Findings Of Fact The Applicant, John E. Bravo, applied for a dredge and fill permit to construct a dockage facility. The proposed facility will consist of a 910 foot pier with a "T"-shaped platform structure extending perpendicular in two directions from the seaward end of the pier, all of which is designed to accommodate 56 boat slips, restricted to the use of pleasure boats only. The proposed project site is located on the southeast side of "Long Point" and would extend into the waters of East Bay, which is a tidally influenced water body in Bay County, Florida. The project site lies in Class II waters of the State. The waters involved are not approved for shellfish harvesting, however, but rather are under a shellfish harvesting prohibition imposed by the Department of Natural Resources. The portion of East Bay involved also lies within the Intracoastal Waterway. The waterway is approximately 6,000 feet wide at the site of the proposed docking facility. The water along the shoreline of the area is shallow for a considerable distance waterward. The bay bottom is characterized by profuse seagrass for approximately 500 feet waterward of mean high water. Beyond that point, the seagrass (Cuban Shoal Grass) dissipates and disappears. The first 400 feet waterward of the mean high water line at the location of the proposed dock, is shallow and not truly navigable. The water then deepens to approximately five feet at mean low water some 525 feet from the shore. This distance from the shore marks the beginning of the area where no significant amount of seagrass exists and where the boat docking slips and mooring pilings would be installed in a waterward direction down the remaining length of the proposed dock. The water depth continues to increase to approximately 20 feet at the proposed location of the end of the dock. The dock would be constructed of pilings driven into the bay bottom supporting the decking of the walkway portion and "T" portion of the dock. The "T" would be installed on the seaward end of the dock, perpendicular to the walkway portion of the dock with most of the boat slips installed and operated at that point. The length of the docking facility is dictated by the fact that the Applicant seeks to locate the boat slips in a manner so that all boats will be moored and operated well beyond existing seagrasses. In fact, the length of the dock is more than absolutely necessary to accomplish this purpose since water depth and avoidance of seagrasses could accomplished with the dock ending approximately 700 feet from the mean high water line. In an abundance of caution, however, in order to avoid the possibility of propeller dredging and prop wash damaging the bottom substrates and grasses, and since the Intracoastal Waterway is over a mile wide here, the Applicant elected to design the dock in the length and configuration proposed. Such will cause no unreasonable impediment to navigation. In this connection, the Applicant has agreed to post Coast Guard- approved safety lights on the dock which will warn boats of its presence in hours of darkness. Further, the dock does not extend far enough into the 6,000 foot wide Intracoastal Waterway to pose a hazard to barge and other boating traffic in the Waterway. Some of the Petitioner's witnesses revealed that shrimp boats pull their nets during shrimping operations closer than 900 feet to the shore line and in the vicinity of the grass beds. While the presence of the dock may alter the trawling pattern of shrimp boats and the operations of other commercial fishermen, as well as water skiing and boating by members of the public, this may in fact have a beneficial effect by promoting the public interest in preserving marine habitat and the conservation of marine resources by preventing some damage to the grass beds. Such marine grass beds are valuable nursery areas for fishes and other marine animals, the effects upon which must be considered in weighing the various statutory indicia of the public interest which must be satisfied before granting a dredge and fill permit. Further, because the dockage facility at issue would be an isolated one with no significant similar docks in the immediate vicinity, the likelihood that it would pose a navigational hazard to water skiiers, fishermen, shrimpers, and other commercial and recreational interests is rather insignificant. Water Quality The water quality issues posed by a project such as this typically involve the water quality parameters of dissolved oxygen, nutrients, bacteriological quality, turbidity, oils, greases, fuel, paint or varnish, solvents and heavy metals, as contemplated by the below-cited rules concerning general surface water quality criteria and the specific rules related to Class II surface waters. The project site is located in Class II surface waters of the State. Those Class II waters are classified by the Department of Natural Resources as "not approved" for shellfish harvesting. The zone of the Class II waters of East Bay in which shellfish harvesting is not approved extends some two miles eastward of the project site. Marinas and dockage facilities such as this one, which will accommodate fairly large boats in significant numbers, typically pose potential pollution problems involving deposition of nutrients in State waters in the form of fish carcasses and offal, garbage and human wastes. Additionally, boats can pose pollution hazards because of attendant dumping of grease, oil and fuel residues in marina waters as well as the deposition of trash in various forms such as paper and plastic items as a result of human use of the boats and the marina facility itself. Perhaps the most severe potential problem is the deposition of human fecal matter into the water as a result of the flushing of marine heads on the larger boats, which the dockage facility will accommodate in the slips as designed. The fecal coliform bacteria which emanate from the deposition of human wastes into the waters around such a dockage facility can be concentrated in oysters and other shellfish to such an extent as to cause severe illness, permanent disability or even death in humans. Consequently, in order to avoid this problem in a magnitude which would violate the water quality parameter in the rule cited below for bacteriological quality, substantial measures must be taken with a project such as this to avoid the deposition of human wastes from the dockage facility itself and from the boats using the slips. In furtherance of this end, the Applicant proposes to allow no live- aboard vessels to be occupied over night while moored at the docking facilities. Live-aboard vessels are deemed to be those with sleeping accommodations and marine heads. The Applicant also proposes to employ a full-time dock master seven days a week, eight hours a day to ensure that all dockage users are familiar with dockage rules, and who would enforce them, especially that prohibiting any discharges from vessels using or docking at the marina. The rules would be incorporated in the dockage lease agreements. The dock master would be responsible for the clean up and correction of all unauthorized discharges. In view of the potential for sewage discharges from marine heads, even with sewage pump-out facilities and the other restrictions on the use of live-aboard type boats, the additional protective measure of requiring a sewage pump-out line and pump-out equipment, including a storage tank and a means to direct sewage pumped from boats into the upland sanitary sewer system, should be imposed as an additional condition. Additionally, the restriction against over night stays aboard boats, the discharge of marine heads into the marina waters and the requirement for use of the sewage pump-out system should be publicized on large, easily legible signs at various points on the pier so that all boat slip renters or users can be on notice of the restrictions and the dock master's and the Department's enforcement of them. Additional potential sources of nutrient and bacteriological degradation of the dissolved oxygen content and bacteriological integrity of the surface waters involved can be posed by the deposition of fish carcasses and parts, as well as food wastes and other garbage in the marina waters. In order to prevent this, the Applicant has proposed to provide fish cleaning stations located on the upland and to require all fish carcasses and other related wastes to be placed in upland containers and not disposed of in the Class II waters at the dock site. Additionally, waste containers will be located along the length and perimeter of the dock facility for garbage, with regular emptying of the containers enforced by the dock master to prevent spillage. In connection with the upland fish cleaning sites to be installed, the drainage waters or waste water from fish cleaning stations should be directed into an upland disposal system so that it may be ensured that the water does not get back into the Class II waters of the bay. In addition to the above measures, pump-out facilities and equipment will be provided by the Applicant for used engine oil removed from boats and oil and water from boat bilges. These wastes, under agreed-upon conditions, would be transported by pipeline to the upland to a storage tank pending proper disposal. Trash, garbage and other refuse will be deposited in dumpsters for removal by municipal garbage disposal services. No fueling facilities or fueling of boats will be allowed. Additionally, oil spill clean up materials will be maintained on the marina site in sufficient quantities to allow clean up of the maximum spill expected from the largest boat typically using the marina pursuant to the leases for the boat slips. In order to further lessen the possibility of spills of oils, greases and fuels, the permit should be conditioned (as should the leases) upon no boat maintenance being performed at the marina site other than minor engine adjustments. In this context, an additional enforcement measure will be in the boat slip rental agreements themselves. The agreements will contain restrictive provisions requiring lessees to properly handle and dispose of fish carcasses and wastes, used engine oil, bilge water and requiring them to comply with sewage pump-out and refuse disposal conditions enumerated above. Upon completion of the facility, the dock master will manage and accomplish maintenance of the various items of equipment, such as the pump-out facility, on an eight hour a day, seven day per week basis and will enforce the restrictive provisions incorporating the above conditions in the boat slip rental agreements. Those restrictive provisions should include putting the lessees on notice that violation of any of the conditions enumerated above and in the boat slip leases will result in a breach of the lease and removal of their vessel from the marina and reporting of the violation to regulatory authorities. The various expert witnesses agreed that the proposed permit conditions enumerated above, if enforced, would adequately protect water quality as to the above parameters at issue. The Class II water quality standards will not be violated by the installation and operation of the project as proposed, provided the above conditions are strictly enforced and adhered to. Mr. Jack Taylor, the expert witness for the Petitioner, agreed that the above measures would reasonably ensure that the marina will not cause pollution and contravention of Class II water quality standards, but feared that enforcement problems would prevent such conditions from prevailing. In view of the measures enumerated above which will be undertaken by the Applicant to ensure that water quality standards are adhered to, including the liberal use of warning signs for marina customers and slip lessees, the use of a full-time dock master to enforce the conditions and including the enforcement measure of putting the conditions as restrictions in the slip rental leases, it has been shown that the enforcement will be reasonably adequate. An additional and important enforcement measure can be incorporated into this project, however, by requiring the Applicant to submit an operation and maintenance plan for the marina and requiring a monitoring program under the auspices of the Department for at least a year of operation in order to ensure that the project operates as it is proposed under the above-delineated conditions. The Department has continuing enforcement power and the monitoring program would, with regular monthly inspections, allow early detection and correction of any water quality violations, to and including the voiding of the permit and the closing of the marina operation should violations prove severe and uncorrectable. 1/ Such a monitoring program and marina operation and maintenance plan should be required as a condition to granting of the permit. 2/ Finally, it should be pointed out that the area of East Bay where the project would be built is Class II shellfish prohibited waters. The proposed project itself will not likely adversely affect shell fishing to the extent of closing additional waters if the above water quality safeguards are imposed as conditions on the permit and on the marina operation. This is especially true because the boundary line of the shellfish approved water to the east is at least two miles away, which distance incorporates a substantial mixing zone in the open waters of East Bay to sufficiently dilute pollutants which might emanate from the marina or other sources to levels such that the shellfish waters presently open will not be subject to any further closures by the Department of Natural Resources, as a result of this installation. The primary reason the shellfish waters in the immediate vicinity of the proposed project are closed to harvesting is the presence of the Military Point Sewage Treatment Plant which discharges its effluent into the waters of East Bay, such that the DNR's dye flow studies reveal that a 5.1 square mile buffer zone around that plant is necessary for closure to shellfish harvesting to ensure that the public health is not adversely affected by consumption of shellfish from the waters in that buffer area. That buffer area includes the proposed marina site. Additional significant pollution sources include fecal coliform bacteria, oils and greases and other contaminants associated with rainfall events and resultant urban runoff from the City of Parker and surrounding areas, including septic tank leachate and petroleum residues. These influences also currently add to the reasons why shellfish harvesting is precluded in the area of the proposed facility. It was not demonstrated that the addition of the marina and the boats operating under the above strict conditions will result in any additional closures to shellfish harvesting in surrounding, presently approved areas as a result of any water quality degradation posed by the subject project. Public Interest The public interest criteria-enumerated at Section 403.918(2)(a), Florida Statutes, which are actually at issue in this proceeding concern: (1) whether the project will adversely affect the public health, safety, welfare or property of others, (2) whether it will adversely affect conservation of fish and wildlife, including their habitats, (3) whether the project will adversely affect navigation, water flow or cause harmful erosion or shoaling, (4) whether it will adversely affect fishing or recreational values or marine productivity in its vicinity, and (5) whether the current condition and relative value of the functions of the natural area involved at the project site will be adversely affected by the proposed activity. There is no issue or dispute raised concerning the permanence of the project for purposes of criteria number 5 under this subsection, nor as to number 6, concerning historical and archaeological resources. Concerning criteria numbered 1-4 and 7, of this subsection, it has been demonstrated that the project will not likely affect the public health, safety, welfare or the property of others if constructed and operated according to the conditions delineated herein. Some members of the public testifying on behalf of the Petitioner objected to the interference they feared the dock would cause with their jogging along the shoreline and feared an impediment to their use of the area for water skiing. This is the only dock in this vicinity, however, and such interference is minor. It will be well lit in order to avoid impeding navigation or posing a danger to the public health or safety during hours of darkness in terms of the public's ability to safely operate boats in the area. There is some potential for the project adversely affecting conservation of fish and wildlife or their habitats in that, if boats are permitted to operate in the vicinity of the dock and use the dock for mooring, loading and unloading purposes, and the like, closer than 500 feet off shore, harmful propeller washing or dredging of the bottom sediments and seagrasses growing therein will result. If such erosion of the bottom and seagrass growth begins occurring, it will adversely affect and gradually destroy the area as a habitat for fish and other marine life, which is of particular importance since such Cuban Shoal Grass stands are quite beneficial as nursery areas for fish and other organisms. Thus, if boating activity were allowed unimpeded around the dock, including in the near shore area within 500 feet from the mean high water line, the resultant erosion and propeller damage to the seagrass beds in the bottom would indicate that, as to criteria 2 and 3 of the above subsection, that the project would not be in the public interest and would be contrary to the public interest. This same consideration is true with regard to the fourth criteria concerning whether the project adversely affects fishing and recreational values or marine productivity for similar reasons. If marine habitat is disrupted or destroyed in whole or in part in the vicinity of the dock due to erosion and other damage caused by boat and propeller contacts with the bottom or prop wash near the bottom, then as to this criteria, concerning marine productivity and recreational value, the project will be contrary to the public interest also. To the extent that nursery areas for fish and other valuable marine organisms are destroyed, the recreational value in terms of quality of fishing will certainly be diminished. The "current condition and relative value of functions" being performed by the area of marine habitat affected by this project must also be considered. In a like vein, this particular area constituting dense growths of seagrasses has a relatively high functional value as a marine habitat and, particularly, a nursery for marine animals. This current condition and value of the area should be accorded a fairly high status in weighing and balancing the various considerations used in determining whether the project is or is not contrary to the public interest. If the boats which are to use the marina upon its construction and operation are permitted inside the grass bed area, roughly within 500 feet of the shore, then clearly the considerations mentioned above will be the subject of adverse effects caused by the boats' operation which in turn is a direct result of the installation of this marina, the dock and the slips. In view of the reasonable likelihood of the project causing some of the adverse effects mentioned above, resulting from contact by boat propellers and boat hulls with the grass beds or erosive prop wash caused by operation of boats in water so shallow that the propellers are too near the bottom, the Applicant has agreed to a condition which will effectively remove boats from the seagrass bed area, provided it is strictly enforced. That condition would provide that boats and the slips in which they would be moored cannot be landward of 600 feet off shore of the mean high water line along the sides of the seaward extending dock. All boat slips are to be located seaward of that point. The Petitioners, however, raised a valid point that, the dock being so long, the natural tendency of boat operators would be to moor their boats along the sides of the dock as close into shore as boat operation is possible in order to more easily load and unload their boats. In order to prevent this problem from occurring, therefore, an additional condition should be imposed on the permit which would provide that the sides of the dock be enclosed by a fence out to the 600 foot mark and of such a configuration and type as to prevent boat operators from mooring boats to the sides of the dock and gaining ingress or egress from their boats on the dock shoreward of the 600 foot point mentioned above. In other words, if it is made impossible to enter or leave a boat from the dock in the area of the seagrass beds, this would substantially reduce the likelihood that the seagrass beds would be damaged by boats using the dock. Additionally, prominent signs should be posted on or in the vicinity of the dock announcing the necessity to avoid operating boats landward of the point mentioned above and the necessity of avoiding contacting the seagrass beds with boats or boat propellors. If this condition is adhered to and strictly enforced, as even Petitioner's expert witness concedes, it will prevent the chief source of adverse effects upon the public interest. An additional consideration in determining whether or not this project is contrary to the public interest concerns its effect upon navigation. This has already been discussed in the above Findings of Fact. Since this would be the only dock in the immediate area, it is found that the presence of the dock, even though it extends a significant distance seaward of the shore line, will still not pose a significant impediment to navigation. Additionally, as has been pointed out above, the public interest might be served in a positive way by the installation of the dock to the extent that it might prevent shrimp boats and other fishing boats pulling nets from using the shallow seagrass area which will help prevent uprooting and other damage to the grass beds caused by the nets and associated fishing gear. Finally, it should be pointed out that to a certain extent the project will positively serve recreational values and the public welfare, in the context of balancing the various public interest considerations, because at least half the boat slips will be reserved for public use and because the addition of such a marina or docking facility will enhance the public's ability to obtain recreational value from the State waters involved in East Bay by improving marine access to those waters for fishing, boating, skiing and other purposes. In short, reasonable assurances have been provided that the project is not contrary to the public interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of John E. Bravo for the dredge and fill permit at issue be GRANTED, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th day of July, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1987.
Findings Of Fact The first of these difficulties bears primarily on my rulings on the exceptions to the findings of fact. The petitioners urge that they need not attach a transcript to support their exceptions to the findings. The petitioners' assertion is unsound as a general proposition. The law is clear that without a transcript there is no basis for overturning a hearing officer's findings. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the hearing officer are not supported by competent and substantial evidence. See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). Moreover, Rule 17-103.200(l) of the Florida Administrative Code specifically requires that ?[a]ny exception disputing a finding of fact . . . be accompanied by a complete transcript of the hearing." The Department therefore must "reject exceptions not supported by a complete transcript." Chipola Basin Protective Group, Inc. v. Florida Department of Environmental Regulation, 11 F.A.L.R. 467, 470-71 (Fla. DER 1988); see Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982) (upholding nonrule policy of the Department that exceptions not accompanied by complete transcript must be dismissed). In contrast to the facts in Chipola Basin, there is no transcript independently available to the Department to obviate the effect of the failure of the petitioners to file one. Thus, the rule against overturning findings without a transcript compels me to As for the late filing of two sets of exceptions and the propriety of the filing of the third set of exceptions, I shall rule on those legal issues in the rulings on exceptions to conclusions of law, below. EXCEPTIONS TO CONCLUSIONS OF LAW First, I must reject two sets of the petitioners' exceptions in their entirety for untimely filing. Rule 17-103.200(I) of the Florida Administrative Code requires the rejection of any exceptions "not filed (received) in the Office of General Counsel within the 15 days" after the "the date of filing of a Recommended Order with the Clerk of DOAH," the Division of Administrative Hearings. The hearing officer filed the recommended order in this proceeding with the Clerk of DOAH on August 5, 1991. August 20, 1991, was the deadline for filing exceptions. Petitioner Hobdy filed his exceptions a day later. Petitioner Winselmann also filed his exceptions a day late. The language of the rule is specific, clear, and mandatory. I therefore reject the exceptions of Hobdy and Winselmann for failure to comply with this rule. The exceptions filed by a law firm for Residents were timely but are subject to a motion filed by the Applicant to strike all of the petitioners' exceptions. The motion rests on two grounds, the lack of a transcript and the filing of three sets of exceptions (rather than two) by the petitioners. The lack of a transcript is grounds for rejecting exceptions to findings of fact, but not for striking exceptions to conclusions of law. Since the exceptions for Residents except only to conclusions of law, they cannot be struck on this first ground. As to the exceptions of Hobdy and Winselmann, this ground for the motion is moot, because their exceptions have been rejected for late filing. As for the second ground of the motion, the filing of three sets of exceptions, the Applicant has no objection to the filing of exceptions by Hobdy (for himself) or Winselmann (for Residents, the motion alleges) but does object to the additional filing of exceptions for Residents by a law firm that made no previous appearance in this proceeding. I note that Winselmann was not a separate party to this proceeding. He never filed a petition for a hearing in his own name. Instead, he was a member of Residents whom the hearing officer permitted to appear at the hearing "pro se" and who later filed a proposed recommended order noting that he and Petitioner Hobdy had appeared pro se "on behalf of the residents." Petitioner Winselmann filed his exceptions in his own name but wrote them as though representing Residents as a group, referring to "[o]ur property," "[o]ur navigational abilities," "[o]ur recreational values," and "[o]ur canal," repeatedly speaking for the residents as "we." The record does not show whether the hearing officer ever conducted the inquiry required under rule 221-6.008 to determine the adequacy of the qualifications of Winselmann to represent Petitioner Residents. The recommended order refers to Winselmann's appearance only as "pro se," as though he represented only himself. In the absence of the hearing officer's express approval of Winselmann as a qualified representative of Residents, I must conclude that, whatever his subjective intent might be, Winselmann did not legally represent Residents at the hearing or in filing the exceptions. I therefore deny the motion to strike the petitioners' exceptions. In passing, I also note that because no "attorney or other qualified representative (approved by the presiding officer)" previously represented Residents, there was no need for the law firm filing the exceptions for Residents to file a prior notice of appearance. Rule 17-103.020(5) requires such a filing only by a "successor or associated attorney or other qualified representative." Rule 17-103.020(4) makes the filing of the first pleading the notice of appearance, in effect, for the first such representative. Accordingly, I must rule on Residents' exceptions to the conclusions of law. Those exceptions focus on the issue whether the hearing officer erred by recommending an award of attorney's fees against the petitioners. Residents asserts that the hearing officer used the wrong standard in reaching that recommendation. Urging that the correct standard is participation in the proceeding "for an improper purpose," under section 120.59(6) of the Florida Statutes, Residents objects to the hearing officer's reliance on the language in section 57.105 of the Florida Statutes that makes the lack of a justiciable issue of law or fact the basis for an award of attorney's fees. Residents argues that the record evinces at most incompetent representation, rather than any improper purpose, that its members believed in good faith that the project would affect navigation, and that this question of the project's impact on navigation was a justiciable issue of fact, even if the applicable standard for an award of fees is the absence of such an issue of fact or law. Respondent Dolphins Plus has responded to this set of exceptions. The response equates the standard of frivolous participation with that of the lack of any justiciable issue of law or fact, asserts that impact on navigation was not an issue because no evidence was ever presented tending to prove such an impact, and summarizes events at the hearing, including the hearing officer's patient attempts to explain procedural rules and otherwise guide the petitioners. In the absence of a transcript, of course, such a summary of the hearing is simply outside the record before me, and I cannot consider it. The question of the appropriate standard for an award of attorney's fees under section 120.59(6) is not difficult. The statute makes such an award depend on the nonprevailing party's participation in the proceeding for an improper purpose. Section 120.59(6)(b), Florida Statutes (1989). The statutory definition of "improper purpose" lists four meanings, including "frivolous purpose." This phrase employs words of plain meaning, requiring no special rules of statutory construction to resolve an ambiguity. Although the entry for "frivolous" in Webster's New Collegiate Dictionary includes the subjective definitions "lacking in seriousness: irresponsibly self-indulgent," and "marked by unbecoming levity," the settled meaning of "frivolous" in the law is the third definition given, that "of little weight or importance." See Webster's New Colleciate Dictionary 461 (1977 ed.); Black's Law Dictionary 601 (5th ed. 1979); cf. Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978) (to determine plain meaning of constitutional provision, court begins with dictionary definitions but ultimately chooses meaning for each "term in light of the primary purpose for which it has been adopted"). This third definition is the meaning that the court accepted for "frivolous" in Mercedes Lighting & Electrical Supply, Inc. v. State Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990), construing section 120.59(6) of the Florida Statutes. Indeed, numerous cases in Florida have used interchangably the terms "frivolous" and "lacking any justiciable issue of law or fact." See, e.q., Marexcelso Compania Naviera, S.A. v. Florida National Bank, 533 So.2d 805, 805 (Fla. 4th DCA 1988); Schwartz v. W-K Partners, 530 So.2d 456, 457 (Fla. 5th DCA 1988). Thus, the hearing officer did not err by equating frivolousness with a lack of any justiciable issue of law or fact. Yet these same cases and others clarify that the frivolousness that will justify an award of fees must mark the claim from its inception. A court will not award fees against a litigant whose initial (or amended) claim was nonfrivolous, "even though at some point in the course of litigation it becomes apparent that there no longer remains any justiciable issue of law or fact." Id.; see also State Department of Health & Rehabilitative Services v. Thompson, 552 So.2d 318, 319 (Fla. 2d DCA 1989); Marexcelso, 533 So.2d at 805; Schatz v. Wenaas, 510 So.2d 1125, 1126 (Fla. 2d DCA 1987). Thus, the crux of the issue is not solely whether the petitioners failed to present any evidence at the hearing so as to show any justiciable issue of law or fact, but whether such failure was accompanied by a failure to raise such an issue in the first place. Despite the hearing officer's "finding" here that "there was a complete absence of a justiciable issue of law or fact," the question of justiciability is one of law, and the purported finding is really a conclusion of law. Under section 120.57(1)(b)10 of the Florida Statutes, I may reject or modify such a conclusion. Having reviewed the two petitions and the photographs attached to the petition for Residents, I must conclude that, however unartfully, both petitions raised at least one justiciable issue of fact, concerning the putative effect of the project on navigation, under section 403.918(2) of the Florida Statutes. In pertinent part, the petition for Residents alleges that the fence would "severely impact [the petitioner residents') use of the canal" because its removal of part of "the canal turning basin" would restrict them to using only "small boats which can turn around within the canal itself." Petition of Residents para. 3. Although it is true that "navigation" as used in section 403.918(2) "is primarily associated with the use of publicly used shipping lanes or channels," Clarke v. Melton, 12 F.A.L.R. 4946, 4952 (Fla. DER 1990), the Department does consider the impacts of small structures such as docks on the navigability of small boats, in weighing the impact on navigation of projects under section 403.918(2). See Riverside Club Condominium Association, Inc. v. Adventure Construction & Canvas, Inc., 9 F.A.L.R. 6207 (Fla. DER 1987); Ryan v. Spang, 8 F.A.L.R. 4288 (Fla. DER 1986). The petition for Hobdy raises this same issue, though described only as an effect on Hobdy's own use of his boat. In addition, Hobdy's petition questions whether the housing of large mammals in the stranding pen would adversely affect water quality in the canal. These two questions are "not so free of doubt as to render [each] . . . claim frivolous," for purposes of awarding a fee. See Scott v. Durlinc, 471 So.2d 658, 659 (Fla. 2d DCA (1985). Under Schwartz and other cases cited above, the failure of Residents to support this allegation at the hearing, at least on the basis of the record before me, does not warrant an award of fees. Reinforcing this conclusion is an earlier ruling of the hearing officer that excluded evidence on this very issue. His order granting the motion to limit issues eliminated the question of impact on navigation before the hearing. His ruling therefore may have contributed to the failure of these petitioners, obviously not expert in administrative procedure, to present competent substantial evidence at the the hearing. Cf. Harbor Estates v. State Department of Environmental Regulation, 12 F.A.L.R. 2392 (Fla. DER 1990) (failure of hearing officer to issue subpoenas contributed to failure of petitioners to produce witnesses at hearing and undercut recommendation to award fees). At the same time, neither of the respondents ever sought to strike the petitions as being filed for an improper purpose (because allegedly lacking any justiciable issue), and the hearing officer never ordered the dismissal of either of the petitions on such basis. For "the orderly conduct of proceedings," the court in Mercedes Lichting suggested such an order "at the earliest stage at which a violation of the statute can be determined," for an award of fees under section 120.57(1)(b)5 (providing for awards of fees for filing any pleading or other paper for an improper purpose). See Mercedes Lighting 560 So.2d at 279. There is no reason not to apply the same general principle to awards under section 120.59(6). Cf. Harvey v. Trans Pac, Inc., 12 F.A.L.R. 4378, 4379 (Fla. DER 1990) (reading the two statutes together in light of this guidance from the court in Mercedes Lighting. That this matter went to hearing without such a motion or order leads me to conclude that the parties and the hearing officer at first thought that one or more of the issues raised in the petitions were justiciable. Despite the apparent ineptness of the petitioners' representation here, there is no direct evidence of improper purpose for the participation of the petitioners. The hearing officer emphasized the petitioners' failure to understand "the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence." Recommended Order at 15. Petitioners attempted to present evidence at the hearing, including the testimony of witnesses, but the hearing officer found none of the evidence relevant or material. The Florida Administrative Procedure Act liberally expands public access to agency action, taking the risk that lay representation will not always be effective. See The Florida Bar v. Moses, 380 So.2d 412, 415 (Fla. 1980). Although section 120.59(6) sets a limit on such access, it is far from clear that mere ignorance or ineffective representation is tantamount to participation for an improper purpose. See Harvey, 12 F.A.L.R. at 4379-80. In this context, and in the absence of direct evidence of an improper purpose, I am reluctant to make "the legal inference that would supply the connection between acts demonstrating incompetent representation by a party's lay representative and a finding of participation by that party for an improper purpose within the meaning of Section 120.59(6), Florida Statutes." See Harbor Estates, 12 F.A.L.R. at 2398. In accordance with section 120.57(1)(b)10 of the Florida Statutes, I accept the hearing officer's findings of fact in this matter, except for the conclusion of law (mislabeled a finding) that there was no justiciable issue of law or fact. For all the reasons given above, I reject that conclusion and the recommendation of an award of fees and costs to Respondent Dolphins Plus. As for the motion by Petitioner Hobdy for attorney's fees costs, on the ground that the attorney for Dolphins Plus presented a frivolous case and filed a frivolous motion for attorney's fees, Dolphins Plus is the prevailing party in these proceedings. Its case was not frivolous. Although it did not prevail in moving for fees and costs, its motion for such fees was not frivolous. The hearing officer recommended an award of such fees, and the issue merited serious consideration in this final order. The motion by Hobdy for fees is without merit. MISCELLANEOUS SUPPLEMENTARY RULINGS On two occasions, October 7 and October 8, 1991, the Department received correspondence from Petitioner Winselmann purporting to offer further argument in regard to the issues before me. These ex parte communications have been disregarded in the preparation of this Final Order, and to the extent they could be viewed as unauthorized further exceptions or responses to exceptions, they are sua sponte stricken.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order on the Merits denying Petitioners' protest of the permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. Jurisdiction over the issue of the amount of attorney's fees is retained and shall be determined in a separate formal hearing to be conducted only in the event the parties are unable to agree on the amount of attorney's fees that is reasonable. RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of August, 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1991.
Findings Of Fact Tavernier Harbor, Inc. (Tavernier, Applicant) has applied for a dredge and fill permit seeking to install seven 40' X 18' boat slips and one 25' X 3' finger pier and to construct a total of 3,024 square feet of perimeter boardwalk, with the eleven six foot wide access walkways over a "mangrove fringe" at a boat basin in an unnamed canal lying at Section 4, Township 63 South, Range 38 East in the municipality of Tavernier, Monroe County, Florida. The site plan and permit application provides that the slips are to accommodate sport fishing boats There would be 564 linial feet of boardwalk waterward of the mangrove fringe surrounding the boat basin and 160 feet of boardwalk landward of that mangrove fringe, with one finger pier of the above dimensions. The landward side of Tavernier's development will contain a restaurant and bar with an adjacent parking area, a storm water drainage system as well as a sewage treatment plant. There will be a six foot high wall screening the parking area from the surrounding non-owned property and public roadways. Tavernier intends to use the property as a sport fishing harbor to moor seven boats as well as to provide transient dockage for users of its upland restaurant or for boat owners or users who travel by car to the upland facilities and parking area. Various environmental impact abatement or mitigation facilities and procedures are proposed to be incorporated in the project in its construction and operation as delineated more fully below. Tavernier owns the entire upland property surrounding and upon which the proposed project will be constructed and operated. Tavernier does not own the submerged land in which the proposed pilings for the boardwalk, slips and pier will be placed, but has received authority from the State of Florida Department of Natural Resources to proceed with the project. The proposed project will be located in a rectangular basin approximately 120 feet wide by 414 feet long, lying at the end of a "dead end" canal which connects with Tavernier Creek, some 2,000 feet away. The canal and basin are box cut (straight sides) into the bedrock with an average depth of approximately 10 feet. The waters of Tavernier Creek and the adjacent Atlantic Ocean lie in the Florida Keys Outstanding Florida Waters as designated in Rule 17-3.041(4)(i), Florida Administrative Code. Artificial water bodies, including canals, within the Florida Keys are excluded from the Outstanding Florida Water (OFW) designation by this rule. Artificial water bodies include canals which have been dredged, as this one has historically, as well as water bodies which existed naturally in whole or in part whose banks or boundaries have been artificially altered by filling. Such is also the case here. In this connection, an aerial photograph in evidence dating from the late 1940s indicates that natural surface waters may have existed at one time in certain portions of the area presently encompassed by the above described boat basin and canal, however, it was not established by competent testimony that the waters depicted in the aerial photograph were actually natural waters or what the depth of those waters might have been as opposed to the above found present average depth of the canal and boat basin at issue. There was credible testimony by persons experienced with the naturally occurring waters of the Florida Keys, which established that the natural waters shown in the 1940s aerial photograph in the vicinity of the boat basin were so-called "floc ponds," which characteristically have a depth of no more than one or two feet. Additionally, the boundaries of the water bodies depicted in the 1940s photograph are not coincidental with the present boundaries of the boat basin or canal system where the project is proposed to be constructed and operated. The basin in which the proposed project is to be placed and the canal connecting it to Tavernier Creek are not natural bodies of water and are instead artificial water bodies created by dredging, excavating and filling of the original boundaries. Therefore, the proposed project is not located in designated Outstanding Florida Waters. The land surrounding the canal and boat basin and owned by Tavernier is historically filled land with a relatively young growth of native vegetation surrounding the basin area. The majority of the boat basin perimeter is vegetated with red, black and white mangroves. White mangroves occur predominately on the upland, near-shore slope of the basin. The surrounding area off the project site is occupied by docks, boats and seawalls owned by non- parties. The boat basin area is non-bulkheaded, although there is a remnant bulkhead which is now largely vegetated. The Tavernier property is surrounded by three roads, the Overseas Highway, the Old Overseas Highway, as well as side streets on the other two sides of the property. The biota present in the basin and canal area involved consists primarily of small fish such as snappers and grunts and occasional small barracuda. Within the mangrove system itself there are algae colonies on the mangrove roots as well as gastropod mollusk systems, with some periwinkus snails on the water bottoms and numerous types of analids, jellyfish, cassipia and tulip snails, as well as various types of minnows and other small fish. Most of the aquatic life in the basin canal system is associated with the vegetative mangrove fringe which provides some structural relief in the water and thus a beneficial marine habitat system for these types of aquatic life. There are no seagrasses associated with the project site or the nearby areas in the artificial canal. There will be no adverse impact on seagrasses. There is presently a healthy biological diversity of life forms in the canal and basin system. Water Quality The Water Quality Rules germane to this proceeding dictate that water quality impact of the proposed project in the basin and canal system must be examined with regard to short term and long term water quality impacts. Short term water quality impacts of the proposed project only involve potential turbidity generated by construction, that is, by the driving of pilings into the bottom substrate to support the finger piers, boardwalks and to create the boat slips. The Applicant agreed at hearing to alleviate such a potential impact by the installation and use of turbidity curtains around the entire construction area during installation of the pilings and decking for the boardwalk, deck and finger pier. In view of the established fact that the driving of the pilings will not cause the suspension of a significant amount of turbidity, reasonable assurances have been provided that this pile driving activity, coupled with the use of turbidity curtains, will result in no violation of state water quality standards as to this pollution parameter. This method of construction and the use of turbidity curtains should be incorporated in the permit as a mandatory condition. The long term water quality impacts which must be examined here are associated with the use of the basin, and to some extent the canal, by boats with the attendant potential for pollution associated with boating activities, as well as the long term pollution effect of storm water runoff from adjacent upland areas into the basin. In this regard, storm water now entering the basin carries with it an indeterminate amount of pollutants associated with surrounding, inhabited upland areas and surrounding automobile roadways. The project as now proposed will alleviate much or all of the present storm water runoff pollutant effect and will prevent any additional such effect occasioned by the installation and operation of the project with regard to upland- originated pollutants. This is because the Applicant has proposed to install, pursuant to its storm water drainage plan, a reverse gradient configuration around the perimeter of the basin on the upland which will divert storm water back on to the upland and prevent it from entering the subject basin. The storm water would be directed into approved storm water filtration basins. Thus, to the extent that storm water may be exerting a pollutant effect on the basin and canal at the present time, the project as proposed represents a marked improvement. The only other potential long-term source of water quality degradation from the proposed project, concerns the pollution that may emanate from the use of boats in the basin, canal and dockage facilities. This potential source will be offset by the diversion of similar type oil, grease and other pollutants already entering the basin from the upland by the storm water diversion and filtration system as well as by the preservation of the present mangrove fringe. The mangrove fringe is quite important to alleviating water quality impacts due to present pollution or due to increased boat traffic as a result of the installation of the project. Mangroves provide an important function in this regard in that their root systems serve to up- take excessive nutrients, heavy metals and other pollutants from the water into the mangroves, thus serving as an important natural filtration system. Additional methods of alleviating the water quality impacts due to pollution from boats and associated activities consist of establishing certain permit conditions, described below, which will prevent boat operation and related activities from lowering ambient water quality and requiring a continuous, long-term operation permit by which those conditions may be enforced, associated with requiring an extensive, water quality monitoring program. That program will require site modification and ultimately even removal of the project if water quality parameters are not met in the long term. Increased boat operation in the basin can result in discharges of hydrocarbons, toxic metals (chiefly from boat bottom paint), organic debris (chiefly associated with disposal in the water of fish cleaning offal) as well as the deposition of detergent material in the waters involved. Additionally and importantly, the presence of boats with heads can result in sewage spills or discharges. It was established, however, that boat use in the canal and associated pollution will not be solely due to the Applicant's proposed project. The canal margin is already almost entirely developed with approximately forty developed lots, most of which have boats associated with them with attendant docking facilities. Many of the same water quality contaminants such as hydrocarbons and greases, heavy metals, nutrients and organic material that would be expected from boat operations and fish cleaning are already present in the canal and in untreated storm water entering the canal and basin system from adjacent roads and parking areas. These contaminants will be reduced somewhat by the installation of the storm water diversion and filtration system at the basin. Additionally, as mentioned above, the proposed project will retain the vast majority of the present mangrove fringe filtration system surrounding the basin. The mangrove fringe will continue to serve its function of filtering and absorbing nutrients and other contaminants related to both storm water runoff and boat operation, which are now or will be entering the system. The Applicant has agreed to the imposition of several permit conditions which will control boat operation pollutants. These include the prohibition of any boat fueling facilities and boat fueling by private owners, the prohibition of "live aboard" boats which require frequent sewage pumpout and pose a substantial risk of illegal sewage discharge, the prohibition of boat hull cleaning and major boat maintenance (other than minor engine adjustments), and the mandatory requirement of an oil spill containment and removal apparatus which must be kept and maintained on the site. An extensive pre-construction and post-construction water quality monitoring plan will be required because of the paucity of background data available concerning existing water quality in the basin and canal. Such monitoring is necessary to determine the effectiveness of the storm water management plan and structures, as well as all the other permit conditions. The applicant has agreed to the implementation of such a long term water quality monitoring plan. Additionally, the Applicant will be required to obtain a long term operating permit in addition to the construction permit, which will allow for continuous Department review of the project and its operation. If water quality standards are not consistently maintained, the permittee will be required to change the marina design, management or operation to correct the problems. These changes can include the reducing of the size and number of boat slips and dockage facilities and ultimately even the physical removal of the proposed project and the non-renewal of the operating permit. In this connection, the evidence of record reveals that the ambient water at the site occasionally is violative of state water quality standards for dissolved oxygen. This is characteristic of such dead end canal and basin systems which are characterized by a very low flushing rate. This canal system flushes such that approximately 90 per cent of the waters therein are exchanged in approximately 5 1/4 days. This is quite a low flushing rate which tends to concentrate pollutants over time. This, however, is an ambient or natural condition in the canal as it presently exists and is not a water quality problem occasioned by the proposed project. The Department has heretofore followed a policy of granting permits where such a parameter is sometimes not in accordance with state water quality standards and indeed, with regard to the instant project, the permit conditions which will be implemented and enforced, especially including the upland sewage and waste disposal system and storm water management and disposal filtration system have been reasonably shown to assure an overall improvement in the water quality in the basin area involved. In addition to prohibiting live aboard boats as a means to protect water quality in the face of boat traffic in the basin area, the Applicant will construct an upland, approved and permitted sewage treatment and disposal facility. Approved and properly maintained pump-out facilities for boat- generated sewage are also proposed and must be required. The Applicant also proposes dockside fish cleaning facilities to help ensure that fish cleaning debris is not deposited in the waters of the basin and canal. In view of the evidence of record which establishes that any other disposal area, such as the open ocean, for fish remains is a substantial distance from the project site, dockside fish cleaning facilities will not ensure that fish debris is not deposited in the waters of the basin because dockside fish cleaning facilities are too proximate to the waters sought to be protected. Accordingly, the evidence of record reveals that, for reasonable assurances to be provided that fish cleaning debris will not be deposited as an organic, nutrient pollutant in the waters of the basin, any fish cleaning facility should be placed a significant, reasonable distance from the dockage facilities on the upland with discharge of the waste into an appropriate waste disposal system, which the Applicant proposes to install. Such should be an additional condition to granting a permit. In addition to the above, there were no other water quality issues presented in this proceeding. In view of the fact that water quality may be enhanced by installation of the project with the above conditions and proposals by the Applicant, the project as presently proposed will reasonably assure that state water quality standards are not violated by the fact of the installation and operation of the proposed project and attendant boating activities. Public Interest Standards Section 403.918(2), Florida Statutes It was not established that the proposed project will adversely affect the public health, safety or welfare or the property of others in a significant way. The main concern regarding the "public welfare" or "property of others" was feared adverse impacts of increased boat usage in the canal with attendant wakes and erosion of shoreline property. These concerns are alleviated by two factors. First, almost all the canal front property involved is presently seawalled, thereby substantially reducing the impact of waves from boats. Secondly, the Applicant has agreed and the Department will require, that the Applicant post "idle speed--no wake" signs at both the entrance to the canal and at the end of the canal at the basin within the Applicant's own property. Additionally, the canal boundaries are largely developed with approximately 40 developed lots with approximately as many attendant boats already using the canal. The relatively small number of additional boats that the proposed project will entail will not significantly add to any erosion problem due to boat wakes, which will be alleviated in any event because of the fortified shorelines already existing and because of the use of the signs with attendant citizen reporting of excessive boat speeds to the Applicant's management as well as to the Department of Natural Resources Marine Patrol. In conjunction with the above-discussed monitoring plan to be imposed as a condition to the permit consideration should be given by the Department and the Applicant to obtaining necessary authority (i.e. from the Department of Natural Resources and the U.S. Army Corps of Engineers) for posting buoys or other similar partial obstruction devices at strategic locations in the canal channel to prevent boats from having the ability to operate on a straight course at high throttle levels when traversing the channel. This, too, should be a condition incorporated in the permit. The project will not adversely affect the conservation of fish and wildlife, including endangered, threatened species or their habitats. The evidence reflects that on rare occasions manatees have been seen in or in the vicinity of the canal, although the evidence does not reveal that this is truly a manatee habitat area. In conjunction with the posting of idle speed--no wake signs, the Applicant should be required to post signs indicating that it is an area frequented by manatees and urging attendant caution in boat operation. Although there will be some net loss of existing mangroves at the basin, at least 90 percent of the extant mangroves will remain. The record reveals that for unknown reasons, and at a time prior to the institution of this proceeding, the Applicant removed or cut some of the existing mangrove growth at the basin site. The permit should be conditioned upon the Applicant replanting or allowing regrowth of the mangroves so removed or altered. Additionally, it having been shown that the walkways between the landward deck and the boardwalk supported by pilings in the water of the basin are for pedestrian use, it was not established as necessary that the walkways should be six feet wide and of the total number depicted in the Applicant's design and plans. The presence of the boardwalks connecting the landward deck and the waterward boardwalk are the direct cause of ten percent removal of the existing mangroves due to the mangroves beneath the walkways being shaded from the sunlight. Accordingly, the Applicant, as a condition to the permit, should be required to either redesign the walkways so that they are significantly narrower than those proposed or reduce the number of these bridges over the mangroves by 50 percent so that only a maximum of approximately five percent of the extant mangroves will be ultimately removed or destroyed. Despite the fact that manatees have been seen in the canal, the habitat in the canal and basin is not favorable for attracting manatees and, additionally placement of the marina away from a pristine natural area as is the situation here will generally tend to have much less of an adverse impact on fish and wildlife than if the marina were placed in a pristine natural area often frequented by manatees and other endangered species. The proposed project will not adversely affect navigation or cause harmful erosion or shoaling. The evidence establishes that the small numbers of additional boats using the canal as a result of the project will not cause additional navigation problems of any significance. The possible erosion caused by boat wakes already is an existing condition and the small number of boats which would be added to present traffic in the canal as a result of the project will not substantially exacerbate any problem that exists, especially in view of the conditions which will be imposed and are discussed above. The proposed project will not adversely affect fishing, recreational values or marine productivity in the vicinity of the project. For the reasons referenced above, there will be no water quality problems occasioned as a result of this project provided the conditions found to be necessary herein are imposed on the permit, the project construction and the project operation. If these are accomplished, there will be no adverse effect on fish and wildlife. Fishing, recreation and marine productivity in the area in turn will not be adversely affected from a water quality standpoint. Additionally, the proposed project will have the positive impact of enhancing the public recreational value of the area since it will offer public facilities for people seeking to navigate the state waters in the vicinity of the project by the provision of a small amount of additional dockage space. Maintenance of the mangroves in the manner depicted above will maintain and indeed, to a small degree, enhance marine productivity. The members of the public presently using the canal and basin area to fish, swim or perform similar activities will be able to continue doing so. In short, the project will not adversely affect marine productivity. There is no evidence of record to indicate that the project will adversely affect historical or archaeological resources. Concerning the "permanence" criteria under the above-cited statutory subsection, the project will indeed be of a permanent nature. The operating permit which the Department will require, will determine, with the conditions incorporated in it, whether or not the project remains a permanent structure. That is, if the various water quality parameters and the various considerations in the above-cited public interest provisions are not complied with, alteration of the project or even ultimate removal of the project may be required. Concerning the public interest criteria regarding current conditions and relative value of the functions being performed by the area involved, the project as proposed to be constructed and operated will not cause any adverse impact on current conditions and relative value of the resources of the project area as a functioning habitat for marine life. The functions and value of the area as a habitat for fish and wildlife and as an area of marine productivity will be unaltered in its post-development state, provided the conditions referenced herein are imposed, especially those related to protecting water quality from the impacts of boat operation, human wastes and waste attendant to fish cleaning operations. Cumulative Impact There have been no similar permit applications submitted to the Department in the past five years for projects in this canal and basin system. In fact, there have been only three or four shoreline dockage facilities permitted by the Department within a four square mile area in the vicinity of the proposed project. There are approximately 40 lots along the canal leading up to the Tavernier Harbor basin. The majority of these lots have already been developed with single family residences and the majority of them already have seawalls with dockage capability. The development of the few remaining undeveloped lots along the canal, coupled with the installation of the proposed project, should not significantly add to the cumulative effect upon water quality and the public interest parameters discussed above. There is only one other pending dock permit application received by the Department for any area near the proposed project. Thus, there will not be any cumulative adverse effect causing violation of any of the water quality or public interest standards at issue if the proposed project is built and operated and exists with other proposed or existing facilities In addition to the above conditions, Tavernier Harbor, Inc. has agreed to devise a contingency plan concerning oil spill containment and removal to be utilized in the event of a spill, which shall be submitted to the Department for review and changes as necessary prior to the commencement of the project's construction. The Applicant has agreed that all perimeter docking areas will be aligned waterward of the mangroves, whereas the restaurant deck will be placed landward of the mangroves. The Applicant has agreed to conduct water quality monitoring of the canal to include a minimum of one year pre- construction data and a minimum of two years of data collected after the project has been constructed and is operating. The Applicant will apply for a long-term operating permit for the mooring facilities and agrees to continue - monitoring and to implement necessary changes to marina design or management as directed by the Department in order to maintain water quality standards on a permanent basis. Tavernier Harbor, Inc. will also institute, prior to issuance of the operation permit, a maintenance program to permanently ensure removal of floating debris from the basin and project site. The Applicant has agreed and should be required to provide sewage pump out and treatment facilities capable of providing upland disposal and treatment of sewage and will provide an upland area well removed from the basin waters and the mangrove fringe for the conducting of fish cleaning operations and disposal of related waste material. The Applicant has agreed, and the permit should be conditioned upon, the allowance of only seven permanently moored sport fishing boats at the site and restriction of the use of the boardwalk waterward of the mangroves to only be used by "transient boats," with no permanently moored boats docked thereto. In summary, it has been established that the project will not degrade state water quality standards or the public interest criteria referenced above. The basin at the project site presently meets state water quality standards with the minor exception of occasional deficient levels of dissolved oxygen which naturally occur at the site.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Tavernier Harbor, Inc. for the dredge and fill permit sub judice be granted, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2057 Petitioner's Proposed Findings of Fact: 1-3. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted as to the first two sentences but not as dispositive of the material issues presented. Accepted except for the first and last sentences which are contrary to the preponderant evidence. Rejected as to its material import. Rejected as contrary to the preponderant evidence and as subordinate to the Hearing Officer's finding on this subject matter. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Respondent Tavernier Harbor, Inc.'s Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as subordinate to Hearing Officer's findings. 7-13. Accepted. 14. Rejected as subordinate to Hearing Officer's findings. 15-20. Accepted. 21. Rejected as subordinate to Hearing Officer's findings. 22-23. Accepted. Respondent Department's Proposed Findings of Fact: 1. Rejected as subordinate to Hearing Officer's findings. 2-30. Accepted. COPIES FURNISHED: James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. 317 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether Ponce Marina, Inc., (Ponce Marina) is entitled to a dredge and fill permit and water quality certification number 64-1303059 to construct a marina on the Halifax River in Volusia County, Florida.
Findings Of Fact The Department received an application from Ponce Marina on February 6, 1987, for a permit/water quality certification to construct a 178 slip marina facility consisting of two marina basins and two access channels. The work was to be done in primarily existing uplands adjacent to the Intercoastal Waterway (ICW) within the boundaries of the Town of Ponce Inlet, Volusia County, Florida. In response to agency objections, the scope of the project was reduced to include the excavation of a single marina basin and entrance channel and the construction of a 142 slip marina, by: constructing a basin by excavating 153,000 cu. yds. of material landward of mean high water (MHW) to a maximum depth of -6 feet mean low water (MLW); constructing an entrance channel 200 feet long by 80 feet wide by hydraulically dredging 2,100 cu. yds. waterward of MHW to a maximum depth of -7 feet MLW; connecting the head region of the excavated basin to an existing tidal creek by installing a 60 foot long, 36 inch diameter culvert pipe set at invert -2.0 feet NGVD and fitted with a 36 inch flap gate; installing 1,695 linear feet of vertical bulkhead with a riprap toe, 1,200 linear feet of native rock revetment, 680 linear feet of native rock riprap for use as wave-breaks; constructing 3 main piers, 8 feet in width and 140 feet, 180 feet and 210 feet in length, and 66 finger piers 3 feet in width and 30 feet to 50 feet in length, providing 142 wet boatslips; constructing a stormwater treatment system for the upland development associated with the marina facility; filling a 0.53 acre barrow canal with 4,000 cu. yds. of material; impacting 2.44 acres of jurisdictional wetland area; and creating 2.9 acres of jurisdictional wetland area. The application was filed on behalf of Ponce Marina by Robert M. Snyder, P.E., a professional engineer registered in the State of Florida. On June 20, 1988, the Department issued its Intent to Issue Permit No. 64-1303059 to Ponce Marina. The Intent to Issue contains 21 Specific Conditions the Department will place on the Permit. All conditions are reasonable and necessary. The project site is located on the eastern side of the Halifax River, 3.5 miles south of the Port Orange Causeway and 2.3 miles north of Ponce Inlet in the Town of Ponce Inlet, Volusia County, Section 24, Township 16 South, Range 33 East, not in aquatic preserve, in Class III waters. The project site was formerly salt marsh associated with the Halifax River. The majority of the project site now consists of fill placed on the salt marsh at some time in the past. This fill created an upland strip approximately 500 feet wide and 2,000 feet long. Running through this upland strip is a central ditch which originates at a stormwater sewer on the east side of South Peninsula Drive and runs toward the west to the Halifax River. The proposed marina basin is to be excavated from the upland strip and central ditch described above. The marina design includes the creation of a wetland area in the head region of the basin as well as the connection of the head region to Live Oak Creek, an existing tidal creek, by installing a 60 feet long, 36 inch diameter culvert set at -2.0 feet NGVD and fitted with a 36 inch flap gate. The estuarine marsh wetland to be created at the head of the marina is designed to provide water quality treatment to incoming tides which reach this area. This treated water will then move through the flap gate into Live Oak Creek, where it will receive further treatment before entering the Halifax River. The entrance to the marina will be 180 feet wide. The dredged access channel through that 180 feet entrance, for the navigation of deeper draft boats, will be 80 feet wide by 200 feet long. Construction of the entrance channel will require the excavation of approximately 2,100 cu. yds. of material from the submerged lands of the Halifax River, however, the areas to be dredged consist of unvegetated sand which is not expected to impact marine resources. Excavation of the marina basin will result in 2.44 acres of direct wetland loss. These wetlands are mainly associated with the central ditch. Some marsh north of the upland strip will also be encroached upon. The wetland area eliminated by construction will be replaced by the creation of 2.9 acres of wetland area to be planted with mangroves and smooth cordgrass. It is expected that the created wetland area will provide those same functions as the replaced wetlands within four to five months of planting and will become fully established within two to three years of planting. There is an extremely high success rate for this type of created wetlands within marina basins. The proposed mitigation provides a 1.3:1 ratio of created saltmarsh and mangrove areas and is consistent with Department policy. Diverse shoreline treatments are proposed which will protect wetland and vegetated areas within the marina basin from boat wakes and high energy exchange. This shoreline treatment will include vertical bulkheads, sloping native rock revetments, and submerged wake breaks. There are two or more boat slips directly adjacent to the created wetland on the south side of the basin. Boats in these slips can easily hit the wetlands and damage them. These slips should be eliminated or redesigned to provide protection for these wetlands. The created wetlands are placed so as to provide nursery habitat adjacent to deep water and to filter and treat tidal waters as they move through them. The location and proximity to open water of the created wetlands and the flushing characteristics of the basin will result in higher quality wetlands than those being replaced. The approximately 94 acres of remaining wetlands surrounding the marina project will be placed in a perpetual conservation easement by Ponce Marina. This conservation easement will include two spoil islands to the south of the main upland portion of the property as well as a nonjurisdictional Oak Hammock to the north of the project. The marina, as designed, is a system which is hydraulically driven by the tide. The tide in this region has a mean range of 2.77, that is, a 2.77 feet amplitude change from slack low water to slack high water. In this particular marina system, flushing is driven by two tidal components: (1) a tidal prism which is nothing more than the ratio of the tide volume to the mean low water volume of the basin and, (2) a flow-through component which occurs because there is an elevation difference from one portion of the system to another. A more rigorous flushing action occurs in a flow- through system. The marina is designed with a flap gate so that the facility will have a flow-through potential. Because a flow- through system generates turbulence, it provides mixing through the water column to eliminate or greatly minimize potential for pockets of water that could become stagnant. This is particularly effective in the head regions of the basin. The flap gate operates not only to ensure that water regularly moves out of the head region, but also to ensure that water from the marsh area will not flow into the marina basin, since such water contains organics which could be transported into the marina basin, thereby increasing the potential to violate dissolved oxygen standards. The marina, as designed, will provide a flushing time of 4.6 days for 100 percent flushing, which is adequate to provide reasonable assurance that water quality standards will not be degraded in either the marina basin or adjacent waters. The velocity of water going through the flap gate will not cause erosion. While no operational problems are anticipated with the flap gate, its proper operation is critical to the flushing of the basin. An appropriate design and regular maintenance will be necessary for the flap gate to operate as anticipated. There is no condition in the Intent to Issue which addresses the design and maintenance of the flap gate. Such a condition should be included. The east-west portion of an existing L-shaped canal situated in the northern portion of the property will be filled. The area to be filled is .53 acres. The L-shaped canal is within the Department's jurisdiction, is connected to the Halifax River, and is therefore waters of the State. There is a 36-inch culvert coming from under Peninsula Drive which takes stormwater runoff from an existing condominium development and empties that runoff into the L-shaped canal. Currently, untreated water is coming off impervious surfaces and under the highway by pipe directly into waters of the state, with no detention, no retention, no initial treatment. Therefore, the worst pollutant slug is going directly into waters of the state. This stormwater runoff receives no treatment prior to being directly discharged to waters of the state. Such a system would not be permitted by the Department today. State water quality will be improved by removing the direct stormwater drainage to waters of the state. Ponce Marina has provided an alternate plan for the water which is currently coming from off the project site and discharging through the 36-inch culvert directly into waters of the state. The water is to be routed through a considerable length of grassy ditch behind a weir which will retain the water so that it will receive proper treatment before entering the marsh area. This stormwater will not be routed to a retention area in the oak hammock to the north of the project. The water quality in the remaining portion of the L- shaped canal will not be reduced by the filling of the .53 acre east-west segment, nor is it expected to decline after the filling. The proposed stormwater treatment system for the marina project meets the criteria specified by Florida Administrative Code Chapter 17-25. Further, the stormwater management system for the project was never properly made an issue in this proceeding. The U. S. Fish and Wildlife Service issued a no jeopardy letter to Ponce Marina on July 11, 1988, indicating that the proposed marina will not endanger the manatee or the Atlantic Saltmarsh snake. Those are the only endangered or threatened species that would be expected to be affected by this project. On September 1, 1987, Colonel Robert M. Brantly, Executive Director of the Florida Game and Fresh Water Fish Commission, issued a letter to Secretary Dale Twachtmann recommending, (1) the southern basin of the original marina project be eliminated; (2) the remaining northern basin be designed to lessen wetland impacts, a hydrographic analysis be performed to ensure adequate flushing, there be a DNR determination of no adverse impact to the manatee; and (3) the oak hammock be preserved before issuance of the permit. These recommendations were followed by the Department and are incorporated in the current proposal for the project. On August 21, 1987, the Florida Department of Natural Resources issued its recommendations to the Department concerning the proposed marina, as it relates to the manatee. The recommendations of the DNR are incorporated in permit conditions 16, 17, and 18a through 181. A March 16, 1987, report prepared by staff of the Environmental Control Division of Volusia County recommended approval of the original marina project with three recommendations. Although Volusia County recommended a 90 percent survival rate, an 80 percent survival rate in the mitigation plan is reasonable. Marina plans provide for a sewage pump-out service for boats, as recommended. A condition prohibiting live-aboards on vessels was inadvertently omitted from the condition in the Intent to Issue. The PAC called as its only witness, Dr. Bernard J. Yokel, who was qualified as an expert in estuarine ecology and fisheries. Although Dr. Yokel expressed concern about the removal of a portion of the L-shaped canal and on the introduction of water from the marina into Live Oak Creek, there was no testimony whatsoever that it would be a violation of any criteria of the Department's Class III Water Standards or any other promulgated departmental standard. In fact, Dr. Yokel was unfamiliar with the provisions of Chapters 17- 3 and 17-4, Florida Administrative Code, and was also unfamiliar with the Coastal Marinas Assessment Handbook, the 1985 version published by the Environmental Protection Agency (EPA). Although Dr. Yokel expressed some concern regarding the impact of the marina on the existing linear wetlands in the ditches, he never rendered any opinion as to whether or not reasonable assurances had been provided that the proposed permit was contrary to the public interest, would cause adverse water quality or have adverse effects on fish, shellfish, crabs, and other wildlife. He rendered no opinion as to whether or not the proposed project, if permitted, would adversely affect the conservation of fish and wildlife. The Petitioner, Lawrence Decker, did not testify. He did present Robert Bullard, P.E., as an expert. Mr. Bullard expressed concern about the operation of the flap gate between the marina basin and Live Oak Creek. However, Mr. Bullard expressed no opinion as to whether or not there would be a violation of any criteria contained in Chapters 17-3, 17-4, or 17-25, Florida Administrative Code, or of the Department's Class III Water Quality Standards. The witness, Mr. Bullard, also expressed concern about the hydrographic characteristics of the marina basin and of the L-shaped canal. However, Mr. Bullard never expressed an opinion that the project as designed would degrade State Water Quality Standards below those set in Chapters 17-3, 17-4, and 17-25, Florida Administrative Code, or the Department's Class III Water Quality Standards. Mr. Bullard never expressed any opinion as to whether or not reasonable assurances had been given by the applicant, Ponce Marina, to the Department, that the project would not meet the criteria as provided in Chapter 403, Florida Statutes, or the rules promulgated by the Department thereunder. The applicant, Ponce Marina, has provided reasonable assurances that the project will not violate water quality standards or other standards established pursuant to Chapter 493, Florida Statutes, and Rules 17-3.051, 17- 3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters. The project as designed is not contrary to the public interest. The mitigation more than offsets the wetlands lost. There is evidence to establish that the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein grant permit number 64-1303059 to Ponce Marina, Inc., with three additional specific conditions added to the twenty-one conditions set forth in the Intent to Issue: No live-aboard vessels are to be allowed at the marina. The applicant shall design and shall provide regular maintenance for the flap gate so as to insure that the flap gate will perform as required as an integral and critical component of the flushing design of the marina basin. The applicant shall eliminate or redesign the boat slips directly abutting the created wetlands on the south side of the basin, so as to protect those wetlands from damage. DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3494 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Doris Kralik and Lawrence Decker 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 5(19); 10(24); 14(26); 32(26); and 35(27). 2. Proposed findings of fact 3, 4, 6-9, 11-13, 15, 16, 19, 24- 26, 28, 30, 33, 34, and 37-42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 17, 36, and 43 are rejected as irrelevant. Proposed findings of fact 18, 20-23, 27, 29, and 31 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ponce Marina, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(11 & 12); 5(10); 6(18); 9(3); 11(36); 15(29-32); 16 (33 & 34); 17(4);0(41) and 25(44). Proposed findings of fact 3, 7, 8, 10, 12-14, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 15 and 19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2) and 2-38(3-39). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Volusia-Flagler Environmental Political Action Committee, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 4(8); 5(19); 8(27); 9(28); 21(24); and 22(26). 2. Proposed findings of fact 3, 6, 7, 10-13, 15, 19, 20, 23, 24, 27, 33-37, 39, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 14, 16-18, and 25 are rejected as irrelevant. Proposed findings of fact 26, 28-32, 38, and 41-43 are unnecessary. COPIES FURNISHED: Lawrence Decker 6502 John Anderson Road Flagler Beach, Florida 32036 Doris Kralik 31 Oceanview Avenue Ponce Inlet, Florida 32019 Peter B. Heebner Attorney at Law 523 North Halifax Avenue Daytona Beach, Florida 32018 Vivian F. Garfein Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas D. Wright Attorney at Law Post Office Box 1231 New Smyrna Beach, Florida 32070 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether Petitioner, Sweetwater, Ltd., has demonstrated that it is entitled to, pursuant to the Alachua County Vested Rights and Property Rights Protection Ordinance, Ordinance Number 92-9, codified in Title 32, Chapter 323, Alachua County Code, a vested rights certificate to undertake development of a Planned Unit Development on certain real property owned by Petitioner, notwithstanding the fact that part of the development will be inconsistent with the Alachua County 1991-2011 Comprehensive Plan.
Findings Of Fact The Parties. Petitioner, Sweetwater, Ltd. (hereinafter referred to as "Sweetwater"), is a Florida limited partnership which owns certain real property located in Alachua County, Florida. Jerome Glassman is the General Partner and Trustee of Sweetwater. Respondent, Alachua County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. Among other things, the County is responsible for the regulation of the development of real property located within unincorporated areas of the County. The Subject Property. The real property owned by Sweetwater that is the subject of this proceeding (hereinafter referred to as the "Property") consists of approximately 109.5 acres. See Respondent's Exhibit 7, pages 5 and 6, for a legal description of the Property. The Property is located at the intersection of State Road 331 and South East 16th Avenue. State Road 331 is also known as Williston Road. State Road 331, which runs essentially north-south, parallels the western boundary of the Property. The eastern terminus of South East 16th Avenue, which runs essentially east-west, is located at its intersection with State Road 331. If South East 16th Avenue continued easterly beyond its terminus with State Road 331, it would traverse through the Property. The Property is primarily in an undeveloped, natural state. It is bisected by Sweetwater Branch, a creek that flows into Paynes Prairie State Preserve, which is located to the south of the Property. Most of the Property is located to the east of Sweetwater Branch. As a consequence, most of the Property is inaccessible for development. The Initial Planned Unit Development. In December of 1976 John Connell and Bill Myrick, the predecessor owners of the Property, filed a Planned Unit Development (hereinafter referred to as a "PUD") application with the County. The 1976 PUD application was approved (hereinafter referred to as the "1976 PUD") by the Board of County Commissioners of the County (hereinafter referred to as the "Board") on or about December 21, 1976. As part of the approval of the 1976 PUD, the Board rezoned approximately 125 acres of the Property from Agriculture to PUD. The following land uses were approved for the 125 acres in the 1976 PUD: multi-family, commercial, and industrial. At the time the 1976 PUD was approved, the County planned to extend South East 16th Avenue to the east of State Road 331 through the Property, continuing beyond the eastern boundary of the Property, and eventually turning north until it intersected with State Road 20 (hereinafter referred to as the "16th Avenue Extension"). This extension was to be used as a major route for traffic traveling between Gainesville, Florida, the largest city in the County, and eastern Alachua County. At the time the 1976 PUD was approved, financing of the 16th Avenue Extension had been included in a bond issue intended for use in funding a number of State road projects. Although it was anticipated that the bond issue would be sufficient to fund all the projects the bond issue was earmarked for, including the 16th Avenue Extension project, there was no guarantee under State law that all the projects would in fact be funded. Nor did the County make any representation to the contrary. On June 23, 1978, Ed Culpepper, the County engineer notified Richard Tarbox, the engineer and designer for Sweetwater, that it was anticipated that the 16th Avenue Extension would be completed. Mr. Culpepper informed Mr. Tarbox that he anticipated the completion of "the design work of the roadway from S[tate]R[oad]-331 to S[tate]R[oad]-20 along with all the necessary rights of way instruments." Mr. Tarbox had inquired about the 16th Avenue Extension because Sweetwater was in the process of acquiring the Property. Sweetwater purchased the Property in August 1978. The 1976 PUD was in effect in August 1978 when Sweetwater purchased the Property and Sweetwater was aware of the 16th Avenue Extension project. The 1976 PUD was to expire in December 1979. Sweetwater's intended development of the Property, however, depended upon the completion of the 16th Avenue Extension. It is apparent that until the 16th Avenue Extension was completed, Sweetwater had no intention of developing the Property. Although efforts between the County and the Florida Department of Transportation to move forward with the 16th Avenue Extension continued throughout 1979, the project had not been funded by the end of 1979. Therefore, Sweetwater requested a one-year extension of the expiration date of the 1976 PUD. The request was granted by the Board. The expiration date for the 1976 PUD was extended to December 1980. Efforts to move the 16th Avenue Extension project to completion continued into 1980. In an effort to move the road project forward, Sweetwater executed a Warranty Deed dated July 1, 1980, and recorded on July 3, 1980, conveying approximately 11.78 acres of the 1976 PUD to the County for use in the construction of the 16th Avenue Extension. The evidence failed to prove that the County made any representation to Sweetwater about Sweetwater's right to develop the Property as a result of this conveyance. The 16th Avenue Extension was not completed in 1980. Therefore, a second one-year extension of the 1976 PUD was requested by Sweetwater in December 1980. The extension was approved by the Board. The expiration date for the 1976 PUD was extended to December 1981. By the summer of 1981 it was clear that, although the County still wanted to complete the 16th Avenue Extension, the County did not have the funds to do so. Nor did it appear that the County would be able to obtain the funds before the 1976 PUD expired in December 1981. Because of Sweetwater's desire to proceed with the development of the Property and in an effort to avoid the expiration of the 1976 PUD, Sweetwater explored with the County the possibility of building a portion of the 16th Avenue Extension planned for the Property. Sweetwater offered to construct the portion of the 16th Avenue Extension that would traverse through the Property. By building the portion of the 16th Avenue Extension through the Property for the County, Sweetwater would be able to proceed with development of the Property pursuant to the 1976 PUD. This effort was not successful, however, because the County would not agree to reimburse Sweetwater for the construction of any part of the 16th Avenue Extension and Sweetwater was not willing to incur the entire costs of building the 16th Avenue Extension through the Property. In December 1981 Sweetwater requested a third one-year extension of the 1976 PUD. The third extension was requested because Sweetwater still did not want to proceed with development of the Property until the 16th Avenue Extension was completed. The Board denied this request for extension on December 15, 1981. As a consequence, the 1976 PUD subsequently expired and the zoning for the Property reverted to "agriculture." The evidence failed to prove that Sweetwater made any substantial change in position or incurred any extensive obligations and expenses in reasonably reliance upon any valid, unexpired act or omission of the County prior to the expiration of the 1976 PUD. The Last PUD. After the 1976 PUD expired, Sweetwater initially attempted to obtain approval for zoning changes for the Property which would allow it to development the Property. When these efforts failed, Sweetwater applied to rezone the Property as a PUD. Sweetwater's application was filed in April 1982. On May 18, 1982, the County approved Sweetwater PUD ZOM-18-82 (hereinafter referred to as the "1982 PUD"). The following land uses were approved as part of the 1982 PUD: 803 multi-family residential units on 63.75 acres, 3 acres of office, 2 acres of commercial, 5.5 acres for recreation, and 24.05 acres for open space and detention areas. The County's Initial Representations Concerning the 1982 PUD. At the time the 1982 PUD was approved, Section 8.3g of County Ordinance 80-3 provided the following time limitations on PUDs: Planned Unit Development Time Limitations: If substantial construction, as determined by the Zoning Administrator, has not begun within two (2) years after approval of the Planned Unit Development under subsection 8.3a of these Regulations, the approval of the Planned Unit Development will lapse. Thirty (30) days prior to any lapse date, the Zoning Administrator shall notify the County Commission and the developer of such date. The County Commission may extend the period for beginning construction at the request of the owner. If the Planned Unit Development lapses under this provision, the Zoning Administrator shall cause the Planned Unit Development district to be removed from the official Zoning Map; mail a notice by registered mail of the revocation to the owner; and reinstate the zoning district which was in effect prior to the approval of the Planned Unit Development. Pursuant to this provision, the 1982 PUD was scheduled to expire May 18, 1984, unless Sweetwater began "substantial construction, as determined by the Zoning Administrator," of the approved development of the Property before the expiration date. After obtaining approval of the 1982 PUD, Mr. Tarbox approached the County to determine some way of "locking in" the 1982 PUD before it expired on May 18, 1984. Sweetwater still had no intention of developing the Property until the 16th Avenue Extension was completed through the Property and, at the time the 1982 PUD was approved efforts to move forward on the 16th Avenue Extension did not look promising. If the 1982 PUD could somehow be vested, then Sweetwater would not have to worry about the 1982 PUD expiring before the 16th Avenue Extension was completed. Mr. Tarbox discussed the matter with Robert Holton, Director of the County's Department of Codes Enforcement. As a result of their conversations, Mr. Holton informed Mr. Tarbox that Sweetwater could prevent the expiration of the 1982 PUD and meet the requirement of Section 8.3g of Ordinance 80-3 that "substantial construction" begin within two years of the approval of the 1982 PUD by obtaining approval from the Board of a final site plan for a phase of the 1982 PUD. In particular, Mr. Holton, who had the responsibility for interpreting and applying Section 8.3g of Ordinance 80-3 at all times relevant to this matter, told Mr. Tarbox that the construction of an a portion of the 16th Avenue Extension by Sweetwater extending from State Road 331 approximately 400 feet into the Property would constitute a phase (hereinafter referred to as "Phase 1") of the 1982 PUD. See Petitioner's Exhibit 1-42 and 43. Mr. Holton also informed Mr. Tarbox that all that Sweetwater needed to do in order to meet the requirements of Section 8.3g of Ordinance 80-3 would be to obtain approval from the Board of a final site plan for Phase 1. Consistent with the policy of the County at the time, no formal agreement setting out Mr. Holton's representations on behalf of the County was entered into. By letter dated May 26, 1983, Mr. Holton confirmed to Mr. Tarbox his earlier representation that all that was required to lock-in the 1982 PUD was to obtain final site plan approval: This Planned Unit Development will remain in effect provided a final development plan is approved by May 18, 1984. See Petitioner's Exhibit 1-40. 1/ Mr. Holton's representations to Sweetwater were consistent with the policy of the County at the time of treating approval of a final site plan as "substantial construction" even if no actual construction had begun. Even though this policy and Mr. Holton's representations to Mr. Tarbox are inconsistent with the clear language of Section 8.3g of Ordinance 80-3, Sweetwater reasonably relied upon Mr. Holton's representation to its detriment. Sweetwater's Detrimental Reliance Upon Mr. Holton's Representations; Further Representations of the County Concerning the 1982 PUD; the County's Omissions; and Sweetwater's Continued Reliance Upon the County's Representations and Omissions In reliance upon Mr. Holton's representations concerning what Sweetwater needed to do to avoid the expiration of the 1982 PUD, Sweetwater proceeded to obtain funds from its limited partners to fund the completion of Phase 1. Petitioner's Exhibit 1-41. On February 23, 1984, Sweetwater filed an application for final site plan review for Phase 1. Mr. Holton noted on the application: "Road Const. as 1st phase of Sweetwater P.U.D.", followed by his initials. He also noted on the application: "considered to be substantial const[ruction] as per zoning reg[ulation]s in effect at the time of approval on 12/4/84." This notation was also followed by Mr. Holton's initials. On March 1, 1984, the County Development Review Committee approved the application for final site plan review for Phase 1 and recommended its approval by the Board. On March 6, 1984, the Board approved the final site plan for Phase 1. On March 20, 1984, the County Public Works Department issued a Construction Permit for Phase 1. Following issuance of the construction permit, Sweetwater sought bids for the completion of Phase 1. The date the 1982 PUD was originally to expire, May 18, 1984, passed while Sweetwater was seeking bids for the completion of Phase 1. No notice was sent to Sweetwater at least a month prior to May 18, 1984, informing Sweetwater that the 1982 PUD was about to expire as required in Section 8.3g of Ordinance 80- Nor did the County "mail a notice by registered mail of the revocation to . . ." Sweetwater after May 18, 1984, as required in Section 8.3g of Ordinance 80-3. In continued reliance upon Mr. Holton's representations on behalf of the County, the processing and approval of Sweetwater's application for final site plan approval of Phase 1 by the County Development Review Committee, the Board, and the County Public Works Department, and the County's failure to inform Sweetwater that the 1982 PUD was about to expire and had expired as required by Section 8.3g of Ordinance 80-3 (hereinafter referred to as the "County's Representations and Omissions"), Sweetwater entered into a contract for the construction of Phase 1 on July 18, 1984. In continued reliance upon the County's Representations and Omissions, construction of Phase 1 actually commenced in August 1984 and continued to completion thereafter. On February 15, 1985, the County approved the 400-foot road extension and accepted it for maintenance. Sweetwater expended almost $90,000.00 for construction of Phase 1. While the size of the road extension is small in relation to the entire area of the Property and the amount expended was small in relation to the total value of the Property, the amount expended by Sweetwater in reliance upon the County's Representations and Omissions to complete Phase 1 is a substantial amount of money. Other actions taken by Sweetwater, such as deeding right-of-way for the 16th Avenue Extension through the Property and the sale of 300 acres of property located adjacent to the Property to the State of Florida, which took place prior to the County's Representations and Omissions concerning Phase 1 of the 1982 PUD, were not made in reliance upon any representation from the County with regard to Sweetwater's rights to development of the Property consistent with the 1982 PUD. The County's Continuing Representations to Sweetwater. By letter dated May 28, 1985, more than a year after the 1982 PUD was originally to expire, Benny Beckham, a Zoning Codes Supervisor in the County's Department of Codes Enforcement, informed Sweetwater that "on August 1, 1985, the Zoning Classification of [the 1982 PUD] will lapse unless a final development plan has been approved by the Alachua County Board of County Commissioners prior to this date." The evidence failed to prove why Mr. Beckham mailed this letter or why he concluded that the 1982 PUD would expire on August 1, 1985. When Sweetwater officials informed Mr. Holton of Mr. Beckham's May 28, 1995, letter, Mr. Holton wrote to Sweetwater, on or about July 1, 1985, indicating in effect that Mr. Beckham's letter was incorrect: The Board of County Commissioners approved the construction plans for the extension of South East 16th Avenue into the Sweetwater P.U.D. on March 6, 1984. The above action and the subsequent construction of approximately 400 feet of roadway constituted substantial construction. The construction of the roadway was considered the first phase of the Sweetwater Planned Unit Development. As a result of the above activity the August 1, 1985 [letter from Mr. Beckham] 2/2 will have no effect on your development. Petitioner's Exhibit 1-56. Mr. Holton's July 1, 1985, letter further confirms the County's Representations and Omissions concerning the 1982 PUD. The Impact of the County's 1991 Comprehensive Plan. With the adoption of the Alachua County 1991-2011 Comprehensive Plan (hereinafter referred to as the "Plan"), the land use designation for the Property was changed to Preservation/Conservation. 3/ The Preservation/Conservation land use designation under the Plan allows one residential unit per ten acres. Development of the Property under the Plan, with or without an amendment of the land use designation of the Property to Estate Residential, would be substantially more restrictive than development of the Property pursuant to the 1982 PUD. If Sweetwater is not allowed to develop the Property consistent with the 1982 PUD and must comply with the Plan's land use designation, Sweetwater will suffer a significant loss in value of the Property. State Wetlands Regulation. Since the approval of the 1982 PUD, the State has adopted significantly more restrictive statutes and rules governing development of property with wetlands. Development of the Property, even pursuant to the 1982 PUD, will have to substantially comply with those restrictions. The actual application of State wetlands' statutes and rules to the Property and the impact thereof will not be determined until site plan review for the Property and is, therefore, highly speculative as of the date of the hearing of this case. Therefore, the speculative impacts on development of the Property as a result of changes in state statutes and rules governing wetlands are not relevant in determining whether Sweetwater is entitled to a vested rights certificate that would allow it to rely upon the 1982 PUD. Conclusion. The County, by its acts and omissions, led Sweetwater to believe that it had received a final development order in the form of a final development plan approved and unexpired as of October 2, 1991, for the 1982 PUD. The County, by its acts and omissions, also led Sweetwater to believe that the construction of Phase 1 was construction pursuant to a final development order that started before the earlier of the expiration of the final development order or October 2, 1992. Sweetwater did not, however, in fact receive such a final development order for the Property. The final development order was limited to development on the County's right-of-way and not the Property. Sweetwater also did not start construction pursuant to such final development order on the Property, but only on the County's right-of-way. Additionally, to the extent that Sweetwater actually received a final development order, it only applied to Phase 1 and not to any other phase or phases of development of the Property. Sweetwater is not, therefore, entitled to a vested rights certificate pursuant to statutory vesting. The County did make the County's Representations and Omissions and those Representations and Omissions were relied upon in good faith by Sweetwater when it constructed Phase 1. In addition, Sweetwater did the following in reliance upon the County's Representations and Omissions: Sweetwater took no further action to ensure that the 1982 PUD did not lapse on May 18, 1984, pursuant to Section 8.3g of County Ordinance 80-3; Sweetwater continued to assume that the 1982 PUD remained in force; and Sweetwater took no further action to either develop the Property prior to the effective date of the Plan or to avoid any adverse impact on its ability to develop the Property as a result of the adoption of the Plan. In reliance upon the County's Representations and Omissions, Sweetwater incurred expenditures of approximately $90,000.00 and failed to take any action to avoid negative impacts of the Plan on its ability to develop the Property. As a result, it would be highly inequitable and unjust to destroy Sweetwater's rights to develop the Property consistent with the 1982 PUD. Sweetwater failed to prove any vested rights concerning the completion of the 16th Avenue Extension. Sweetwater's Application for Vested Rights Certificate. On June 13, 1996, more than 14 years after it obtained the 1982 PUD, Sweetwater filed a Notice of and Application for Statutory or Equitable Vested Rights Certification Pursuant to Alachua County Ordinance 92-9, along with supporting documentation (hereinafter referred to as the "Application"), with the Growth Management Department of the County. Sweetwater requested a vested rights certificate based upon statutory and/or equitable vesting for the Property in the Application. On August 27, 1996, the County denied the Application. On September 23, 1996, Sweetwater filed a Notice of Appeal of the County's decision to deny the Application. On November 30, 1999, the County filed the request for hearing with the Division of Administrative Hearings (hereinafter referred to as the "Division"), for assignment to an administrative law judge to conduct a formal administrative hearing on behalf of the County.
Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since 1915, the Leisey family has owned or controlled some 710 acres adjacent to Little Cockroach Bay in Hillsborough County. Leisey Shellpit, Inc. now proposes to develop some 55 acres of that property, which has in the past been utilized for row crops, citrus, timbering and mining. The proposed development is to include an 870-boat marina, of which approximately half would be dry storage, located on a 16-acre lake adjacent to the waters of Little Cockroach Bay. The 16-acre lake was created through shell mining operations, and other lakes are to be part of the total project. Leisey proposes to widen and deepen existing mosquito ditches and existing canals or channels to provide access from the proposed marina to Cockroach Bay and the open waters of Tampa Bay. Adjacent to the marina lake, the proposed development also includes a flushing channel, a 250-seat restaurant, a 24-unit resort hotel or motel, a museum, fueling facilities with upland gas storage, an 8-boat ramp launching area, a convenience store, a boat repair facility, a dockmaster's office and 688 parking spaces. The total development further includes a 114-unit apartment complex and 23 single-family residential lots on other lakes nearby the marina lake, a stormwater and agricultural runoff system and a sewage treatment plant. Leisey proposes to widen and convert an existing mosquito ditch between the marina lake and Little Cockroach Bay to a flushing channel in order to accomplish a tidal flushing action in the marina lake. In order to provide access for boats, Leisey proposes to widen and dredge two parallel existing mosquito ditches running southwesterly from the marina lake and an existing channel running east-west along Cockroach Bay Road and extending into the Cockroach Bay channel. These access channels will be dredged to provide a 50- foot wide bottom in most areas with a minus 6 N.O.S. elevation for the bottom of the channels. In areas which do not need dredging, there exists a gentle slope of 6:1. Where excavation is to occur, there will be a 3:1 slope. The total amount of dredging contemplated is 175,000 cubic feet. The majority of the spoil material will be pumped through a polyethelene pipe to the marina lake until that lake is contoured to desired elevations. Secondary spoil sites for any surplus materials are available in lakes owned or controlled by the Leisey family. Depending upon economic and environmental considerations, Leisey intends to use a combination of dredging methods, including suction dredging, dragline dredging, and use of a cutter head dredge. In order to control turbidity, petitioner will utilize earth barricades, silt screens and double silt screens depending upon the type of dredging performed in various locations. The shellpit which is proposed to become the marina lake is not a state water at this time. It will become a state water at the time it is connected to other state waters by the proposed access channels and flushing channel. It would be classified as a Class III water body. The Cockroach Bay Channel which Leisey proposes to widen and dredge has not been dredged in the past. The applicant was unable to predict the extent to which future maintenance dredging would be required if it is widened and deepened to provide access to the proposed marina. The water body areas adjacent to the proposed marina, particularly Cockroach Bay, are presently classified by the Department of Natural Resources as approved for shellfish harvesting, and have been so classified since at least 1975. However, since December 10, 1984, the area has been temporarily closed for shellfish, oyster, clam and mussel harvesting. When a marina is constructed, it is the policy of the Department of Natural Resources to reclassify the area within the marina proper as prohibited for shellfish harvesting and to establish a buffer zone outward from the marina which also would be prohibited for the harvesting of shellfish. The size of the buffer zone is dependent upon the quality, design, hydrography and usage of the marina. The DNR considers a worst-case scenario in terms of potential biological contamination when establishing the size of the buffer zone. In the case of the potential marina, the size of the buffer zone would be hundreds, thousands of yards. It is the policy of the DER to deny a request for a variance if the proposed project would result in DNR closing an area previously approved for shellfish harvesting. Waters approved for shellfish harvesting are classified by DER as Class II waters. Aquatic preserves are designated by the State for the preservation or enhancement of the biological, aesthetic and scientific values of those areas. The boundaries of the Cockroach Bay Aquatic Preserve are described by statute in Section 258.391, Florida Statutes, and such description also defines the boundaries of the Outstanding Florida Water (OFW) classification of the DER. Due to cost considerations, the applicant did not perform a mean high water line survey to demonstrate the proper boundaries of the Cockroach Bay Aquatic Preserve and the corresponding OFW boundaries. The statutory legal description of the Aquatic Preserve was derived from a lease given to the State by the Tampa Port Authority, to which the submerged lands in Hillsborough County had previously been dedicated. That description continuously makes reference to mean high water lines in Tampa Bay and the Little Manatee River. The applicant's professional land surveyor was of the opinion that the waters easterly of the islands offshore the proposed marina, including Little Cockroach Bay, are not a part of the Aquatic Preserve, and thus are not a part of the OFW designation. It was this witness's opinion that the only portion of the project to occur within the Aquatic Preserve is approximately 600 feet of the existing Cockroach Bay Channel to be dredged as an access channel. The DER's expert witness was of the opinion that the statutory legal description does include the waters of Little Cockroach Bay. The intervenors presented testimony that, at the time the description of the Preserve was developed, the Tampa Port Authority did not consider Little Cockroach Bay as a separate water body and intended it to be part of the Cockroach Bay Aquatic Preserve. The Preserve has been managed by the DNR as including the area of Little Cockroach Bay. The proposed marina lake is designed to be four feet deep at its edges and six feet deep In the central portion. An existing mosquito ditch is to be widened to provide a source of new water from Little Cockroach Bay on the incoming tide. At the conclusion of the flood tide, a computer-controlled gate will close, forcing water to exit through the access channels during the ebb tide. A flow directing wall will be installed for the purpose of promoting adequate water exchange in all portions of the marina. Petitioner's plans for the operation of the marina include a prohibition against live-aboards and a `no-head" policy. Fueling at the upland fuel pumps will be encouraged by a price differential. The upland fuel storage tanks are to be protected by barriers and earthen berms. The water side fueling facility is to be protected by a containment boom. In the event of a fuel spill, it is contemplated that the entire marina can be sealed off from outside waters by closing the flushing gates and by closing a turbidity curtain across the access channel. It is contemplated that a dockmaster or assistant will be on-site at the marina to ensure compliance with all rules and to handle any emergencies that may arise. In order to determine the viability of a given basin for use as a marina, it is appropriate to consider the flushing time or residence time -- the time necessary for water in a given system to exchange with waters in adjacent areas outside the system. In marinas that are tidally Influenced, flushing will, in large part, be a function of the tidal forcing. Utilizing a one-dimensional computer model, and assuming that no mixing occurs when water from the flushing channel enters the basin, the applicant predicts that the flushing or residence time of the basin will be approximately 4.2 days assuming a low tide, 5.6 days assuming a mid-tide volume, and 6.6 days assuming a high tide. If one were to assume a completely mixed system, the flushing time would be 8.6 days assuming a low tide, 11.4 days assuming a mid-tide volume, and 14 days assuming a high tide. Over a period of time, the tide level in the proposed basin will actually be represented by the range between high tide and low tide. Rather than assuming a low tide condition, it would be more accurate to use a tidally averaged or mid-tide volume of water. A no-mixing assumption does not take into account dead-water zones within a water basin. In reality, a marina would have some dead zones through the existence of the obstacle effect of objects such as boat hulls. Also, in this proposed marina, the area behind the deflection wall or flow directing wall would be outside the direct flow path and, thus, "dead" water. A one-dimensional model is typically utilized to predict the flushing times of narrow rivers or canals, as it represents tidal flow in only one direction in a straight line. A more appropriate model to utilize in a circular boat marina is a two-dimensional model. The tidal flushing of water bodies whose flow patterns are non-linear are more appropriately predicted by use of a two-dimensional model. The applicant failed to produce competent substantial evidence that the anti-fouling paints used on boats, as well as oils and greases typically produced by boats, would not violate Class III water quality standards in the marina lake and the access channels. It was also not demonstrated that Class III water standards for collform bacteria would be met. These factors are particularly important due to the potential for back flow which could cause marina waters to run back through the flushing canal into Little Cockroach Bay. Also, extreme weather events can force large volumes of water with high concentrations of contaminants out into Tampa Bay. While petitioner's water quality witnesses took samples and reviewed some of the available data base for the area dating back to 1950, the ambient water quality of Cockroach Bay for the period March 1, 1978, to March 1, 1979, was not established. The Hillsborough County Environmental Protection Commission did have monitoring stations in the vicinity of this project during 1978 and 1979. Also, while the petitioner's experts did consider the effects of dredging during construction, the effects of turbidity from future boat traffic were not established. There are currently existing water quality violations with respect to dissolved oxygen in the Class II and Class III waters associated with the proposed project. The more accelerated export of detridal material, as well as the introduction of oils and greases from boats, will cause increased DO violations. The resuspension of fine materials and sediments resulting from dredging and boat traffic in the channels could further lower oxygen demands. The widening and dredging of the access channels proposed by the petitioner will result in the immediate removal of approximately 0.3 acres of seagrasses and about 3.09 acres of mangroves. Most of the seagrass impacts would occur at the western mouth of the Cockroach Bay access channel. Many of the mangroves to be removed are mature, healthy fifteen to twenty- foot trees. Secondary losses of seagrasses and mangroves can be expected from the turbulance and erosion caused by wakes and from propeller damages associated with greatly increased boat traffic in the area. Petitioner proposes to mitigate these secondary losses by providing channel markers, speed limit signs and "no wake" signs in the channel. With respect to the immediate losses, petitioner proposes to replace the 0.3 acres of seagrasses with 0.3 acres of new plantings in the proposed flushing canal. It is suggested that the marina will naturally be vegetated by seagrasses. Petitioner also offers as mitigation for the loss of seagrasses in the dredged access channels the fact that over one acre of hard substrate in the form of pilings and seawalls will be constructed at the marina. It is suggested that this acre would become colonized by sessile attached animals, such as barnacles and oysters, and by red algae, and that this assemblage would become a source of primary productivity and provide a filtering benefit similar in function to grass beds. With respect to mangrove mitigation, petitioner intends to plant six-foot high mangrove trees along the perimeter of the proposed marina lake and along portions of the access channel, and to scrape down an area near the north lake to provide suitable elevations for mangroves and higher marsh vegetation. In total, petitioner plans to replace the 3.09 acres of lost mangroves with 4.25 acres of replanted mangroves. Approximately 80% of the seagrasses in Tampa Bay have been destroyed by development. A significant fraction of the remaining seagrasses are located in the Cockroach Bay area. Seagrass mitigation is highly experimental. No successful seagrass mitigation has occurred in Tampa Bay. The success of replanting seagrasses in the proposed flushing canal is particularly suspect due to scouring, flushing velocities and the potential for poor water quality in the event of a reverse flow from the marina into the flushing channel. The increased salinity in the marina lake could adversely affect seagrasses located there. Propeller cuts are already apparent in Cockroach Bay, as boaters cross the seagrass meadows in order to reach prime fishing areas. An increased amount of boat traffic in the area could be expected to exacerbate such occurences. While mangrove replantings have achieved more success, the areas to be destroyed are mature large systems which provide a considerable detridal feeding base for the animals associated with them, as well as cover for animals, fish and invertebrates that utilize those areas. Many of the types of animals and fish that utilize mangrove areas, as well as seagrass areas, are attached organisms that do not migrate. Mangroves require a stable substrate. The remaining mangrove system in the access channels could change with increased boat traffic, especially in those areas where the slopes are to be reduced to 3:1. The DER does not yet have a promulgated rule regarding mitigation. Its present policy is to evaluate mitigation plans on a case-by-case, site- specific basis. No specific ratio between the impacted area and the mitigated area is required. Instead, it is the policy of DER to analyze various factors, such as the present condition of the area being dredged or filled in terms of the age of the vegetation and the functions being served; proximity of the area to special areas such as Class II waters or an OFW; proximity between the areas impacted and the area planned for mitigation; and past examples of success of the mitigation proposed. DER considers mitigation in relationship to the public interest review standards, and does not consider mitigation when reviewing water quality standards. It is the present policy of the DER to either avoid adverse impacts to healthy seagrasses or to require a lot of" mitigation for those areas which will be lost if the project proceeds. This policy is due to the lack of demonstrated success in replanting or recreating new seagrass communities. While the planting and growing of mangroves has been more successful, it is the policy of the DER to recognize that there is a time lag between the planting and successful growing. When a large, healthy mangrove system is being destroyed and replaced by younger, smaller trees, DER generally requires more than a one- to-one ratio in mitigation. It is the policy of DER to consider the creation of a barnacle habitat as mitigation only when the dredging or filling project itself impacts that type of habitat. Petitioner conducted studies which led to the conclusion that the construction and operation of the proposed project would not reduce the biological integrity or diversity by more than 25 percent. However, given the removal of seagrass meadows and the adverse effects from greatly increased numbers of boats in the area, the applicant did not provide reasonable assurances that the biointegrity standards could be met. Manatees have been sited in Cockroach Bay and the Cockroach Bay boat channel. Due to its seagrasses and shallow waters, Cockroach Bay is one of the most important nursery areas for fish in Tampa Bay. Many wildlife species of special concern have been sited at or near the project site. These include the mangrove terrapin, the mangrove coocou, the brown pelican, the American alligator, the little blue heron, the snowy egret and the tri-colored heron. It is the policy of the DER, when considering the impact of a project upon fish and wildlife, to utilize all federal and state lists of endangered and threatened species. It is highly likely that increased boat traffic and human activity in the area will affect such wildlife. Several locations along the proposed north/south and east/west access channels could pose serious navigational difficulties due to restricted visibility. Given the potential number and sizes of boats in the access channels, manuevering problems can be expected, particularly during weekends. A boater must make a right angle turn where the north/south channel meets the east/west channel. A boat of 25 to 35 feet in length would have difficulty making such a turn in a fifty foot channel at speeds which would not produce a wake. If the vessel suffered engine failure or encountered other traffic at this turn, a hazardous navigational situation could arise. It would take a vessel approximately 20 to 30 minutes to travel at a safe speed from the marina to the mouth of the channel. It is common to observe boaters impatient to get into open waters or return home at the end of the day and navigating at speeds beyond that which is posted or in excess of that which is prudent or safe. Although not part of the application for variance or the instant permit application, petitioner offered evidence of its proposed stormwater management plan, sewage treatment plan, and agricultural runoff treatment plan. These plans are still conceptual in nature and would be the subject of future permitting requirements. Petitioner projects that these implemented plans will actually improve the water quality in the area of the project site. A porous concrete product is to be utilized for parking spaces and throughout the development except immediately adjacent to the marina. This product allows stormwater to pass through it and go into the groundwater, and it is designed to retain and break down oils and greases. Reversed sloping around the marina lake and access channels are to be used to prevent any direct discharge of stormwater. Flow is to be directed away from the marina through grasssed swales into retention ponds and into other isolated lakes. An advanced wastewater treatment plant, with a hyacinth treatment lake, is planned to provide sewage treatment for both this development and the surrounding communities, with an ultimate capacity of 250,000 gallons per day. The treated effluent, after going through the treatment lake will be directed into a rapid exfiltration trench to sheet flow into the mangroves. Petitioner also plans to redirect existing agricultural runoff, identified as being a present source of pollution to water in the area, so that it would go into several lakes and ultimately exit through rapid exfiltration trench sheet flow into the mangroves. In 1983, one of the greatest paleontological finds in this country occurred in one of the mine pits on the Leisey property. Over two hundred and fifty thousand specimens were obtained. Petitioner has entered into an agreement with the Florida State Museum whereby a museum will be constructed near the proposed marina, and displays from the paleontological discovery and other archeological exhibits from the Leisey property will be shown in an educational format. Petitioner has offered to dedicate the museum to the State. Should petitioner receive all permits required for construction of its proposed marina development, the Leisey family has offered to dedicate approximately 54 acres of mangrove lands near Little Cockroach Bay to the Tampa Port Authority or other appropriate entity for preservation purposes. There does appear to be a shortage of available marina spaces in Tampa Bay. However, there is a pending application before DER for an expansion of an existing marina in the vicinity, and other sites along the Bay would be of lesser conflict with existing seagrasses and mangrove systems. If petitioner's marina facility were constructed and operated as proposed, it would serve as a port of refuge to boaters during storms. Petitioner also proposes to reserve two of the eight boat ramp spaces for public safety and environmental agency personnel so that boats can be quickly launched and retrieved in emergency situations. The provision of an eight- space boat ramp and the 432 wet slips and 438-boat dry storage will increase public access to the off-shore waters. The proximity of the Tampa Ship Channel results in direct access to the Gulf of Mexico, and recreational activity will be enhanced by the project. In this proceeding, the burden to demonstrate that the proposed marina project complies with all applicable statutes, rules and policies of the DER and to provide reasonable assurances that the State's water quality standards will not be violated rests with the applicant, Leisey Shellpit, Inc. Due to the location of the proposed project, that burden is heavy and somewhat complicated. Surface waters in Florida are classified according to their present and future most beneficial uses, and water quality criteria have been developed to maintain the minimum conditions necessary to assure the suitability of the water for the designated uses. Section 403.061(10), Florida Statutes, and Rule 17-3.081, Florida Administrative Code. In addition, certain waters, due to their exceptional recreational or ecological significance, have been designated as Outstanding Florida Waters (OFW), with the intent that they be afforded the highest degree of protection. Section 403.061(27), Florida Statutes. A designation of a water body as an OFW is a determination that the environmental, social and economic benefits of the special protection outweigh the environmental, social and economic costs. Rule 17-3.041(:2)(f), Florida Administrative Code. The waters within and adjacent to the proposed project in this proceeding include OFW entitled to the highest protection, Class II waters with the designated use of "shellfish propagation or harvesting," and Class III waters with the designated use of "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife." Rule 17-3.081, Florida Administrative Code. As such, this project is subject to numerous statutory and regulatory requirements. The waters adjacent to the proposed marina, access channels and flushing channels are Class II waters. As such, Rule 17-4.28(8), Florida Administrative Code, governs requests to dredge and fill in those areas. That rule provides as follows: "(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore, it shall be the department's policy to deny applications for permits or certifications for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. Provided, however, that the staff of the department may issue permits or certifications for maintenance dredging of existing navigational channels, for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines. (b) The department shall also deny applications for permits or certifications for dredging and/or filling activities in any class of waters where the proximity of such activities to Class II waters would be expected to have an impact on the Class II waters, and where reasonable assurance has not been provided that the activities will not result in violations of the applicable provisions of Chapter 17-3, Florida Administrative Code, in the Class II waters. Petitioner does not dispute that the waters are Class II waters. In spite of the fact that a variance from the rule was requested, petitioner contends that the prohibition against dredging in areas "approved for shellfish harvesting by the Department of Natural Resources" is not applicable here because the area is now temporarily closed to shellfish harvesting. In the alternative, petitioner contends that even if these waters are "approved" for shellfish harvesting, it is entitled to a permit to "maintenance dredge an existing navigational channel." This latter contention is without merit. There was no evidence that the access channels proposed to be widened and deepened had been previously dredged. Indeed, the evidence was to the contrary. Consequently, the proposed activity cannot be categorized as "maintenance dredging." Moreover, neither the proposed north/south access channel nor the proposed flushing channel are "existing navigational channels." Petitioner's argument with regard to a distinction between an area "approved" and an area "temporarily closed" to shellfish harvesting is initially logically appealing. However, the argument fails to recognize the purpose of the Class II designated use -- shellfish propagation or harvesting, as well as the DER policy to deny a request for a variance when a project would result in the permanent loss of an area for shellfish harvesting. It was undisputed that DNR establishes buffer zones around marinas within which shellfish harvesting is prohibited, and that the size of the buffer zone is dependent, in part, upon the size of the marina. The area "buffered" would be permanently, as opposed to temporarily, closed for shellfish harvesting. The DER's policy to deny permits or variance requests when the project would result in the permanent closure of a significant area for shellfish harvesting is supported by the remainder of Rule 17-4.28(8)(a), as well as by the purpose for the Class II designation. Thus, under the facts of this case, it is concluded that the prohibition against dredging and filling in areas "approved for shellfish harvesting by the Department of Natural Resources," as set forth In Rule 17- 4.28(8)(a), is applicable and that petitioner has failed to demonstrate entitlement to a variance from that prohibition. Even if petitioner were entitled to a variance, it has not provided reasonable assurances that the short and long term effects of the proposed activities will not violate water quality standards and public interest requirements so as to be entitled to a dredge and fill permit. As noted above, Outstanding Florida Waters are entitled to the highest degree of protection. An applicant for a permit to conduct activities which significantly degrade or are within such waters is required to affirmatively demonstrate that the activity meets the criteria set forth In Rule 17-4.242, Florida Administrative Code. Among those criteria are that the activities be "clearly in the public interest and that the "existing ambient water quality," within the OFW not be lowered as a result of the proposed activity. "Existing ambient water quality" is defined in Rule 17-4.242(1)(d) as the water quality which could reasonably be expected (based upon the best scientific information available) to have existed for the year prior to the OFW designation. The Cockroach Bay Aquatic Preserve was designated as an OFW on March 1, 1979. Rule 17-3.041, Florida Administrative Code. Therefore, the appropriate year for determining the "existing ambient water quality" of that OFW is from March 1, 1978, through March 1, 1979. Petitioner admits that at least 600 feet of the proposed east/west access channel is within the Cockroach Bay Aquatic Preserve. Since a mean high water survey was not conducted by the petitioner, or otherwise presented in this proceeding, the undersigned is unable to render a conclusion regarding the precise boundaries of the Aquatic Preserve or the coextensive OFW designation. It is persuasive that the DNR has managed the Preserve as though Little Cockroach Bay were included within it and that the Tampa Port Authority, from whom the lease to the State was derived, has not recognized Little Cockroach Bay as a separate water body. In any event, at least a portion of the proposed activity will be conducted within an OPW, and petitioner has failed to establish the ambient water quality of those waters for the relevant time period. As a result, petitioner has failed to meet its burden of affirmatively demonstrating that the proposed activity will not lower the quality of that water. While the petitioner did present evidence regarding the current condition of the waters and some historical data was reviewed, there was no affirmative demonstration of the quality of water which existed between March 1, 1978, and March 1, 1979. It simply was not established that petitioner relied upon the best scientific evidence available in its attempt to demonstrate that "existing ambient water quality" would not be lowered by the proposed activity. The operation of an 870-slip marina, along the public boat ramps, will generate a large amount of pollutants. Constant and heavy boat traffic within the marina lake and going in and cut of the area on a daily basis can be expected to continuously resuspend contaminants and pollutants. Given these factors, it was particularly incumbent upon the petitioner to make accurate predictions regarding flushing times, and to provide reasonable assurances that water quality standards would not be violated as a result of the proposed activity. The use of a one-dimensional model, along with the assumptions of no mixing and low tide conditions within the basin, does not provide adequate or accurate predictions with respect to the flushing or residence time of the proposed marina lake. The use of these flushing model computations to make water quality predictions for the lake and channels undermines those predictions. The applicant has failed to provide reasonable assurances that water quality standards, particularly with regard to dissolved oxygen, for Class II and III waters will not be violated on a short and long term basis. Without such assurances, and also considering the loss of healthy seagrasses and mangroves which will result from both dredging and continued boat traffic in the area, the proposed project Is not permittable. As stated In Rule 17- 3.011(5), Florida Administrative Code: 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. When an applicant is unable to meet water quality standards because the existing water quality does not meet standards, mitigation measures which cause net Improvement of the water quality may be considered. Section 403.918(2)(b), Florida Statutes. In mitigation, the petitioner has offered its plans for stormwater management, agricultural run-off and sewage treatment to demonstrate that water quality conditions will be improved by the overall development contemplated. Without a reasonably accurate prediction of the extent to which the proposed project and related activities will cause or contribute to existing DO violations, as well as other violations, in the subject waters, It is impossible to determine whether these mitigation measures will cause a net Improvement of the water quality in the area. In addition, the plans for the proposed stormwater management, agricultural runoff and sewage treatment systems were conceptual in nature. Until more detailed plans are developed, it is impossible to determine whether future permit applications for those projects would be acceptable. The petitioner's mitigation plans for the removal of seagrasses and mangroves is likewise unacceptable. Attempts to replant seagrasses, especially in Tampa Bay, have not been successful and are in an experimental stage. Petitioner's proposed 1:1 mitigation ratio is not appropriate for seagrasses due to the possible failure of its attempts, the proposed location of the replantings, and the expectation of secondary losses from boat traffic, erosion and potential future maintenance dredging. While the replanting of mangroves have a past record of success, a larger than 1:1 ratio would be appropriate to account for the difference in functions between a healthy system of large trees and the replanting of smaller trees, to account for the secondary losses which may be expected from greatly increased boat traffic and to account for the difference in locations between the trees to be removed and the trees to be replanted. An applicant must also provide reasonable assurances that the proposed project is "not contrary to the public Interest" or, in the case of the presence of Outstanding Florida Waters, that the project will be "clearly in the public interest." In making public interest determinations, the Legislature has set forth seven criteria to be considered and balanced, and has allowed applicants to offer measures to mitigate adverse effects. Section 403.918(2), Florida Statutes. The seven factors are: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to demonstrate that its Mangrove Bay Marina proposal is not contrary to and is clearly in the public interest, petitioner offers its mitigation plans previously discussed with regard to seagrasses, mangroves, stormwater, agricultural runoff and sewage treatment. It is contended that these features of the total project, along with the provision of a secure and well-policed facility, will have a beneficial effect upon public health, safety and welfare and will conserve fish and wildlife and their habitat. It is also urged that its well- marked and maintained channels will Improve navigation and not contribute to harmful shoaling or erosion and will provide for an adequate flow of water. Safe mooring, boat storage and public boat ramps will enhance fishing and recreational values, and marine productivity will not be adversely affected, according to the applicant. Finally, the petitioner offers its museum with educational programs to demonstrate enhancement to significant historical and archaeological resources. There can be no doubt that the applicant has attempted to develop a proposal which will satisfy environmental, as well as social, concerns. It is also true that the marina project would satisfy the need for additional boat slips In the Tampa Bay area. The prime problem is the location of the proposed project. The Cockroach Bay and Little Cockroach Bay areas are relatively undisturbed by development. The area is Important as a research area and as a nursery area for juvenile fish and shellfish. The designation of waters adjacent to and within the proposed project site as Outstanding Florida Waters and Class II waters establishes their importance and govern the manner in which activities therein are to be evaluated. The applicant has failed to provide reasonable assurances that the project complies with water quality criteria and public Interest considerations applicable to these wetlands. The long and short term adverse environmental impacts upon water quality, seagrasses and mangroves are sufficient to justify a denial of the permit application. Those considerations, coupled with the disruption of wildlife habitat, the hazardous design of the marina channels, the destruction of a highly productive aquatic system without appropriate mitigation, and the potential of harming manatees, far outweigh any positive benefits of the project. The paleontology museum, while serving a laudable educational function, will not serve as mitigation for any estuarine loss and the historical and archaeological resources to be considered under Section 403.918(2)(a)6, Florida Statutes, refer to historic properties representing more than 10,000 years of human presence. In short, while the project may provide some advantages with regard to recreation and public safety, its adverse effects upon fish, wildlife, harmful erosion and shoaling, marine productivity and the present condition and value of the functions being performed in the area are contrary to the public interest. Petitioner has failed to demonstrate any overriding public interest that would outweigh these considerations. As a final matter, it was stipulated that Manasota-88, Inc., the Florida Audubon Society, Eagle Audubon Society and Tampa Audubon Society had standing to participate as intervenors in this proceeding. Petitioner's motion in opposition to the intervention status of the Tampa Bay Regional Planning Council was initially denied, subject to that organization presenting proof of its standing at the hearing. The Council failed to produce such proof, and its petition to intervene is accordingly denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the requests of Leisey Shellpit, Inc. for a variance and a permit and certification to construct and operate the Mangrove Bay Marina and attendant access and flushing channels be DENIED. Respectfully submitted and entered this 11th day of May, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0568, 86-0569 The proposed findings of fact submitted by the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner Leisey: 6, last two sentences Rejected; not supported by competent, substantial evidence. 7, last two sentences Rejected; not supported by competent, substantial evidence. 8, last sentence Rejected; contrary to the greater weight of the evidence. 9, last sentence Rejected; the evidence. demonstrates that the words "temporarily closed" should be substituted for "not approved." 11, last sentence Rejected; contrary to the greater weight of the evidence. 14, last sentence Rejected; not supported by competent, substantial evidence. 18, last sentence Rejected; not supported by the greater weight of the evidence. 19, last two sentences Rejected; contrary to the greater weight of the evidence. 20, last sentence Rejected; not supported by competent, substantial evidence. 21, last three sentences Rejected; not supported by competent, substantial evidence as to "existing ambient water quality. 23, last three sentences Rejected; not established by competent, substantial evidence. 24, last sentence Rejected; not established by competent, substantial evidence. 25, last sentence Rejected; contrary to the greater weight of the evidence. 28, last sentence Rejected; not established by competent, substantial evidence. 30 - 33 Accepted, with a recognition that the plans are conceptual in nature, and not detailed as required for permitting purposes. 35, last sentence Rejected; not established by competent, substantial evidence. 43, third sentence Rejected; not established by competent, substantial evidence. Respondent, DER: 2 Rejected; irrelevant and immaterial. 16, first sentence Rejected as to the words "will occur," as opposed to "could occur." 70 Rejected; insufficient evidence was adduced to render a finding regarding the precise OFW boundaries. 76 Rejected; irrelevant and immaterial. 85 Rejected as to the specifics of the permitability of other sites, as not established by competent, substantial evidence. 94, last sentence Rejected as speculative. 96 Rejected; not supported by competent, substantial evidence. 99 Rejected, irrelevant and immaterial. 102 Rejected, as speculative. 113 Rejected, not supported by competent, substantial evidence. Intervenor Manasota-88: This party's post-hearing submittal contains mixed proposed findings of fact and conclusions of law. The proposed factual findings are generally accepted and have been addressed in the Recommended Order. COPIES FURNISHED: Robert A. Routa, Esquire Robert, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302 C. Anthony Cleveland, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Robert S. Tucker, Esquire Linda M. Hallas, Esquire 9455 Koger Blvd., Suite 209 St. Petersburg, Florida 33702 M. Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
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 Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
