements above the criterion is a weaker case for impairment than is 6 out of 36. The binomial hypothesis test allows one to take sample size into account. By using a statistical procedure, sample sizes can be selected and one can explicitly control and make trade-offs between error rates. (see Smith et al., 2001, and Gibbons, in press, for guidance in managing the risk of false positive and false negative errors). Several states, including Florida and Virginia, are considering or are already using the binomial hypothesis test to list impaired waters. Detailed examples of how to apply the test are beyond the scope of this document, but can be found in Smith et al. (2001) and the proposed Chapter 62-303 of the Florida Administrative Code. In a footnote, the committee added the following: The choice of Type I error rate is based on the assessor's willingness to falsely categorize a water body. It also is the case that, for any sample size, the Type II error rate decreases as the acceptable Type I error rate increases. The willingness to make either kind of mistake will depend on the consequences of the resulting action (more monitoring, costs to do a TMDL plan, costs to implement controls, possible health risk) and who bears the cost (public budget, private parties, etc.). The magnitude and burden of a Type I versus Type II error depend on the statement of the null hypothesis and on the sample size. When choosing a Type I error rate, the assessor may want to explicitly consider these determinants of error rates. The TAC recommended a Type I error rate of five percent (or, stated differently, a confidence level of 95 percent) be used in making listing decisions.38 Department staff responsible for drafting the proposed rule chapter, believing that, as a matter of policy, a 95 percent confidence level was too high and that a higher Type I error rate should be tolerated in order to reduce Type II error, reasonably settled on an 80 percent confidence level for placement on the "planning list" and a 90 percent confidence level for placement on the "verified list." Scientific studies generally do not employ a confidence level below 80 percent. A 50 percent confidence level is "comparable to flipping a coin." Use of the binomial model to determine impairment for purposes of TMDL development (based upon exceedances of water quality criteria) further requires the selection of a fixed "exceedance frequency" representing an acceptable rate of violation beneath which a water segment will not be considered impaired. A permissible "exceedance frequency" accounts for the natural variability of water quality and the uncertainty that the measurements taken are representative of the overall condition of the water segment sampled. The Department, pursuant to EPA guidance, has historically used a ten percent "exceedance frequency" for purposes of identifying, in its 305(b) Report, waters not meeting their designated uses. The TAC and Department staff agreed that a ten percent "exceedance frequency" should likewise be incorporated in the proposed rule chapter. The NRC Publication contains the following discussion regarding "exceedance frequencies" in general and a ten percent "exceedance frequency" in particular: Whether the binomial or the raw score approach is used, there must be a decision on an acceptable frequency of violation for the numeric criterion, which can range from 0 percent of the time to some positive number. Under the current EPA approach, 10 percent of the sample measurements of a given pollutant made at a station may exceed the applicable criterion without having to list the surrounding waterbody. The choice of 10 percent is meant to allow for uncertainty in the decision process. Unfortunately, simply setting an upper bound on the percentage of measurements at a station that may violate a standard provides insufficient information to properly deal with the uncertainty concerning impairment. The choice of acceptable frequency of violation is also supposed to be related to whether the designated use will be compromised, which is clearly dependent on the pollutant and on waterbody characteristics such as flow rate. A determination of 10 percent cannot be expected to apply to all water quality situations. In fact, it is inconsistent with federal water quality criteria for toxics that specify allowable violation frequencies of either one day in three years, four consecutive days in three years, or 30 consecutive days in three years (which are all less than 10 percent). Embedded in the EPA raw score approach is an implication that 10 percent is an acceptable violation rate, which it may not be in certain circumstances. Nonetheless, as the chairman of the committee that produced the NRC Publication, Dr. Kenneth Reckhow, testified at the final hearing in these consolidated cases when asked whether he "believe[d] that a determination of ten percent exceedance [frequency] cannot be expected to apply to all water quality situations": the "notion of one size fits all is . . . a pragmatic approach to the limits of what can be done in a regulatory environment." Dr. Reckhow, during his testimony, declined to "endorse[] as a scientist" the use of an "exceedance frequency" of ten percent (as opposed to some other "particular level"),39 but he stated his opinion (which the undersigned accepts) that "it is important to select a level, and from a science perspective it would be useful to see states employ a level like that or levels roughly around that point and see how effectively they have worked in terms of achieving the goal of meeting designated uses." Subsection (1) of proposed Rule 62-303.320, Florida Administrative Code, sets forth in tabular form, by sample size (from ten samples to 500 samples), the minimum number of exceedances needed for placement on the "planning list." It provides as follows: Water segments shall be placed on the planning list if, using objective and credible data, as defined by the requirements specified in this section, the number of exceedances of an applicable water quality criterion due to pollutant discharges is greater than or equal to the number listed in Table 1 for the given sample size. This table provides the number of exceedances that indicate a minimum of 10% exceedance frequency with a minimum of an 80% confidence level using a binomial distribution. Table 1: Planning List Minimum number of measured exceedances needed to put a water on the Planning list with at least 80% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this # of exceedances From To 10 15 3 16 23 4 24 31 5 32 39 6 40 47 7 48 56 8 57 65 9 66 73 10 74 82 11 83 91 12 92 100 13 101 109 14 110 118 15 119 126 16 127 136 17 137 145 18 146 154 19 155 163 20 164 172 21 173 181 22 182 190 23 191 199 24 200 208 25 209 218 26 219 227 27 228 236 28 237 245 29 246 255 30 256 264 31 265 273 32 274 282 33 283 292 34 293 301 35 302 310 36 311 320 37 321 329 38 330 338 39 339 348 40 349 357 41 358 367 42 368 376 43 377 385 44 386 395 45 396 404 46 405 414 47 415 423 48 424 432 49 433 442 50 443 451 51 452 461 52 462 470 53 471 480 54 481 489 55 490 499 56 500 500 57 The "calculations [reflected in Table 1] are correct." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The U.S. Environmental Protection Agency's Storage and Retrieval (STORET) database shall be the primary source of data used for determining water quality criteria exceedances. As required by rule 62- 40.540(3), F.A.C., the Department, other state agencies, the Water Management Districts, and local governments collecting surface water quality data in Florida shall enter the data into STORET within one year of collection. Other sampling entities that want to ensure their data will be considered for evaluation should ensure their data are entered into STORET. The Department shall consider data submitted to the Department from other sources and databases if the data meet the sufficiency and data quality requirements of this section. STORET is a "centralized data repository" maintained by the EPA. It contains publicly available water quality data, contributed by state agencies and others, on waters throughout the nation. Subsection (3) of Rule 62-40.540, Florida Administrative Code, which is referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides that "[t]he U.S. Environmental Protection Agency water quality data base (STORET) shall be the central repository of the state's water quality data" and that"[a]ll appropriate water quality data collected by the Department, Districts, local governments, and state agencies shall be placed in the STORET system within one year of collection." At the end of 1998, STORET underwent a major overhaul. It is "now more accommodating of meta data," which is auxiliary information about the underlying data. As Ms. Bannister indicated in her April 26, 2001, letter to the Department, there was a "problem in the upload of data into the new Federal STORET data system." This new version of STORET is still not "very user-friendly." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, however, while it strongly encourages the entry of data into STORET, does not require that data be entered into STORET to be considered by the Department in determining whether there have been the requisite number of exceedances for placement on the "planning list," as the last sentence of Subsection (2) makes abundantly clear. Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, imposes reasonable age-related restrictions on what data can be used to determine whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." It provides as follows: When determining water quality criteria exceedances, data older than ten years shall not be used to develop planning lists. Further, more recent data shall take precedence over older data if: the newer data indicate a change in water quality and this change is related to changes in pollutant loading to the watershed or improved pollution control mechanisms in the watershed contributing to the assessed area, or the Department determines that the older data do not meet the data quality requirements of this section or are no longer representative of the water quality of the segment. The Department shall note for the record that the older data were excluded and provide details about why the older data were excluded. These provisions are reasonably designed to increase the likelihood that the decision to place a water on the "planning list" will be based upon data representative of the water's current conditions. While the data that will be excluded from consideration by Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, may be objective and credible data, such data merely reflects what the conditions of the water in question were at the time the samples yielding the data were collected. Declining to rely on this data because it is too old to be a reliable indicator of current conditions is not unreasonable. The TAC recommended that listing decisions be based on data no older than five years.40 Department staff, however, believed that, for purposes of compiling a "planning list," a ten-year cut-off was more appropriate. The binomial model is predicated on independent sampling. Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, addresses "in a very straightforward, simple, but reasonable way, the notion of spatial independence and temporal independence." It provides as follows: To be assessed for water quality criteria exceedances using Table 1, a water segment shall have a minimum of ten, temporally independent samples for the ten year period. To be treated as an independent sample, samples from a given station shall be at least one week apart. Samples collected at the same location less than seven days apart shall be considered as one sample, with the median value used to represent the sampling period. However, if any of the individual values exceed acutely toxic levels, then the worst case value shall be used to represent the sampling period. The worst case value is the minimum value for dissolved oxygen, both the minimum and maximum for pH, or the maximum value for other parameters. However, when data are available from diel or depth profile studies, the lower tenth percentile value shall be used to represent worst case conditions. For the purposes of this chapter, samples collected within 200 meters of each other will be considered the same station or location, unless there is a tributary, an outfall, or significant change in the hydrography of the water. Data from different stations within a water segment shall be treated as separate samples even if collected at the same time. However, there shall be at least five independent sampling events during the ten year assessment period, with at least one sampling event conducted in three of the four seasons of the calendar year. For the purposes of this chapter, the four seasons shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. States may set their "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at either acutely toxic levels or chronically toxic levels. The EPA, based on data from toxicity tests, has determined what these acutely toxic levels and chronically toxic levels should be, and it has provided its recommendations to the states for their use in setting appropriate water quality criteria. With one exception (involving silver in predominantly marine waters), the Department, in Rule Chapter 62-302, Florida Administrative Code, has opted to establish "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at chronically toxic levels, rather than at acutely toxic levels, because chronic-toxicity-based criteria are, in the Department's view, "more protective." Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, will require the Department, under certain circumstances, to determine whether acutely toxic levels of parameters listed in Rule Chapter 62-302, Florida Administrative Code (other than silver in predominantly marine waters) have been exceeded. Neither the Department's existing rules, nor the proposed rule chapter, specifies what these levels are. In making this determination, the Department intends to use the acutely toxic levels recommended by the EPA. The last two sentences of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, address "seasonal . . . variations," as required by Subsection (3)(b)1. of Section 403.067, Florida Statutes, and do so in a manner consistent with the TAC's recommendation on the matter. As Subsection (3)(b)1. of Section 403.067, Florida Statutes, suggests, water quality may vary from season to season. Such variations tend to be more pronounced in the northern part of the state than in South Florida in the case of certain parameters, such as dissolved oxygen, which is usually "at its critical condition" during the warmer months. While certain types of exceedances may be more likely to occur during a particular season or seasons of the year, exceedances may occur at any time during the year. Department staff, as recommended by the TAC, included the last two sentences in Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, in a reasonable effort to avoid a situation where a listing decision would be based upon skewed data (provided by persons "with an agenda") reflecting only isolated instances of worst or best case conditions, as opposed to "data . . . spread throughout the year as much as possible." Data from each of the four seasons of the calendar year were not required "because then some data sets might be excluded just because they missed a quarterly sample," an outcome the TAC and Department staff considered to be undesirable because they "wanted to be all-inclusive and . . . capture all waters that in fact might even potentially be impaired" on the "planning list." Notwithstanding the "three out of four seasons" data sufficiency requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, because the proposed rule establishes an "exceedance frequency" threshold of ten percent, a water may qualify for placement on the "planning list" under the proposed rule even though all of the exceedances evidenced by the data in the Department's possession (covering at least three of the four seasons of the year) occurred in the one season when conditions are typically at their worst for the water. (If there were other exceedances, they would not be excluded from consideration under the proposed rule simply because they occurred during a time of year when exceedances are atypical.) The "three out of four seasons" requirement does not completely protect against persons "with an agenda" obtaining the result they want by providing the Department skewed data, but, as Dr. Reckhow testified at the final hearing, it would be difficult, if not impossible, for the Department to devise a rule which provides for Department consideration of data submitted by members of the public and, at the same time, completely "prevent[s] someone who is clever [enough] from contriving the analysis." As Dr. Reckhow pointed out, to counteract the data submissions of such a person, those who believe that the data is not truly representative of the overall condition of the water can "collect their own data and make the[ir] case" to the Department. Subsection (5) of proposed Rule 62-303.320, Florida Administrative Code, which reads as follows, provides two exceptions to the data sufficiency requirements of Subsection of the proposed rule: Notwithstanding the requirements of paragraph (4), water segments shall be included on the planning list if: there are less than ten samples for the segment, but there are three or more temporally independent exceedances of an applicable water quality criterion, or there are more than one exceedance of an acute toxicity-based water quality criterion in any three year period. The "three or more exceedances" exception (found in Subsection (5)(a) of proposed Rule 62-303.320, Florida Administrative Code) to the proposed rule's minimum sample size requirement of ten was not something that the "TAC ever voted on." It was included in the proposed rule by Department staff at the request of Petitioners. As noted above, the only "acute toxicity-based water quality criterion" in Rule Chapter 62-302, Florida Administrative Code, is the criterion for silver in predominantly marine waters. Accordingly, Subsection (5)(b) of proposed Rule 62-330.320, Florida Administrative Code, applies only where that criterion has been exceeded (more than once in a three year period). Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, provides that certain data (described therein) will be excluded from consideration by the Department in determining whether a water should be placed on the "planning list" pursuant to the proposed rule. It reads as follows: Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors shall be excluded from the assessment. Outliers identified through statistical procedures shall be evaluated to determine whether they represent valid measures of water quality. If the Department determines that they are not valid, they shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. The exclusion of the data described in Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, is entirely appropriate. Indeed, it would be unreasonable for the Department to consider such data. Earlier versions of Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, automatically excluded outliers from consideration. The ERC-adopted version, however, provides that outliers will first be identified41 and then examined and, only if they are determined by the Department, using its "best professional judgment," not to be "valid measures of water quality," will they be excluded from consideration. (Values, although extreme, may nonetheless "represent valid measures of water quality."). Subsection (7) of proposed Rule 62-303.320, Florida Administrative Code, which provides as follows, addresses "[q]uality assurance and [q]uality control protocols," as those terms are used in Subsection (3)(b)3. of Section 403.067, Florida Statutes: The Department shall consider all readily available water quality data. However, to be used to determine water quality exceedances, data shall be collected and analyzed in accordance with Chapter 62-160, F.A.C., and for data collected after one year from the effective date of this rule, the sampling agency must provide to the Department, either directly or through entry into STORET, all of the data quality assessment elements listed in Table 2 of the Department's Guidance Document "Data Quality Assessment Elements for Identification of Impaired Surface Waters" (DEP EAS 01-01, April 2001), which is incorporated by reference. Rule Chapter 62-160, Florida Administrative Code, which is referenced in Subsection (7)(a) of proposed Rule 62- 303.320, Florida Administrative Code, contains "[q]uality assurance requirements" that, with certain limited exceptions, "apply to all programs, projects, studies, or other activities which are required by the Department, and which involve the measurement, use, or submission of environmental data or reports to the Department." Rule 62-160.110, Florida Administrative Code. Adherence to quality assurance requirements such as those in Rule Chapter 62-160, Florida Administrative Code, is essential to obtaining data that is objective and credible. Compliance with these requirements makes it less likely that sampling results will be inaccurate. DEP EAS 01-01, April 2001, which is incorporated by reference in Subsection (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The Department relies on environmental data from a variety of sources to carry out its mission. Those data must satisfy the needs for which they are collected, comply with applicable standards, specifications and statutory requirements, and reflect a consideration of cost and economics. Careful project planning and routine project and data reviews, are essential to ensure that the data collected are relevant to the decisions being made. Many aspects of a project affect data quality. Sampling design, selection of parameters, sampling technique, analytical methodologies and data management activities are a few such aspects, whether the data are being collected for a compliance program, or for research activities. The level of quality of each of those elements will affect the final management decisions that are based on a project's outcome. Data quality assessment is one activity that is instrumental in ensuring that data collected are relevant and appropriate for the decisions being made. Depending on the needs of the project, the intended use of the final data and the degree of confidence required in the quality of the results, data quality assessment can be conducted at many levels. For the purposes of identification of impaired surface waters, the level of data quality assessment to be conducted (Table 1) requires providing the appropriate data elements (Table 2). If the data and applicable data elements are in an electronic format, data quality assessments can be performed automatically on large volumes of data using software tools, without significant impact to staffing. Department programs can realize significant improvement in environmental protection without additional process using these types of review routinely. Table 1: Recommended Quality Assessment Checks Quality Test Review to determine if analyses were conducted within holding times Review for qualifiers indicative of problems Screen comments for keywords indicative of problems Review laboratory certification status for particular analyte at the time analysis was performed Review data to determine if parts are significantly greater than the whole (e.g., ortho-P>total phosphorous, NH3>TKN, dissolved metal>total metal) Screen data for realistic ranges (e.g., is pH<14?) Review detection limits and quantification limits against Department criteria and program action levels to ensure adequate sensitivity Review for blank contamination Table 2: Data Elements Related to Quality Assessment ID Element Description Sample ID Unique Field Sample Identifier Parameter Name Name of parameter measured Analytical Result Result for the analytical measurement 4. Result Units Units in which measurement is reported DEP Qualifiers Qualifier code describing specific QA conditions as reported by the data provider Result Comments Free-form text where data provider relates information they consider relevant to the result Date (Time) of Sample Collection Date (Time) of Sample Preparations Date (Time) of Sample Analysis Analytical Method Method number used for sample analysis Prep Method Method number used for sample preparation prior to analysis Sample Matrix Was the sample a surface water or groundwater sample, a fresh- water or saltwater sample DOH Certificate Certificate number Number/ issued by the Laboratory ID Department of Health's lab certification program Preservatives Description of Added preservatives added to the sample after collection MDL Method detection limit for a particular result PQL Practical quantification limit for a particular result Sample Type Field identifying sample nature (e.g., environmental sample, trip blank, field blank, matrix spike, etc. Batch ID Unambiguous reference linking samples prepped or analyzed together (e.g., trip preparation, analysis Ids) 19 Field, Lab Blank Results Results for field/laboratory blank analysis required by the methods 20 CAS Number CAS registry number of the parameter measured Having the auxiliary information listed in Table 2 of DEP EAS 01-01 will help the Department evaluate the data that it receives from outside sources to determine whether the data are usable (for purposes of implementing the provisions of the proposed rule chapter). Subsection (8) of proposed Rule 62-303.320, Florida Administrative Code, also addresses "[q]uality assurance and [q]uality control protocols." It reads as follows: To be used to determine exceedances of metals criteria, surface water data for mercury shall be collected and analyzed using clean sampling and analytical techniques, and the corresponding hardness value shall be required to determine exceedances of freshwater metals criteria that are hardness dependent, and if the ambient hardness value is less than 25 mg/L as CaCO3, then a hardness value of 25 will be used to calculate the criteria. If data are not used due to sampling or analytical techniques or because hardness data were not available, the Department shall note for the record that data were excluded and explain why they were excluded. The "clean sampling and analytical techniques" referenced in Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, are, as noted above, defined in Subsection (2) of proposed Rule 62-303.200, Florida Administrative Code, as "those applicable field sampling procedures and analytical methods" permitted by the EPA's "Method 1669." "Method 1669" is a "performance-based," "guidance document" that, as its "Introduction" and introductory "Note," which read, in pertinent part, as follows, reveal, allows for the use of procedures other than those specifically described therein for "[s]ampling [a]mbient [w]ater for [t]race [m]etals at EPA [w]ater [q]uality [c]riteria [l]evels": . . . . In developing these methods, EPA found that one of the greatest difficulties in measuring pollutants at these levels was precluding sample contamination during collection, transport, and analysis. The degree of difficulty, however, is dependent on the metal and site-specific conditions. This method, therefore, is designed to provide the level of protection necessary to preclude contamination in nearly all situations. It is also designed to provide the protection necessary to produce reliable results at the lowest possible water quality criteria published by EPA. In recognition of the variety of situations to which this method may be applied, and in recognition of continuing technological advances, the method is performance-based. Alternative procedures may be used, so long as those procedures are demonstrated to yield reliable results. . . . Note: This document is intended as guidance only. Use of the terms "must," "may," and "should" are included to mean that the EPA believes that these procedures must, may, or should be followed in order to produce the desired results when using this guidance. In addition, the guidance is intended to be performance-based, in that the use of less stringent procedures may be used as long as neither samples nor blanks are contaminated when following those modified procedures. Because the only way to measure the performance of the modified procedures is through the collection and analysis of uncontaminated blank samples in accordance with this guidance and the referenced methods, it is highly recommended that any modification be thoroughly evaluated and demonstrated to be effective before field samples are collected. Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, requires that "Method 1669"- permitted procedures be used only where a water is being tested to determine if it exceeds the criterion for mercury (.012 micrograms per liter in the case of Class I waters and Class III freshwaters, and .025 micrograms per liter in the case of Class II waters and Class III marine waters). Use of these procedures is necessary to avoid the sample contamination (from, among other things, standard lab bottles, hair, dandruff, atmospheric fallout, and pieces of cotton from clothing) which commonly occurs when standard, non- "Method 1669"-permitted techniques are used. Because "the criteria [for mercury are] so low" and may be exceeded due solely to such contamination, it is essential to employ "Method 1669"-permitted techniques in order to obtain results that are reliable and meaningful. The "Method 1669"-permitted techniques are approximately five times more costly to employ than standard techniques and the Department's laboratory is the only laboratory in the state (with the possible exception of a laboratory at Florida International University) able to provide "clean sampling and analytical techniques" to measure mercury levels in surface water. Nonetheless, as Timothy Fitzpatrick, the Department's chief chemist, testified at the final hearing in these consolidated cases: [I]f you want to measure methyl mercury or total mercury in surface water, you have to use clean techniques or you're measuring noise. And the whole purpose behind using clean techniques is to do sound science and to have confidence in the number. It's not to determine whether or not you're throwing out a body of data. It's to be able to get numbers that make sense. And there's no point in having a database full of information that's virtually worthless because it contains noise, analytical noise. As Subsection (8)(b) of proposed Rule 62-303.320, Florida Administrative Code, suggests, there are certain "metals for which the actual water quality criterion itself changes as the hardness [of the water, measured in milligrams per liter calcium carbonate] changes." Criteria for these metals are set (in the table contained in Rule 62-302.530, Florida Administrative Code) at higher levels for high hardness waters than for low hardness waters. To know which criterion applies in a particular case, the Department needs to know the hardness of the water sampled. Subsection (9) of proposed Rule 62-303.320, Florida Administrative Code, guards against reliance on data that, due to the use of inappropriate methods, may fail to reveal exceedances that actually exist. It provides as follows: Surface water data with values below the applicable practical quantification limit (PQL) or method detection limit (MDL) shall be assessed in accordance with Rules 62- 4.246(6)(b)-(d) and (8), F.A.C. If sampling entities want to ensure that their data will be considered for evaluation, they should review the Department's list of approved MDLs and PQLs developed pursuant to Rule 62-4.246, F.A.C., and, if available, use approved analytical methods with MDLs below the applicable water quality criteria. If there are no approved methods with MDLs below a criterion, then the method with the lowest MDL should be used. Analytical results listed as below detection or below the MDL shall not be used for developing planning lists if the MDL was above the criteria and there were, at the time of sample collection, approved analytical methods with MDLs below the criteria on the Department's list of approved MDLs and PQLs. If appropriate analytical methods were used, then data with values below the applicable MDL will be deemed to meet the applicable water quality criterion and data with values between the MDL and PQL will be deemed to be equal to the MDL. Subsections (6)(b) through (d) and (8) of Rule 62- 4.246, Florida Administrative Code, provide as follows: All results submitted to the Department for permit applications and monitoring shall be reported as follows: The approved analytical method and corresponding Department-established MDL and PQL levels shall be reported for each pollutant. The MDLs and PQLs incorporated in the permit shall constitute the minimum reporting levels for each parameter for the life of the permit. The Department shall not accept results for which the laboratory's MDLs or PQLs are greater than those incorporated in the permit. All results with laboratory MDLs and PQLs lower than those established in the permit shall be reported to the Department. Unless otherwise specified, all subsequent references to MDL and PQL pertain to the MDLs and PQLs incorporated in the permit. Results greater than or equal to the PQL shall be reported as the measured quantity. Results less than the PQL and greater than or equal to the MDL shall be reported as less than the PQL and deemed to be equal to the MDL. Results less than the MDL shall be reported as less than the MDL. * * * (8) The presence of toxicity (as established through biomonitoring), data from analysis of plant or animal tissue, contamination of sediment in the vicinity of the installation, intermittent violations of effluent limits or water quality standards, or other similar kinds of evidence reasonably related to the installation may indicate that a pollutant in the effluent may cause or contribute to violations of water quality criteria. If there is such evidence of possible water quality violations, then (unless the permittee has complied with subsection (9) below) in reviewing reports and applications to establish permit conditions and determine compliance with permits and water quality criteria, the Department shall treat any result less than the MDL of the method required in the permit or the method as required under subsection (10) below or any lower MDL reported by the permittee's laboratory as being one half the MDL (if the criterion equals or exceeds the MDL) or one half of the criterion (if the criterion is less than the MDL), for any pollutant. Without the permission of the applicant, the Department shall not use any values determined under this subsection or subsection (9) below for results obtained under a MDL superseded later by a lower MDL. The final subsection of proposed Rule 62-303.320, Florida Administrative Code, Subsection (10), provides as follows: It should be noted that the data requirements of this rule constitute the minimum data set needed to assess a water segment for impairment. Agencies or groups designing monitoring networks are encouraged to consult with the Department to determine the sample design appropriate for their specific monitoring goals. Proposed Rule 62-303.320, Florida Administrative Code, establishes a relatively "rigid" framework, based upon statistical analysis of data, with little room for the exercise of "best professional judgment," for determining whether a water qualifies for placement on the "planning list." There are advantages to taking such a "cookbook" approach. It promotes administrative efficiency and statewide uniformity in listing decisions. Furthermore, as Dr. Reckhow pointed out during his testimony, it lets the public know "how a [listing] decision is arrived at" and therefore "makes it easier for the public to get engaged and criticize the outcome." Such "rigidity," however, comes at a price, as Dr. Reckhow acknowledged, inasmuch as observations and conclusions (based upon those observations) made by the "experienced biologist who really understands the system . . . get[] lost." While proposed Rule 62-303.320, Florida Administrative Code, may rightfully be characterized as a "rigid statistical approach," it must be remembered that, in the subsequent portions of Part II of the proposed rule chapter, the Department provides other ways for a water to qualify for placement on the "planning list." A discussion of these alternatives follows. Code Part II: Proposed Rule 62-303.330, Florida Administrative Proposed Rule 62-303.330, Florida Administrative Code, is entitled, "Biological Assessment." As noted in Subsection (2) of proposed Rule 62-303.310, Florida Administrative Code, it "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon a failure to "meet biological assessment thresholds for its water body type." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." A "[b]iological [a]ssessment" provides more information about the overall ability of a water to sustain aquatic life than does the "data used for determining water quality exceedances" referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code. This is because "[b]iological [a]ssessment[s]," as is noted in the NRC Publication, "integrate the effects of multiple stressors over time and space." As Mr. Joyner pointed out in his testimony, a "[b]iological [a]ssessment" is "more than just a snapshot like a water quality sample is of the current water quality [at the particular location sampled]." Unlike proposed Rule 62-303.320, Florida Administrative Code, proposed Rule 62-303.330, Florida Administrative Code, deals with "biological criteria," not "numerical criteri[a]," as those terms are used in Subsection (3)(c) of Section 403.067, Florida Statutes, and the method it establishes for determining "planning list" eligibility does not involve statistical analysis. Subsection (1) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]iological data must meet the requirements of paragraphs (3) and (7) in section 62- 303.320," Florida Administrative Code, which, as noted above, impose age ("paragraph" (3)) and quality assurance/quality control and data submission ("paragraph" (7)) restrictions on the use of data. While the "biological component of STORET is not . . . usable" at this time and the biological database maintained by the Department "is not a database where members of the public can input data," pursuant to "paragraph" (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, data collected by someone outside the Department that is not entered into either STORET or the Department's own biological database may still be considered by the Department if it is provided "directly" to the Department. Inasmuch as "[b]iological [a]ssessment[s]" reflect the "effects of multiple stressors over time and space," failed assessments are no more likely during one particular time of the year than another. Consequently, there is no need to limit the time of year in which "[b]iological [a]ssessment[s]" may be conducted. The first sentence of Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]ioassessments used to assess streams and lakes under this rule shall include BioRecons, Stream Condition Indices (SCIs), and the benthic macroinvertebrate component of the Lake Condition Index (LCI), which only applies to clear lakes with a color less than 40 platinum cobalt units." The BioRecon and SCI, as those terms are defined in Subsections (1) and (18), respectively, of proposed Rule 62- 303.200, Florida Administrative Code, are rapid bioassessment protocols for streams developed by the Department. They are "similar to the original rapid bioassessment protocols that were designed by the U.S. EPA in [19]89." Conducting a BioRecon or SCI requires the deployment of a Standard D frame dip net approximately one and a half meters in length (including its handle), which is used to obtain samples of the best available habitat that can be reached. The samples are obtained by taking "sweeps" with the one and a half meter long dip net. Both wadable and non-wadable streams can be, and have been, sampled using this method prescribed by the BioRecon and SCI, although sampling is "more challenging when the water body is deeper than waist deep." In these cases, a boat is used to navigate to the areas where sampling will occur. The sampling "methods are identical regardless of the depth of the water." The BioRecon and SCI both include an assessment of the health of the habitat sampled, including the extent of habitat smothering from sediments and bank instability. The purpose of such an assessment is "to ascertain alteration of the physical habitat structure critical to maintenance of a healthy biological condition." Like all bioassessment protocols, the BioRecon and SCI employ "reasonable thresholds" of community health (arrived at by sampling "reference sites," which are the least affected and impacted sites in the state) against which the health of the sampled habitat is measured. Impairment is determined by the sampled habitat's departure from these "reasonable thresholds" (which represent expected or "reference" conditions). The BioRecon is newer, quicker and less comprehensive than the SCI. Only four sweeps of habitat are taken for the BioRecon, compared to 20 sweeps for the SCI. Furthermore, the BioRecon takes into consideration only three measures of community health (taxa richness, Ephemeroptera/ Plecoptera/Tricoptera Index, and Florida Index), whereas the SCI takes into account four additional measures of community health. For these reasons, the BioRecon is considered a "screening version" of the SCI. Like the BioRecon and the SCI, the LCI is a "comparative index." Conditions at the sampled site are compared to those at "reference sites" to determine the health of the aquatic community at the sampled site. Samples for the LCI are taken from the sublittoral zone of the targeted lake,42 which is divided into twelve segments. Using a petite PONAR or Ekman sampler dredge, a sample is collected from each of the twelve segments. The twelve samples are composited into a single, larger sample, which is then examined to determine what organisms it contains. The results of such examination are considered in light of six measures of community health: Total taxa, EOT taxa, percent EOT, percent Diptera, the Shannon-Weiner Diversity Index, and the Hulbert Index. Lakes larger than 1,000 acres are divided into two subbasins or into quadrants (as appropriate), and each subbasin or quadrant is sampled separately, as if it were a separate site. It is essential that persons conducting BioRecons, SCIs, and LCIs know the correct sampling techniques to use and have the requisite amount of taxonomic knowledge to identify the organisms that may be found in the samples collected. For this reason, a second sentence was included in Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows: Because these bioassessment procedures require specific training and expertise, persons conducting the bioassessments must comply with the quality assurance requirements of Chapter 62-160, F.A.C., attend at least eight hours of Department sanctioned field training, and pass a Department sanctioned field audit that verifies the sampler follows the applicable SOPs in Chapter 62-160, F.A.C., before their bioassessment data will be considered valid for use under this rule. The Department has developed SOPs for BioRecons, SCIs, and LCIs, which are followed by Department personnel who conduct these bioassessments. The Department is in the process of engaging in rulemaking to incorporate these SOPs in Rule Chapter 62-160, Florida Administrative Code, but had not yet, as of the time of the final hearing in these consolidated cases, completed this task.43 Subsection (3) of proposed Rule 62-303.330, Florida Administrative Code, provides as follows: Water segments with at least one failed bioassessment or one failure of the biological integrity standard, Rule 62- 302.530(11), shall be included on the planning list for assessment of aquatic life use support. In streams, the bioassessment can be an SCI or a BioRecon. Failure of a bioassessment for streams consists of a "poor" or "very poor" rating on the Stream Condition Index, or not meeting the minimum thresholds established for all three metrics (taxa richness, Ephemeroptera/Plecoptera/Tricoptera Index, and Florida Index) on the BioRecon. Failure for lakes consists of a "poor" or "very poor" rating on the Lake Condition Index. Subsection (11) of Rule 62-302.530, Florida Administrative Code, prescribes the following "biological integrity standard[s]" for Class I, II and III waters: Class I The Index for benthic macroinvertebrates shall not be reduced to less than 75% of background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class II The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. Class III: Fresh The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class III: Marine The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. The "Index" referred to in these standards is the Shannon-Weaver Diversity Index. Subsection (4) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows, allows the Department to rely upon "information relevant to the biological integrity of the water," other than a failure of a BioRecon, SCI, or LCI or a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code, to place a water on the "planning list" where the Department determines, exercising its "best professional judgment," that such "information" reveals that "aquatic life use support has [not] been maintained": Other information relevant to the biological integrity of the water segment, including information about alterations in the type, nature, or function of a water, shall also be considered when determining whether aquatic life use support has been maintained. The "other information" that would warrant placement on the "planning list" is not specified in Subsection (4) because, as Mr. Frydenborg testified at the final hearing, "[t]he possibilities are so vast." Proposed Rule 62-303.330, Florida Administrative Code, does not make mention of any rapid type of bioassessment for estuaries, the failure of which will lead to placement of a water on the "planning list," for the simple reason that the Department has yet to develop such a bioassessment.44 Estuaries, however, may qualify for "planning list" placement under proposed Rule 62-303.330, Florida Administrative Code, based upon "one failure of the biological integrity standard," pursuant to Subsection (3) of the proposed rule,45 or based upon "other information," pursuant to Subsection (4) of the proposed rule (which may include "information" regarding seagrasses, aquatic macrophytes, or algae communities). Part II: Proposed Rule 62-303.340, Florida Administrative Code Proposed Rule 62-303.340, Florida Administrative Code, is entitled, "Toxicity," and, as noted in Subsection (3) of proposed Rule 62-303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon it being "acutely or chronically toxic." These requirements, like those found in proposed Rule 62-303.330, Florida Administrative Code, relating to "[b]iological [a]ssessment[s]," are not statistically-based. They are as follows: All toxicity tests used to place a water segment on a planning list shall be based on surface water samples in the receiving water body and shall be conducted and evaluated in accordance with Chapter 62- 160, F.A.C., and subsections 62-302.200(1) and (4), F.A.C., respectively. Water segments with two samples indicating acute toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart over a twelve month period, some time during the ten years preceding the assessment. Water segments with two samples indicating chronic toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart, some time during the ten years preceding the assessment. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of Rule 62-320.200, Florida Administrative Code, which is referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "acute toxicity." It provides as follows: "Acute Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-third (1/3) of the amount lethal to 50% of the test organisms in 96 hours (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Subsection (4) of Rule 62-320.200, Florida Administrative Code, which is also referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "chronic toxicity." It provides as follows: "Chronic Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-twentieth (1/20) of the amount lethal to 50% of the test organisms in 96 hrs (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Testing for "acute toxicity" or "chronic toxicity," within the meaning of Subsections (1) and (4) of Rule 62- 320.200, Florida Administrative Code (and therefore proposed Rule 62-303.340, Florida Administrative Code) does not involve measuring the level of any particular parameter in the water sampled. Rather, the tests focus upon the effects the sampled water has on test organisms. Mortality is the end point that characterizes "acute toxicity." "Chronic toxicity" has more subtle effects, which may include reproductive and/or growth impairment. Historically, the Department has tested effluent for "acute toxicity" and "chronic toxicity," but it has not conducted "acute toxicity" or "chronic toxicity" testing in receiving waters. The requirement of Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, that test data be no older than ten years old is reasonably designed to make it less likely that a water will be placed on the "planning list" based upon toxicity data not representative of the water's current conditions. Requiring that toxicity be established by at least "two samples" taken "at least two weeks apart" during a "twelve month period," as do Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, is also a prudent measure intended to minimize inappropriate listing decisions. To properly determine whether toxicity (which can "change over time") is a continuing problem that may be remedied by TMDL implementation, it is desirable to have more than one sample indicating toxicity. "The judgment was made [by the TAC] that two [samples] would be acceptable to make that determination." The TAC "wanted to include as much data regarding . . . toxicity . . . , and therefore lowered the bar in terms of data sufficiency . . . to only two samples." As noted above, the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," which, if not met, will result in a water being placed on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, include the requirement that surface waters not be "acutely toxic." Whether a water should be placed on the "planning list" because it fails to meet this "minimum criterion" (or "free from") will be determined in light of the provisions of proposed Rule 62-303.340, Florida Administrative Code. Except for "[s]ilver in concentrations above 2.3 micrograms/liter in predominantly marine waters," "acute toxicity" is the only "free from" addressed in any portion of Part II of the proposed rule chapter outside of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code. Part II: Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code, address "nutrients." Nutrients, which consist primarily of nitrogen and phosphorous, stimulate plant growth (and the production of organic materials). Waste water treatment facilities, certain industrial facilities that discharge waste water, phosphate mines, and agricultural and residential lands where fertilizers are used are among the sources of nutrients that affect water bodies in Florida. Nutrients are important to the health of a water body, but when they are present in excessive amounts, problems can arise. Excessive amounts of nutrients can lead to certain species, typically algaes, out-competing native species that are less able to use these nutrients, which, in turn, results in a change in the composition of the aquatic population and, subsequently, the animal population. Factors influencing how a water body responds to nutrient input include location, water body type, ecosystem characteristics, water flow, and the extent of light inhibition. As Mr. Frydenborg testified at the final hearing, nutrients are "probably the most widespread and pervasive cause of environmental disturbance in Florida" and they present "the biggest challenge [that needs to be] overcome in protecting aquatic systems." See also Rule 62-302.300(13), Florida Administrative Code ("The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State."). As noted above, nutrients are among the parameters for which water quality criteria have been established by the Department in Rule 62-302.530, Florida Administrative Code. The criterion for nutrients set forth in Subsection (48)(b) of the rule (which applies to all "water quality classifications") is a "narrative . . . criterion," as that term is used in Subsection (3)(c) of Section 403.067, Florida Statutes. It is as follows: "In no case shall nutrient concentrations of a body of water be altered as to cause an imbalance of natural populations of aquatic flora or fauna." Proposed Rule 62-303.350, Florida Administrative Code, is entitled, "Interpretation of Narrative Nutrient Criteria," and, as noted in Subsection (4) of proposed Rule 62- 303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon excessive "nutrient enrichment." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, reads as follows: Trophic state indices (TSIs) and annual mean chlorophyll a values shall be the primary means for assessing whether a water should be assessed further for nutrient impairment. Other information indicating an imbalance in flora or fauna due to nutrient enrichment, including, but not limited to, algal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation, changes in algal species richness, and excessive diel oxygen swings shall also be considered. Any type of water body (stream, estuary, or lake) may be placed on the "planning list" based upon the "other information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. Whether to do so in a particular case will involve the exercise of "best professional judgment" on the part of the Department. The items specifically mentioned in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, "[a]lgal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation,46 changes in algal species richness, and excessive diel oxygen swings," are all indicators of excessive "nutrient enrichment." The "but not limited to" language in this sentence makes it abundantly clear that this is not an exhaustive listing of "other information indicating an imbalance in flora or fauna due to nutrient enrichment" that will be considered by the Department in determining whether a water should be placed on the "planning list." During the rule development process, there were a number of members of the public who expressed the view that the Department's possession of the "information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, should be the sole basis for determining "nutrient impairment" and that TSIs and annual mean chlorophyll a values should not be used. Department staff rejected these suggestions and drafted the proposed rule chapter to provide for additional ways, using TSIs and annual mean chlorophyll a values, for a water to make the "planning list" based upon excessive "nutrient enrichment." Chlorophyll a is the photosynthetic pigment in algae. Measuring chlorophyll a concentrations in water is a reasonable surrogate for measuring the amount of algal biomass present (which is indicative of the extent of nutrient enrichment inasmuch as nutrients promote algal growth). Chlorophyll a values, expressed in micrograms per liter, reflect the concentration of suspended algae (phytoplankton) in the water.47 High amounts of chlorophyll a indicate that there have been algal blooms. Algal blooms represent significant increases in algal population (phytoplankton) over a short period of time. They have a deleterious effect on the amount of dissolved oxygen in the water. Algal blooms may occur in any season. There are no adequate means to predict when they will occur. An annual mean chlorophyll a value reflects the level of nutrient enrichment occurring in a water over the course of a year. Biologists look at these values when studying the productivity of aquatic systems. Using an annual mean is the "best way" of determining whether nutrient enrichment is a consistent enough problem to cause an imbalance in flora or fauna. The TSI was developed for the Department's use in preparing 305(b) Reports. It is a "tried and true method" of assessing lakes (and only lakes) for "nutrient impairment." No comparable special index exists for other types of water bodies in this state. TSI values are derived from annual mean chlorophyll a, as well as nitrogen and phosphorous, values (which are composited). The process of "[c]alculating the Trophic State Index for lakes" was described in the "State's 1996 305(b) report" (on page 86) as follows: The Trophic State Index effectively classifies lakes based on their chlorophyll levels and nitrogen and phosphorous concentrations. Based on a classification scheme developed in 1977 by R.E. Carlson, the index relies on three indicators-- Secchi depth, chlorophyll, and total phosphorous-- to describe a lake's trophic state. A ten unit change in the index represents a doubling or halving or algal biomass. The Florida Trophic State Index is based on the same rationale but also includes total nitrogen as a third indicator. Attempts in previous 305(b) reports to include Secchi depth have caused problems in dark-water lakes and estuaries, where dark waters rather than algae diminish transparency. For this reason, our report drops Secchi depth as a category. We developed Florida lake criteria from a regression analysis of data on 313 Florida lakes. The desirable upper limit for the index is 20 micrograms per liter of chlorophyll, which corresponds to an index of 60. Doubling the chlorophyll concentration to 40 micrograms per liter increases the index to 70, which is the cutoff for undesirable (or poor) lake quality. Index values from 60 to 69 represent fair water quality. . . . The Nutrient Trophic State Index is based on phosphorous and nitrogen concentrations and the limiting nutrient concept. The latter identifies a lake as phosphorous limited if the nitrogen-to-phosphorous concentration ratio is greater than 30, nitrogen limited if the ratio is less than 10, and balanced (depending on both nitrogen and phosphorous) if the ratio is 10 to 30. The nutrient ratio is thus based solely on phosphorous if the ratio is greater than 30, solely on nitrogen if less than 10, or on both nitrogen and phosphorous if between 10 and 30. We calculated an overall Trophic State Index based on the average of the chlorophyll and nutrient indices. Calculating an overall index value requires both nitrogen and phosphorous measurements. Subsections (2) and (3) of proposed Rule 62-303.350, Florida Administrative Code, which provide as follows, impose reasonable data sufficiency and quality requirements for calculating TSIs and annual mean chlorophyll a values and changes in those values from "historical levels": To be used to determine whether a water should be assessed further for nutrient enrichment, data must meet the requirements of paragraphs (2)-(4), (6), and (7) in rule 62- 303.320, at least one sample from each season shall be required in any given year to calculate a Trophic State Index (TSI) or an annual mean chlorophyll a value for that year, and there must be annual means from at least four years, when evaluating the change in TSI over time pursuant to paragraph 62- 303.352(3). When comparing changes in chlorophyll a or TSI values to historical levels, historical levels shall be based on the lowest five-year average for the period of record. To calculate a five-year average, there must be annual means from at least three years of the five-year period. These requirements do not apply to the "other information" referenced in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. As was stated in the NRC Publication, and as Department staff recognized, "data are not the same as information." Subsection (2)(b) of proposed Rule 62-303.350, Florida Administrative Code, being more specific, modifies Subsection (2)(a) of the proposed rule, to the extent that Subsection (2)(a) incorporates by reference the requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, that "at least one sampling event [be] conducted in [only] three of the four seasons of the calendar year." Requiring data from at least each season is appropriate because the data will be used to arrive at numbers that represent annual means. Furthermore, as noted above, there is no season in which bloom events never occur in this state. Four years of data, as required by Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, establishes a "genuine trend" in the TSI. The requirement, in Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, that the "lowest five-year average for the period of the record" be used to establish "historical levels" was intended to make it easier for a water to be placed on the "planning list" for "nutrient impairment." 190. Proposed Rules 62-303.351, 62-303.352, and 62- 303.353, Florida Administrative Code, establish reasonable statewide TSI and annual mean chlorophyll a values, which if exceeded, will result in a water being placed on the "planning list."48 In establishing these statewide threshold values, Department staff took into consideration that averaging values obtained from samples taken during bloom events with lower values obtained from other samples taken during the course of the year (to get an annual mean value for a water) would minimize the impact of the higher values and, accordingly, they set the thresholds at levels lower than they would have if the thresholds represented, not annual mean values, but rather values that single samples, evaluated individually, could not exceed. Department staff recognized that the statewide thresholds they set "may not be protective of very low nutrient waters." They therefore, in proposed Rules 62-303.351, 62- 303.352, and 62-303.353, Florida Administrative Code, reasonably provided that waters not exceeding these thresholds could nonetheless get on the "planning list" for "nutrient impairment" based upon TSI values (in the case of lakes) or annual mean chlorophyll a values (in the case of streams and estuaries) if these values represented increases, of sufficient magnitude, as specified in the proposed rules, over "historical levels." Proposed Rule 62-303.351, Florida Administrative Code, is entitled, "Nutrients in Streams," and reads as follows: A stream or stream segment shall be included on the planning list for nutrients if the following biological imbalances are observed: algal mats are present in sufficient quantities to pose a nuisance or hinder reproduction of a threatened or endangered species, or annual mean chlorophyll a concentrations are greater than 20 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The TAC and Department staff investigated the possibility of evaluating "nutrient impairment" in streams by looking at the amount of attached algae (measured in milligrams of chlorophyll a per square meter) as opposed to suspended algae, but "weren't able to come up with" an appropriate "number." They were advised of a "paper" in which the author concluded that 150 milligrams of chlorophyll a per square meter was "indicative of imbalances in more northern conditions rivers." Reviewing Florida data, the TAC and Department staff determined that this threshold would be "non-protective in our state" inasmuch as the "the highest chlorophylls" in the Florida data they reviewed were 50 to 60 milligrams of chlorophyll a per square meter. Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, which describes, in narrative terms, another type of "information indicating an imbalance in flora or fauna due to nutrient enrichment" (in addition to those types of information specified in Subsection (1) of proposed Rule 62- 303.350, Florida Administrative Code), was included in proposed Rule 62-303.351 in lieu of establishing a numerical "milligrams of chlorophyll a per square meter" threshold. The term "nuisance," as used in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, was intended to have the same meaning as it has in Rule 62-302.500, Florida Administrative Code. "Nuisance species," as used in Rule Chapter 62-500, Florida Administrative Code, are defined as "species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters." Mr. Joyner knew that the Suwannee River "had problems with algal mats49 and that those algal mats might hinder reproduction of the sturgeon" in the river. The "hinder reproduction of a threatened or endangered species" language was inserted in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, "to address things like that" occurring in the Suwannee River. It was "very difficult" for the TAC and Department staff to come up with a "micrograms per liter" threshold for Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. All available data on Florida streams were reviewed before the TAC and Department staff decided on a threshold. The threshold ultimately selected, 20 micrograms per liter, "represents approximately the 80th percentile value currently found in Florida streams," according to the data reviewed. The "20 micrograms per liter" threshold, combined with the other provisions of the proposed rule and the second sentence of proposed Rule 62-303.350, Florida Administrative Code, was "thought to be something that would hold the line on future [nutrient] enrichment," particularly with respect to streams "like the lower St. Johns River which tends to act more like a lake." Anything over 20 micrograms per liter of chlorophyll a "is a clear indication that an imbalanced situation is occurring." There are some streams in Florida that have high nutrient concentrations but, because of flow conditions and water color, also have low levels of chlorophyll a in the water column (reflecting that the nutrients' presence in the water has not resulted in significant algal growth). That these streams would not qualify for placement on the "planning list" pursuant to proposed Rule 62-303.351, Florida Administrative Code, as drafted, did not concern the TAC and Department staff because they thought it appropriate "to focus on [the] realized impairment" caused by nutrients, not on their mere presence in the stream. If these nutrients travel downstream and adversely affect the downstream water to such an extent that the downstream water qualifies for a TMDL, "all the sources upstream would be addressed" in the TMDL developed for the downstream water. Pursuant to Subsection (2) of proposed Rule 62- 303.351, Florida Administrative Code, streams with "very, very low chlorophylls," well under 20 micrograms per liter, can nonetheless qualify for placement on the planning list based upon two consecutive years of increased annual mean chlorophyll a values "over historical values." In the case of a stream with "historical values" of two micrograms per liter, for instance, the increase would need to be only more than one microgram per liter. Proposed Rule 62-303.352, Florida Administrative Code, is entitled, "Nutrients in Lakes," and reads as follows: For the purposes of evaluating nutrient enrichment in lakes, TSIs shall be calculated based on the procedures outlined on pages 86 and 87 of the State's 1996 305(b) report, which are incorporated by reference. Lakes or lake segments shall be included on the planning list for nutrients if: For lakes with a mean color greater than 40 platinum cobalt units, the annual mean TSI for the lake exceeds 60, unless paleolimnological information indicates the lake was naturally greater than 60, or For lakes with a mean color less than or equal to 40 platinum cobalt units, the annual mean TSI for the lake exceeds 40, unless paleolimnological information indicates the lake was naturally greater than 40, or For any lake, data indicate that annual mean TSIs have increased over the assessment period, as indicated by a positive slope in the means plotted versus time, or the annual mean TSI has increased by more than 10 units over historical values. When evaluating the slope of mean TSIs over time, the Department shall use a Mann's one-sided, upper-tail test for trend, as described in Nonparametric Statistical Methods by M. Hollander and D. Wolfe 16 (1999 ed.), pages 376 and 724 (which are incorporated by reference), with a 95% confidence level. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New As noted above, a TSI value of 60, the threshold established in Subsection (1) of proposed Rule 62-303.352, Florida Administrative Code, for darker-colored lakes, is the equivalent of a chlorophyll a value of 20 micrograms per liter, which is the "micrograms per liter" threshold for streams established in Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. A TSI value 40, the threshold established in Subsection (2) of proposed Rule 62-303.352, Florida Administrative Code, for lighter-colored lakes, corresponds to a chlorophyll a value of five micrograms per liter, which "is an extremely low level." A TSI value of 40 is "very protective for that particular category of lake[s]." A lower threshold was established for these lighter- colored lakes (having a mean color less than or equal to 40 platinum cobalt units) because it was felt that these lakes needed "extra protection." Providing such "extra protection" is reasonably justified inasmuch as these lakes (due to their not experiencing the "infusion of leaf litter" that affects darker- colored lakes) tend to have a "lower nutrient content naturally" and therefore "very different aquatic communities" than their darker counterparts. Some lakes are naturally eutrophic or even hyper- eutrophic. Inasmuch as the TMDL program is not designed to address such natural occurrences, it makes sense to provide, as Subsections (1) and (2) of proposed Rule 62-303.352, Florida Administrative Code, do, that the TSI thresholds established therein will not apply if "paleolimnological information" indicates that the TSI of the lake in question was "naturally greater" than the threshold established for that type of lake (60 in the case of a darker-colored lake and 40 in the case of a lighter-colored lake). Lakes with TSI values that do not exceed the appropriate threshold may nonetheless be included on the "planning list" based upon "increas[es] in TSIs" pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. Any statistically significant increase in TSI values "over the assessment period," as determined by "use [of] a Mann's one-sided, upper-tail test for trend" and a "95% confidence level" (which the TAC recommended inasmuch as it is "the more typical scientific confidence level"), or an increase in the annual mean TSI of more than ten units "over historical values," will result in a lake being listed pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. The first of these two alternative ways of a lake getting on the "planning list" based upon "increas[es] in TSIs" is "more protective" than the second. Under this first alternative, a lake could be listed before there was more than a ten unit increase in the annual mean TSI "over historical values." A ten-unit increase in the annual mean TSI represents a doubling (or 100 percent increase) "over historical values." As noted above, pursuant to Subsection (3) of proposed Rule 62- 303.351, Florida Administrative Code, only a 50 percent increase "over historical values" in annual mean chlorophyll a values is needed for a stream to make the "planning list" and, as will be seen, proposed Rule 62-303.353, Florida Administrative Code, contains a similar "50 percent increase" provision for estuaries; however, because "lakes are much more responsive to nutrients," Department staff reasonably believed that "the ten- unit change was a protective measure." Proposed Rule 62-303.353, Florida Administrative Code, is entitled, "Nutrients in Estuaries," and reads as follows: Estuaries or estuary segments shall be included on the planning list for nutrients if their annual mean chlorophyll a for any year is greater than 11 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Estuaries are at "the very bottom" of the watershed. The amount of nutrients in an estuary is dependent, not only on what is occurring in and around the immediate vicinity of the estuary,50 but also "what is coming down" any river flowing into it. Not all of the nutrients in the watershed reach the estuary inasmuch as "there is assimilation and uptake along the way." The "11 micrograms per liter" threshold ultimately selected as a "protective number in terms of placing estuaries on the 'planning list'" was recommended by the TAC following a review of data reflecting trends with respect to chlorophyll a levels in various Florida estuaries. In addition, the TAC heard a presentation concerning the "modeling work" done by the Tampa Bay National Estuary Program to establish "site-specific" chlorophyll a targets for segments of Tampa Bay, including the target of 13.2 micrograms per liter that was established for the Hillsborough Bay segment of Tampa Bay, which is "closer to the [nutrient] sources" than other parts of Tampa Bay. The TAC also considered information about "various bloom situations" in estuaries which led to the "general feeling" that an estuarine algal bloom involved chlorophyll a values "considerably higher" than 11 micrograms per liter. An alternative method for an estuary to make the "planning list" for "nutrient impairment" based upon a 50 percent increase in annual mean chlorophyll a values "over historical values" was included in proposed Rule 62-303.353, Florida Administrative Code, because the "11 micrograms per liter" threshold was not expected "to be adequately protect[ive]" of "the very clear sea grass communities" like those found in the Florida Keys. Part II: Proposed Rule 62-303.360, Florida Administrative Code Proposed Rule 62-303.360, Florida Administrative Code, establishes four separate ways for a water to be placed on the "planning list" for failing to provide "primary contact and recreation use support." It reads as follows: Primary Contact and Recreation Use Support A Class I, II, or III water shall be placed on the planning list for primary contact and recreation use support if: the water segment does not meet the applicable water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or the water segment includes a bathing area that was closed by a local health Department or county government for more than one week or more than once during a calendar year based on bacteriological data, or the water segment includes a bathing area for which a local health Department or county government has issued closures, advisories, or warnings totaling 21 days or more during a calendar year based on bacteriological data, or the water segment includes a bathing area that was closed or had advisories or warnings for more than 12 weeks during a calendar year based on previous bacteriological data or on derived relationships between bacteria levels and rainfall or flow. For data collected after August 1, 2000, the Florida Department of Health (DoH) database shall be the primary source of data used for determining bathing area closures. Advisories, warnings, and closures based on red tides, rip tides, sewage spills, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when assessing recreation use support. However, the Department shall note for the record that data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The "water quality criteria for bacteriological quality" referenced in Subsection (1)(a) of proposed Rule 62- 303.360, Florida Administrative Code, are set forth in Subsections (6) and (7) of Rule 62-303.530, Florida Administrative Code, which provide as follows: Parameter: Bacteriological Quality (Fecal Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 5 samples taken over a 30 day period. Class II: MPN shall not exceed a median value of 14 with not more than 10% of the samples exceeding 43, nor exceed 800 on any one day. Class III: Fresh: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Class III: Marine: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Parameter: Bacteriological Quality (Total Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: < = 1,000 as a monthly avg., nor exceed 1,000 in more than 20% of samples examined during any month, nor exceed 2,400 at any time using either MPN or MF counts. Class II: Median MPN shall not exceed 70 and not more than 10% of the samples shall exceed an MPN of 230. Class III: Fresh: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Class III: Marine: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Fecal coliform bacteria are found in the feces of animals and humans. They can be identified in the laboratory "fairly easily, usually within 24 to 48 hours" and "are used worldwide as indicators of fecal contamination and potential public health risks." Enterococci are another "distinct group of bacteria." They too are found in animal and human feces. The recommendation has been made that enterococci be used as bacteriological "indicators" for assessing "public health risk and swimmability," particularly in marine waters. The Department, however, is not convinced that there is "sufficient science at this time" to warrant adoption of this recommendation in states, like Florida, with "warmer climates," and it has not amended Rule 62-303.530, Florida Administrative Code, to provide for the assessment of bacteriological quality using enterococci counts.51 The statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code (which is incorporated by reference in Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code) is as appropriate for determining whether a water should be placed on the "planning list" based upon exceedances of bacteriological water quality criteria as it is for determining whether a water should be placed on the "planning list" for "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Unlike Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, Subsections (1)(b), (1)(c), and (1)(d) of the proposed rule, at least indirectly, allow for waters to be placed on the "planning list" based upon enterococci counts. The closures, advisories, and warnings referenced in Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, are issued, not by the Department, but by local health departments or county governments, and may be based upon enterococci sampling done by those governmental entities. Subsection (1)(b) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based exclusively upon bathing area closures. It was included in the proposed rule upon the recommendation of the EPA "to track their 305(b) guidance." Both freshwater and marine bathing areas in Florida may be closed if circumstances warrant. The Department of Health (which operates the various county health departments) does not close marine beaches, but county governments may. Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based upon any combination of closures, advisories, or warnings "totaling 21 days or more during a calendar year," provided the closures, advisories, and warnings were based upon up-to-date "bacteriological data." Department staff included this provision in the proposed rule in lieu of a provision recommended by the TAC (about which Petitioner Young had expressed concerns) that would have made it more difficult for a water to be placed on the "planning list" as a result of bacteriological data-based closures, advisories, or warnings. In doing so, Department staff exercised sound professional judgment. The 21 days or more of closures, advisories, or warnings needed for listing under the proposed rule do not have to be consecutive, although they all must occur in the same calendar year. Subsection (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, like Subsection (1)(c) of the proposed rule, provides for listing based upon a combination of closures, advisories, or warnings, but it does not require that it be shown that the closures, advisories, or warnings were based upon up-to-date "bacteriological data." Under Subsection (1)(d) of the proposed rule, the closures, advisories, or warnings need only have been based upon "previous [or, in other words, historical] bacteriological data" or "derived relationships between bacteria levels and rainfall or flow." Because assessments of current bacteriological quality based upon "previous bacteriological data" or on "derived relationships between bacteria levels and rainfall or flow" are less reliable than those based upon up-to-date "bacteriological data," Department staff were reasonably justified in requiring a greater total number of days of closures, advisories, or warnings in this subsection of the proposed rule (more than 84) than they did in Subsection (1)(c) of the proposed rule (more than 21). (Like under Subsection (1)(c) of the proposed rule, the days of closures, advisories, or warnings required for listing under Subsection (1)(d) of the proposed rule do not have to be consecutive days.) Subsection (1)(d) was included in the proposed rule in response to comments made at a TAC meeting by Mike Flannery of the Pinellas County Health Department concerning Pinellas County beaches that were "left closed for long periods of time" without follow-up bacteriological testing. Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably limits the closures, advisories, and warnings upon which the Department will be able to rely in determining whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule to those closures, advisories, and warnings based upon "factors . . . related to chronic discharges of pollutants." The TMDL program is designed to deal neither with short-term water quality problems caused by extraordinary events that result in atypical conditions,52 nor with water quality problems unrelated to pollutant discharges in this state. It is therefore sensible to not count, for purposes of determining "planning list" eligibility pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, closures, advisories, and warnings that were issued because of the occurrence of such problems. A "spill," by definition (set out in Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, which is recited above), is a "short term" event that does not include "sanitary sewer overflows or chronic discharges from leaking wastewater collection systems." While a one-time, unpermitted discharge of sewage (not attributable to "sanitary sewer overflow") is a "short- term" event constituting a "sewage spill," as that term is used in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, repeated unpermitted discharges occurring over an extended period of time (with or without interruption) do not qualify as "sewage spills" and therefore Subsection (3) of the proposed rule will not prevent the Department from considering closures, advisories, and warnings based upon such discharges in deciding whether the requirements for listing set forth in Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met. Like "sewage spills," "red tides" are among the events specifically mentioned in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code. "Red tide" is a "very loose term" that can describe a variety of occurrences. It is apparent from a reading of the language in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, in its entirety, that "red tide," as used therein, was intended to describe an event "not related to chronic discharges of pollutants." Department staff's understanding of "red tides" was shaped by comments made at a TAC meeting by one of the TAC members, George Henderson of the Florida Marine Research Institute. Mr. Henderson told those present at the meeting that "red tides are an offshore phenomenon that move on shore" and are fueled by nutrients from "unknown sources" likely located, for the most part, outside of Florida, in and around the Mississippi River. No "contrary scientific information" was offered during the rule development process.53 Lacking "scientific information" clearly establishing that "red tides," as they understood the term, were the product of "pollutant sources in Florida," Department staff reasonably concluded that closures, advisories, and warnings based upon such "red tides" should not be taken into consideration in deciding whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, and they included language in Subsection (3) of the proposed rule to so provide. The "red tides" to which Mr. Henderson referred are harmful algae blooms that form off-shore in the Gulf of Mexico and are brought into Florida coastal waters by the wind and currents. There appears to be an association between these blooms of toxin-producing algae and nutrient enrichment, but the precise cause of these bloom events is "not completely understood." Scientists have not eliminated the possibility that, at least in some instances, these "red tides" are natural phenomena not the result of any pollutant loading either in or outside of Florida. The uncertainty surrounding the exact role, if any, that Florida-discharged pollutants play in the occurrence of the "red tides" referenced in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably justifies the Department's declining, for purposes of determining whether the listing requirements of Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met, to take into consideration closures, advisories, and warnings based upon such "red tides." The exclusions contained in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part II of the proposed rule chapter other than Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62-303.360. This includes the provisions of proposed Rule 62-303.350, Florida Administrative Code, which, as noted above, provides, among other things, that "planning list" eligibility may be based upon "information indicating an imbalance in flora or fauna due to nutrient enrichment, including . . . algal blooms." Accordingly, notwithstanding the "red tides" exclusion in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, the presence of algal blooms of any type "indicating an imbalance in flora or fauna due to nutrient enrichment" will result in the affected water making the "planning list" pursuant to proposed Rule 62-303.350, Florida Administrative Code, to be "assessed further for nutrient impairment." Part II: Proposed Rule 62-303.370, Florida Administrative Code Proposed Rule 62-303.370, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for fish and shellfish consumption." It reads as follows: Fish and Shellfish Consumption Use Support A Class I, II, or III water shall be placed on the planning list for fish and shellfish consumption if: the water segment does not meet the applicable Class II water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or there is either a limited or no consumption fish consumption advisory. issued by the DoH, or other authorized governmental entity, in effect for the water segment, or for Class II waters, the water segment includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification. Changes in harvesting classification from prohibited to unclassified do not constitute a downgrade in classification. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which effectively duplicates the provisions of Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, to the extent that those provisions apply to Class II waters, establishes an appropriate means of determining whether a water should "be placed on the planning list for fish and shellfish consumption." Waters that do not qualify for listing pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, may make the "planning list" based upon "fish consumption advisories" under Subsection (2) of the proposed rule. The Department of Health, which issues these advisories, does so after conducting a statistical evaluation of fish tissue data collected from at least 12 fish. A large number of fish consumption advisories have been issued to date for a number of parameters, including, most significantly, mercury. The first fish consumption advisory was issued in 1989 after "high levels of mercury" were found in the sampled fish tissue. Many fish consumption advisories were issued ten or more years ago and are still in effect. Fish consumption advisories are continued until it is shown that they are not needed. Most of the fish tissue data for the fish consumption advisories now in effect were collected between 1989 and 1992. There is no reason to reject this data as not "being representative of the conditions under which those samples were collected." There has been data collected since 1992, but 1992 was "the last peak year" of sampling. Over the last ten years, the "focus has been on the Everglades" with respect to sampling for mercury, although sampling has occurred in "a broadly representative suite of water bodies statewide." The TAC recommended against using fish consumption advisories for listing coastal and marine waters because of the possibility that these advisories might be based upon tissue samples taken from fish who ingested mercury, or other substances being sampled, outside of the state. Department staff, however, rejected this recommendation and did not include a "coastal and marine waters" exclusion in Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Shellfish Evaluation and Assessment Program, which is referenced in Subsection (3) of proposed Rule 62- 303.370, Florida Administrative Code, is administered by the Florida Department of Agriculture and Consumer Services' Division of Aquaculture's Shellfish Environmental Assessment Section. The Shellfish Environmental Assessment Section (SEAS) is responsible for classifying and managing Florida shellfish harvesting areas in a manner that maximizes utilization of the state's shellfish resources and reduces the risk of shellfish- borne illness. In carrying out its responsibilities, the SEAS applies the "[s]hellfish [h]arvesting [a]rea [s]tandards" set forth in Rule 5L-1.003, Florida Administrative Code, which provides as follows: The Department shall describe and/or illustrate harvesting areas and provide harvesting area classifications as approved, conditionally approved, restricted, conditionally restricted, prohibited, or unclassified as defined herein, including criteria for opening and closing shellfish harvesting areas in accordance with Chapters II and IV of the National Shellfish Sanitation Program Model Ordinance. Copies of the document Shellfish Harvesting Area Classification Maps, revised October 14, 2001, and the document Shellfish Harvesting Area Classification Boundaries and Management Plans, revised October 14, 2001, containing shellfish harvesting area descriptions, references to shellfish harvesting area map numbers, and operating criteria herein incorporated by reference may be obtained by writing to the Department at 1203 Governors Square Boulevard, 5th Floor, Tallahassee, Florida 32301. Approved areas -- Growing areas shall be classified as approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that pathogenic microorganisms, radionuclides, and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be harvested from such areas for direct marketing. This classification is based on the following criteria: The area is not so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous; and The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet one of the following standards during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions: 1) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 43 per 100 ml. (per 5-tube, 3-dilution test) or 2) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 33 per 100 ml. (per 12-tube, single-dilution test). Harvest from temporarily closed approved areas shall be unlawful. Conditionally approved areas -- A growing area shall be classified as conditionally approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvesting shellfish for direct marketing may be dependent upon attainment of established performance standards by wastewater treatment facilities discharging effluent directly or indirectly into the area. In other instances, the sanitary quality of the area may be affected by seasonal populations, climatic and/or hydrographic conditions, non-point source pollution, or sporadic use of a dock, marina, or harbor facility. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting approved area criteria. In order to develop effective operating procedures, these intermittent pollution events shall be predictable. Harvest from temporarily closed conditionally approved areas shall be unlawful. Restricted areas -- A growing area shall be classified as restricted when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that fecal material, pathogenic microorganisms, radionuclides, harmful chemicals, and marine biotoxins are not present in dangerous concentrations after shellfish from such an area are subjected to a suitable and effective purification process. The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet the following standard: The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 88 per 100 ml. and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 260 per 100 ml. (per 5-tube, 3-dilution test) in those portions of the area most probably exposed to fecal contamination during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions. Harvest is permitted according to permit conditions specified in Rule 5L-1.009, F.A.C. Harvest from temporarily closed restricted areas shall be unlawful. Conditionally restricted area -- A growing area shall be classified as conditionally restricted when a sanitary survey or other monitoring program data, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvest of shellfish for relaying or depuration activities is dependent upon the attainment of established performance standards by wastewater treatment facilities discharging effluent, directly or indirectly, into the area. In other instances, the sanitary quality of such an area may be affected by seasonal population, non-point sources of pollution, or sporadic use of a dock, marina, or harbor facility, and these intermittent pollution events are predictable. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting restricted area criteria. Harvest is permitted according to permit conditions specified in Rule 5L- 1.009, F.A.C. Harvest from temporarily closed conditionally restricted areas shall be unlawful. Prohibited area -- A growing area shall be classified as prohibited if a sanitary survey indicates that the area does not meet the approved, conditionally approved, restricted, or conditionally restricted classifications. Harvest of shellfish from such areas shall be unlawful. The waters of all man-made canals and marinas are classified prohibited regardless of their location. Unclassified area -- A growing area for which no recent sanitary survey exists, and it has not been classified as any area described in subsections (2), (3), (4), (5), or (6) above. Harvest of shellfish from such areas shall be unlawful. Approved or conditionally approved, restricted, or conditionally restricted waters shall be temporarily closed to the harvesting of shellfish when counts of the red tide organism Gymnodinium breve[54] exceed 5000 cells per liter in bays, estuaries, passes or inlets adjacent to shellfish harvesting areas. Areas closed to harvesting because of presence of the red tide organism shall not be reopened until counts are less than or equal to 5000 cells per liter inshore and offshore of the affected shellfish harvesting area, and shellfish meats have been shown to be free of toxin by laboratory analysis. The Department is authorized to open and temporarily close approved, conditionally approved, restricted, or conditionally restricted waters for harvesting of shellfish in emergencies as defined herein, in accordance with specific criteria established in operating procedures for predictively closing individual growing areas, or when growing areas do not meet the standards and guidelines established by the National Shellfish Sanitation Program . Operating procedures for predictively closing each growing area shall be developed by the Department; local agencies, including those responsible for operation of sewerage systems, and the local shellfish industry may be consulted for technical information during operating procedure development. The predictive procedure shall be based on evaluation of potential sources of pollution which may affect the area and should establish performance standards, specify necessary safety devices and measures, and define inspection and check procedures. Under Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, only the "downgrading" of an area initially approved for shellfish harvesting to a more restrictive classification will cause a Class II water to be "placed on the planning list for fish and shellfish consumption." The temporary closure of an approved harvesting area will not have the same result. Temporary closures of harvesting areas are not uncommon. These closures typically occur when there is heavy local rainfall or flooding events upstream, which result in high fecal coliform counts in the harvesting areas. While these areas are not being harvested during these temporary closures, "[p]ropagation is probably maximized in closure conditions." This is because, during these periods, there are "more nutrients for [the shellfish] to consume" inasmuch as the same natural events that cause fecal coliform counts to increase also bring the nutrients (in the form detritus) into the area. The Department of Agriculture and Consumer Services (DACS) does not reclassify an area simply because there have been short-term events, like sewage spills or extraordinary rain events, that have resulted in the area's temporary closure. Where there are frequent, extended periods of closures due to high fecal coliform counts in an area that exceed Class II water quality criteria for bacteriological quality, however, one would reasonably expect that reclassification action would be taken. Even if the DACS does not take such action, the water may nonetheless qualify for placement on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, based upon the fecal coliform data relied upon by the DACS in closing the area, provided the data meets the requirements set forth in proposed Rule 62-303.320, Florida Administrative Code. The DACS has never reclassified an area from "prohibited" to "unclassified." David Heil, the head of the SEAS, made a presentation at the April 20, 2000, TAC meeting, during which he enumerated various ways that the Department could determine "impairment as it relates to shellfish harvesting waters" and recommended, over the others, one of those options: combination of the average number and duration of closures over time. None of the options listed by Mr. Heil, including his top recommendation, were incorporated in proposed Rule 62- 303.370, Florida Administrative Code. The TAC and Department staff looked into the possibility of using the option touted by Mr. Heil, but determined that it would not be practical to do so. Relying on the DACS' reclassification of harvesting areas was deemed to be a more practical approach that was "consistent with the way the Department classifies waters as Class II and therefore it was included in the proposed rule."55 Code Part II: Proposed Rule 62-303.380, Florida Administrative Proposed Rule 62-303.380, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for drinking water use support" and, in addition, addresses "human-health based criteria" not covered elsewhere in Part II of the proposed rule chapter. It reads as follows: Drinking Water Use Support and Protection of Human Health. A Class I water shall be placed on the planning list for drinking water use support if: the water segment does not meet the applicable Class I water quality criteria based on the methodology described in section 62-303.320, or a public water system demonstrates to the Department that either: Treatment costs to meet applicable drinking water criteria have increased by at least 25% to treat contaminants that exceed Class I criteria or to treat blue-green algae or other nuisance algae in the source water, or the system has changed to an alternative supply because of additional costs that would be required to treat their surface water source. When determining increased treatment costs described in paragraph (b), costs due solely to new, more stringent drinking water requirements, inflation, or increases in costs of materials shall not be included. A water shall be placed on the planning list for assessment of the threat to human health if: for human health-based criteria expressed as maximums, the water segment does not meet the applicable criteria based on the methodology described in section 62- 303.320, or for human health-based criteria expressed as annual averages, the annual average concentration for any year of the assessment period exceeds the criteria. To be used to determine whether a water should be assessed further for human-health impacts, data must meet the requirements of paragraphs (2), (3), (6), and (7) in rule 62-303.320. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Use of the statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code, is not only appropriate (as discussed above) for making "planning list" determinations based upon "[e]xceedances of [a]quatic [l]ife- [b]ased [c]riteria" and "water quality criteria for bacteriological quality," it is also a reasonable way to determine whether a water should "be placed on the planning list for drinking water use support" based upon exceedances of "applicable Class I water quality criteria" (as Subsection (1)(a) of proposed Rule 62-303.380, Florida Administrative Code, provides) and to determine whether a water should "be placed on the planning list for assessment of the threat to human health" based upon exceedances of other "human-health based criteria expressed as maximums" (as Subsection (2)(a) of the proposed Rule 62-303.380, Florida Administrative Code, provides). Subsection (1)(b) was included in proposed Rule 62- 303.380, Florida Administrative Code, because the TAC and Department staff wanted "some other way," besides having the minimum number of exceedances of "applicable Class I water quality criteria" required by Subsection (1)(a) of the proposed rule, for a Class I water to qualify for "place[ment] on the planning list for drinking water use support." Looking at the costs necessary for public water systems to treat surface water,56 as Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, allows, is a reasonable alternative means of determining whether a Class I water should be "placed on the planning list for drinking water use support." Under Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, the cost analysis showing that the requirements for listing have been met must be provided by the public water system. This burden was placed on the public water system because the Department "does not have the resources to do that assessment on [its] own." The Department cannot be fairly criticized for not including in Subsection (1)(b)1. of proposed Rule 62-303.380, Florida Administrative Code, references to the other contaminants (in addition to blue-green algae) that have "been put on a list by the EPA to be . . . evaluated for future regulations" inasmuch as there are no existing criteria in Chapter 62-302, Florida Administrative Code, specifically relating to these contaminants. Particularly when read together with the third sentence of Subsection (1) of proposed Rule 62-303.300 (which provides that "[i]t should be noted water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62-303.310-353, or to protect human health, which is addressed in sections 62-303.360-380"), it is clear that the "human health-based criteria" referenced in Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, are those numerical criteria in Rule Chapter 62-302, Florida Administrative Code, designed to protect human health. While laypersons not familiar with how water quality criteria are established may not be able to determine (by themselves) which of the numerical water quality criteria in Rule Chapter 62-302, Florida Administrative Code, are "human health-based," as that term is used Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, Department staff charged with the responsibility of making listing decisions will be able to so. "[H]uman health-based criteria" for non-carcinogens are "expressed as maximums" in Rule Chapter 62-302, Florida Administrative Code. "[H]uman health-based criteria" for carcinogens are "expressed as annual averages" in Rule Chapter 62-302, Florida Administrative Code. "Annual average," as that term is used in Rule Chapter 62-302, Florida Administrative Code, is defined therein as "the maximum concentration at average annual flow conditions. (see Section 62-4.020(1), F.A.C.)." Subsection (1) of Rule 62- 4.020, Florida Administrative Code, provides that "[a]verage [a]nnual [f]low "is the long-term harmonic mean flow of the receiving water, or an equivalent flow based on generally accepted scientific procedures in waters for which such a mean cannot be calculated." The "annual mean concentration" is not exactly the same as, but it does "generally approximate" and is "roughly equivalent to," the "maximum concentration at average annual flow conditions." Using "annual mean concentrations" to determine whether there have been exceedances of a "human health-based criteria expressed as annual averages" is a practical approach that makes Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, more easily "implementable" inasmuch as it obviates the need to calculate the "average annual flow," which is a "fairly complicated" exercise requiring "site-specific flow data" not needed to determine the "annual mean concentration."57 Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, does not impose any minimum sample size requirements, and it requires only one exceedance of any "human health-based criteri[on] expressed as [an] annual average[]" for a water to be listed. The limitations it places on the data that can be considered (by incorporating by reference the provisions of Subsections (2), (3), (6), and (7) of proposed Rule 62-303.320, Florida Administrative Code, which have been discussed above) are reasonable. Part III: Overview Part III of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "verified list" of impaired waters for which TMDLs will be calculated, how the list will be compiled, and the manner in which waters on the list will be "prioritized" for TMDL development: Proposed Rules 62-303.400, 62-303.420, 62- 303.430, 62-303.440, 62-303.450, 62-303.460, 62-303.470, 62- 303.480, 62-303.500, 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code. Code Part III: Proposed Rule 62-303.400, Florida Administrative Proposed Rule 62-303.400, Florida Administrative Code, is entitled, "Methodology to Develop the Verified List," and reads as follows: Waters shall be verified as being impaired if they meet the requirements for the planning list in Part II and the additional requirements of sections 62- 303.420-.480. A water body that fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part, shall be determined to be impaired. Additional data and information collected after the development of the planning list will be considered when assessing waters on the planning list, provided it meets the requirements of this chapter. In cases where additional data are needed for waters on the planning list to meet the data sufficiency requirements for the verified list, it is the Department's goal to collect this additional data[58] as part of its watershed management approach, with the data collected during either the same cycle that the water is initially listed on the planning list (within 1 year) or during the subsequent cycle (six years). Except for data used to evaluate historical trends in chlorophyll a or TSIs, the Department shall not use data that are more than 7.5 years old at the time the water segment is proposed for listing on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Pursuant to the first sentence of proposed Rule 62- 303.400, Florida Administrative Code, if a water qualifies for placement on the "planning list" under a provision in Part II of the proposed rule chapter that does not have a counterpart in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, that water will automatically be "verified as being impaired." Examples of provisions in Part II of the proposed rule chapter that do not have counterparts in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, are: the provision in Subsection (3) of proposed Rule 62- 303.330, Florida Administrative Code, that "water segments with at least . . . one failure of the biological integrity standard, Rule 62-302.530(11), shall be included on the planning list for assessment of aquatic life use support"; Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a water will be placed on the "planning list" if it "does not meet applicable Class II water quality criteria for bacteriological quality based upon the methodology described in section 62-303.320," Florida Administrative Code; Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a Class II water will be placed on the "planning list" if it "includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification"; and Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, pursuant to which a water may qualify for "planning list" placement based upon water treatment costs under the circumstances described therein. Waters that are "verified as being impaired," it should be noted, will not automatically qualify for placement on the "verified list." They will still have to be evaluated in light of the provisions (which will be discussed later in greater detail) of proposed Rule 62-303.600, Florida Administrative Code (relating to "pollution control mechanisms") and those of proposed Rules 62-303.700 and 62- 303.710, Florida Administrative Code (which require that the Department identify the "pollutant(s)" and "concentration(s)" that are "causing the impairment" before placing a water on the "verified list"). Of the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," the only ones addressed anywhere in proposed Rules 62-303.310 through 62-303.380 and 62- 303.410 through 62-303.480, Florida Administrative Code, are the requirement that surface water not be "acutely toxic" and the requirement that predominantly marine waters not have silver in concentrations above 2.3 micrograms per liter. In determining whether there has been a failure to meet the remaining "minimum criteria," the Department will exercise its "best professional judgment." Like the second sentence of Proposed Rule 62-303.300, Florida Administrative Code, the second sentence of proposed Rule 62-303.400, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be deemed "impaired." Neither Subsection (1) of proposed Rule 62-303.400, Florida Administrative Code, nor any other provision in the proposed rule chapter, requires that a water be on the "planning list" as a prerequisite for inclusion on the "verified list." Indeed, a reading of Subsection (3)(c) of proposed Rule 62- 303.500, Florida Administration, the "prioritization" rule, which will be discussed later, leaves no reasonable doubt that, under the proposed rule chapter, a water can be placed on the "verified list" without having first been on the "planning list." The second sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, indicates when the Department hopes to be able to collect the "additional data needed for waters on the planning list to meet the [more rigorous] data sufficiency requirements for the verified list," which data the Department pledges, in subsequent provisions of Part III of the proposed rule chapter, will be collected (at some, unspecified time). The Department did not want to create a mandatory timetable for its collection of the "additional data" because it, understandably, wanted to avoid making a commitment that, due to funding shortfalls that might occur in the future, it would not be able to keep.59 If it has the funds to do so, the Department intends to collect the "additional data" within the time frame indicated in the second sentence of proposed Rule 62-303.400, Florida Administrative Code. The Department will not need to collect this "additional data" if the data is collected and presented to the Department by an "interested party" outside the Department. (The proposed rule chapter allows data collected by outside parties to be considered by the Department in making listing decisions, provided the data meets the prescribed quality requirements.) Requiring (as the third and final sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, does) that all data relied upon by the Department for placing waters on the "verified list," except for data establishing "historical trends in chlorophyll a or TSIs," under no circumstances be older than "7.5 years old at the time the water segment is proposed for listing on the verified list" is a reasonable requirement designed to avoid final listing decisions based upon outdated data not representative of the water's current conditions. As noted above, the TAC recommended that listing decisions be based upon data no older than five years old. Wanting to "capture as much data for the assessment process" as reasonably possible, Department staff determined that the appropriate maximum age of data should be two and half years older than that recommended by the TAC (the two and a half years representing the amount of time it could take to "do additional data collection" following the creation of the "planning list"). Part III: Proposed Rule 62-303.410, Florida Administrative Code Proposed Rule 62-303.410, Florida Administrative Code, is entitled, "Determination of Aquatic Life Use Support," and provides as follows: Failure to meet any of the metrics used to determine aquatic life use support listed in sections 62-303.420-.450 shall constitute verification that there is an impairment of the designated use for propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Like proposed Rule 62-303.310, Florida Administrative Code, its analogue in Part II of the proposed rule chapter, proposed Rule 62-303.410, Florida Administrative Code, incorporates the concept of "independent applicability." A failure of any of the "metrics" referenced in the proposed rule will result in "verification" of impairment. Code Part III: Proposed Rule 62-303.420, Florida Administrative Proposed Rule 62-303.420, Florida Administrative Code, the counterpart of proposed Rule 62-303.320, Florida Administrative Code, establishes a reasonable statistical method, involving binomial distribution analysis, to verify impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" due to pollutant discharges. It reads as follows: Exceedances of Aquatic Life-Based Water Quality Criteria The Department shall reexamine the data used in rule 62-303.320 to determine exceedances of water quality criteria. If the exceedances are not due to pollutant discharges and reflect either physical alterations of the water body that cannot be abated or natural background conditions, the water shall not be listed on the verified list. In such cases, the Department shall note for the record why the water was not listed and provide the basis for its determination that the exceedances were not due to pollutant discharges. If the Department cannot clearly establish that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges, it is the Department's intent to determine whether aquatic life use support is impaired through the use of bioassessment procedures referenced in section 62-303.330. The water body or segment shall not be included on the verified list for the parameter of concern if two or more independent bioassessments are conducted and no failures are reported. To be treated as independent bioassessments, they must be conducted at least two months apart. If the water was listed on the planning list and there were insufficient data from the last five years preceding the planning list assessment to meet the data distribution requirements of section 303.320(4) and to meet a minimum sample size for verification of twenty samples, additional data will be collected as needed to provide a minimum sample size of twenty. Once these additional data are collected, the Department shall re-evaluate the data using the approach outlined in rule 62- 303.320(1), but using Table 2, which provides the number of exceedances that indicate a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution. The Department shall limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph. Table 2: Verified List Minimum number of measured exceedances needed to put a water on the Planning list with at least 90% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this From To # of exceedances 20 25 5 26 32 6 33 40 7 41 47 8 48 55 9 56 63 10 64 71 11 72 79 12 80 88 13 89 96 14 97 104 15 105 113 16 114 121 17 122 130 18 131 138 19 139 147 20 148 156 21 157 164 22 165 173 23 174 182 24 183 191 25 192 199 26 200 208 27 209 217 28 218 226 29 227 235 30 236 244 31 245 253 32 254 262 33 263 270 34 271 279 35 280 288 36 289 297 37 298 306 38 307 315 39 316 324 40 325 333 41 334 343 42 344 352 43 353 361 44 362 370 45 371 379 46 380 388 47 389 397 48 398 406 49 407 415 50 416 424 51 425 434 52 435 443 53 444 452 54 453 461 55 462 470 56 471 479 57 480 489 58 490 498 59 499 500 60 (3) If the water was placed on the planning list based on worst case values used to represent multiple samples taken during a seven day period, the Department shall evaluate whether the worst case value should be excluded from the analysis pursuant to subsections (4) and (5). If the worst case value should not be used, the Department shall then re-evaluate the data following the methodology in rule 62-303.420(2), using the more representative worst case value or, if all valid values are below acutely toxic levels, the median value. If the water was listed on the planning list based on exceedances of water quality criteria for metals, the metals data shall be validated to determine whether the quality assurance requirements of rule 62- 303.320(7) are met and whether the sample was both collected and analyzed using clean techniques, if the use of clean techniques is appropriate. If any data cannot be validated, the Department shall re-evaluate the remaining valid data using the methodology in rule 62-303.420(2), excluding any data that cannot be validated. Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, outliers the Department determines are not valid measures of water quality, water quality criteria exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters, water quality criteria exceedances within permitted mixing zones for those parameters for which the mixing zones are in effect, and water quality data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Once the additional data review is completed pursuant to paragraphs (1) through (5), the Department shall re-evaluate the data and shall include waters on the verified list that meet the criteria in rules 62-303.420(2) or 62-303.320(5)(b). Specific Authority: 403.061, 403.067, FS. Law Implemented: 403.021(11), 403.062, 403.067, FS. History -- New The TMDL program is intended to address only water quality impairment resulting from pollutant discharges (from point or non-point sources), as is made clear by a reading of Section 403.067, Florida Statutes, particularly Subsection 6(a)2. thereof (which, as noted above, provides that, "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no maximum daily load will be required"). Subsection (1)(a) of proposed Rule 62- 303.420(1)(a), Florida Administrative Code, is in keeping with this intent. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, should be read together with Subsection (1)(a) of the proposed rule. The "physical alterations of the water body" referred to in Subsection (1)(b) are the same type of "physical alterations" referred to in Subsection (1)(a), to wit: "physical alterations of the water body that cannot be abated." "Best professional judgment" will be used by the Department in determining, as it must under Subsection (1) of proposed Rule 62-303.420, Florida Administrative Code, whether or not exceedances are due to pollutant discharges. If the Department, exercising its "best professional judgment," finds that there is not proof "clearly establish[ing] that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges," the Department, pursuant to Subsection (1)(b) of proposed Rule 62- 303.420, Florida Administrative Code, will determine whether the water in question should be "verified as impaired" for aquatic life use support by relying on "[b]iological [a]ssessment[s]" conducted in accordance with the procedures set forth in proposed Rule 62-303.330, Florida Administrative Code (which, among other things, prohibit reliance on "[b]iological [a]ssessment[s]" based on "data older than ten years"). The results of these "[b]iological [a]ssessment[s]" will not make the Department any better able to "answer the question of whether natural background or physical alterations were responsible for [the] exceedances," but, as noted above, it will enable the Department to make a more informed decision about the overall ability of the water to sustain aquatic life. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, reasonably provides that the water will not be "verified as impaired" for aquatic life use support if there have been two or more "[b]iological [a]ssessment[s]" conducted at least two months apart over the last ten years and "no failures [have been] reported." That a water has "passe[d]" these "[b]iological [a]ssessment[s]" establishes "that aquatic life use support is being maintained" and, under such circumstances, it would be inappropriate to include that water on the "verified list." Looking at just the data "from the last five years preceding the planning list assessment," as the first sentence of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, requires the Department to do, rather than all of the data supporting the placement of the water in question on the "planning list," regardless of when the data was collected, makes sense because, to properly discharge its responsibilities under Section 403.067, Florida Statutes, the Department must ascertain what the current overall condition of the water in question is. As noted above, Subsection (2) of proposed Rule 62- 303.420, Florida Administrative Code, requires a "minimum sample size for verification [of impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria]" of twenty samples," with no exceptions. While this is more than the number of samples required for "planning list" compilation purposes under proposed Rule 62-303.320, Florida Administrative Code, it "is a very small number of samples relative to the [number of] samples that [the Department] would need to take to do a TMDL." Furthermore, unlike any provision in proposed Rule 62-303.320, Florida Administrative Code, Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, provides that, if a water (on the "planning list") lacks the required minimum number of samples, the "additional data" needed to meet the minimum sample requirement "will be collected" (at some unspecified time in the future). Because these additional samples "will be collected," the requirement of proposed Rule 62-303.420, Florida Administrative Code, that there be a minimum of 20 samples should not prevent deserving waters from ultimately being "verified as impaired" under the proposed rule (although it may serve to delay such "verification"). Such delay would occur if a water on the "planning list" had five or more exceedances within the "last five years preceding the planning list assessment" (five being the minimum number of exceedances required for "verification" under proposed Rule 62- 303.420, Florida Administrative Code), but these exceedances were based on fewer than 20 samples. The additional samples that would need to be collected to meet the minimum sample size requirement of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, would have no effect on the Department's "verification" determination, even if these samples yielded no exceedances, given that proposed Rule 62-303.420, Florida Administrative Code, does not contain any provision comparable to Subsection (3) of Rule 62-303.320, Florida Administrative Code, providing that, under certain circumstances, "more recent data" may render "older data" unusable.60 The water would qualify for "verification" regardless of what the additional samples revealed. That is not to say, however, that taking these additional samples would serve no useful purpose. Data derived from these additional collection efforts (shedding light on the severity of the water quality problem) could be used by the Department to help it "establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations," as the Department is required to do pursuant to Subsection (4) of Section 403.067, Florida Statutes. The "calculations [reflected in the table, Table 2, which is a part of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code] are correct." They are based on "a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution." As noted above, the Department did not act unreasonably in selecting this "exceedance frequency" and "confidence level" for use in determining which waters should be "verified as impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." Subsection (4) of proposed Rule 62-303.420, Florida Administrative Code, imposes reasonable quality assurance requirements that must be met in order for "metals data" to be considered "valid" for purposes of determining whether a water has the minimum number of exceedances needed to be "verified as impaired" under the proposed rule. It requires that "Method 1669"-permitted procedures be used only where these procedures are "appropriate." Determining the appropriateness of these procedures in a particular case will require the Department to exercise its "best professional judgment," taking into consideration the amount of the metal in question needed to violate the applicable water quality criterion, in relation to the amount of contamination that could be expected to occur during sample collection and analysis if conventional techniques were used. Doing so should result in "Method 1669"-permitted procedures being deemed "appropriate" in only a few circumstances: when a water is being tested to determine if it exceeds the applicable criterion for mercury, and when testing low hardness waters61 for exceedances of the applicable criterion for cadmium and lead. It is necessary to use "Method 1669"-permitted procedures in these instances to prevent test results that are tainted by contamination occurring during sample collection and analysis. Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, reasonably excludes other data from the "verification" process. It contains the same exclusions that pursuant to Subsection (6) of proposed Rule 62-303.320, Florida Administrative Code, apply in determining whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" ("[v]alues that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, [and] outliers the Department determines are not valid measures of water quality"), plus additional exclusions. Among the additional types of data that will be excluded from consideration under Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are "exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters." Permit violations, by themselves, can cause water quality impairment; however, as the Department has reasonably determined, the quickest and most efficient way to deal with such impairment is to take enforcement action against the offending permittee. To take the time and to expend the funds to develop and implement a TMDL62 to address the problem, instead of taking enforcement action, would not only be unwise and an imprudent use of the not unlimited resources available to combat poor surface water quality in this state, but would also be inconsistent with the expression of legislative intent in Subsection (4) of Section 403.067, Florida Statutes, that the TMDL program not be utilized to bring a water into compliance with water quality standards where "technology-based effluent limitations [or] other pollution control programs under local, state, or federal authority" are sufficient to achieve this result. It is true that the Department has not stopped, through enforcement, all permit violations and that, as Mr. Joyner acknowledged during his testimony at the final hearing, "there are certain cases out there where there are chronic violations of permits." The appropriate response to this situation, however, is for the Department to step up its enforcement efforts, not for it to develop and implement TMDLs for those waters that, but for these violations, would not be impaired. (Citizens dissatisfied with the Department's enforcement efforts can themselves take action, pursuant to Section 403.412(2), Florida Statutes, to seek to enjoin permit violations.) It will be "extremely difficult" to know whether exceedances are due solely to permit violations. Because of this, it does not appear likely that the Department "will be using [the permit violation exclusion contained in] proposed [R]ule [62-303.420(5), Florida Administrative Code] very often." Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, will not exclude from consideration all water quality criteria exceedances in mixing zones . Only those exceedances relating to the parameters "for which the mixing zones are in effect" will be excluded. The exclusion of these exceedances is appropriate inasmuch as, pursuant to the Department's existing rules establishing the state's water quality standards (which the Legislature made clear, in Subsections (9) and (10) of Section 403.067, Florida Statutes, it did not, by enacting Section 403.067, intend to alter or limit), these exceedances are permitted and not considered to be violations of water quality standards. To the extent that there may exist "administratively- continued" permits (that is, permits that remain in effect while a renewal application is pending, regardless of their expiration date) which provide for outdated "mixing zones," this problem should be addressed through the permitting process, not the TMDL program. A "contaminant spill," as that term is used in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, is a short-term, unpermitted discharge [of contaminants63] to surface waters." (See Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, recited above, which defines "spill," as it is used in the proposed rule chapter). It is well within the bounds of reason to exclude from consideration (as Subsection (5) of proposed Rule 62- 303.420, Florida Statutes, indicates the Department will do in deciding whether a water should be "verified as being impaired" under the proposed rule) data collected in such proximity in time to a "contaminant spill" that it reflects only the temporary effects of that "short-term" event (which are best addressed by the Department taking immediate action), rather than reflecting a chronic water quality problem of the type the TMDL program is designed to help remedy. In deciding whether this exclusion applies in a particular case, the Department will need to exercise its "best professional judgment" to determine whether the post-"contaminant spill" data reflects a "short- term" water quality problem attributable to the "spill" (in which case the exclusion will apply) or whether, instead, it reflects a chronic problem (in which case the exclusion will not apply). "Bypass" is defined in Subsection (4) of Rule 62- 620.200, Florida Administrative Code, as "the intentional diversion of waste streams from any portion of a treatment works." "Upset" is defined in Subsection (50) of Rule 62- 620.200, Florida Administrative Code, as follows: "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, careless or improper operation. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of upset provisions of Rule 62-620.610, F.A.C., are met. The "upset provisions of Rule 62-620.610, F.A.C." are as follows: (23) Upset Provisions. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: An upset occurred and that the permittee can identify the cause(s) of the upset; The permitted facility was at the time being properly operated; The permittee submitted notice of the upset as required in condition (20) of this permit; and The permittee complied with any remedial measures required under condition (5) of this permit. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof. Before an enforcement proceeding is instituted, no representation made during the Department review of a claim that noncompliance was caused by an upset is final agency action subject to judicial review. Rule 62-620.610, Florida Administrative Code, also contains "[b]ypass [p]rovisions," which provide as follows: (22) Bypass Provisions. Bypass is prohibited, and the Department may take enforcement action against a permittee for bypass, unless the permittee affirmatively demonstrates that: Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and The permittee submitted notices as required under condition (22)(b) of this permit. If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the Department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass within 24 hours of learning about the bypass as required in condition (20) of this permit. A notice shall include a description of the bypass and its cause; the period of the bypass, including exact dates and times; if the bypass has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The Department shall approve an anticipated bypass, after considering its adverse effect, if the permittee demonstrates that it will meet the three conditions listed in condition (22)(a)1. through 3. of this permit. A permittee may allow any bypass to occur which does not cause reclaimed water or effluent limitations to be exceeded if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of condition (22)(a) through (c) of this permit. The "bypasses" to which the Department refers in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are those that are not prohibited (as Mr. Joyner testified and is evidenced by the grouping of "bypasses" in the same provision with "upsets" and by the fact that there is another provision in Subsection (5) of the proposed rule that deals with permit violations). Since these types of bypasses, as well as upsets, are exceptional events that, under the Department's existing rules, are allowed to occur without the permittee being guilty of a permit violation, it is reasonable, in verifying impairment under proposed Rule 62-303.420, Florida Administrative Code, to discount data tainted by their occurrence, which reflect atypical conditions resulting from legally permissible discharges. The "25-year, 24-hour storm" exclusion was included in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, in response to the TAC's recommendation that the proposed rule "exclude data from extreme storm events." The "25-year, 24-hour storm" is "commonly used in the regulatory context as a dividing line between extremely large rainfall events and less extreme events." It is a rainfall event (or as one witness, the chief of the Department's Bureau of Watershed Management, Eric Livingston, put it, a "gully washer") that produces an amount of rainfall within 24 hours that is likely to be exceeded on the average only once in 25 years. In Florida, that amount is anywhere from about eight to 11 inches, depending on location. Because a "25-year, 24-hour storm" is an extraordinary rainfall event that creates abnormal conditions in affected waters, there is reasonable justification for the Department's not considering, in the "verification" process under proposed Rule 62-303.420, Florida Administrative Code, "25-year, 24-hour storm"-impacted data. This should result in the exclusion of very little data. Data collected following less severe rainfall events (of which there are many in Florida)64 will be unaffected by the "25- year, 24-hour storm" exclusion in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.430, Florida Administrative Proposed Rule 62-303.430, Florida Administrative Code, the counterpart of proposed Rule 62-303.330, Florida Administrative Code, establishes a reasonable non-statistical approach, involving "[b]iological [a]ssessment," to be used as an alternative to the statistical method described in proposed Rule 62-303.420, Florida Administrative Code, in verifying aquatic life use support impairment. Proposed Rule 62-303.430, Florida Administrative Code, reads as follows: Biological Impairment All bioassessments used to list a water on the verified list shall be conducted in accordance with Chapter 62-160, F.A.C., including Department-approved Standard Operating Procedures. To be used for placing waters on the verified list, any bioassessments conducted before the adoption of applicable SOPs for such bioassessments as part of Chapter 62-160 shall substantially comply with the subsequent SOPs. If the water was listed on the planning list based on bioassessment results, the water shall be determined to be biologically impaired if there were two or more failed bioassessments within the five years preceding the planning list assessment. If there were less than two failed bioassessments during the last five years preceding the planning list assessment the Department will conduct an additional bioassessment. If the previous failed bioassessment was a BioRecon, then an SCI will be conducted. Failure of this additional bioassessment shall constitute verification that the water is biologically impaired. If the water was listed on the planning list based on other information specified in rule 62-303.330(4) indicating biological impairment, the Department will conduct a bioassessment in the water segment, conducted in accordance with the methodology in rule 62-303.330, to verify whether the water is impaired. For streams, the bioassessment shall be an SCI. Failure of this bioassessment shall constitute verification that the water is biologically impaired. Following verification that a water is biologically impaired, a water shall be included on the verified list for biological impairment if: There are water quality data reasonably demonstrating the particular pollutant(s) causing the impairment and the concentration of the pollutant(s); and One of the following demonstrations is made: if there is a numeric criterion for the specified pollutant(s) in Chapter 62-302, F.A.C., but the criterion is met, an identification of the specific factors that reasonably demonstrate why the numeric criterion is not adequate to protect water quality and how the specific pollutant is causing the impairment, or if there is not a numeric criterion for the specified pollutant(s) in Chapter 62- 302, F.A.C., an identification of the specific factors that reasonably demonstrate how the particular pollutants are associated with the observed biological effect. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, was written in anticipation of the "adoption of applicable SOPs" for BioRecons, SCIs, and LCIs "as part of [Rule] Chapter 62-160," Florida Administrative Code, subsequent to the adoption of the proposed rule chapter. As noted above, at the time of the final hearing in these cases, the Department was in the process of engaging in rulemaking to incorporate in Rule Chapter 62-160, Florida Administrative Code, the SOPs for BioRecons, SCIs, and LCIs that Department personnel currently use to conduct these "[b]iological [a]ssessment[s]." Until the rulemaking process is completed and any amendments to Rule Chapter 62-160, Florida Administrative Code, become effective,65 to be "used to list a water on the verified list" pursuant to Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, "[b]iological [a]assessment[s]" need meet only the quality assurance requirements of the pre-amendment version of Rule Chapter 62-160 (which does not include SOPs for BioRecons, SCIs and LCIs). Once the amendments become effective, however, "[b]iological [a]assessment[s]," both pre- and post-amendment, will have to have been conducted in substantial compliance with the applicable SOPs included in the new version of Rule Chapter 62-160. No "[b]iological [a]assessment" will be rejected under Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, because it fails to comply with an SOP that, at the time of the "verification" determination, has not been made a part of the Department's rules. The TAC-approved requirement of Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, that there be at least "two failed bioassessments during the last five years preceding the planning list assessment" (as opposed to a longer period of time) in order for a water to be "verified as being [biologically] impaired," without the need to conduct another "[b]iological [a]assessment," is reasonably designed to avoid listing decisions that are based upon test results not representative of the existing overall biological condition of the water in question. Two such failed "[b]iological [a]assessment[s]" will provide the Department with a greater degree of assurance that the water truly suffers from "biological impairment" than it would have if only one failed "[b]iological [a]assessment" was required. If there are fewer than "two failed bioassessments during the last five years preceding the planning list assessment," Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, provides that the Department will conduct another "[b]iological [a]ssessment" to determine whether the water should be "verified as being [biologically] impaired," and failure of this additional "[b]iological [a]assessment" will constitute "verification that the water is biologically impaired." The requirement that there be another failed "[b]iological [a]assessment" to confirm "biological impairment" before a water is "verified as being [biologically] impaired" under Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, is scientifically prudent, particularly in those cases where the water was placed on the "planning list" based upon a "[b]iological [a]ssessment" conducted more than five years earlier. The failure of this additional "[b]iological [a]ssessment" is enough to get the water "verified as being [biologically] impaired" even if there were no failed "[b]iological [a]ssessment[s]" in the "last five years preceding the planning list assessment." Inasmuch as the SCI, compared to the BioRecon, is a more comprehensive and rigorous test, it is reasonable to require (as Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, does) that, in the case of a stream placed on the "planning list" as a result of a failed BioRecon, the additional "[b]iological [a]ssessment" be an SCI, not a BioRecon, and to also require (as Subsection (3) of proposed Rule 62-303.430, Florida Administrative Code, does) that an SCI, rather than a BioRecon, be conducted where a stream has been placed on the "planning list" based upon "other information specified in rule 62-303.330(4) indicating biological impairment." Until such time as the Department develops a rapid bioassessment protocol for estuaries, where the Department is required in Part II of the proposed rule chapter to conduct an additional "[b]iological [a]ssessment, the Department intends to meet this obligation by engaging in "biological integrity standard" testing. TMDLs are pollutant-specific. If a water is "verified as [biologically] impaired," but the Department is not able to identify a particular pollutant as the cause of the impairment, a TMDL cannot be developed. See Section 403.031(21), Florida Statutes (to establish TMDL it is necessary to calculate the "maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards"); and Section 403.067(6)(a)2., Florida Statutes ("The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards"). Accordingly, as noted above, in Subsection (3)(c) of Section 403.067, Florida Statutes, the Legislature has imposed the following perquisites to the Department listing, on its "updated list" of waters for which TMDLs will be calculated, those waters deemed to be impaired based upon "non-attainment [of] biological criteria": If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. Furthermore, Subsection (4) of Section 403.067, Florida Statutes, provides that, if a water is to placed on the "updated list" on any grounds, the Department "must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard." The requirements of Subsection (4) of proposed Rule 62-303.430, Florida Administrative Code, are consistent with these statutory mandates. Proposed Rule 62-303.430, Florida Statutes, does not address waters placed on the "planning list" based upon a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code. Therefore, by operation of proposed Rule 62-303.400, Florida Administrative Code, waters meeting the minimum requirements for "planning list" placement based upon failure of the "biological integrity standard" (a single failure within the ten-year period preceding the "planning list" assessment) will automatically be "verified as being impaired." This is a less stringent "verification" requirement than the Department adopted in proposed Rule 62-303.430, Florida Administrative Code, for "verification" of waters placed on the "planning list" based upon a failed BioRecon, SCI, or LCI. While the results of BioRecons, SCIs, and LCIs are more accurate indicators of "biological impairment" than are the results of "biological integrity standard" testing, the Department's decision to make it more difficult for a water to be "verified as being impaired" if it was placed on the "planning list" based upon a failed BioRecon, SCI, or LCI (as opposed to a failure of the "biological integrity standard") is reasonably justified inasmuch as the "biological integrity standard" is one of the water quality criteria that have been established by the Department in Rule 62-302.530, Florida Administrative Code, whereas, in contrast, neither the BioRecon, SCI, nor LCI are a part of the state's water quality standards. Code Part III: Proposed Rule 62-303.440, Florida Administrative Proposed Rule 62-303.440, Florida Administrative Code, the counterpart of proposed Rule 62-303.340, Florida Administrative Code, prescribes another reasonable method, that is not statistically-based, to verify aquatic life use support impairment. It reads as follows: : Toxicity A water segment shall be verified as impaired due to surface water toxicity in the receiving water body if: the water segment was listed on the planning list based on acute toxicity data, or the water segment was listed on the planning list based on chronic toxicity data and the impairment is confirmed with a failed bioassessment that was conducted within six months of a failed chronic toxicity test. For streams, the bioassessment shall be an SCI. Following verification that a water is impaired due to toxicity, a water shall be included on the verified list if the requirements of paragraph 62-303 430(4) are met. Toxicity data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403. 062, 403.067, FS. History -- New Pursuant to Subsections (1)(a) and (3) of proposed Rule 62-303.440, Florida Administrative Code, a water will automatically be "verified as impaired" for aquatic life use support if it was placed on the "planning list" on the basis of being "acutely toxic," provided that the data supporting such placement was "not collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm." The TAC and Department staff determined that additional testing was not necessary for "verification" under such circumstances because the end point that characterizes "acute toxicity" is so "dramatic" in terms of demonstrating impairment that it would be best to "just go ahead and put [the water] on the list with the two acute [toxicity] failures and start figuring out any potential sources of that impairment." The TAC and Department staff, however, reasonably believed that, because "chronic toxicity tests, in contrast, are measuring fairly subtle changes in a lab test organism" and there is "a very long history within the NPDES program of people questioning the results of the chronic toxicity test," before a water is "verified as being impaired" due to "chronic toxicity," the impairment should be "confirmed with a bioassessment that was conducted within six months of a failed chronic toxicity test"66 (as Subsection (1)(b) of proposed Rule 62-303.440, Florida Administrative Code, provides). It is reasonable to require that the bioassessment, in the case of a stream, be an SCI, rather than a BioRecon, because, as noted above, of the two, the former is the more comprehensive and rigorous test. The requirements of Subsection (2) of proposed Rule 62-303.440, Florida Administrative Code, are consistent with the provisions of the Subsections (3)(c) and (4) of Section 403.067, Florida Statutes. It may be difficult to identify the pollutant causing the impairment inasmuch as toxicity tests are not designed to yield such information. The rationale for excluding, in the assessment process described in proposed Rule 62-303.440, Florida Administrative Code, "data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm" (as Subsection (3) of the proposed rule does) is the same, justifiable rationale (discussed above) supporting the exclusion of such data in the assessment of impairment under proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.450, Florida Administrative Proposed Rule 62-303.450, Florida Administrative Code, the counterpart of proposed Rules 62-303.350 through 62- 303.353, Florida Administrative Code, provides other reasonable ways, not based upon statistics, for waters to be "verified as [being] impaired" for aquatic life use support. It reads as follows: Interpretation of Narrative Nutrient Criteria. A water shall be placed on the verified list for impairment due to nutrients if there are sufficient data from the last five years preceding the planning list assessment combined with historical data (if needed to establish historical chlorophyll a levels or historical TSIs), to meet the data sufficiency requirements of rule 62- 303.350(2). If there are insufficient data, additional data shall be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the thresholds provided in rule 62-303.351- .353, for streams, lakes, and estuaries, respectively, or alternative, site-specific thresholds that more accurately reflect conditions beyond which an imbalance in flora or fauna occurs in the water segment. In any case, the Department shall limit its analysis to the use of data collected during the five years preceding the planning list assessment and the additional data collected in the second phase. If alternative thresholds are used for the analysis, the Department shall provide the thresholds for the record and document how the alternative threshold better represents conditions beyond which an imbalance in flora or fauna is expected to occur. If the water was listed on the planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna as provided in Rule 62-303 350(1), the Department shall verify the imbalance before placing the water on the verified list for impairment due to nutrients and shall provide documentation supporting the imbalance in flora or fauna. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The requirement of the first sentence of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, that there be sufficient (non-historical) data (as measured against the requirements of Subsection (2) of proposed Rule 62- 303.350, Florida Administrative Code67) "from [just] the last five years preceding the planning list assessment" in order for a "nutrient impair[ed]" water to go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code) is reasonably designed to avoid listing decisions based upon outdated data not representative of the water's current conditions. According to the second and third sentences of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, if there is not enough data from this five- year time period, the additional data needed to meet the data sufficiency requirements "will be collected" by the Department, and such additional data, along with the data "from the last five years preceding the planning list assessment," will be evaluated to determine whether one of the applicable thresholds set out in proposed Rules 62-303.351 through 62-303.353, Florida Administrative Code, or an "alternative" threshold established specifically for that water, has been met or exceeded. Deciding whether "alternative, site-specific thresholds" should be used and, if so, what they should be, will involve the exercise of the Department's "best professional judgment," as will the determination as to how, in each case the Department is presented with a water placed on the "planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna," it should go about "verify[ing] the imbalance," as the Department will be required to do by Subsection (2) of proposed Rule 62-303.450, Florida Administrative Code. In some instances, the Department will only need to thoroughly review the "other information" to "verify the imbalance." In other cases, where the "other information" is not sufficiently detailed, new "information" will need to be obtained. How the Department will proceed in a particular case will depend upon the specific circumstances of that case. Code Part III: Proposed Rule 62-303.460, Florida Administrative Proposed Rule 62-303.460, Florida Administrative Code, the counterpart of proposed Rule 62-303.360, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as [being] impaired" for primary contact and recreation use support. It reads as follows: Primary Contact and Recreation Use Support The Department shall review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62-160. If the segment is listed on the planning list based on bathing area closures, advisories, or warnings issued by a local health department or county government, closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when verifying primary contact and recreation use support. The Department shall then re-evaluate the remaining data using the methodology in rule 62- 303.360(1)(c). Water segments that meet the criteria in rule 62-303.360(1)(c) shall be included on the verified list. If the water segment was listed on the planning list due to exceedances of water quality criteria for bacteriological quality, the Department shall, to the extent practical, evaluate the source of bacteriological contamination and shall verify that the impairment is due to chronic discharges of human-induced bacteriological pollutants before listing the water segment on the verified list. The Department shall take into account the proximity of municipal stormwater outfalls, septic tanks, and domestic wastewater facilities when evaluating potential sources of bacteriological pollutants. For water segments that contain municipal stormwater outfalls, the impairment documented for the segment shall be presumed to be due, at least in part, to chronic discharges of bacteriological pollutants. The Department shall then re-evaluate the data using the methodology in rule 62-303.320(1), excluding any values that are elevated solely due to wildlife. Water segments shall be included on the verified list if they meet the requirements in rule 62-303.420(6). Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The first sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, was included in the proposed rule in response to comments made by stakeholders during the rule development process that the Department would be "abdicating [its] authority" if, in determining whether a water was impaired for purposes of TMDL development, it relied solely on action taken by other governmental entities. Department staff agreed that the Department, "as the agency responsible for preparing this list," should at least "review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62- 160," Florida Administrative Code. The rationale for the Department not considering bathing area "closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants . . . when verifying [impairment of] primary contact and recreation use support" (per the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code) is the same, justifiable rationale (discussed above) supporting the exclusions of these closures, advisories, and warnings from consideration in the determination of whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed Rule 62-303.360, Florida Administrative Code. The exclusions set forth in the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part III of the proposed rule chapter other than Subsection (1) of proposed Rule 62-303.460. Pursuant to the third and fourth sentences of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, after the Department determines, in accordance with the first and second sentences of this subsection of the proposed rule, what bacteriological data-based bathing area closures, advisories, and warnings should be counted, it will determine whether there were a total of at least 21 days of such closures, advisories, and warnings during a calendar year (the number required by Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, for placement on the "planning list") and, if there were, it will verify the water in question as being impaired for primary contact and recreation use support. This is the only way for a water to be "verified as being impaired" based upon bathing area closures, advisories, or warnings under the proposed rule chapter. The "criteria" set forth in Subsections (1)(b) and (1)(d) of proposed Rule 62-303.360, Florida Administrative Code (unlike the criteria set forth in Subsection (1)(c) of proposed Rule 62-303.360) are not carried forward in proposed Rule 62- 303.460, Florida Administrative Code. Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, provides another way, based upon a statistical analysis of "exceedances of water quality criteria for bacteriological quality," for a water to be "verified as being impaired" for primary contact and recreation use support. It reasonably requires the Department, in determining whether such impairment exists, to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Under Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, the Department, to the extent practical, will evaluate the source of an exceedance to make sure that it is "due to chronic discharges of human-induced bacteriological pollutants," and, if such evaluation reveals that the exceedance was "solely due to wildlife," the exceedance will be excluded from the calculation. While it is true that "microbial pollutants from [wildlife] do constitute a public health risk in recreational waters," the purpose of the TMDL program is to control human-induced impairment and, consequently, the Department is not required to develop TMDLs "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution." See Section 403.067(6)(a)2., Florida Statutes. Part III: Proposed Rule 62-303.470, Florida Administrative Code Rule 62-303.470, Florida Administrative Code, the counterpart of proposed Rule 62-303.370, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for fish and shellfish consumption use support. It provides as follows: Fish and Shellfish Consumption Use Support In order to be used under this part, the Department shall review the data used by the DoH as the basis for fish consumption advisories and determine whether it meets the following requirements: the advisory is based on the statistical evaluation of fish tissue data from at least twelve fish collected from the specific water segment or water body to be listed, starting one year from the effective date of this rule the data are collected in accordance with DEP SOP FS6000 (General Biological Tissue Sampling) and FS 6200 (Finfish Tissue Sampling), which are incorporated by reference, the sampling entity has established Data Quality Objectives (DQOs) for the sampling, and the data meet the DQOs. Data collected before one year from the effective date of this rule shall substantially comply with the listed SOPs and any subsequently developed DQOs. there are sufficient data from within the last 7.5 years to support the continuation of the advisory. If the segment is listed on the planning list based on fish consumption advisories, waters with fish consumption advisories for pollutants that are no longer legally allowed to be used or discharged shall not be placed on the verified list because the TMDL will be zero for the pollutant. Waters determined to meet the requirements of this section shall be listed on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.470, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" based upon fish consumption advisories pursuant to Subsection (2) of proposed Rule 62- 303.370, Florida Administrative Code. Waters placed on the "planning list" pursuant to Subsections (1) and (3) of proposed Rule 62-303.370, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62- 303.600, 62-303.700, and 62-303.710, Florida Administrative Code). The mere fact that a fish consumption advisory is in effect for a water will be enough for that water to qualify for placement on the "planning list" under Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Department will not look beyond the four corners of the advisory at this stage of the "identification of impaired surface waters" process. Proposed Rule 62-303.470, Florida Administrative Code, however, will require the Department, before including the water on the "verified list" based upon the advisory, to conduct such an inquiry and determine the adequacy of the fish tissue data supporting the initial issuance of the advisory and its continuation. Mandating that the Department engage in such an exercise as a prerequisite to verifying impairment based upon a fish consumption advisory is a provident measure in keeping with the Legislature's directive that the TMDL program be "scientifically based." Department staff's intent, in requiring (in Subsection (1)(a) of proposed Rule 62-303.470, Florida Administrative Code) that there be fish tissue data from at least 12 fish, "was to maintain the status quo" and not require any more fish tissue samples than the Department of Health presently uses to determine whether an advisory should be issued. The SOPs incorporated by reference in Subsection (1)(b) of proposed Rule 62-303.470, Florida Administrative Code, contain quality assurance requirements that are essentially the same as those that have been used "for many years" to collect the fish tissue samples upon which fish consumption advisories are based. These SOPs have yet to be incorporated in Rule Chapter 62-160, Florida Administrative Code. Data Quality Objectives are needed for sampling to be scientifically valid. There are presently no Data Quality Objectives in place for the sampling that is done in connection with the Department of Health's fish consumption advisory program. Pursuant to Subsection (1)(b) of proposed Rule 62- 303.470, Florida Administrative Code, after one year from the effective date of the proposed rule, in order for data to be considered in determining data sufficiency questions under the proposed rule, the sampling entity will have to have established Data Quality Objectives for the collection of such data and the data will have to meet, or (in the case of "data collected before one year from the effective date of this rule") substantially comply with, these Data Quality Objectives. As noted above, the majority of fish consumption advisories now in effect were issued based upon fish tissue data collected more than 7.5 years ago that has not been supplemented with updated data. It "will be a huge effort to collect additional data that's less than seven-and-a-half years old" for the waters under these advisories (and on the "planning list" as a result thereof) to determine, in accordance with Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, whether the continuation of these advisories is warranted. Undertaking this "huge effort," instead of relying on data more than 7.5 years old to make these determinations, is reasonably justified because this 7.5-plus-year-old data that has already been collected may no longer be representative of the current conditions of the waters in question and it therefore is prudent to rely on more recent data. Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, does not specify the amount of fish tissue data that will be needed in order for the Department to determine that there is sufficient data to "support the continuation of the advisory." The Department will need to exercise its "best professional judgment" on a case-by-case basis in making such sufficiency determinations. Part III: Proposed Rule 62-303.480, Florida Administrative Code Proposed Rule 62-303.480, Florida Administrative Code, the counterpart of proposed Rule 62-303.380, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for the protection of human health. It provides as follows: Drinking Water Use Support and Protection of Human Health If the water segment was listed on the planning list due to exceedances of a human health-based water quality criterion and there were insufficient data from the last five years preceding the planning list assessment to meet the data sufficiency requirements of section 303.320(4), additional data will be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the methodology in rule 62-303.380(2) and limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph (not to include data older than 7.5 years). For this analysis, the Department shall exclude any data meeting the requirements of paragraph 303.420(5). The following water segments shall be listed on the verified list: for human health-based criteria expressed as maximums, water segments that meet the requirements in rule 62-303.420(6), or for human health-based criteria expressed as annual averages, water segments that have an annual average that exceeds the applicable criterion. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.480, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" for "assessment of the threat to human health" pursuant to Subsection (2) of proposed Rule 62- 303.380, Florida Administrative Code. Notwithstanding that proposed Rule 62-303.480, Florida Administrative Code, is entitled, "Drinking Water Use Support and Protection of Human Health," waters placed on the "planning list" for drinking water use support pursuant to Subsection (1) of proposed Rule 62- 303.380, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62- 303.700, and 62-303.710, Florida Administrative Code). Proposed Rule 62-303.480, Florida Administrative Code, reasonably requires the Department, in determining whether a water should be "verified as being impaired" for the protection of human health based upon exceedances of "human health-based criteria expressed as maximums," to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Proposed Rule 62-303.480, Florida Administrative Code, also sets forth an appropriate method for use in determining whether a water should be "verified as being impaired" based upon exceedances of "human health-based criteria expressed as annual averages." Only one exceedance of any "human health-based criteria expressed as an annual average" will be needed for a water to be listed under the proposed rule, the same number needed under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, for a water to make the "planning list." Under proposed Rule 62-303.480, Florida Administrative Code, however, unlike under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, the data relied upon by the Department will have to meet the "data sufficiency requirements of section [62]-303.320(4)," Florida Administrative Code, and, in addition, data of the type described in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, as well as data collected more than "five years preceding the planning list assessment," will be excluded from the Department's consideration. Code Part III: Proposed Rule 62-303.500, Florida Administrative As noted above, Subsection (4) of Section 403.067, Florida Statutes, directs the Department, "[i]n association with [its preparation of an] updated list [of waters for which TMDLs will be calculated, to] establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations." Proposed Rule 62- 303.500, Florida Administrative Code, explains how the Department will go about carrying out this statutory directive. It reads as follows: When establishing the TMDL development schedule for water segments on the verified list of impaired waters, the Department shall prioritize impaired water segments according to the severity of the impairment and the designated uses of the segment taking into account the most serious water quality problems; most valuable and threatened resources; and risk to human health and aquatic life. Impaired waters shall be prioritized as high, medium, or low priority. The following waters shall be designated high priority: Water segments where the impairment poses a threat to potable water supplies or to human health. Water segments where the impairment is due to a pollutant regulated by the CWA and the pollutant has contributed to the decline or extirpation of a federally listed threatened or endangered species, as indicated in the Federal Register listing the species. The following waters shall be designated low priority: [W]ater segments that are listed before 2010 due to fish consumption advisories for mercury (due to the current insufficient understanding of mercury cycling in the environment). Man-made canals, urban drainage ditches, and other artificial water segments that are listed only due to exceedances of the dissolved oxygen criteria. Water segments that were not on a planning list of impaired waters, but which were identified as impaired during the second phase of the watershed management approach and were included in the verified list, unless the segment meets the criteria in paragraph (2) for high priority. All segments not designated high or low priority shall be medium priority and shall be prioritized based on the following factors: the presence of Outstanding Florida Waters. the presence of water segments that fail to meet more than one designated use. the presence of water segments that exceed an applicable water quality criterion or alternative threshold with a greater than twenty-five percent exceedance frequency with a minimum of a 90 percent confidence level. the presence of water segments that exceed more than one applicable water quality criteria. administrative needs of the TMDL program, including meeting a TMDL development schedule agreed to with EPA, basin priorities related to following the Department's watershed management approach, and the number of administratively continued permits in the basin. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is anticipated that most waters on the Department's "updated list" will fall within the "medium priority" category. Subsections (4)(a) through (4)(e) of proposed Rule 62-303.500, Florida Administrative Code, describe those factors (including, among others, the "presence of Outstanding Florida Waters" and "the number of administratively continued permits in the basin," the latter being added "based on input from the Petitioners") that will be taken into account by the Department in prioritizing waters within this "medium priority" category; but nowhere in the proposed rule does the Department specify how much weight each factor will be given relative to the other factors. This is a matter that, in accordance with the TAC's recommendation, will be left to the "best professional judgment" of the Department. "[T]here is a lot known about mercury" and its harmful effects; however, as the Department correctly suggests in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, there is not yet a complete understanding of "mercury cycling in the environment" and how mercury works its way up the food chain. "[T]here are a series of projects that are either on the drawing board or in progress now" that, hopefully, upon their conclusion, will give the Department a better and more complete understanding of what the sources of mercury in Florida surface waters are and how mercury "cycles" in the environment and ends up in fish tissue. Until the Department has such an understanding, though, it is reasonable for waters "verified as being impaired" due to fish consumption advisories for mercury to be given a "low priority" designation for purposes of TMDL development (as the Department, in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, indicates it will). Code Part III: Proposed Rule 62-303.600, Florida Administrative As noted above, proposed Rule 62-303.600, Florida Administrative Code, like Subsection (5) of proposed Rule 62- 303.100, Florida Administrative Code, is designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." It reads as follows: Evaluation of Pollution Control Mechanisms Upon determining that a water body is impaired, the Department shall evaluate whether existing or proposed technology- based effluent limitations and other pollution control programs under local, state, or federal authority are sufficient to result in the attainment of applicable water quality standards. If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA,[68] the segment shall not be listed on the verified list. The Department shall document the basis for its decision, noting any proposed pollution control mechanisms and expected improvements in water quality that provide reasonable assurance that the water segment will attain applicable water quality standards. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is beyond reasonable debate that, pursuant to Subsection (4) of Section 403.067, Florida Statutes, before the Department may include impaired waters on the "updated list" of waters for TMDLs will be calculated, it must evaluate whether "technology-based effluent limitations and other pollution control programs" are sufficient for water quality standards in these waters to be attained in the future. (To construe the statute as requiring the Department to simply look back, and not forward into the future, in conducting its mandated evaluation of "pollution control programs" would render meaningless the language in the statute directing the Department to conduct such an evaluation after having determined that these waters are impaired.69 As Mr. Joyner testified at the final hearing in explaining what led Department staff "to conclude that [the Department] should be considering future achievement of water quality standards or future implementation of such [pollution control] programs": [I]t [Subsection (4) of Section 403.067, Florida Statutes] basically requires two findings. It's impaired and these things won't fix the problem. If the "won't fix the problem" required it to be fixed right now in the present tense [to avoid listing], then it couldn't be impaired. So it would just be an illogical construction of having two requirements in the statute.) Proposed Rule 62-303.600, Florida Administrative Code, does not specify when "in the future" water quality attainment resulting from an existing or proposed "pollution control program" must be expected to occur in order for a presently impaired water to not be listed; but neither does Subsection (4) of Section 403.067, Florida Statutes, provide such specificity. Indeed, the statute's silence on the matter was the very reason that Department staff did "not set a time frame for [expected] compliance with water quality standards." Rather than "set[ting] such a time frame," Department staff took other measures "to address the open nature of the statute" and limit the discretion the Legislature granted the Department to exclude presently impaired waters from the "updated list" based upon there being pollution control programs sufficient to result in these waters attaining water quality standards in the future "for the pollutant of concern." They included language in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, requiring that the Department, before exercising such discretion to exclude a presently impaired water from the "updated list," have "reasonable assurance" that water quality standards will be attained and that "reasonable progress" will be made in attaining these standards within a specified time frame, to wit: "by the time the next 303(d) list is scheduled to be submitted to EPA." "Reasonable assurance" is a term that has a "long history" of use by the Department in various programs,70 including its wastewater permitting program.71 Neither sheer speculation that a pollution control program will result in future water quality attainment, nor mere promises to that effect, will be sufficient, under Subsection of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code, to exclude an impaired water from the "updated list." The Department will need to examine and analyze the specific characteristics of each impaired water, as well as the particular pollution control program in question, including its record of success and/or failure, if any, before determining (through the use of its "best professional judgment") whether there is the "reasonable assurance" required by these proposed rule provisions. How much time it will take for an impaired water to attain water quality standards will depend on various water- specific factors, including the size of the water body, the size of the watershed, and whether there are pollutants stored in the sediment. The particular circumstances of each case, therefore, will dictate what constitutes "reasonable progress72 towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA," within the meaning of Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code. Because of the case-specific factors involved in determining "reasonable assurance" and "reasonable progress," it was not practicable for Department staff to specify in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, exactly what would be needed to be shown in each case to establish "reasonable assurance" and "reasonable progress." At the April 26, 2001, rule adoption hearing, Department staff proposed an amendment to proposed Rule 62- 303.600, Florida Administrative, to make the proposed rule more specific by adding "a list of elements that needed to be addressed to provide reasonable assurance" and defining "reasonable progress." The amendment, which was opposed by the DACS and regulated interests, was withdrawn before being considered by the ERC because Department staff felt that is was not "quite well thought out enough," particularly insofar as it addressed the concept of "reasonable progress." Part III: Proposed Rule 62-303.700, Florida Administrative Code As noted above, proposed Rule 62-303.700, Florida Administrative Code, describes the first two phases of the "basin management cycle" and the TMDL-related events that will occur during these phases. It reads as follows: Listing Cycle The Department shall, to the extent practical, develop basin-specific verified lists of impaired waters as part of its watershed management approach, which rotates through the State's surface water basins on a five year cycle. At the end of the first phase of the cycle, which is designed to develop a preliminary assessment of the basin, the Department shall update the planning list for the basin and shall include the planning list in the status report for the basin, which will be noticed to interested parties in the basin. If the specific pollutant causing the impairment in a particular water segment is not known at the time the planning list is prepared, the list shall provide the basis for including the water segment on the planning list. In these cases, the pollutant and concentration causing the impairment shall be identified before the water segment is included on the verified list to be adopted by Secretarial Order. During the second phase of the cycle, which is designed to collect additional data on waters in the basin, interested parties shall be provided the opportunity to work with the Department to collect additional water quality data. Alternatively, interested parties may develop proposed water pollution control mechanisms that may affect the final verified list adopted by the Secretary at the end of the second phase. To ensure that data or information will be considered in the preliminary basin assessment, it must be submitted to the Department or entered into STORET or, if applicable, the DoH database no later than September 30 during the year of the assessment. Within a year of the effective date of this rule, the Department shall also prepare a planning list for the entire state. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The preference expressed in proposed Rule 62-300.700, Florida Administrative Code, for verified lists to be developed on a "basin-specific" basis "as part of the Department's watershed management approach" is consistent with the directive in the first sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that the Department conduct its TMDL assessment for the “basin in which the water body . . . is located.” Proposed Rule 62-300.700, Florida Administrative Code, carries out the mandate in the second sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that, in conducting its TMDL assessment, the Department "coordinate" with "interested parties." Furthermore, the proposed rule makes clear that parties outside the Department will have the opportunity "work with the Department to collect additional water quality data" needed to meet data sufficiency requirements. Identifying the "pollutant and concentration causing the impairment" before including a water on the "verified list," as proposed Rule 62-303.700, Florida Administrative Code, requires be done, is something the Department will need to do to comply with the directive contained in the third sentence of Subsection (4) of Section 403.067, Florida Statutes. Part III: Proposed Rule 62-303.710, Florida Administrative Code Proposed Rule 62-303.710, Florida Administrative Code, addresses the "[f]ormat of [v]erified [l]ist and [v]erified [l]ist [a]pproval." It reads as follows: The Department shall follow the methodology established in this chapter to develop basin-specific verified lists of impaired water segments. The verified list shall specify the pollutant or pollutants causing the impairment and the concentration of the pollutant(s) causing the impairment. If the water segment is listed based on water quality criteria exceedances, then the verified list shall provide the applicable criteria. However, if the listing is based on narrative or biological criteria, or impairment of other designated uses, and the water quality criteria are met, the list shall specify the concentration of the pollutant relative to the water quality criteria and explain why the numerical criterion is not adequate. For waters with exceedances of the dissolved oxygen criteria, the Department shall identify the pollutants causing or contributing to the exceedances and list both the pollutant and dissolved oxygen on the verified list. For waters impaired by nutrients, the Department shall identify whether nitrogen or phosphorus, or both, are the limiting nutrients, and specify the limiting nutrient(s) in the verified list. The verified list shall also include the priority and the schedule for TMDL development established for the water segment, as required by federal regulations. The verified list shall also note any waters that are being removed from the current planning list and any previous verified list for the basin. The verified basin-specific 303(d) list shall be approved by order of the Secretary. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second and fourth sentences of Subsection (1) of proposed Rule 62-303.710, Florida Administrative Code, track the requirements of the third sentence of Subsection (4) and the first and second sentences of Subsection (3)(c), respectively, of Section 403.067, Florida Statutes. Furthermore, as a practical matter, a TMDL cannot be developed if the culprit pollutant is not able to be identified. Subsection (2) of proposed Rule 62-303.710, Florida Administrative Code, was included in the proposed rule because, in most instances, the Department does not consider dissolved oxygen to be a pollutant. The pollutants most frequently associated with exceedances of the dissolved oxygen criteria are nutrients (nitrogen and/or phosphorous). It is essential to identify the "limiting nutrient," as Subsection (3) of proposed Rule 62-303.710, Florida Administrative Code, requires the Department to do, inasmuch as the "limiting nutrient" is the particular pollutant for which a TMDL will be developed. Part IV: Overview Part IV of proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Miscellaneous Provisions." It includes two proposed rules, proposed Rule 62-303.720, Florida Administrative Code, and proposed Rule 62-303.810, Florida Administrative Code. Part IV: Proposed Rule 62-303.720, Florida Administrative Code Proposed Rule 62-303.720, Florida Administrative Code, describes how waters may be removed from the "planning list" and the "verified list." The proposed rule, which is entitled, "Delisting Procedures," cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented" by the proposed rule. Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, addresses the removal of waters from the "planning list." It reads as follows: Waters on planning lists developed under this Chapter that are verified to not be impaired during development of the verified list shall be removed from the State's planning list. Once a water segment is verified to not be impaired pursuant to Part III of this chapter, the data used to place the water on the planning list shall not be the sole basis for listing that water segment on future planning lists. The "removal" provisions of Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will apply to all waters on the planning list "that are verified to not be impaired during development of the verified list," including those waters that had been placed on the "planning list" pursuant to Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, by virtue of their having been on the state's 1998 303(d) list. Waters removed from the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will be eligible to reappear on "future planning lists," but not based exclusively on "the data used to [initially] place the water on the planning list." Additional data will be needed. Subsections (2) and (3) of proposed Rule 62-303.720, Florida Administrative Code, address the removal of waters from the "verified list." They read as follows: Water segments shall be removed from the State's verified list only after completion of a TMDL for all pollutants causing impairment of the segment or upon demonstration that the water meets the water quality standard that was previously established as not being met. For waters listed due to failure to meet aquatic life use support based on water quality criteria exceedances or due to threats to human health based on exceedances of single sample water quality criteria, the water shall be delisted when: the number of exceedances of an applicable water quality criterion due to pollutant discharges is less than or equal to the number listed in Table 3 for the given sample size, with a minimum sample size of 30. This table provides the number of exceedances that indicate a maximum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution, or following implementation of pollution control activities that are expected to be sufficient to result in attainment of applicable water quality standards, evaluation of new data indicates the water no longer meets the criteria for listing established in section 62-303.420, or following demonstration that the water was inappropriately listed due to flaws in the original analysis, evaluation of available data indicates the water does not meet the criteria for listing established in section 62-303.420. New data evaluated under rule 62- 303.720(2)(a)1. must meet the following requirements: they must include samples collected during similar conditions (same seasons and general flow conditions) that the data previously used to determine impairment were collected with no more than 50% of the samples collected in any one quarter, the sample size must be a minimum of 30 samples, and the data must meet the requirements of paragraphs 62-303.320(4), (6) and (7). For waters listed due to failure to meet aquatic life use support based on biology data, the water shall be delisted when the segment passes two independent follow-up bioassessments and there have been no failed bioassessments for at least one year. The follow-up tests must meet the following requirements: For streams, the new data may be two BioRecons or any combination of BioRecons and SCIs. The bioassessments must be conducted during similar conditions (same seasons and general flow conditions) under which the previous bioassessments used to determine impairment were collected. The data must meet the requirements of Section 62-303.330(1) and (2), F.A.C. For waters listed due to failure to meet aquatic life use support based on toxicity data, the water shall be delisted when the segment passes two independent follow-up toxicity tests and there have been no failed toxicity tests for at least one year. The follow-up tests must meet the following requirements: The tests must be conducted using the same test protocols and during similar conditions (same seasons and general flow conditions) under which the previous test used to determine impairment were collected. The data must meet the requirements of rules 62-303.340(1), and the time requirements of rules 62-303.340(2) or (3). For waters listed due to fish consumption advisories, the water shall be delisted following the lifting of the advisory or when data complying with rule 62-303.470(1)(a) and (b) demonstrate that the continuation of the advisory is no longer appropriate. For waters listed due to changes in shellfish bed management classification, the water shall be delisted upon reclassification of the shellfish harvesting area to its original or higher harvesting classification. Reclassification of a water from prohibited to unclassified does not constitute a higher classification. For waters listed due to bathing area closure or advisory data, the water shall be delisted if the bathing area does not meet the listing thresholds in rule 62-303.360(1) for five consecutive years. For waters listed based on impacts to potable water supplies, the water shall be delisted when applicable water quality criteria are met as defined in rule 62- 303.380(1)(a) and when the causes resulting in higher treatment costs have been ameliorated. For waters listed based on exceedance of a human health-based annual average criterion, the water shall be delisted when the annual average concentration is less than the criterion for three consecutive years. For waters listed based on nutrient impairment, the water shall be delisted if it does not meet the listing thresholds in rule 62-303.450 for three consecutive years. For any listed water, the water shall be delisted if following a change in approved analytical procedures, criteria, or water quality standards, evaluation of available data indicates the water no longer meets the applicable criteria for listing. Table 2: Delisting Maximum number of measured exceedances allowable to DELIST with at least 90% confidence that the actual exceedance rate is less than or equal to ten percent. Sample Sizes From To Maximum # of exceedances allowable for delisting 30 37 0 38 51 1 52 64 2 65 77 3 78 90 4 91 103 5 104 115 6 116 127 7 128 139 8 140 151 9 152 163 10 164 174 11 175 186 12 187 198 13 199 209 14 210 221 15 222 232 16 233 244 17 245 255 18 256 266 19 267 278 20 279 289 21 290 300 22 301 311 23 312 323 24 324 334 25 335 345 26 346 356 27 357 367 28 368 378 29 379 389 30 390 401 31 402 412 32 413 423 33 424 434 34 435 445 35 446 456 36 457 467 37 468 478 38 479 489 39 490 500 40 Any delisting of waters from the verified list shall be approved by order of the Secretary at such time as the requirements of this section are met. Subsection (2)(a)1. of proposed rule 62-303.720, Florida Administrative Code, establishes a statistical methodology appropriate for "delisting" waters that have been listed as impaired based upon {e]xceedances of [a]quatic [l]ife- [b]ased [w]ater [q]uality [c]riteria." This "delisting" methodology" is the "equivalent" (as that term is used in Subsection (5) of Section 403.067, Florida Statutes) of the statistical methodology that will be used, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to verify impairment based upon such exceedances. Both methodologies are based on the binomial model and use an "exceedance frequency" threshold of ten percent with a minimum confidence level of 90 percent. A greater minimum sample size is required under Subsection (2)(a)1. of proposed Rule 62-303.720, Florida Administrative Code, because the Department will need, thereunder, "to have at least 90 percent confidence that the actual exceedance rate is less than ten percent" "as opposed to greater than ten percent, which is a bigger range." The "calculations [reflected in the table, Table 3, which is a part of Subsection (2)(a)1. of proposed Rule 62- 303.720, Florida Administrative Code] are correct." There is nothing unreasonable about the "delisting" criteria set forth in Subsections (2)(c) and (2)(j) of proposed Rule 62-303.720, Florida Administrative Code. Subsection (2)(c) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department, where waters have been "listed due to failure to meet aquatic life use support based on toxicity data" (in the form of two failed toxicity tests conducted "two weeks apart over a twelve month period"), to "delist" these waters if the Department has more recent "equivalent [toxicity] data" (in the form of two passed "follow-up toxicity tests," with no failed tests for at least twelve months) showing that the waters are not toxic. Subsection (2)(j) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department to "delist" a water "following a change in approved analytical procedures" only where the change calls into question the validity and accuracy of the data that was relied upon to make the original listing determination and there is other data demonstrating that the water meets water quality standards. Code Part IV: Proposed Rule 62-303.810, Florida Administrative Proposed Rule 62-303.810, Florida Administrative Code, is entitled, "Impairment of Interstate and Tribal Waters." It reads as follows: The Department shall work with Alabama, Georgia, and federally recognized Indian Tribes in Florida to share information about their assessment methodology and share water quality data for waters that form state boundaries or flow into Florida. In cases where assessments are different for the same water body, the Department shall, to the extent practical, work with the appropriate state, Indian Tribe and EPA to determine why the assessments were different. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Petitioners challenge the South Florida Water Management District’s (the District) proposed action to issue Individual Environmental Resource Permit (ERP) 50-06558-P to authorize conceptual approval of a surface water management (SWM) system to serve 1,919 acres of a phased, multiple-use development referred to as the Palm Beach County Biotechnolgy Research Park (BRP) and to authorize construction and operation of Phase 1A of that proposed project. The ultimate issue is whether the Applicants provided reasonable assurances that the proposed activities will not be harmful to the water resources of the District; will not be inconsistent with the overall objectives of the District; and will comply with the water quantity, environmental, and water quality criteria of the District’s ERP regulations, which are set forth in Part IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 40E-4, et. seq.; and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District – September 2003 (BOR).1
Findings Of Fact THE PARTIES The Florida Wildlife Federation, Audubon Society of the Everglades, and Jupiter Farms Environmental Council, Inc. (d/b/a Loxahatchee River Coalition) are not-for-profit corporations in existence prior to 2003 with more than 25 members in Palm Beach County. Palm Beach County Environmental Coalition was formed in 1997 and is a private, county-wide, non-profit citizen’s organization. Ms. Ketter, Mr. Bell, Ms. Larson, and Mr. Christensen are individuals affected by the proposed BRP. The Respondents stipulated that the parties who remained Petitioners after Mr. Silver’s withdrawal as a Petitioner have standing to bring this proceeding. The District, a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, operates pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. The County is a duly-constituted governmental entity. THE PROJECT SITE AND ADJACENT LANDS The site of the project is generally referred to as the Mecca Farms, which is a contiguous tract of 1,919 acres of land. At present, the Mecca Farms is used for farming and mining operations. There presently exists a permitted, SWM system on the Mecca Farms that was first permitted in 1979, and has been modified from time to time since then. The existing SWM system includes 73 acres of ditches and a 272-acre above-ground impoundment area. The Mecca Farms site is located within the C-18 Basin. There are no jurisdictional wetlands or delineated surface waters on the Mecca Farms. The following, which is taken from the Staff Report (SFWMD Ex. 1), accurately describes the project site and its adjacent lands: The project site consists of 1,919 acres presently supporting an active orange grove with approximately 73 acres of associated drainage and irrigation ditches/canals and a 30-acre active sand mining operation. The ditches/canals are presently maintained at an elevation of approximately 17 feet NGVD.[3] These ditches/canals provide drainage conveyance to a 272-acre above- ground impoundment located in the northeast corner of the site utilizing four (4) 22,000 gpm pumps. The above-ground impoundment discharges to the west leg of the C-18 Canal via gravity discharge. Project site ditches and canals also connect directly to the C-18 Canal through an 18,000 gpm pump. An additional 224-acre agricultural area east of the 1,919 acres of orange groves is connected to and drains into the canal/ditch system on the project site. This adjacent area was leased from the adjacent land owner by the grove owner for use as row crops and was connected to the grove canal/ditch system for better control of drainage and irrigation. The area is no longer used for row crops. There is also a small area on the site that contains caretaker housing and an equipment maintenance building for the orange groves. These facilities were originally permitted in 1979 under Surface Water Management Permit No. 50-00689-S and subsequent modifications. The citrus grove and primary drainage facilities have been in existence since the 1960s. The Hungryland Slough is located north of the project site, separated from the project site by the C-18 Canal. This area is comprised primarily of publicly-owned natural areas, including an area referred to as Unit 11, which is owned in the majority by Palm Beach County. To the west is the J.W. Corbett Wildlife Management Area (CWMA) owned and managed by the Florida Fish and Wildlife Conservation Commission (FFWCC). To the east, a large area of low-intensity agricultural land exists under the ownership of Charles Vavrus and within the City of Palm Beach Gardens. These lands contain extensive wetlands that are adjacent to the Loxahatchee Slough to the east. The Acreage, a low-density residential area, is located directly to the south of the project site. The only access to the site at this time is an unpaved extension of Seminole Pratt-Whitney Road (SPW), connecting the site at its southwestern corner to the Acreage. THE PROPOSED PROJECT The subject application is for conceptual approval of the SWM system for the BRP and for construction and operation of Phase 1A of the project. All of the proposed Phase 1A construction will occur on the Mecca Farms site. The following, taken from the Staff Report, accurately describes the proposed project: The [BRP] is a phased multiple use development planned for approximately 1,919 acres and will consist of land uses related to science and technology, biotechnology, biomedical, and other related research and development industries and manufacturing. Additionally, proposed support and complementary land uses include educational, institutional, residential, commercial, and recreational facilities, along with utilities and a large created natural area. THE PROPOSED SWM SYSTEM The proposed SWM system will consist of several interconnected lakes that will provide wet detention for storm water runoff from the property site and from 39 acres of off- site flows from SPW Road and a proposed Florida Power and Light (FPL) Substation. The lakes will collect, store, and treat the runoff. The storm water will pass through the lakes, through a 247-acre area referred to as the “Natural Area” (which will be created as part of the mitigation plan), and discharged to the C-18 Canal. To provide additional water quality treatment, these lakes will include planted littoral zones and the southern lake will include a filter marsh. The Natural Area will, in subsequent construction phases, be constructed on the western boundary of the Mecca site with discharge to the C-18 canal, which is adjacent to the northern boundary of the Mecca Farms. The southern boundary of the Natural Area will be the north boundary of the lake that is to be constructed on the southern end of the property. This is the area that is available for use as a flow-way (which will be discussed in greater detail in a subsequent section of this Recommended Order). The Natural Area will be a wetland type system that will move water slowly through that system providing additional storage and water quality benefits prior to discharging through a gravity control structure into the C-18 Canal. The C-18 Canal discharges to either the Northwest or Southwest Fork of the Loxahatchee River, depending on how structures are operated downstream. Discharges travel in the C-18 Canal for approximately nine miles before reaching the Loxahatchee River. The existing SWM system for the Mecca Farms currently discharges to the C-18 Canal, as will the proposed SWM system. The proposed project will not discharge to the CWMA or the Hungryland Slough. The Grassy Waters Preserve and the Loxahatchee Slough are several miles from the project site and will not be affected by the project’s proposed activities. The following, which is taken from the Staff Report, accurately describes the proposed SWM system. The proposed conceptual surface water management system which will serve the 1,919-acre site will consist of site grading, storm water inlets and culverts which will direct all runoff to a series of interconnected lakes for water quality treatment and attenuation of the peak runoff rate. Pumps will control the runoff rate from the developed site into the adjacent onsite BRP natural area. The BRP natural area will discharge into the C-18 canal via a gravity control structure. The system has been designed to accommodate 39 acres of off-site flows from SPW [Road] and a proposed Florida Power and Light (FPL) Substation. The existing control elevation of the citrus grove is 17.0’ NGVD. The proposed control elevations are 18.0’ NGVD for the developed area and 19.0’ NGVD for the natural area. The control elevations are being raised to provide a “step down” of water elevations from wetlands to the north, west and east of the site (20.5’ to 21.0’) to lower elevations to the south (17.0’). PHASE 1A CONSTRUCTION The following, which is taken from the Staff Report, accurately describes the proposed Phase 1A construction: The Phase 1A construction activities will allow the applicant to proceed with lake excavation, clearing and site grading of 536 acres in the southern portion of the site. No permanent buildings or parking areas are proposed at this time. Stormwater from Phase 1A and the remainder of the site, to remain in agricultural use, will be treated in the Phase 1A lakes and then pumped into the existing impoundment for additional water quality treatment and attenuation prior to discharging to the west leg of the C-18 Canal via the existing weir structures. The existing 18,000 gpm pump that connects the on-site ditches and canals directly to the C-18 Canal will remain, but will only be used if the impoundment is full. (See Special Condition No. 21). Approval of Phase 1A authorizes the use of the existing, previously permitted surface water management facilities, therefore, the previous permit no. 50-00689-S is superceded by this permit. The 224 acre agricultural area east of the existing grove that is connected to the grove canal/ditch system will be severed as part of Phase 1A. The pipe connecting this area will be removed and portions of the berm around this area will be regraded so the area will sheetflow into the adjacent pasture land’s canal/ditch system as it did previously [sic] to being connected to the grove system. Of the 536 acres involved in the Phase 1A construction, 87 acres will become lake bottom and 449 acres will remain pervious area, subject only to grading. CONCEPTUAL APPROVAL Pertinent to this proceeding, Florida Administrative Code Rule 40E-4.021(5) defines the term “conceptual approval” to mean an ERP issued by the District which approves a conceptual master plan for a surface water management system or a mitigation bank. Florida Administrative Code Rule 40E-4.305, pertains to conceptual approvals and provides, in relevant part, as follows: Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process. A conceptual approval does not authorize construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system or the establishment and operation of a mitigation bank. * * * For phased projects, the approval process must begin with an application for a conceptual approval which shall be the first permit issued for the project. An application for construction authorization of the first phase(s) may also be included as a part of the initial application. As the permittee desires to construct additional phases, new applications shall be processed as individual or standard general environmental resource permit applications pursuant to the conceptual approval. The conceptual approval, individual and standard general permits shall be modified in accordance with conditions contained in Chapters 40E-4 and 40E-40, F.A.C. Issuance of a conceptual approval permit pursuant to Chapter 40E-4, F.A.C., shall not relieve the applicant of any requirements for obtaining a permit to construct, alter, operate, maintain, remove, or abandon a surface water management system or establish or operate a mitigation bank, nor shall the conceptual approval permit applicant be relieved of the District’s informational requirements or the need to meet the standards of issuance of permits pursuant to Chapters 40E-4 or 40E-40, F.A.C. . . . PERMITTING CRITERIA In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The conditions for issuance focus on water quantity criteria, environmental criteria, and water quality criteria. Florida Administrative Code Rule 40E-4.301 contains the following permitting conditions applicable to this proceeding: In order to obtain a standard general, individual, or conceptual approval permit ... an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: 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 by wetlands and other surface waters; will not adversely affect the quality of receiving waters ...; 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 ...; will not cause adverse impacts to a work of the District ...; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41 F.A.C. Florida Administrative Code Rule 40E-4.302 provides the following Additional Conditions for Issuance of Permits applicable to this proceeding: In addition to the conditions set forth in section 40E-4.301, F.A.C., in order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, and abandonment of a system: Located in, on, or over wetlands or other surface waters will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria as set forth in subsections 4.2.3 through 4.2.3.7 of the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District: Whether the activity 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, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Will 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 Basis of Review. . . . THE BASIS OF REVIEW The District has adopted the BOR and incorporated it by reference by Florida Administrative Code Rule 40E- 4.091(1)(a). The standards and criteria found in the BOR are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Section 1.3 of the BOR provides, in part, as follows: . . . Compliance with the criteria established herein [the BOR] constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C. WATER QUANTITY The term “control elevation” describes the level of freshwater water bodies established by a SWM system. The existing SWM system has a control elevation of 17’ NGVD. The control elevation for the proposed lake system will be raised to 18’ NGVD, and the control elevation for the proposed Natural Area will be raised to 19’ NGVD. Raising the control elevations will permit more treatment of storm water prior to discharge and will permit a more controlled discharge. In addition, raising the control elevation will lessen seepage onto the project site from adjacent wetlands. The Applicants provided reasonable assurances that the proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E- 4.301(a). The Applicants provided reasonable assurances that the proposed project will not cause adverse flooding to on-site or off-site property, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(b). The Applicants provided reasonable assurances that the proposed project will not cause adverse impacts to existing surface water storage and conveyance capabilities, thereby satisfying the criteria set forth in Florida Administrative Code Rule 40E-4.301(c). VALUE OF FUNCTIONS OF WETLANDS AND SURFACE WATERS Florida Administrative Code Rule 40E-4.301(d), requires the Applicants to establish that “. . . the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system . . .” “. . . will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.” The District established that the term “value of functions,” as used in the rule, refers to habitat and life support functions. Because there are no wetlands or delineated surface waters on the Mecca Farms site, there are no direct adverse impacts to the functions that wetlands provide to fish and wildlife. The Applicants have provided reasonable assurances to demonstrate that the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters will not be adversely affected. The existing project site does not contain nesting areas for wetland-dependent endangered or threatened wildlife species or species of special concern. The potential for use of the existing project site for nesting by such species is minimal. The existing project site does contain habitat for the American Alligator and foraging habitat for wading birds and birds of prey. The primary foraging habitat on the existing site is around the perimeter of the existing 272-acre impoundment area in the northeast portion of the site. The existing impoundment will be replaced by on-site storm water treatment lakes and the BRP Natural Area that will have shallow banks planted with wetland plant species common to the area. Wildlife is opportunistic; and wading birds commonly feed in areas where there is water, wetland vegetation and wetland plants. The end result will be that the proposed project will have more and better foraging habitat acreage than the existing site. The Natural Area will provide a wetland buffer between the developed area and CWMA that will prevent any adverse impacts both to the wetlands and other surface waters in CWMA and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. The Natural Area will provide a wetland buffer between the developed area and Unit 11 that will prevent any adverse impacts both to the wetlands and other surface waters in Unit 11 and to the value of the functions those wetlands and other surface waters provide to fish, wildlife, and listed species. There was no competent evidence that the proposed project would impact the ability of the Florida Fish and Wildlife Conservation Commission to manage the CWMA through control burns or otherwise, thereby adversely affecting the diversity or abundance of fish and wildlife (including endangered species and their habitats). Petitioners attempted to raise the issue of mosquito control in their Petitions and at the Final Hearing. The allegations pertaining to mosquito control were struck by the District and Special Condition Number 26 was added before the Petitions were referred to DOAH. Petitioners made no attempt to amend their Petitions and have not challenged Special Condition 26. The Addendum to Staff Report (SFWMD Ex. 2) contains the following Special Condition Number 26: “Upon submittal of an application for construction of any buildings, the permittee shall submit a mosquito control plan for review and approval by District Staff.” Since there will be no buildings containing people or other facilities which would encourage the use of mosquito spraying, it is appropriate for the mosquito control condition to apply to only future phases of construction. There was no competent evidence of impacts attributable to pesticides associated with the application for the SWM system or for Phase 1A construction and operation that would adversely affect the diversity or abundance of fish and wildlife including endangered species and their habitats. The Applicants have satisfied the criteria set forth in Florida Administrative Code Rule 40E-4.301(d). WATER QUALITY The primary concern during Phase 1A construction will be erosion control. Best Management Practices (“BMPs”) are operational and design elements used to either eliminate or reduce the amount of pollutants at the source so they do not get into a SWM system or move downstream. To contain erosion in Phase 1A, the Applicants will use the following BMPs: Silt screens and turbidity barriers within existing ditches and around the perimeter of property. Planned construction sequencing to reduce movement and stock piling of material; Slope stabilization and seeding or sodding of graded areas; and Containment of construction materials with berms. All erosion and turbidity control measures will remain in place until the completion of the on-site construction and approval by the District’s post-permit compliance staff. The Applicants provided reasonable assurances that the proposed Phase 1A construction activities will not adversely impact the quality of receiving waters and that those activities will not violate State water quality standards. Section 5.2.1, BOR, requires that a SWM system provide wet detention for the first one inch of runoff. The proposed SWM system will provide wet detention for one and one-half inches of runoff. The Applicants provided reasonable assurances to demonstrate that the technical criteria in the BOR will be met. Under Section 1.3 of the BOR, compliance with the criteria in the BOR constitutes a presumption that the Proposed Project is in conformance with the conditions for issuance. This presumption was not rebutted by the Petitioners. The lake system will include planted littoral zones to provide additional uptake of pollutants. A filter marsh is also included in the southern lake. All of the storm water runoff from the lakes will pass through the filter marsh, which will be planted with wetland plants. The filter marsh will provide additional polishing of pollutants, uptake, and filtering through the plants. The discharge will then go into the BRP, which will provide the discharge additional uptake and filtering. BMPs utilized during the Operations and Maintenance phase will include regular maintenance inspections and cleaning of the SWM system, street-sweeping, litter control programs, roadway maintenance inspections and repair schedule, municipal waste collection, pollution prevention education programs, pesticides, herbicides and fertilizer storage, and application training and education. The littoral zones, filter marsh, BRP natural area, and BMPs were not included in the water quality calculations and are over and above rule requirements. The Applicants provided reasonable assurances to demonstrate that the proposed project will not adversely affect the quality of receiving waters. Therefore, Rule 40E- 4.301(1)(e), F.A.C., will be satisfied and water quality standards will not be violated. HAZARDOUS SUBSTANCES Pursuant to Section 5.5.5 of the BOR, commercial or industrial zoned projects shall provide at least one-half inch of dry detention or retention pretreatment as part of the required retention/detention, unless reasonable assurances can be offered that hazardous materials will not enter the project's SWM system. The Addendum to Staff Report reflects the following Special Condition 25 pertaining to hazardous materials: Upon submittal of an application for construction of commercial or industrial uses the permittee shall submit a plan that provides reasonable assurances that hazardous materials will not enter the surface water management system pursuant to the requirements of section 5.2.2(a) of the Basis of Review. Applicable permitting criteria does not require the Applicants to present a hazardous substances plan at this point because no facilities that will contain hazardous materials are part of the Phase 1A construction. SECONDARY IMPACTS Florida Administrative Code Rule 40E-4.301(1)(f) and Section 4.1.1(f) of the BOR, require an applicant to provide reasonable assurances that the proposed activities will not cause adverse secondary impacts to the water resources. A secondary impact is an indirect effect of a project resulting in adverse effects to wetlands or other surface waters. The District considers those adverse effects that would not occur "but for" the activities that are closely linked and causally related to the activity under review. This standard is discussed further in the Conclusions of Law section of this Recommended Order. The County’s Exhibit 3 is a secondary impact analysis identifying the secondary impacts that may potentially result from the proposed project. These impacts are: 1) the widening of SPW Road; 2) the construction of an FPL substation; 3) the extension of PGA Boulevard; and 4) the potential relocation of a runway at North County Airport. The secondary impact analysis performed pursuant to the Uniform Mitigation Assessment Method (UMAM) contained in Florida Administrative Code Chapter 62-345 reflects that up to 153.3 acres of wetlands may be partially or completely impacted by these secondary impacts, resulting in approximately 71.21 units of functional loss. Where future activities are expected to directly impact wetlands, secondary impacts were assessed based on the loss of all current functional value within the direct footprint of that activity. Additionally, an assessment was conducted to determine the degree of partial functional loss where impacts beyond the footprint of these activities are anticipated. SPW Road is an existing dirt road which is in the County's five-year road plan to widen as a four-lane paved road. Because the widening of the existing dirt road to a four-lane paved road is part of the five-year road plan, the impacts of that widening are not attributable to the subject project. However, as part of the proposed project, it is proposed to widen SPW Road to a six-lane paved road. The additional impacts associated with the widening from four to six lanes will be caused by, and are linked to, the proposed project. These impacts amount to approximately 2.2 acres. The FPL substation, which is proposed to service the proposed project, may result in 1.6 acres of potential direct impacts to wetlands. In addition, 1.0 acre of potential indirect secondary impacts may occur to wetlands that are not going to be dredged and filled. Those indirect secondary impacts may have some adverse impact on the functional value to those wetlands for wildlife utilization. The extension of PGA Boulevard to the Mecca Farms site has the potential to result in 45.6 acres of direct impacts to wetlands and 56.6 acres of indirect secondary wetland impacts which will not be dredged or filled, but will be in close proximity to the road. The secondary impact assessment for PGA Boulevard assumed the incorporation of wildlife crossings to minimize habitat fragmentation. If the airport runway needs to be shifted, potential direct wetland impacts to an additional 22.7 acres may occur. Indirect impacts to 23.6 acres of wetlands in close proximity could also occur. Runway relocation may or may not be necessary due to the PGA Boulevard extension; however, the analysis assumed the need for the relocation. Each of the projects listed above as potential secondary impacts will require a separate construction and operation permit from the District. The issuance of this permit does not in any way guarantee the issuance of permits for any of these identified potential secondary impacts. MITIGATION PLAN The Applicants provided a conceptual mitigation plan using UMAM to demonstrate how potential secondary impacts could be offset. Mitigation options have the potential to provide more than twice the functional gain than the functional loss from the identified secondary impacts. The conceptual mitigation options include: 194 acres of the land that had been acquired for future mitigation needs in Unit 11. 227 acres of the BRP natural area. 32.6 acres in the southern lake wetland along with proposed upland habitat. Sufficient mitigation is available in these options to offset the potential secondary impacts. The mitigation for the four potential secondary impacts is not required to be implemented now because the impacts are not occurring now. Section 4.2.7 of the BOR requires that the District consider those future impacts now and that a conceptual mitigation plan be provided to demonstrate and provide reasonable assurances that those impacts, in fact, can be offset in the future. The Governor and Cabinet sitting as the Board of Trustees considered and approved a request for public easement of approximately 30 acres to use a portion of CWMA for SPW Road, an FPL substation, and the land area that may be needed by District in the future for the connection to the flow-way. As consideration in exchange for the public easement over 30 acres, the County will transfer fee simple title of 60 acres to the State. This public easement also provides a benefit for CERP as it includes the small portion that the District is going to need for its future CERP project to connect to the flow-way on the proposed project site. The Applicants provided reasonable assurances that mitigation will offset secondary impacts to wetlands and other surface waters. UNIDENTIFIED SECONDARY IMPACTS Testimony at the final hearing raised a question as to whether there is nesting or roosting by listed wading bird species in adjacent off-site wetlands outside the eastern boundary of the project site. Evidence was inconclusive on nesting or roosting in these areas. Because the status of adjacent listed wading bird nesting or roosting is uncertain, the District suggested in its Proposed Recommended Order that a special condition requiring a wildlife survey prior to construction near the eastern project boundary be added to the permit as follows: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicant shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The District represented in its Proposed Recommended Order that the County has no objection to adding the foregoing condition. CUMULATIVE IMPACTS Pursuant to Section 373.414(8), Florida Statutes, the District is required to consider cumulative impacts upon wetlands and other surface waters delineated in Section 373.421(1), Florida Statutes, within the same drainage basin. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. The cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. Cumulative impacts are unacceptable when they would result in unacceptable adverse impacts to the functions of wetlands and surface waters within a drainage basin. There are no wetlands or other surface waters delineated pursuant to Section 373.421(1), Florida Statutes, on the Mecca Farms site. Therefore, no cumulative impacts are created by the direct impacts of the project. Cumulative impacts may be created by a project's secondary impacts. If a wetland impact has been appropriately mitigated on-site within the drainage basin, there is no residual impact, and therefore no cumulative impact. The PGA Boulevard extension, a portion of the SPW Road widening, and the airport runway relocation are located within the C-18 Basin. The proposed mitigation options are all located in the C-18 Basin and will offset those impacts. Those potential secondary impacts are considered to meet the cumulative impact requirements of Section 373.414(8), Florida Statutes. The Applicants provided reasonable assurances that the proposed project will not result in cumulative impacts to the C-18 Basin. The FPL substation is located within the L-8 Drainage Basin. The majority of the SPW Road expansion is located within the C-18 Basin, but a portion is located on the basin line between the C-18 Basin and the L-8 Basin. Because the mitigation for the L-8 impacts are proposed in a different basin, the Applicants were required to conduct a cumulative impact analysis for the L-8 Basin impacts. Based on the Florida Land Use Cover Classification System, there are 43,457 acres of freshwater wetlands within the L-8 Basin. Approximately 41,000 acres of the wetlands in L-8 Basin are in public ownership. This total constitutes approximately 95 percent of all the wetlands in the L-8 Basin. Public ownership of these wetlands provide a high level of assurance that these lands will be protected in perpetuity. The Respondents established that proposed mitigation can fully offset the potential impacts from the SPW Road expansion and the FPL substation and the approximately four acres of impacted wetlands in the L-8 Basin. The Applicants provided reasonable assurances that there are no unacceptable adverse cumulative impacts on the L-8 Basin.4 GROUND WATER FLOWS, SURFACE WATER FLOWS, AND MINIMUM FLOWS AND LEVELS Florida Administrative Code Rule 40E-4.301(1)(g) requires an applicant to provide reasonable assurances that the proposed activity will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes. The term "maintenance of surface and groundwater levels or surface water flows" in Florida Administrative Code Rule 40E-4.301(1)(g) means that a project will not adversely impact the maintenance of surface water flows that contribute to meeting the minimum flow for the water body. An adverse impact to the maintenance of surface or groundwater levels or surface water flows may occur when a project discharging to a water body with a designated minimum flow level is proposed to be diverted. An analysis was done to compare the peak discharge rate from the existing SWM system on the Mecca Farms site with the projected peak discharge rate from the proposed SWM system. The analysis showed that the peak discharge rate under the proposed system will be less than that of the existing system. That result was expected since the proposed system will have higher control elevations, which, as noted above, will provide better treatment and permit a better control of the discharge into the C-18 Canal. Under the existing SWM system, storm event water in a dry period is frequently stored in the existing impoundment for future irrigation purposes. Under the proposed SWM system such storm event water will be discharged downstream, which will benefit those downstream areas during dry periods. The proposed system will also provide better control over pulse discharges during heavy storm events. The Applicants provided reasonable assurances that the proposed activities will not adversely impact the maintenance of surface or ground levels or surface water flows as required by Florida Administrative Code Rule 40E-4.301(1)(g). THE DISTRICT’S OBJECTIVES Sections 373.414 and 373.416, Florida Statutes, require an applicant to provide reasonable assurances that a regulated activity will not be harmful to the water resources and will not be inconsistent with the overall objectives of the District. Congress initially authorized the Central and Southern Florida (“C&SF”) Project in 1948. Thereafter extensive work was undertaken pertaining to flood control; water supply for municipal, industrial, and agricultural uses; prevention of saltwater intrusion; and protection of fish and wildlife. The work included construction of a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of fresh water into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study, which is generally referred to as the “Restudy.” The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region, such as water supply and flood protection. In April 1999, the U.S. Army Corps of Engineers issued the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (“Restudy Report”). The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. The resulting plan is known as CERP. The North Palm Beach County Part I project, which includes restoration of the Northwest Fork of the Loxahatchee River (“NWFLR”), is a component of CERP. The successful completion of CERP and the successful restoration of the NWFLR are high-priority objectives of the District. The Loxahatchee River is an important feature of the South Florida ecosystem, nationally and internationally unique, and an important natural and economic resource. Rules pertaining to MFL for the NWFLR and for the recovery of the NWFLR are found at Florida Administrative Code Rule 40E-8.011; 40E-8.221(4); and 40E-8.421. Recovery goals, which are not presently being met, have been established; and strategies to meet those goals have been identified. The Mecca Farms site is located within the boundaries of the CERP North Palm Beach County Part I project and has the potential to affect CERP and the restoration of the NWFLR. Projects that potentially would affect or would be within or adjacent to a CERP project are evaluated on a case-by- case basis to determine whether a proposed project would not be inconsistent with CERP and other District objectives. There was a dispute between Respondents and Petitioners as to whether the proposed project was inconsistent with the District’s objectives, including CERP and its goals pertaining to the restoration of the NWFLR. Petitioners contend that the District has insufficient evidence that the Mecca Farms will not be needed for the construction of a reservoir. That contention is rejected. The greater weight of the credible evidence established that sufficient storage is available at a superior site known as the Palm Beach Aggregates (PBA) site in the L-8 Basin, which is a unique geological site that will provide in-ground storage of water.5 Water from the PBA storage site can be conveyed to the NWFLR to increase dry season flows. Water can be stored at the PBA site in the wet season to prevent potentially damaging high flows. The L-8 Basin, which is adjacent to the C-18 Basin, receives more water during the wet season than it uses. This means that at present a significant amount of water must be discharged to tide (lost) during the wet season to provide for flood protection in this area. As envisioned, the water currently lost to tide could be stored at the PBA site for use during the dry season. By combining the water storage in the L-8 Basin with connective flow-ways to the C-18 Canal, water demands within the C-18 Basin, including the NWFLR, can also be met by the PBA storage site.6 An increase in freshwater flows to the NWFLR will further the District’s restoration goals for the NWFLR. Storage at PBA has regional benefits for other significant natural areas because it will provide additional flows to the Loxahatchee Slough and Grassy Waters Preserve. Those additional flows will further the District’s CERP goals. Since October of 2003, County staff and the District’s ERP staff have coordinated review of the subject project with the District’s CERP Planning and Federal Projects Division and other District staff working on projects in this region. The County asked the District to determine if the Mecca Farms’ site could in some way accommodate CERP objectives, and three alternatives were considered: 1) no action; 2) a reservoir; and 3) a flow-way. As opposed to a reservoir, the more valuable and the more practical, use of the Mecca Farms site would be as part of the system to convey the stored water to the areas that would most benefit from its discharge. The proposed flow-way in the BRP Natural Area would be an integral part of that conveyance system and would provide the District with greater flexibility in managing and directing the discharge of the water stored at the PBA site. Prior to the development of the flow-way concept as part of the proposed development, CERP identified a single route to take water from PBA to the NWFLR. The flow-way will provide an additional route from PBA to the NWFLR. That additional route will provide the District with greater operational flexibility. The flow-way will complement the L-8 Basin flow- way and help reduce peak flows to the NWFLR and the Estuary. The flow-way also provides a potential route allowing excess water to be brought back from the C-18 Basin to the PBA site for storage. There are no other potential routes that allow water to be directed from the C-18 Basin in the wet season to the PBA site. The flow-way provides a feature that was not part of the CERP original plan and is therefore an unanticipated benefit for CERP. The Applicants provided reasonable assurances that the proposed project is not inconsistent with the District’s objectives.7
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the District issue the subject ERP for the conceptual approval of the SWM system for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and the Amended Staff Report. It is further RECOMMENDED that the District add the following special condition: Prior to application for construction within 1000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. DONE AND ENTERED this 3rd day of December, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of December, 2004.
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 an Environmental Resource Permit should be issued to Conquest Developments USA, L.C., authorizing the modification of an existing stormwater management system serving a residential development known as Silver Lakes in Collier County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, South Florida Water Management District (District), proposes to issue an Environmental Resource Permit (ERP) to Respondent, Conquest Developments USA, L.C. (Applicant), authorizing the modification of an existing stormwater management system serving a private, gated residential community known as Silver Lakes RV and Golf Club, Inc. (Silver Lakes) in unincorporated Collier County, Florida. As the agency responsible for the administration of the ERP program, the District has the authority to grant or deny the requested permit. Preliminary action approving the application was taken by the District on August 15, 2001. Silver Lakes is a 146-acre residential development located adjacent to, and on the east side of, County Road 951 approximately 1.5 miles south of the intersection of U.S. Highway 41 and County Road 951 in southwestern Collier County, Florida. The project site is a part of the larger development and consists of approximately forty undeveloped acres (40-acre site) just north of, and adjacent to, the residential community. If the application is approved, the Applicant would be allowed to construct an open storage facility on a 7.02-acre tract of land in the western part of the 40-acre site on which trailers, boats, motor homes, tow dollies, and similar items will be stored. It would also allow the Applicant to relocate previously permitted lots along the southeastern boundary of the 40-acre site which border the Silver Lakes development. Petitioners, Jerome and Susan Strauss, own Lots 14, 15, and 16 within Silver Lakes. Petitioners, Joseph H. and Patricia Belanger, own Lot 26 within Silver Lakes, which is adjacent to the proposed storage facility. For obvious reasons, the Belangers do not wish to have a storage facility next to their property. Rather, they and the other Petitioners have suggested that the storage facility be reduced in size and moved to a 3.0-acre site in the northeastern portion of the 40-acre site. The parties have stipulated that Petitioners have standing to bring this action. As reflected in the parties' Prehearing Stipulation, Petitioners contend that the proposed construction of the storage area will cause flooding, adverse secondary impacts, and adverse water quantity impacts; that the proposed activity will result in a violation of state water quality standards; that the proposed system will cause adverse impacts to surface water storage and conveyance capabilities, the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters, and the conservation of fish and wildlife; that the Applicant has failed to minimize or avoid impact to jurisdictional wetlands to the greatest extent practicable; that the proposed site provides a wildlife corridor connected to protected lands directly to the west; that the proposed site is jurisdictional wetlands; that the Applicant has engaged in District activities without a permit; and that the proposed site is subject to a Declaration of Covenants, Conditions, and Restrictions. These objections, where relevant, have been grouped into five categories - wetlands, wildlife, secondary and cumulative impacts, water quality and quantity, and prior enforcement activities - and they are addressed separately below. Wetlands The District has adopted and incorporated by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a document known as the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (Basis of Review). The standards and criteria found in the Basis of Review are used to determine whether an applicant has given reasonable assurances that the conditions for issuance of an ERP have been satisfied. Compliance with the criteria in the Basis of Review creates a presumption that the standard and additional conditions for issuance of an ERP in Rules 40E-4.301 and 40E- 4.302, Florida Administrative Code, respectively, have been met. See Section 1.3, Basis of Review. Section 4.2.1 of the Basis of Review generally requires that an applicant provide reasonable assurances that wetland impacts be eliminated or reduced to the greatest extent practicable. This can be done through the implementation of "practicable design modifications" to the project, or where adverse impacts still remain after such modifications, through mitigation. There are 36.82 acres of wetlands throughout the 40- acre site. If the application is approved, there will be adverse impacts to 9.9 acres of wetlands in the western portion of the site (where the storage facility will be located) and to 3.37 acres in the southeastern portion of the site. To avoid and minimize wetland impacts, the Applicant has been required to reduce the number of acres impacted from its original proposal, and to place the storage area on the western part of the 40-acre site near County Road 951. In the original application, the Applicant proposed to place the storage area in the eastern part of the site and to create a larger storage area. Although the western part of the 40-acre site contains higher quality wetlands than the central or eastern parts, the western area is not pristine, and it is substantially impacted by exotic species, such as wax myrtle and Brazilian pepper. In addition, the western area is adjacent to County Road 951, which reduces wetland functions and values, reduces habitat values because of increased light and noise encroachment, and increases risk to wildlife because of passing vehicles. Further, the central and eastern areas are adjacent to other undeveloped lands, and this creates the potential for larger tracts of preserved and enhanced wetlands and maximizes wetland functions and values. Impacts to wetlands will be adequately mitigated by the Applicant preserving and enhancing 26.92 acres within the 40-acre site in a recorded conservation easement; by monitoring and reporting on the on-site mitigation (easement) for a five-year period and by maintaining the property in perpetuity; by purchasing 3.66 mitigation credits of similar wetland habitat from the Panther Island Mitigation Bank; and by adhering to a remediation plan (found in the Special Conditions in the permit) to address any future deficiencies in the mitigation. Given these considerations, it is found that the Applicant has provided reasonable assurances that the wetland impacts from the proposed activities will be eliminated or reduced as required by Section 4.2.1 of the Basis of Review. Impact on Wildlife Section 4.2.2 of the Basis of Review requires an applicant to provide reasonable assurances that the activity will not impact the values of wetlands and other surface water functions so as to cause adverse impacts to the abundance, diversity, or habitat of fish, wildlife, and listed species. The primary agency responsible for the protection of wildlife is the Florida Fish and Wildlife Conservation Commission (Commission), and not the District. Therefore, Section 4.2.2 of the Basis of Review requires that the District provide the Commission with a copy of all ERP applications for its review and comment as to wildlife issues. In this case, the Commission offered no comments or objections regarding wildlife on the property in question. The evidence shows that listed and endangered species such as Florida panthers, wood storks, and Big Cypress fox squirrels have been spotted on infrequent occasions on the 40-acre site by residents of Silver Lake. However, the parties stipulated that there was no evidence of any nesting, denning, or breeding activity on the same site. Based on the evidence of record, including the Applicant's Protected Species Survey, it is fair to infer that there is limited or no use of the property by protected wildlife species. Indeed, Petitioners' own expert found no evidence of endangered or threatened species on the 40-acre site during his two inspections. Two Special Conditions have been incorporated into the permit to protect endangered, threatened, or other listed species. First, in the event that Big Cypress fox squirrels are observed on or near the property, Special Condition 24 requires that the Applicant prepare a habitat management plan, in consultation with the Commission, to address issues related to nesting habitat. Second, if any endangered or threatened species are ever found on the property, Special Condition 25 requires that the Applicant coordinate with the Commission or the U.S. Fish and Wildlife Commission for guidance or recommendations. Given the above, the evidence supports a finding that the Applicant has given reasonable assurances that the requirements of Section 4.2.2 of the Basis of Review have been satisfied. Secondary and Cumulative Impacts Section 4.2.7 of the Basis of Review requires that an applicant provide reasonable assurances that the proposed activity will not cause adverse secondary impacts to the water resources. At the same time, Section 4.2.8 requires that an applicant provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin as the regulated activity for which the permit is being sought. In providing the necessary reasonable assurances regarding cumulative impacts, Section 4.2.8.2 authorizes an applicant to use preservation and mitigation measures to prevent cumulative impacts. The more persuasive evidence shows that the project will not cause secondary impacts to wetlands. This is because a water quality berm system surrounds the wetlands, isolating the wetland system from the surface water management system; a 50-foot preserved area lies between the storage area and the adjacent property boundary to the north; the storage area is being placed in an area already secondarily impacted by County Road 951; and the wetland preservation area will be placed in the conservation easement. Further, the project will not cause secondary impacts to wildlife. This is because structural buffers will prevent future encroachment into the wetlands and distance any wildlife away from the more dense residential functions. These buffers include a 50-foot wide natural preserve on the north side of the storage area (Special Condition 26), an already-erected structural buffer to the south of the storage area (Special Condition 26), and a 17 to 21-foot structural buffer (planted with native vegetation or vegetated buffers) on the eastern side of the 40-acre site where the new lots are proposed. Except for two conclusionary opinion statements by Petitioners' expert, without further facts or explanation, no other evidence on secondary impacts was offered. The project will not cause cumulative impacts to the wetlands. This is because the proposed mitigation for the project adequately offsets the impacts of the 40-acre site, and the impacts from other permitted projects in the basin area have been sufficiently offset. In addition, very little property in the area remains to be developed, and there are no new applications before the District involving the same basin. In the event a new application may be filed, however, the District will require the applicant to offset any impacts associated with its project with buffers and conservation easements, like the Applicant in the instant case. Water Quantity and Quality Section 5.0 et. seq. of the Basis of Review contains water quality criteria that must be satisfied in order for an ERP to be issued, while Section 6.0 et. seq. addresses water quantity criteria for an ERP. Given the limited nature of changes to the existing system and the lack of a hydrologic connection to the wetlands, and for the following additional reasons, the Applicant has given reasonable assurances that the project complies with the water quality and quantity criteria. The project as designed includes a grass swale near the storage area on the western part of the 40-acre site. The rainfall and run-off from the storage area flows into an internal road, through the grass swale, into a storm drain, and then into the pre-existing water management system associated with the original permit for Silver Lake. The project also allows rainfall and run-off from the proposed lots on the southeastern border of the 40-acre site to sheetflow onto an internal road, where waters are collected in existing catch basins and conveyed into the previously permitted water management system associated with the original permit. Since the rainfall and run-off from the storage area and lots drain into the existing lakes (Lakes 1 and 2) that are part of the Silver Lakes water management system, those waters will be treated for water quality through wet detention before their eventual discharge to McIlvane Bay, which lies to the southwest of Silver Lake. The basin discharge rates, minimum floor elevations, road designs, parking lot designs, structure control elevations, and structure sizes are specified in the the District's Staff Report, and were set at or above the calculated design limitations to meet water quality and quantity requirements. Section 5.2.1(a)1. of the Basis of Review specifies that wet detention volume shall be provided for the first inch of runoff from the developed project. The evidence shows that the proposed system captures one inch of run-off over the entire site, which drains into the existing lake system to provide water quality treatment. The system is also designed to meet the relevant discharge rate requirements for a 25-year, 3-day storm event, and the minimum floor elevations were based on a 100-year, 3- day storm event. The wetland preserve area is outside the area served by the surface water management system, is not hydrologically connected to that system, and will not be affected by run-off from the storage area or lots. Just prior to the final hearing, the District added Special Condition 23 to create a 50-foot buffer zone along the southern boundary of the storage area for aesthetic purposes and to reduce secondary impacts. Implementation of that buffer must be in accordance with the staff report, will not change the surface water management system, will have no impact on water quality or flood control, and will be implemented after additional consultation with the District. Past Enforcement Rule 40E-4.302(2), Florida Administrative Code, requires that the District take into consideration past violations of various rules adopted by the District. No enforcement action relating to the property has ever been taken by the District against the Applicant for any violation of ERP requirements. Although Petitioners suggested that unpermitted fill activities have taken place on the southeastern part of the 40-acre site, an inspection by District personnel revealed that unpermitted activities were "not significant." Further, Special Condition 23 requires that the Applicant restore "that portion of the disturbed wetland area located in the southeast corner of the site which is to be included in the wetland preserve area." Therefore, any impacts to the 40-acre site resulting from past unpermitted activities have been considered and remedied.
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 Permit Application No. 010223-5 of Conquest Developments USA, L.C., for an Environmental Resource Permit. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ 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, 2002. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Anthony P. Pires, Jr., Esquire Woodward, Pires & Lombardo, P.A. 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103-4105 Robert E. Murrell, Esquire Samouce, Murrell & Francoeur, P.A. 800 Laurel Oak Drive, Suite 300 Naples, Florida 34108-2713 Keith W. Rizzardi, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Kenneth B. Cuyler, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North, Suite 300 Naples, Florida 34103-3556
The Issue The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.
Findings Of Fact Based upon all of the evidence, the following supplemental findings of fact are determined: Background Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below. A Brief Description of the Development and System The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes. The Wastewater Treatment Plant The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to: construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets 1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to 0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake. Adequacy of Separation Between Plant and System Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows: Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions. The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground. The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields. The Computer Models As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow. The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert. Water Quantity Impacts There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows. Water Quality Impacts The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall. Adverse Environmental Impacts There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers. Miscellaneous During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of March, 1991.
