Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
The Issue Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made to supplement the factual stipulations contained in the parties' Prehearing Stipulation: State TMDL Legislation Over the last 30 years, surface water quality management in Florida, like in the rest of the United States, has focused on the control of point sources of pollution (primarily domestic and industrial wastewater) through the issuance, to point source dischargers, of National Pollutant Discharge Elimination System (NPDES) permits, which specify effluent-based standards with which the permit holders must comply. Although "enormously successful in dealing with . . . point sources" of pollution, the NPDES program has not eliminated water quality problems largely because discharges from other sources of pollution (nonpoint sources) have not been as successfully controlled. In the late 1990's, the Department recognized that, to meet Florida's water quality goals, it was going to have to implement a TMDL program for the state. Wanting to make absolutely sure that it had the statutory authority to do so, the Department sought legislation specifically granting it such authority. Jerry Brooks, the deputy director of the Department's Division of Water Resource Management, led the Department's efforts to obtain such legislation. He was assisted by Darryl Joyner, a Department program administrator responsible for overseeing the watershed assessment and groundwater protection sections within the Division of Water Resource Management. Participating in the drafting of the legislation proposed by the Department, along with Mr. Brooks and Mr. Joyner, were representatives of regulated interests. No representatives from the environmental community actively participated in the drafting of the proposed legislation. The Department obtained the TMDL legislation it wanted when the 1999 Florida Legislature enacted Chapter 99-223, Laws of Florida, the effective date of which was May 26, 1999. Section 1 of Chapter 99-223, Laws of Florida, added the following to the definitions set forth in Section 403.031, Florida Statutes, which define "words, phrases or terms" for purposes of "construing [Chapter 403, Florida Statutes], or rules or regulations adopted pursuant [t]hereto": (21) "Total maximum daily load" is defined as the sum of the individual wasteload allocations for point sources[11] and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. Section 4 of Chapter 99-223, Laws of Florida, added language to Subsection (1) of Section 403.805, Florida Statutes, providing that the Secretary of the Department, not the Environmental Regulation Commission, "shall have responsibility for final agency action regarding total maximum daily load calculations and allocations developed pursuant to s. 403.067(6)," Florida Statutes. The centerpiece of Chapter 99-223, Laws of Florida, was Section 3 of the enactment, which created Section 403.067, Florida Statutes, dealing with the "[e]stablishment and implementation of total maximum daily loads." Section 403.067, Florida Statutes, was amended in 2000 (by Chapter 2000-130, Laws of Florida) and again in 2001 (by Chapter 2001-74, Laws of Florida). It now reads, in its entirety, as follows: LEGISLATIVE FINDINGS AND INTENT.-- In furtherance of public policy established in s. 403.021, the Legislature declares that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution.[12] The Legislature finds that, while point and nonpoint sources of pollution have been managed through numerous programs, better coordination among these efforts and additional management measures may be needed in order to achieve the restoration of impaired water bodies. The scientifically based total maximum daily load program is necessary to fairly and equitably allocate pollution loads to both nonpoint and point sources. Implementation of the allocation shall include consideration of a cost- effective approach coordinated between contributing point and nonpoint sources of pollution for impaired water bodies or water body segments and may include the opportunity to implement the allocation through nonregulatory and incentive-based programs. The Legislature further declares that the Department of Environmental Protection shall be the lead agency in administering this program and shall coordinate with local governments, water management districts, the Department of Agriculture and Consumer Services, local soil and water conservation districts, environmental groups, regulated interests, other appropriate state agencies, and affected pollution sources in developing and executing the total maximum daily load program. LIST OF SURFACE WATERS OR SEGMENTS.-- In accordance with s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., the department must submit periodically to the United States Environmental Protection Agency a list of surface waters or segments for which total maximum daily load assessments will be conducted. The assessments shall evaluate the water quality conditions of the listed waters and, if such waters are determined not to meet water quality standards, total maximum daily loads shall be established, subject to the provisions of subsection (4). The department shall establish a priority ranking and schedule for analyzing such waters. The list, priority ranking, and schedule cannot be used in the administration or implementation of any regulatory program. However, this paragraph does not prohibit any agency from employing the data or other information used to establish the list, priority ranking, or schedule in administering any program. The list, priority ranking, and schedule prepared under this subsection shall be made available for public comment, but shall not be subject to challenge under chapter 120. The provisions of this subsection are applicable to all lists prepared by the department and submitted to the United States Environmental Protection Agency pursuant to s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq., including those submitted prior to the effective date of this act, except as provided in subsection (4). If the department proposes to implement total maximum daily load calculations or allocations established prior to the effective date of this act, the department shall adopt those calculations and allocations by rule by the secretary pursuant to ss. 120.536(1) and 120.54 and paragraph (6)(d). ASSESSMENT.-- Based on the priority ranking and schedule for a particular listed water body or water body segment, the department shall conduct a total maximum daily load assessment of the basin in which the water body or water body segment is located using the methodology developed pursuant to paragraph (b). In conducting this assessment, the department shall coordinate with the local water management district, the Department of Agriculture and Consumer Services, other appropriate state agencies, soil and water conservation districts, environmental groups, regulated interests, and other interested parties. The department shall adopt by rule a methodology for determining those waters which are impaired. The rule shall provide for consideration as to whether water quality standards codified in chapter 62- 302, Florida Administrative Code, are being exceeded, based on objective and credible data, studies and reports, including surface water improvement and management plans approved by water management districts under s. 373.456 and pollutant load reduction goals developed according to department rule. Such rule also shall set forth: Water quality sample collection and analysis requirements, accounting for ambient background conditions, seasonal and other natural variations; Approved methodologies; Quality assurance and quality control protocols; Data modeling; and Other appropriate water quality assessment measures. If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. APPROVED LIST.-- If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology- based effluent limitations[13] and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated. In association with this updated list, the department shall establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations. If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard. This updated list shall be approved and amended by order of the department subsequent to completion of an assessment of each water body or water body segment, and submitted to the United States Environmental Protection Agency. Each order shall be subject to challenge under ss. 120.569 and 120.57. REMOVAL FROM LIST.-- At any time throughout the total maximum daily load process, surface waters or segments evaluated or listed under this section shall be removed from the lists described in subsection (2) or subsection (4) upon demonstration that water quality criteria are being attained, based on data equivalent to that required by rule under subsection (3). CALCULATION AND ALLOCATION.-- Calculation of total maximum daily load. Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. The analysis may include mathematical water quality modeling using approved procedures and methods. The department shall develop total maximum daily load calculations for each water body or water body segment on the list described in subsection (4) according to the priority ranking and schedule unless the impairment of such waters is due solely to activities other than point and nonpoint sources of pollution. For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required. A total maximum daily load may be required for those waters that are impaired predominantly due to activities other than point and nonpoint sources. The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards, and shall account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. The total maximum daily load may be based on a pollutant load reduction goal developed by a water management district, provided that such pollutant load reduction goal is promulgated by the department in accordance with the procedural and substantive requirements of this subsection. Allocation of total maximum daily loads. The total maximum daily loads shall include establishment of reasonable and equitable allocations of the total maximum daily load among point and nonpoint sources that will alone, or in conjunction with other management and restoration activities, provide for the attainment of water quality standards and the restoration of impaired waters. The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards and shall be based on consideration of the following: Existing treatment levels and management practices; Differing impacts pollutant sources may have on water quality; The availability of treatment technologies, management practices, or other pollutant reduction measures; Environmental, economic, and technological feasibility of achieving the allocation; The cost benefit associated with achieving the allocation; Reasonable timeframes for implementation; Potential applicability of any moderating provisions such as variances, exemptions, and mixing zones; and The extent to which nonattainment of water quality standards is caused by pollution sources outside of Florida, discharges that have ceased, or alterations to water bodies prior to the date of this act. Not later than February 1, 2001, the department shall submit a report to the Governor, the President of the Senate, and the Speaker of the House of Representatives containing recommendations, including draft legislation, for any modifications to the process for allocating total maximum daily loads, including the relationship between allocations and the watershed or basin management planning process. Such recommendations shall be developed by the department in cooperation with a technical advisory committee which includes representatives of affected parties, environmental organizations, water management districts, and other appropriate local, state, and federal government agencies. The technical advisory committee shall also include such members as may be designated by the President of the Senate and the Speaker of the House of Representatives. The total maximum daily load calculations and allocations for each water body or water body segment shall be adopted by rule by the secretary pursuant to ss. 120.536(1), 120.54, and 403.805. The rules adopted pursuant to this paragraph shall not be subject to approval by the Environmental Regulation Commission. As part of the rule development process, the department shall hold at least one public workshop in the vicinity of the water body or water body segment for which the total maximum daily load is being developed. Notice of the public workshop shall be published not less than 5 days nor more than 15 days before the public workshop in a newspaper of general circulation in the county or counties containing the water bodies or water body segments for which the total maximum daily load calculation and allocation are being developed. IMPLEMENTATION OF TOTAL MAXIMUM DAILY LOADS.-- The department shall be the lead agency in coordinating the implementation of the total maximum daily loads through water quality protection programs. Application of a total maximum daily load by a water management district shall be consistent with this section and shall not require the issuance of an order or a separate action pursuant to s. 120.536(1) or s. 120.54 for adoption of the calculation and allocation previously established by the department. Such programs may include, but are not limited to: Permitting and other existing regulatory programs; Nonregulatory and incentive-based programs, including best management practices, cost sharing, waste minimization, pollution prevention, and public education; Other water quality management and restoration activities, for example surface water improvement and management plans approved by water management districts under s. 373.456 or watershed or basin management plans developed pursuant to this subsection; Pollutant trading or other equitable economically based agreements; Public works including capital facilities; or Land acquisition. In developing and implementing the total maximum daily load for a water body, the department, or the department in conjunction with a water management district, may develop a watershed or basin management plan that addresses some or all of the watersheds and basins tributary to the water body. These plans will serve to fully integrate the management strategies available to the state for the purpose of implementing the total maximum daily loads and achieving water quality restoration. The watershed or basin management planning process is intended to involve the broadest possible range of interested parties, with the objective of encouraging the greatest amount of cooperation and consensus possible. The department or water management district shall hold at least one public meeting in the vicinity of the watershed or basin to discuss and receive comments during the planning process and shall otherwise encourage public participation to the greatest practical extent. Notice of the public meeting shall be published in a newspaper of general circulation in each county in which the watershed or basin lies not less than 5 days nor more than 15 days before the public meeting. A watershed or basin management plan shall not supplant or otherwise alter any assessment made under s. 403.086(3) and (4), or any calculation or allocation made under s. 403.086(6). The department, in cooperation with the water management districts and other interested parties, as appropriate, may develop suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for nonagricultural nonpoint pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be adopted by rule by the department and the water management districts pursuant to ss. 120.536(1) and 120.54, and may be implemented by those parties responsible for nonagricultural nonpoint pollutant sources and the department and the water management districts shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the department or the water management districts shall institute a reevaluation of the best management practice or other measures. 1. The Department of Agriculture and Consumer Services may develop and adopt by rule pursuant to ss. 120.536(1) and 120.54 suitable interim measures, best management practices, or other measures necessary to achieve the level of pollution reduction established by the department for agricultural pollutant sources in allocations developed pursuant to paragraph (6)(b). These practices and measures may be implemented by those parties responsible for agricultural pollutant sources and the department, the water management districts, and the Department of Agriculture and Consumer Services shall assist with implementation. Where interim measures, best management practices, or other measures are adopted by rule, the effectiveness of such practices in achieving the levels of pollution reduction established in allocations developed by the department pursuant to paragraph (6)(b) shall be verified by the department. Implementation, in accordance with applicable rules, of practices that have been verified by the department to be effective at representative sites shall provide a presumption of compliance with state water quality standards and release from the provisions of s.376.307(5) for those pollutants addressed by the practices, and the department is not authorized to institute proceedings against the owner of the source of pollution to recover costs or damages associated with the contamination of surface or ground water caused by those pollutants. In the process of developing and adopting rules for interim measures, best management practices, or other measures, the Department of Agriculture and Consumer Services shall consult with the department, the Department of Health, the water management districts, representatives from affected farming groups, and environmental group representatives. Such rules shall also incorporate provisions for a notice of intent to implement the practices and a system to assure the implementation of the practices, including recordkeeping requirements. Where water quality problems are detected despite the appropriate implementation, operation, and maintenance of best management practices and other measures according to rules adopted under this paragraph, the Department of Agriculture and Consumer Services shall institute a reevaluation of the best management practice or other measure. 2. Individual agricultural records relating to processes or methods of production, or relating to costs of production, profits, or other financial information which are otherwise not public records, which are reported to the Department of Agriculture and Consumer Services pursuant to this paragraph or pursuant to any rule adopted pursuant to this paragraph shall be confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Upon request of the department or any water management district, the Department of Agriculture and Consumer Services shall make such individual agricultural records available to that agency, provided that the confidentiality specified by this subparagraph for such records is maintained. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15, and shall stand repealed on October 2, 2006, unless reviewed and saved from repeal through reenactment by the Legislature. The provisions of paragraphs (c) and (d) shall not preclude the department or water management district from requiring compliance with water quality standards or with current best management practice requirements set forth in any applicable regulatory program authorized by law for the purpose of protecting water quality. Additionally, paragraphs (c) and (d) are applicable only to the extent that they do not conflict with any rules promulgated by the department that are necessary to maintain a federally delegated or approved program. RULES.-- The department is authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 for: Delisting water bodies or water body segments from the list developed under subsection (4) pursuant to the guidance under subsection (5); Administration of funds to implement the total maximum daily load program; Procedures for pollutant trading among the pollutant sources to a water body or water body segment, including a mechanism for the issuance and tracking of pollutant credits. Such procedures may be implemented through permits or other authorizations and must be legally binding. No rule implementing a pollutant trading program shall become effective prior to review and ratification by the Legislature; and The total maximum daily load calculation in accordance with paragraph (6)(a) immediately upon the effective date of this act, for those eight water segments within Lake Okeechobee proper as submitted to the United States Environmental Protection Agency pursuant to subsection (2). APPLICATION.-- The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section. CONSTRUCTION.-- Nothing in this section shall be construed as limiting the applicability or consideration of any mixing zone, variance, exemption, site specific alternative criteria, or other moderating provision. IMPLEMENTATION OF ADDITIONAL PROGRAMS.-- The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation. In order to provide adequate due process while ensuring timely development of total maximum daily loads, proposed rules and orders authorized by this act shall be ineffective pending resolution of a s. 120.54(3), s. 120.56, s. 120.569, or s. 120.57 administrative proceeding. However, the department may go forward prior to resolution of such administrative proceedings with subsequent agency actions authorized by subsections (2)-(6), provided that the department can support and substantiate those actions using the underlying bases for the rules or orders without the benefit of any legal presumption favoring, or in deference to, the challenged rules or orders. Key Provisions of Law Referenced in Section 403.067, Florida Statutes Section 403.021, Florida Statutes Section 403.021, Florida Statutes, which is referenced in Subsection (1) of Section 403.067, Florida Statutes, provides, in pertinent part, as follows: The pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water. It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water. * * * It is hereby declared that the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest, and the provisions of this act are enacted in the exercise of the police powers of this state for the purpose of protecting the health, peace, safety, and general welfare of the people of this state. The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development. The Legislature further finds and declares that: Compliance with this law will require capital outlays of hundreds of millions of dollars for the installation of machinery, equipment, and facilities for the treatment of industrial wastes which are not productive assets and increased operating expenses to owners without any financial return and should be separately classified for assessment purposes. Industry should be encouraged to install new machinery, equipment, and facilities as technology in environmental matters advances, thereby improving the quality of the air and waters of the state and benefiting the citizens of the state without pecuniary benefit to the owners of industries; and the Legislature should prescribe methods whereby just valuation may be secured to such owners and exemptions from certain excise taxes should be offered with respect to such installations. Facilities as herein defined should be classified separately from other real and personal property of any manufacturing or processing plant or installation, as such facilities contribute only to general welfare and health and are assets producing no profit return to owners. In existing manufacturing or processing plants it is more difficult to obtain satisfactory results in treating industrial wastes than in new plants being now planned or constructed and that with respect to existing plants in many instances it will be necessary to demolish and remove substantial portions thereof and replace the same with new and more modern equipment in order to more effectively treat, eliminate, or reduce the objectionable characteristics of any industrial wastes and that such replacements should be classified and assessed differently from replacements made in the ordinary course of business. * * * It is the policy of the state to ensure that the existing and potential drinking water resources of the state remain free from harmful quantities of contaminants. The department, as the state water quality protection agency, shall compile, correlate, and disseminate available information on any contaminant which endangers or may endanger existing or potential drinking water resources. It shall also coordinate its regulatory program with the regulatory programs of other agencies to assure adequate protection of the drinking water resources of the state. It is the intent of the Legislature that water quality standards be reasonably established and applied to take into account the variability occurring in nature. The department shall recognize the statistical variability inherent in sampling and testing procedures that are used to express water quality standards. The department shall also recognize that some deviations from water quality standards occur as the result of natural background conditions. The department shall not consider deviations from water quality standards to be violations when the discharger can demonstrate that the deviations would occur in the absence of any human-induced discharges or alterations to the water body. Rule Chapter 62-302, Florida Administrative Code Rule Chapter 62-302, Florida Administrative Code, which is referenced in Subsection (3)(b) of Section 447.067, Florida Statutes, contains Florida's "[s]urface water quality standards." Rule 62-302.300, Florida Administrative Code, is entitled, "Findings, Intent, and Antidegradation Policy for Surface Water Quality," and provides as follows: Article II, Section 7 of the Florida Constitution requires abatement of water pollution and conservation and protection of Florida's natural resources and scenic beauty. Congress, in Section 101(a)(2) of the Federal Water Pollution Control Act, as amended,[14] declares that achievement by July 1, 1983, of water quality sufficient for the protection and propagation[15] of fish, shellfish, and wildlife, as well as for recreation in and on the water, is an interim goal to be sought whenever attainable. Congress further states, in Section 101(a)(3), that it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited. The present and future most beneficial uses of all waters of the State have been designated by the Department by means of the Classification system set forth in this Chapter pursuant to Subsection 403.061(10), F.S.[16] Water quality standards[17] are established by the Department to protect these designated uses.[18] Because activities outside the State sometimes cause pollution[19] of Florida's waters, the Department will make every reasonable effort to have such pollution abated. Water quality standards apply equally to and shall be uniformly enforced in both the public and private sector. Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. The Commission, recognizing the complexity of water quality management and the necessity to temper regulatory actions with the technological progress and the social and economic well-being of people, urges, however, that there be no compromise where discharges of pollutants constitute a valid hazard to human health. The Commission requests that the Secretary seek and use the best environmental information available when making decisions on the effects of chronically and acutely toxic substances and carcinogenic, mutagenic, and teratogenic substances. Additionally, the Secretary is requested to seek and encourage innovative research and developments in waste treatment alternatives that might better preserve environmental quality or at the same time reduce the energy and dollar costs of operation. The criteria set forth in this Chapter are minimum levels which are necessary to protect the designated uses of a water body. It is the intent of this Commission that permit applicants should not be penalized due to a low detection limit associated with any specific criteria. (10)(a) The Department's rules that were adopted on March 1, 1979 regarding water quality standards are designed to protect the public health or welfare and to enhance the quality of waters of the State. They have been established taking into consideration the use and value of waters of the State for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. Under the approach taken in the formulation of the rules adopted in this proceeding: The Department's rules that were adopted on March 1, 1979 regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and The mixing zone,[20] zone of discharge, site specific alternative criteria, exemption, and equitable allocation provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, natural background,[21] and detectability. This is an even-handed and balanced approach to attainment of water quality objectives. The Commission has specifically recognized that the social, economic and environmental costs may, under certain special circumstances, outweigh the social, economic and environmental benefits if the numerical criteria are enforced statewide. It is for that reason that the Commission has provided for mixing zones, zones of discharge, site specific alternative criteria, exemptions and other provisions in Chapters 62-302, 62-4, and 62-6, F.A.C. Furthermore, the continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideration environmental, technological, social, economic and institutional factors. The companion provisions of Chapters 62-4 and 62-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the State's comprehensive program for the control, abatement and prevention of water pollution. Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above nor determined that they are attainable as generally applicable water quality standards. Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters. The Department shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources, and all cost- effective and reasonable best management practices for nonpoint source control. For the purposes of this rule, highest statutory and regulatory requirements for new and existing point sources are those which can be achieved through imposition of effluent limits required under Sections 301(b) and 306 of the Federal Clean Water Act (as amended in 1987) and Chapter 403, F.S. For the purposes of this rule, cost-effective and reasonable best management practices for nonpoint source control are those nonpoint source controls authorized under Chapters 373 and 403, F.S., and Department rules. The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man-induced nutrients into waters of the State. Particular consideration shall be given to the protection from further nutrient enrichment of waters which are presently high in nutrient concentrations or sensitive to further nutrient concentrations and sensitive to further nutrient loadings. Also, particular consideration shall be given to the protection from nutrient enrichment of those waters presently containing very low nutrient concentrations: less than 0.3 milligrams per liter total nitrogen or less than 0.04 milligrams per liter total phosphorus. Existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use. Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge. If the Department finds that a proposed new discharge or expansion of an existing discharge will not reduce the quality of the receiving waters below the classification established for them, it shall permit the discharge if such degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, and if all other Department requirements are met. Projects permitted under Part IV of Chapter 373, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of subsection 373.414(1), F.S.; also projects permitted under the grandfather provisions of Sections 373.414(11) through (16), F.S., or permitted under Section 373.4145, F.S., shall be considered in compliance with this subsection if those projects comply with the requirements of Rule 62-312.080(2), F.A.C. (18)(a) Except as provided in subparagraphs (b) and (c) of this paragraph, an applicant for either a general permit or renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. If the Department determines that the applicant has caused degradation of water quality over and above that allowed through previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. These circumstances are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge. If the new or expanded discharge was initially permitted by the Department on or after October 4, 1989, and the Department determines that an antidegradation analysis was not conducted, then the applicant seeking renewal of the existing permit shall demonstrate that degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Rule 62-302.400, Florida Administrative Code, classifies all surface waters of the state "according to designated uses." The rule provides for five classifications: Class I ("Potable Water Supplies"); Class II ("Shellfish Propagation or Harvesting"); Class III ("Recreation, Propagation of a Healthy, Well-Balanced Population of Fish and Wildlife": Fresh and Marine); Class IV ("Agricultural Water Supplies"); and Class V ("Navigation, Utility and Industrial Use").22 See Rule 62-302.400(1), Florida Administrative Code. These "[w]ater quality classifications are arranged in order of degree of protection required, with Class I water having generally the most stringent water quality criteria23 and Class V the least. However, Class I, II, and III surface waters share water quality criteria established to protect recreation and the propagation and maintenance of a healthy well-balanced population of fish and wildlife." Rule 62-302.400(4), Florida Administrative Code. Waters designated as "Outstanding Florida Waters and Outstanding National Resource Waters" are given "special protection." See Rule 62-302.700(1) and (7), Florida Administrative Code ("It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. . . . The policy of this section shall be implemented through the permitting process pursuant to Section 62-4.242, F.A.C.").24 According to Subsection (5) of Rule 62-302.400, Florida Administrative Code, Criteria applicable to a classification are designed to maintain the minimum conditions necessary to assure the suitability of water for the designated use of the classification. In addition, applicable criteria are generally adequate to maintain minimum conditions required for the designated uses of less stringently regulated classifications. Therefore, unless clearly inconsistent with the criteria applicable, the designated uses of less stringently regulated classifications shall be deemed to be included within the designated uses of more stringently regulated classifications. "The specific water quality criteria corresponding to each surface water classification are listed in Rules 62-302.500 and 62-302.530," Florida Administrative Code. Rule 62- 302.400(3), Florida Administrative Code. Subsection (1) of Rule 62-302.500, Florida Administrative Code, sets forth what are known as the "free froms." It provides as follows: Minimum Criteria. All surface waters of the State shall at all places and at all times be free from: Domestic, industrial, agricultural, or other man-induced non-thermal components of discharges which, alone or in combination with other substances or in combination with other components of discharges (whether thermal or non-thermal): Settle to form putrescent deposits or otherwise create a nuisance; or Float as debris, scum, oil, or other matter in such amounts as to form nuisances; or Produce color, odor, taste, turbidity, or other conditions in such degree as to create a nuisance; or Are acutely toxic; or Are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring, wildlife or aquatic species, unless specific standards are established for such components in Rules 62-302.500(2) or 62-302.530; or Pose a serious danger to the public health, safety, or welfare. Thermal components of discharges which, alone, or in combination with other discharges or components of discharges (whether thermal or non-thermal): Produce conditions so as to create a nuisance; or Do not comply with applicable provisions of Rule 62-302.500(3), F.A.C. Silver in concentrations above 2.3 micrograms/liter in predominantly marine waters. Rule 62-302.530, Florida Administrative Code, has a table that contains both numeric and narrative surface water quality criteria to be applied except within zones of mixing. The left-hand column of the Table is a list of constituents [or parameters] for which a surface water criterion exists. The headings for the water quality classifications are found at the top of the Table. Applicable criteria lie within the Table. The individual criteria should be read in conjunction with other provisions in water quality standards, including Rules 62- 302.500 and 62-302.510, F.A.C. The criteria contained in Rules 62-302.500 or 62-302.510 also apply to all waters unless alternative or more stringent criteria are specified in Rule 62-302.530, F.A.C. Unless otherwise stated, all criteria express the maximum not to be exceeded at any time. In some cases, there are separate or additional limits, such as annual average criteria, which apply independently of the maximum not to be exceeded at any time. The following are the specific parameters listed in the table: Alkalinity; Aluminum; Ammonia (un-ionized); Antimony; Arsenic (total and trivalent); Bacteriological Quality (Fecal Coliform Bacteria); Bacteriological Quality (Total Coliform Bacteria); Barium; Benzene; Beryllium; Biological Integrity; BOD (Biochemical Oxygen Demand); Bromine (free molecular); Cadmium; Carbon Tetrachloride; Chlorides; Chlorine (total residual); Chromium (trivalent and hexavalent); Chronic Toxicity; Color; Conductance (specific); Copper; Cyanide; Detergents; 1,1- Dichloroethylene (1,1-di-chloroethene); Dichloromethane (methylene chloride); 2,4-Dinitrotoluene; Dissolved Oxygen; Dissolved Solids; Fluorides; Halomethanes; Hexachlorobutadiene; Iron; Lead; Manganese; Mercury; Nickel; Nitrate; Nuisance Species;25 Nutrients;26 Odor; Oils and Greases; Pesticides and Herbicides (2,4,5-TP; 2-4-D; Aldrin; Betahexachlorocyclohexane; Chlordane; DDT; Demeton; Dieldrin; Endosulfan; Endrin: Guthion; Heptachlor; Lindane; Malathion; Methoxychlor; Mirex; Parathion; Toxaphene); pH; Phenolic Compounds; Phosphorous (Elemental); Polycyclic Aromatic Hydrocarbons; Radioactive Substances; Selenium; Silver; 1,1,2,2-Tetrachloroethane; Tetrachloroethylene; Thallium; Total Dissolved Gases; Transparency; Trichloroeylene (trichloroethene); Turbidity; and Zinc. Rule 62-302.800, Florida Administrative Code, provides for the establishment of "[s]ite [s]pecific [a]lternative [c]riteria" where a water body, or portion thereof, does "not meet a particular ambient water quality criterion specified for its classification, due to natural background conditions or man- induced conditions which cannot be controlled or abated."27 Section 303(d) of the Clean Water Act Section 303(d) of the Clean Water Act (33 U.S.C. Section 1313(d)), which is referenced in Subsections (1), (2), (9), and (11) of Section 447.067, Florida Statutes, provides as follows: Identification of areas with insufficient controls; maximum daily load; certain effluent limitations revision (1)(A) Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal discharges under section 1311 of this title are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife. Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Each State shall submit to the Administrator from time to time, with the first such submission not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D) of this title, for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section. For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section 1314(a)(2) of this title as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. Limitations on revision of certain effluent limitations Standard not attained For waters identified under paragraph (1)(A) where the applicable water quality standard has not yet been attained, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such revised effluent limitations based on such total maximum daily load or waste load allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations established under this section. Standard attained For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. Development of Proposed Rule Chapter 62-303, Florida Administrative Code The rule development process that culminated in the adoption of proposed Rule Chapter 62-303, Florida Administrative Code, began shortly after the enactment of Chapter 99-223, Laws of Florida, when the Department decided, consistent with its routine practice in complex rulemaking cases, to form a technical advisory committee (TAC) to assist the Department in developing an "identification of impaired surface waters" rule by rendering advice to the Department concerning technical and scientific matters.28 The Department solicited nominations for TAC membership from stakeholder groups, but ultimately rejected the nominations it received and instead selected individuals it believed were best qualified to contribute based upon their expertise (in areas including water quality monitoring, water quality chemistry, water quality modeling, estuarine ecology, wetland ecology, analytical chemistry, statistics, bioassessment procedures, limnology, coastal ecology, fish biology, and hydrology). The first TAC meeting was held August 12, 1999. There were 12 subsequent TAC meetings, the last two of which were held on August 4, 2000, and August 28, 2000. The TAC meetings were held in various locations throughout the state (Pensacola, Tallahassee, Jacksonville, Gainesville, Orlando, Tampa, St. Petersburg, and West Palm Beach) and were open to public, with members of the public able to make comments. All 13 TAC meetings were noticed in the Florida Administrative Weekly. The TAC meetings were chaired by Mr. Joyner, who was the Department employee primarily responsible for drafting an "identification of impaired surface waters" rule. Mr. Joyner emphasized to the TAC members that their role was simply to give advice and make recommendations to the Department and that their advice and recommendations might not be followed. As it turned out, there were several instances where the Department rejected a TAC recommendation. In addition to seeking the advice of experts on technical and scientific matters, the Department wanted to hear from stakeholders regarding policy issues. Towards that end, it took steps to establish a Policy Advisory Committee (PAC). An organizational meeting of the PAC was held on March 24, 2000, in Tallahassee, the day after the seventh TAC meeting (which was also held in Tallahassee). After being told about the government in the sunshine and public records laws with which they would have to comply as PAC members, "no one wanted to be on the PAC." The consensus of those present was to "just have public meetings [to elicit stakeholder input] and not have a formal PAC." The Department acted accordingly. Following this March 24, 2000, meeting, the Department abandoned its efforts to form a PAC and instead held four public meetings to obtain input from the public regarding policy questions involved in crafting an "identification of impaired surface waters" rule. The last two of these public meetings were combined with the last two TAC meetings (held on August 4, 2000, and August 28, 2000). Each of the five "policy" public meetings held by the Department (including the March 24, 2000, PAC organizational meeting) were noticed in the Florida Administrative Weekly. The Department also held two rule development workshops (one on September 7, 2000, and the other on December 7, 2000), both of which were also noticed in the Florida Administrative Weekly. Between the time these two rule development workshops were held, Mr. Joyner met with representatives of regulated interests and the environmental community to discuss their thoughts regarding what should be included in an "identification of impaired surface waters" rule. Throughout the rule development process, the Department also received and considered written comments from interested persons. Information about the rule development process was posted on the Department's web site for the public to read. The Department e-mailed approximately 350 persons (whose names were on a list of interested persons compiled by the Department) to notify them in advance of any meetings and workshops on proposed Rule Chapter 62-303, Florida Administrative Code. Proposed Rule Chapter 62-303, Florida Administrative Code, underwent numerous revisions during the rule development process. Whenever a revised version of the proposed rule chapter was prepared, the Department sent a copy of it, via e-mail, to the persons on the Department's 350 "interested persons" e-mail list. Changes to proposed Rule Chapter 62-303, Florida Administrative Code, were made not only in response to comments made by members of the TAC and stakeholders, but also in response to comments made by staff of the Region IV office of the United States Environmental Protection Agency (EPA), with whom Department staff had extensive discussions regarding the proposed rule chapter. The Environmental Regulation Commission (ERC) "exercise[s] the standard-setting authority of the [D]epartment."29 In March of 2001, approximately 19 months after the first TAC meeting, the Department was ready to present its most recent version of proposed Rule Chapter 62-303, Florida Administrative Code, to the ERC for adoption. Accordingly, it published a Notice of Proposed Rulemaking in the March 23, 2001 (Volume 27, Number 12) edition of the Florida Administrative Weekly announcing that a hearing on the proposed rule chapter would be held before the ERC on April 26, 2001. The Notice contained the complete text of the proposed rule chapter, as well as the following statement of “[p]urpose, effect, and summary”: The purpose of the proposed new rule is to establish a methodology to identify impaired waters that will be included on the State's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads, pursuant to subsection 403.067(4), Florida Statutes (F.S.), and which will be submitted to the United States Environmental Protection Agency pursuant to subparagraphs 303(d)(1)(A) and 303(d)(1)(C) of the Clean Water Act. As directed by 403.067, F.S., the development of the State's 303(d) list will be a two-step process; waters will first be identified as potentially impaired and then any impairment will be verified before listing the water. The rule implements this statutory direction by providing a methodology to identify surface waters of the state that will be included on a "planning list" of waters. Pursuant to subsection 403.067(2) and (3), F.S., the Department will evaluate the data used to place these waters on the planning list, verify that the data meet quality assurance and data sufficiency requirements of the "verified list," and collect additional data, as needed, to complete the assessment. The rule also provides information about the listing cycle, the format of the verified list, and delisting procedures. At the ERC's regularly scheduled March 29, 2001, meeting, Mr. Joyner formally briefed the ERC on the status of the rule development process (as he had previously done at ERC's regularly scheduled meetings on June 29, 2000, August 24, 2000, December 5, 2000, and January 25, 2001). At the March 29, 2001, meeting, Mr. Joyner went through the proposed rule chapter with the ERC "paragraph by paragraph." As noted above, prior to the scheduled April 26, 2001, ERC hearing, petitions challenging the proposed rule chapter (as published in the March 23, 2001, edition of the Florida Administrative Weekly) were filed with the Division by Petitioner Lane (on April 10, 2001) and by all Joint Petitioners excluding Save Our Suwannee, Inc. (on April 13, 2001). On April 21, 2001, all Joint Petitioners excluding Save Our Suwannee, Inc., filed a Request with ERC asking: that rulemaking proceedings regarding proposed Rule 62-303 be conducted under the provisions of Sections 120.569 and 120.57, Florida Statutes, as to all parties, or alternatively at least to the six petitioners; that the evidentiary processes involved under the provisions of Sections 120.569 and 120.57, Florida Statutes, be combined with the already pending DOAH proceedings of all parties, or at least the six petitioners; and that rulemaking proceedings, as to proposed Rule 62-303, be suspended pending completion of the evidentiary processes before DOAH as well as the DOAH ruling on the pending petitions, as to all parties or at least the six petitioners. The Request was considered and denied by the ERC at the outset of its hearing on the proposed rule chapter, which was held as scheduled on April 26, 2001. That same day, the ERC issued a written order denying the Request, which read, in pertinent part as follows: But for their request to combine the requested evidentiary proceeding with the existing rule challenges pending before DOAH, Petitioners have requested conversion of the instant rulemaking proceeding to an evidentiary hearing or "draw out." A draw out is authorized under proper circumstances by Section 120.54(3)(c)2, Florida Statutes, which states: "Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that the person's substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect the person's interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of ss. 120.569 and 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed." A participant in the rulemaking proceeding who requests such relief is asking to "draw out" of the rulemaking proceeding and for the agency to afford the party an evidentiary hearing in lieu thereof.[30] A copy of each of the six petitions filed by the parties with DOAH was attached to the joint notice now before the Commission. But for minor variations in allegations to establish standing, each of the six petitions sets out seventeen (17) counts with each count asserting that a particular provision, or provisions, of proposed Rule 62-303 is an invalid exercise of delegated legislative authority or otherwise a violation of Section 403.067, F.S., or the federal Clean Water Act. None of the individual petitions, or the joint notice, demonstrate that the pending rulemaking proceeding fails to protect the petitioners' substantial interests, nor have petitioners raised any factual issues that would require a separate evidentiary hearing beyond the scope of the DOAH proceedings already pending. Under these circumstances, Section 120.56(2)(b), F.S., specifically allows an agency to proceed with all other steps in the rulemaking process, except for final adoption, while a DOAH rule challenge is pending.[31] In view of the foregoing, and in exercising its discretion as afforded by Section 120.54(3)(c)2., F.S., the Commission has determined that the rulemaking proceeding adequately protects the interests asserted by each of the six petitioners who joined in the joint notice as filed April 20th, 2001. Accordingly, the petitioners' joint request for relief therein is denied. The version of the proposed rule chapter published in the March 23, 2001, edition of the Florida Administrative Weekly, with some modifications, was adopted by the ERC at its April 26, 2001, meeting (at which members of the public were given the opportunity to comment prior to ERC deliberation). The modifications were noticed in a Notice of Change published in the May 11, 2001, edition (Volume 27, Number 19) of the Florida Administrative Weekly. Contents of the ERC-Adopted Version of Proposed Rule Chapter 62- 303, Florida Administrative Code Proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Identification of Impaired Surface Waters." It is divided into four parts. Part I: Overview Part I of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following "general" provisions: Proposed Rules 62-303.100, 62-303.150, and 62- 303.200, Florida Administrative Code. Part I: Proposed Rule 62-303.100, Florida Administrative Code Proposed Rule 62-303.100, Florida Administrative Code, is entitled, "Scope and Intent." It provides an overview of the proposed rule chapter and reads as follows: This chapter establishes a methodology to identify surface waters of the state that will be included on the state's planning list of waters that will be assessed pursuant to subsections 403.067(2) and (3), Florida Statutes (F.S.). It also establishes a methodology to identify impaired waters that will be included on the state's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads (TMDLs), pursuant to subsection 403.067(4) F.S., and which will be submitted to the United States Environmental Protection Agency (EPA) pursuant to paragraph 303(d)(1) of the Clean Water Act (CWA). Subsection 303(d) of the CWA and section 403.067, F.S., describe impaired waters as those not meeting applicable water quality standards, which is a broad term that includes designated uses, water quality criteria, the Florida antidegradation policy, and moderating provisions. However, as recognized when the water quality standards were adopted, many water bodies naturally do not meet one or more established water quality criteria at all times, even though they meet their designated use.[32] Data on exceedances of water quality criteria will provide critical information about the status of assessed waters, but it is the intent of this chapter to only list waters on the verified list that are impaired due to point source or nonpoint source pollutant discharges. It is not the intent of this chapter to include waters that do not meet water quality criteria solely due to natural conditions or physical alterations of the water body not related to pollutants. Similarly, it is not the intent of this chapter to include waters where designated uses are being met and where water quality criteria exceedances are limited to those parameters for which permitted mixing zones or other moderating provisions (such as site-specific alternative criteria) are in effect. Waters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants shall be noted in the state's water quality assessment prepared under subsection 305(b) of the CWA. This chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established. It is not the intent of this chapter to establish new water quality criteria or standards, or to determine the applicability of existing criteria under other provisions of Florida law. In cases where this chapter relies on numeric indicators of ambient water quality as part of the methodology for determining whether existing narrative criteria are being met, these numeric values are intended to be used only in the context of developing a planning list and identifying an impaired water pursuant to this chapter. As such, exceedances of these numeric values shall not, by themselves, constitute violations of Department rules that would warrant enforcement action. Nothing in this rule is intended to limit any actions by federal, state, or local agencies, affected persons, or citizens pursuant to other rules or regulations. Pursuant to section 403.067, F.S., impaired waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA. Specific Authority 403.061, 403.067, FS. Law Implemented 403.021(11). 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.100, Florida Administrative Code, refers to the narrowing and winnowing process (more fully described in subsequent portions of the proposed rule chapter) that will yield the Department's "updated list" of waters for which TMDLs will be calculated, which list will be submitted to the EPA in accordance with Section 303(d) of the Clean Water Act. (The Department last submitted such a list to the EPA in 1998. This list is referred to by the Department as its 1998 303(d) list.) The Department's intent not to include on its "updated list" of waters for which TMDLs will be calculated those "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants," as provided in Subsection (2) of proposed Rule 62- 303.100, Florida Administrative Code, is consistent with the view expressed in Section 403.067, Florida Statutes, that TMDLs are appropriate only where there is man-induced pollution involving the discharge (from either a point or nonpoint source) of identifiable pollutants. See, e.g., Section 403.067(1), Florida Statutes ("[T]he development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution"); Section 403.067(4), Florida Statutes ("If a surface water or water segment is to be listed under this subsection, the department must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard."); and Section 403.067(6)(a)2., Florida Statutes ("For waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no total maximum daily load will be required."). While "[w]aters that do not meet applicable water quality standards due to natural conditions or to pollution not related to pollutants" will not appear on the Department's "updated list" of waters for which TMDLs will be calculated, they will be included in the "water quality assessment prepared under subsection 305(b) of the CWA" (305(b) Report), which provides as follows: Each State shall prepare and submit to the Administrator by April 1, 1975, and shall bring up to date by April 1, 1976, and biennially thereafter, a report which shall include-- a description of the water quality of all navigable waters in such State during the preceding year, with appropriate supplemental descriptions as shall be required to take into account seasonal, tidal, and other variations, correlated with the quality of water required by the objective of this chapter (as identified by the Administrator pursuant to criteria published under section 1314(a) of this title) and the water quality described in subparagraph (B) of this paragraph; an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water, have been or will be achieved by the requirements of this chapter, together with recommendations as to additional action necessary to achieve such objectives and for what waters such additional action is necessary; an estimate of (i) the environmental impact, (ii) the economic and social costs necessary to achieve the objective of this chapter in such State, (iii) the economic and social benefits of such achievement, and (iv) an estimate of the date of such achievement; and a description of the nature and extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources, including an estimate of the costs of implementing such programs. The Administrator shall transmit such State reports, together with an analysis thereof, to Congress on or before October 1, 1975, and October 1, 1976, and biennially thereafter. The declaration made in Subsection (3) of proposed Rule 62-303.100, Florida Administrative Code, that "[t]his chapter is intended to interpret existing water quality criteria and evaluate attainment of established designated uses as set forth in Chapter 62-302, F.A.C., for the purposes of identifying water bodies or segments for which TMDLs will be established" is similar to that made in Subsection (9) of Section 403.067, Florida Statutes, that "[t]he provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards." Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, together with proposed Rule 62-303.600, Florida Administrative Code (which will be discussed later), are designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." Section 403.061, Florida Statutes, which is cited as the "[s]pecific [a]uthority" for proposed Rule 62-303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter), authorizes the Department to, among other things, "[a]dopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of [Chapter 403, Florida Statutes]." See Section 403.061(7), Florida Statutes. Section 403.062, Florida Statutes, which is included among the statutory provisions cited in proposed Rule 62- 303.100, Florida Statutes (and every other proposed rule in the proposed rule chapter) as the "[l]aw [i]mplemented," reads as follows: Code Pollution control; underground, surface, and coastal waters.-- The department and its agents shall have general control and supervision over underground water, lakes, rivers, streams, canals, ditches, and coastal waters under the jurisdiction of the state insofar as their pollution may affect the public health or impair the interest of the public or persons lawfully using them. Part I: Proposed Rule 62-303.150, Florida Administrative Proposed Rule 62-303.150, Florida Administrative Code, explains the "[r]elationship [b]etween [p]lanning and [v]erified [l]ists." It provides as follows: The Department shall follow the methodology in Section 62-303 300 to develop a planning list pursuant to subsection 403.067(2), F.S. As required by subsection 403.067(2), F.S., the planning list shall not be used in the administration or implementation of any regulatory program, and shall be submitted to EPA for informational purposes only. Waters on this planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach. During this assessment, the Department shall determine whether the water body is impaired and whether the impairment is due to pollutant discharges using the methodology in Part III. The resultant verified list of impaired waters, which is the list of waters for which TMDLs will be developed by the Department pursuant to subsection 403.067(4), will be adopted by Secretarial Order and will be subject to challenge under subsection [sic] 120.569 and 120.57 F.S. Once adopted, the list will be submitted to the EPA pursuant to paragraph 303(d)(1) of the CWA. Consistent with state and federal requirements, opportunities for public participation, including workshops, meetings, and periods to submit comments on draft lists, will be provided as part of the development of planning and verified lists. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The initial drafts of proposed Rule Chapter 62-303, Florida Administrative Code, provided for merely a single list of impaired waters needing TMDLs. It was only after the last TAC meeting (and before the first rule development workshop) that the concept of having two lists (a preliminary, "planning list" of potentially impaired waters requiring further assessment and a final, "verified list . . . of waters for which TMDLs will be developed by the Department") was incorporated into proposed Rule Chapter 62-303, Florida Administrative Code, by Department staff (although the idea of having a "potentially impaired subset" of impaired waters was discussed at TAC meetings). Such action was taken in response to concerns raised during the rule development process that the proposed rule chapter, as then drafted with its one-list methodology, "was too restrictive, that it would only get a small subset of waters on [the Departments 303(d)] list." To decrease, in a manner consistent with the provisions of Section 403.067, Florida Statutes, the chance that an impaired water needing a TMDL would be erroneously excluded, Department staff revised the proposed rule chapter to provide for a two-step listing process where potentially impaired waters would first be placed on a "planning list" based upon criteria generally less "restrictive" than the listing criteria contained in the previous drafts of the proposed rule chapter and then further tested (if necessary) and assessed to verify if, based upon criteria generally more rigorous than the "planning list" criteria, they should be included on a "verified list" of waters needing TMDLs (to be submitted to the EPA as the state's "updated" 303(d) list). Weighing against Department staff making it any easier for a water to be placed on the "verified list" was the significant regulatory consequence of such action. Erroneously listing a water as needing a TMDL would result in the unnecessary expenditure of considerable time, money, and effort. The more rigorous the listing criteria, the less likely it would be that a water would be listed erroneously and such unnecessary expenditures made. Subsequent to the ERC's adoption of proposed Rule Chapter 62-303, Florida Administrative Code, the National Research Council (NRC),33 through one of its committees,34 acting at the request of Congress to analyze the scientific basis of the nationwide TMDL program, issued a report entitled, "Assessing the TMDL Approach to Water Quality Management" (NRC Publication). In the NRC Publication, the committee endorses a "two-list process" like the one incorporated in proposed Rule Chapter 62-303, Florida Administrative Code, explaining as follows: Determining whether there should be some minimum threshold of data available when evaluating waterbodies for attainment of water quality standards is an issue of great concern to states. On the one hand, many call for using only the "best science" in making listing decisions, while others fear that many impaired waters will not be identified in the wait for additional data. The existence of a preliminary list addresses these concerns by focusing attention on waters suspected to be impaired without imposing on stakeholders and the agencies the consequences of TMDL development, until additional information is developed and evaluated. According to Subsection (1) of proposed Rule 62- 303.150, Florida Administrative Code, "[w]aters on th[e] planning list will be assessed pursuant to subsection 403.067(3) F.S., as part of the Department's watershed management approach." The following are the major concepts incorporated in the "Department's watershed management approach": The basin management unit is the geographic or spatial unit used to divide the state into smaller areas for assessment- -generally groups of Hydrologic Unit Codes (HUCs)[35] . . . . The basin management cycle is the five- year cycle within which watersheds are assessed and management plans developed and implemented. The Management Action Plan (MAP), a document developed over the five-year cycle and subsequently updated every five years, describes the watershed's problems and how participants plan to address them. Forums and communications networks allow participants to collect and evaluate as much information as possible on their individual basins and to reach a consensus on strategic monitoring, priority water bodies, and management strategies. The statewide basin management schedule establishes the proposed sequence for assessing individual watersheds. . . . Each individual basin cycle under the "Department's watershed management approach" takes five years to complete, and is "repeated every five years." It is, in other words, an iterative process. The five phases of the cycle are as follows: Phase I: Preliminary Basin Assessment; Phase II: Strategic Monitoring; Phase III: Data Analysis and TMDL Development; Phase IV: Management Action Plan; and Phase V: Implementation. The first two phases of the cycle are discussed in greater detail in proposed Rule 62-303.700, Florida Administrative Code. Part I: Proposed Rule 62-303.200, Florida Administrative Code Proposed Rule 62-303.200, Florida Administrative Code, contains definitions of various terms and phrases used in proposed Rule Chapter 62-303, Florida Administrative Code. It provides as follows: As used in this chapter: "BioRecon" shall mean a bioassessment conducted following the procedures outlined in "Protocols for Conducting a Biological Reconnaissance in Florida Streams," Florida Department of Environmental Protection, March 13. 1995, which is incorporated by reference. "Clean techniques" shall mean those applicable field sampling procedures and analytical methods referenced in "Method 1669: Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels, July 1996, USEPA. Office of Water, Engineering and Analysis Division. Washington, D.C.," which is incorporated by reference. "Department" or "DEP" shall mean the Florida Department of Environmental Protection. "Designated use" shall mean the present and future most beneficial use of a body of water as designated by the Environmental Regulation Commission by means of the classification system contained in Chapter 62-302, F.A.C. "Estuary" shall mean predominantly marine regions of interaction between rivers and nearshore ocean waters, where tidal action and river flow mix fresh and salt water. Such areas include bays, mouths of rivers, and lagoons. "Impaired water" shall mean a water body or water body segment that does not meet its applicable water quality standards as set forth in Chapters 62-302 and 62-4 F.A.C., as determined by the methodology in Part III of this chapter, due in whole or in part to discharges of pollutants from point or nonpoint sources. "Lake Condition Index" shall mean the benthic macroinvertebrate component of a bioassessment conducted following the procedures outlined in "Development of Lake Condition Indexes (LCI) for Florida," Florida Department of Environmental Protection, July, 2000, which is incorporated by reference. "Natural background" shall mean the condition of waters in the absence of man- induced alterations based on the best scientific information available to the Department. The establishment of natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data. "Nuisance species" shall mean species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters. "Physical alterations" shall mean human-induced changes to the physical structure of the water body. "Planning list" shall mean the list of surface waters or segments for which assessments will be conducted to evaluate whether the water is impaired and a TMDL is needed, as provided in subsection 403.067(2), F.S. "Pollutant" shall be as defined in subsection 502(6) of the CWA. Characteristics of a discharge, including dissolved oxygen, pH, or temperature, shall also be defined as pollutants if they result or may result in the potentially harmful alteration of downstream waters. "Pollution" shall be as defined in subsection 502(19) of the CWA and subsection 403.031(2), F.S. "Predominantly marine waters" shall mean surface waters in which the chloride concentration at the surface is greater than or equal to 1,500 milligrams per liter. "Secretary" shall mean the Secretary of the Florida Department of Environmental Protection. "Spill" shall mean a short-term, unpermitted discharge to surface waters, not to include sanitary sewer overflows or chronic discharges from leaking wastewater collection systems. "Stream" shall mean a free-flowing, predominantly fresh surface water in a defined channel, and includes rivers, creeks, branches, canals, freshwater sloughs, and other similar water bodies. "Stream Condition Index" shall mean a bioassessment conducted following the procedures outlined in "Development of the Stream Condition Index (SCI) for Florida," Florida Department of Environmental Protection, May, 1996, which is incorporated by reference. "Surface water" means those waters of the State upon the surface of the earth to their landward extent, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be classified as surface water when it exits from the spring onto the earth's surface. "Total maximum daily load" (TMDL) for an impaired water body or water body segment shall mean the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint sources and natural background. Prior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated. A TMDL shall include either an implicit or explicit margin of safety and a consideration of seasonal variations. "Verified list" shall mean the list of impaired water bodies or segments for which TMDLs will be calculated, as provided in subsection 403.067(4), F.S., and which will be submitted to EPA pursuant to paragraph 303(d)(1) of the CWA. "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports the present and future most beneficial uses. "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating provisions (mixing zones, site-specific alternative criteria, and exemptions) contained in Chapter 62-302, F.A.C., and in Chapter 62-4, F.A.C., adopted pursuant to Chapter 403, F.S. "Water segment" shall mean a portion of a water body that the Department will assess and evaluate for purposes of determining whether a TMDL will be required. Water segments previously evaluated as part of the Department's 1998 305(b) Report are depicted in the map titled "Water Segments of Florida," which is incorporated by reference. "Waters" shall be those surface waters described in Section 403.031(13) Florida Statutes. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New There are some high salinity waters of the state that, although they do not have riverine input, nonetheless meet the definition of "estuary" found in Subsection (5) of proposed Rule 62-303.200, Florida Administrative Code, because they are "bays" or "lagoons," as those terms are used in the second sentence of Subsection (5). Rule Chapter 62-4, Florida Administrative Code, which is referenced in Subsections (6) and (23) of proposed Rule 62- 303.200, Florida Administrative Code, addresses the subject of "[p]ermits." According to Subsection (1) of Rule 62-4.210, Florida Administrative Code, "[n]o person shall construct any installation or facility which will reasonably be expected to be a source of . . . water pollution without first applying for and receiving a construction permit from the Department unless exempted by statute or Department rule." Subsection (1) of Rule 62-4.240, Florida Administrative Code, requires that "[a]ny person intending to discharge wastes into the waters of the State shall make application to the Department for an operation permit." An "operation permit" must: Specify the manner, nature, volume and frequency of the discharge permitted; Require proper operation and maintenance of any pollution abatement facility by qualified personnel in accordance with standards established by the Department; and Contain such additional conditions, requirements and restrictions as the Department deems necessary to preserve and protect the quality of the receiving waters and to ensure proper operation of the pollution control facilities. Rule 62-4.240(3), Florida Administrative Code. "An operation permit [will] be issued only if all Department requirements are met, including the provisions of Rules 62-302.300 and 62-302.700 and Rule 62-4.242, F.A.C." Rule 62-4.240(2), Florida Administrative Code. Subsection (1) of Rule 62-4.242, Florida Administrative Code, describes "[a]ntidegradation [p]ermitting [r]equirements." It provides as follows: Permits shall be issued when consistent with the antidegradation policy set forth in Rule 62-302.300 and, if applicable, Rule 62- 302.700. In determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the department shall consider and balance the following factors: Whether the proposed project is important to and is beneficial to the public health, safety, or welfare (taking into account the policies set forth in Rules 62- 302.100, 62-302.300, and, if applicable, 62- 302.700); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. In addition to subsection (b) above, in order for a proposed discharge (other than stormwater discharges meeting the requirements of Chapter 62-25, F.A.C.), to be necessary or desirable under federal standards and under circumstances which are clearly in the public interest, the permit applicant must demonstrate that neither of the following is economically and technologically reasonable: Reuse of domestic reclaimed water. Use of other discharge locations, the use of land application, or reuse that would minimize or eliminate the need to lower water quality. Subsections (2) and (3) of Rule 62-4.242, Florida Administrative Code, prescribe "[s]tandards [a]pplying to Outstanding Florida Waters" and "[s]tandards [a]pplying to Outstanding National Resource Waters," respectively. Subsection (4) of Rule 62-4.242, Florida Administrative Code, "prescribe[s] the means by which the Department, upon the petition of a license applicant, will equitably allocate among such persons [directly discharging significant amounts of pollutants into waters which fail to meet one or more of the water quality criteria applicable to those waters] the relative levels of abatement responsibility of each for abatement of those pollutants." Subsection (1) of Rule 62-4.244, Florida Administrative Code, provides that the Department, upon application, may "allow the water quality adjacent to a point of discharge to be degraded to the extent that only the minimum conditions described in subsection 62-302.500(1), Florida Administrative Code, apply within a limited, defined region known as the mixing zone"; provided, that the "mixing zone" does not "significantly impair any of the designated uses of the receiving body of water." Subsection 502(6) of the Clean Water Act (33 U.S.C. Section 1362(6)), which is referenced in Subsection (12) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) "sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces" within the meaning of section 1322 of this title; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources. Subsection 502(19) of the Clean Water Act (33 U.S.C. Section 1362(19)), which is referenced in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, provides as follows: The term "pollution" means the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. In Chapter 403, Florida Statutes, the definition of "pollution" is found, not in Subsection (2) of Section 403.031, Florida Statutes, as indicated in Subsection (13) of proposed Rule 62-303.200, Florida Administrative Code, but in Subsection (7) of the statute. The "water segments" referenced in the second sentence of Subsection (24) of proposed Rule 62-303.200, Florida Administrative Code, are, for the most part, either approximately five linear miles each (in the case of streams) or approximately five square miles each (in the case of waters not in a defined channel). Subsection (13) of Section 403.031, Florida Statutes, which is referenced in Subsection (25) of proposed Rule 62- 303.200, Florida Administrative Code, provides that "'[w]aters' include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." The other terms and phrases defined in proposed Rule 62-303.200, Florida Administrative Code, will be discussed, where appropriate, later in this Final Order. Part II: Overview Part II of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "planning list" of potentially impaired waters and how the list will be compiled: Proposed Rules 62-303.300, 62- 303.320, 62-303.330, 62-303.340, 62-303.350, 62-303.351, 62- 303.352, 62-303.353, 62-303.360, 62-303.370, and 62-303.380, Florida Administrative Code. Code Part II: Proposed Rule 62-303.300, Florida Administrative Proposed Rule 62-303.300, Florida Administrative Code, is entitled, "Methodology to Develop the Planning List." It provides as follows: This part establishes a methodology for developing a planning list of waters to be assessed pursuant to subsections 403.067(2) and (3), F.S. A waterbody shall be placed on the planning list if it fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part. It should be noted that water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62- 303.310-353, or to protect human health, which is addressed in sections 62-303.360- 380. Waters on the list of water segments submitted to EPA in 1998 that do not meet the data sufficiency requirements for the planning list shall nevertheless be included in the state's initial planning list developed pursuant to this rule. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second sentence of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be placed on the "planning list." At the April 26, 2001, rule adoption hearing, the ERC initially voted to delete from proposed Rule Chapter 62-303, Florida Administrative Code, the language in Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code. The ERC, however, later in the hearing, reversed itself after learning of a letter, dated April 26, 2001, that was sent to the Department by Beverly H. Bannister, the Director of the EPA's Region 4 Water Management Division. Ms. Bannister's letter read, in pertinent part, as follows: EPA expressed significant concern that, under earlier versions of the IWR [Impaired Waters Rule], waters currently identified as impaired on the State's 1998 Section 303(d) list which were determined to have "insufficient data" would be removed from the State's Section 303(d) list and also not appear on the State's planning list with its associated requirement for additional data collection. As a result of EPA concerns, the latest version of the IWR provides that waters on the current 1998 Section 303(d) list that do not meet the data sufficiency requirement of the planning list will be placed on the IWR's planning list, and sufficient data will be collected to verify the water's impairment status. In further discussions with the State regarding the EPA's concern about the 2002 Section 303(d) list, the State has committed to review all waters on the 1998 303(d) list and include all waters that meet the verification requirements of the IWR on the State's 2002 list. In addition, the State will also review all available data from 1989 to 1998 for development of a statewide planning list and include on the 2002 list any additional waters that meet the verification requirements, based on data from 1994 to 1998. (The State is unable to do a complete assessment for data gathered in 1999, 2000, and 2001 because of a national problem in the upload of data into the new Federal STORET data system.) Those waters on the 1998 303(d) list that do not meet the verification requirements will be de-listed for "good cause" and placed on the State's planning list as insufficient to verify the water's use-support status according to the methodology in the IWR. The "good cause" justification for de- listing the waters is based on several factors: 1) the requirements of the State Rule that these waters be moved to a planning list for additional data collection and assessment that will occur within a reasonable period of time; 2) a determination will be made that the waters are either impaired (and placed on the 303(d) list) or attaining its uses; and 3) the State's commitment to EPA that waters on the planning list that appeared on the State's 1998 Section 303(d) list will be monitored and assessed during the first or second rotation through the State's Watershed Management Process consistent with the schedule for TMDL development in EPA's consent decree with Earthjustice. High priority water/pollutant combinations will be monitored and assessed during the first rotation of the watershed cycle (i.e., within 5 years of 2001), and low priority water/pollutant combinations will be monitored and assessed during the second rotation of the watershed cycle (i.e., within 10 years of 2001). After this additional data collection and assessment, the water will be added to the appropriate future 303(d) list if the water is verified to be impaired, or the water will be "de- listed" based on the "good cause" justification that the water is attaining its uses. Waters on the 1998 303(d) list where sufficient data exists to demonstrate the water is meeting the IWR's planning list criteria for use support will be de-listed in the 2002 303(d) list submittal. It is EPA's view that this process will achieve the intent of the CWA and will provide sufficient documentation of the waters still requiring TMDLs by FDEP. Together with the data collection requirements found in Part III of the proposed rule chapter, Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, ensures that all waters on the Department's 1998 303(d) list (which list is referenced in Subsection (2)(c) of Section 403.067, Florida Statutes) will be assessed by the Department and that they will not be eliminated from consideration for TMDL development simply because there is not enough data to determine whether a TMDL is needed. Part II: Proposed Rule 62-303.310, Florida Administrative Code Proposed Rule 62-303.310, Florida Administrative Code, is entitled, "Evaluation of Aquatic Life Use Support." It provides as follows: A Class I, II, or III water shall be placed on the planning list for assessment of aquatic life use support (propagation and maintenance of a healthy, well-balanced population of fish and wildlife) if, based on sufficient quality and quantity of data, it: exceeds applicable aquatic life-based water quality criteria as outlined in section 62-303.320, does not meet biological assessment thresholds for its water body type as outlined in section 62-303.330, is acutely or chronically toxic as outlined in section 62-303.340, or exceeds nutrient thresholds as outlined in section 62-303.350. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New This proposed rule, like Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, incorporates the concept of "independent applicability." A water need meet only one of the four listed benchmarks to be placed on the "planning list for assessment of aquatic life use support." Each of these benchmarks is discussed at greater length in one or more of the subsequent sections of Part II of the proposed rule chapter. Part II: Proposed Rule 62-303.320, Florida Administrative Code Proposed Rule 62-303.320, Florida Administrative Code, addresses the "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" benchmark described in Subsection (1) of proposed Rule 62-303.310, Florida Administrative Code. It cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw[s] [i]mplemented" by the proposed rule. Proposed Rule 62-303.320, Florida Administrative Code, establishes a statistical method (involving "data modeling," as that term is used in Subsection (3)(b)4. of Section 403.067, Florida Statutes) for use in determining whether a water should be placed on the "planning list." It is not feasible, due to limited resources, to examine a water body at every point to determine its true overall condition. Rather, samples must be taken over time and inferences drawn from the sampling results, taking into consideration the "variability [of water quality] occurring in nature" and "that some deviations from water quality standards occur as the result of natural background conditions" (as the Legislature observed in Subsection (11) of Section 403.021, Florida Statutes). The process is, necessarily, characterized by a lack of certainty and the possibility of error. As stated in the NRC Publication: Given the finite monitoring resources, it is obvious that the number of sampling stations included in the state program will ultimately limit the number of water quality measurements that can be made at each station. Thus, in addition to the problem of defining state waters and designing the monitoring network to assess those waters, fundamental statistical issues arise concerning how to interpret limited data from individual sampling stations. Statistical inference procedures must be used on the sample data to test hypotheses about whether the actual condition in the water body meets the criterion. Thus, water quality assessment is a hypothesis-testing procedure. A statistical analysis of sample data for determining whether a water body is meeting a criterion requires the definition of a null hypothesis; for listing a water body, the null hypothesis would be that the water is not impaired. The analysis is prone to the possibility of both Type I error (a false conclusion that an unimpaired water is impaired) and Type II error (a false conclusion that an impaired water is not impaired). . . . The TAC and Department staff had extensive discussions regarding the issue of what particular type of "statistical analysis" to incorporate in the proposed rule chapter before deciding on a binomial distribution analysis. The binomial model is a time-tested nonparametric statistical method that is used where there are two possible outcomes, such as, in the case of water quality sampling, whether a water quality criterion has been exceeded or not. A parametric statistical analysis, based upon an assumption of normal distribution, which, unlike the binomial model incorporated in the proposed rule chapter, takes into account the magnitude of exceedances,36 was considered, but reasonably rejected by the TAC and Department staff because it was anticipated that, in many instances, the number of samples available to the Department would not be adequate to make the underlying distributional assumption with the requisite degree of certainty. The binomial model, which takes sample size into consideration, offers greater certainty with a limited number of samples than does the parametric statistical analysis that the TAC and Department staff rejected. Nonetheless, even in the case of the binomial model, the more samples there are, the more precise the analysis will be. Both Type I errors (false positives) and Type II errors (false negatives) decrease as sample size increases. To ensure greater analytic precision, proposed Rule 62-303.320, Florida Administrative Code, and its counterpart in Part III of the proposed rule chapter (proposed Rule 62-303.420, Florida Administrative Code) contain reasonable minimum sample size requirements (ten, with limited exceptions, for placement on the "planning list," and 20 for placement on the "verified list," which is ten more than the TAC recommended37). The NRC Publication contains the following discussion regarding the appropriateness of employing a binomial model to identify impaired waters needing TMDLs: The committee does not recommend any particular statistical method for analyzing monitoring data and for listing waters. However, one possibility is that the binomial hypothesis test could be required as a minimum and practical first step (Smith et al., 2001). The binomial method is not a significant departure from the current approach--called the raw score approach--in which the listing process treats all sample observations as binary values that either exceed the criterion or do not, and the binomial method has some important advantages. For example, one limitation of the raw score approach is that it does not account for the total number of measurements made. Clearly, 1 out of 6 measurements above the criterion is a weaker case for impairment than is 6 out of 36. The binomial hypothesis test allows one to take sample size into account. By using a statistical procedure, sample sizes can be selected and one can explicitly control and make trade-offs between error rates. (see Smith et al., 2001, and Gibbons, in press, for guidance in managing the risk of false positive and false negative errors). Several states, including Florida and Virginia, are considering or are already using the binomial hypothesis test to list impaired waters. Detailed examples of how to apply the test are beyond the scope of this document, but can be found in Smith et al. (2001) and the proposed Chapter 62-303 of the Florida Administrative Code. In a footnote, the committee added the following: The choice of Type I error rate is based on the assessor's willingness to falsely categorize a water body. It also is the case that, for any sample size, the Type II error rate decreases as the acceptable Type I error rate increases. The willingness to make either kind of mistake will depend on the consequences of the resulting action (more monitoring, costs to do a TMDL plan, costs to implement controls, possible health risk) and who bears the cost (public budget, private parties, etc.). The magnitude and burden of a Type I versus Type II error depend on the statement of the null hypothesis and on the sample size. When choosing a Type I error rate, the assessor may want to explicitly consider these determinants of error rates. The TAC recommended a Type I error rate of five percent (or, stated differently, a confidence level of 95 percent) be used in making listing decisions.38 Department staff responsible for drafting the proposed rule chapter, believing that, as a matter of policy, a 95 percent confidence level was too high and that a higher Type I error rate should be tolerated in order to reduce Type II error, reasonably settled on an 80 percent confidence level for placement on the "planning list" and a 90 percent confidence level for placement on the "verified list." Scientific studies generally do not employ a confidence level below 80 percent. A 50 percent confidence level is "comparable to flipping a coin." Use of the binomial model to determine impairment for purposes of TMDL development (based upon exceedances of water quality criteria) further requires the selection of a fixed "exceedance frequency" representing an acceptable rate of violation beneath which a water segment will not be considered impaired. A permissible "exceedance frequency" accounts for the natural variability of water quality and the uncertainty that the measurements taken are representative of the overall condition of the water segment sampled. The Department, pursuant to EPA guidance, has historically used a ten percent "exceedance frequency" for purposes of identifying, in its 305(b) Report, waters not meeting their designated uses. The TAC and Department staff agreed that a ten percent "exceedance frequency" should likewise be incorporated in the proposed rule chapter. The NRC Publication contains the following discussion regarding "exceedance frequencies" in general and a ten percent "exceedance frequency" in particular: Whether the binomial or the raw score approach is used, there must be a decision on an acceptable frequency of violation for the numeric criterion, which can range from 0 percent of the time to some positive number. Under the current EPA approach, 10 percent of the sample measurements of a given pollutant made at a station may exceed the applicable criterion without having to list the surrounding waterbody. The choice of 10 percent is meant to allow for uncertainty in the decision process. Unfortunately, simply setting an upper bound on the percentage of measurements at a station that may violate a standard provides insufficient information to properly deal with the uncertainty concerning impairment. The choice of acceptable frequency of violation is also supposed to be related to whether the designated use will be compromised, which is clearly dependent on the pollutant and on waterbody characteristics such as flow rate. A determination of 10 percent cannot be expected to apply to all water quality situations. In fact, it is inconsistent with federal water quality criteria for toxics that specify allowable violation frequencies of either one day in three years, four consecutive days in three years, or 30 consecutive days in three years (which are all less than 10 percent). Embedded in the EPA raw score approach is an implication that 10 percent is an acceptable violation rate, which it may not be in certain circumstances. Nonetheless, as the chairman of the committee that produced the NRC Publication, Dr. Kenneth Reckhow, testified at the final hearing in these consolidated cases when asked whether he "believe[d] that a determination of ten percent exceedance [frequency] cannot be expected to apply to all water quality situations": the "notion of one size fits all is . . . a pragmatic approach to the limits of what can be done in a regulatory environment." Dr. Reckhow, during his testimony, declined to "endorse[] as a scientist" the use of an "exceedance frequency" of ten percent (as opposed to some other "particular level"),39 but he stated his opinion (which the undersigned accepts) that "it is important to select a level, and from a science perspective it would be useful to see states employ a level like that or levels roughly around that point and see how effectively they have worked in terms of achieving the goal of meeting designated uses." Subsection (1) of proposed Rule 62-303.320, Florida Administrative Code, sets forth in tabular form, by sample size (from ten samples to 500 samples), the minimum number of exceedances needed for placement on the "planning list." It provides as follows: Water segments shall be placed on the planning list if, using objective and credible data, as defined by the requirements specified in this section, the number of exceedances of an applicable water quality criterion due to pollutant discharges is greater than or equal to the number listed in Table 1 for the given sample size. This table provides the number of exceedances that indicate a minimum of 10% exceedance frequency with a minimum of an 80% confidence level using a binomial distribution. Table 1: Planning List Minimum number of measured exceedances needed to put a water on the Planning list with at least 80% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this # of exceedances From To 10 15 3 16 23 4 24 31 5 32 39 6 40 47 7 48 56 8 57 65 9 66 73 10 74 82 11 83 91 12 92 100 13 101 109 14 110 118 15 119 126 16 127 136 17 137 145 18 146 154 19 155 163 20 164 172 21 173 181 22 182 190 23 191 199 24 200 208 25 209 218 26 219 227 27 228 236 28 237 245 29 246 255 30 256 264 31 265 273 32 274 282 33 283 292 34 293 301 35 302 310 36 311 320 37 321 329 38 330 338 39 339 348 40 349 357 41 358 367 42 368 376 43 377 385 44 386 395 45 396 404 46 405 414 47 415 423 48 424 432 49 433 442 50 443 451 51 452 461 52 462 470 53 471 480 54 481 489 55 490 499 56 500 500 57 The "calculations [reflected in Table 1] are correct." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The U.S. Environmental Protection Agency's Storage and Retrieval (STORET) database shall be the primary source of data used for determining water quality criteria exceedances. As required by rule 62- 40.540(3), F.A.C., the Department, other state agencies, the Water Management Districts, and local governments collecting surface water quality data in Florida shall enter the data into STORET within one year of collection. Other sampling entities that want to ensure their data will be considered for evaluation should ensure their data are entered into STORET. The Department shall consider data submitted to the Department from other sources and databases if the data meet the sufficiency and data quality requirements of this section. STORET is a "centralized data repository" maintained by the EPA. It contains publicly available water quality data, contributed by state agencies and others, on waters throughout the nation. Subsection (3) of Rule 62-40.540, Florida Administrative Code, which is referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, provides that "[t]he U.S. Environmental Protection Agency water quality data base (STORET) shall be the central repository of the state's water quality data" and that"[a]ll appropriate water quality data collected by the Department, Districts, local governments, and state agencies shall be placed in the STORET system within one year of collection." At the end of 1998, STORET underwent a major overhaul. It is "now more accommodating of meta data," which is auxiliary information about the underlying data. As Ms. Bannister indicated in her April 26, 2001, letter to the Department, there was a "problem in the upload of data into the new Federal STORET data system." This new version of STORET is still not "very user-friendly." Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code, however, while it strongly encourages the entry of data into STORET, does not require that data be entered into STORET to be considered by the Department in determining whether there have been the requisite number of exceedances for placement on the "planning list," as the last sentence of Subsection (2) makes abundantly clear. Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, imposes reasonable age-related restrictions on what data can be used to determine whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." It provides as follows: When determining water quality criteria exceedances, data older than ten years shall not be used to develop planning lists. Further, more recent data shall take precedence over older data if: the newer data indicate a change in water quality and this change is related to changes in pollutant loading to the watershed or improved pollution control mechanisms in the watershed contributing to the assessed area, or the Department determines that the older data do not meet the data quality requirements of this section or are no longer representative of the water quality of the segment. The Department shall note for the record that the older data were excluded and provide details about why the older data were excluded. These provisions are reasonably designed to increase the likelihood that the decision to place a water on the "planning list" will be based upon data representative of the water's current conditions. While the data that will be excluded from consideration by Subsection (3) of proposed Rule 62-303.320, Florida Administrative Code, may be objective and credible data, such data merely reflects what the conditions of the water in question were at the time the samples yielding the data were collected. Declining to rely on this data because it is too old to be a reliable indicator of current conditions is not unreasonable. The TAC recommended that listing decisions be based on data no older than five years.40 Department staff, however, believed that, for purposes of compiling a "planning list," a ten-year cut-off was more appropriate. The binomial model is predicated on independent sampling. Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, addresses "in a very straightforward, simple, but reasonable way, the notion of spatial independence and temporal independence." It provides as follows: To be assessed for water quality criteria exceedances using Table 1, a water segment shall have a minimum of ten, temporally independent samples for the ten year period. To be treated as an independent sample, samples from a given station shall be at least one week apart. Samples collected at the same location less than seven days apart shall be considered as one sample, with the median value used to represent the sampling period. However, if any of the individual values exceed acutely toxic levels, then the worst case value shall be used to represent the sampling period. The worst case value is the minimum value for dissolved oxygen, both the minimum and maximum for pH, or the maximum value for other parameters. However, when data are available from diel or depth profile studies, the lower tenth percentile value shall be used to represent worst case conditions. For the purposes of this chapter, samples collected within 200 meters of each other will be considered the same station or location, unless there is a tributary, an outfall, or significant change in the hydrography of the water. Data from different stations within a water segment shall be treated as separate samples even if collected at the same time. However, there shall be at least five independent sampling events during the ten year assessment period, with at least one sampling event conducted in three of the four seasons of the calendar year. For the purposes of this chapter, the four seasons shall be January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. States may set their "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at either acutely toxic levels or chronically toxic levels. The EPA, based on data from toxicity tests, has determined what these acutely toxic levels and chronically toxic levels should be, and it has provided its recommendations to the states for their use in setting appropriate water quality criteria. With one exception (involving silver in predominantly marine waters), the Department, in Rule Chapter 62-302, Florida Administrative Code, has opted to establish "[a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" at chronically toxic levels, rather than at acutely toxic levels, because chronic-toxicity-based criteria are, in the Department's view, "more protective." Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, will require the Department, under certain circumstances, to determine whether acutely toxic levels of parameters listed in Rule Chapter 62-302, Florida Administrative Code (other than silver in predominantly marine waters) have been exceeded. Neither the Department's existing rules, nor the proposed rule chapter, specifies what these levels are. In making this determination, the Department intends to use the acutely toxic levels recommended by the EPA. The last two sentences of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, address "seasonal . . . variations," as required by Subsection (3)(b)1. of Section 403.067, Florida Statutes, and do so in a manner consistent with the TAC's recommendation on the matter. As Subsection (3)(b)1. of Section 403.067, Florida Statutes, suggests, water quality may vary from season to season. Such variations tend to be more pronounced in the northern part of the state than in South Florida in the case of certain parameters, such as dissolved oxygen, which is usually "at its critical condition" during the warmer months. While certain types of exceedances may be more likely to occur during a particular season or seasons of the year, exceedances may occur at any time during the year. Department staff, as recommended by the TAC, included the last two sentences in Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, in a reasonable effort to avoid a situation where a listing decision would be based upon skewed data (provided by persons "with an agenda") reflecting only isolated instances of worst or best case conditions, as opposed to "data . . . spread throughout the year as much as possible." Data from each of the four seasons of the calendar year were not required "because then some data sets might be excluded just because they missed a quarterly sample," an outcome the TAC and Department staff considered to be undesirable because they "wanted to be all-inclusive and . . . capture all waters that in fact might even potentially be impaired" on the "planning list." Notwithstanding the "three out of four seasons" data sufficiency requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, because the proposed rule establishes an "exceedance frequency" threshold of ten percent, a water may qualify for placement on the "planning list" under the proposed rule even though all of the exceedances evidenced by the data in the Department's possession (covering at least three of the four seasons of the year) occurred in the one season when conditions are typically at their worst for the water. (If there were other exceedances, they would not be excluded from consideration under the proposed rule simply because they occurred during a time of year when exceedances are atypical.) The "three out of four seasons" requirement does not completely protect against persons "with an agenda" obtaining the result they want by providing the Department skewed data, but, as Dr. Reckhow testified at the final hearing, it would be difficult, if not impossible, for the Department to devise a rule which provides for Department consideration of data submitted by members of the public and, at the same time, completely "prevent[s] someone who is clever [enough] from contriving the analysis." As Dr. Reckhow pointed out, to counteract the data submissions of such a person, those who believe that the data is not truly representative of the overall condition of the water can "collect their own data and make the[ir] case" to the Department. Subsection (5) of proposed Rule 62-303.320, Florida Administrative Code, which reads as follows, provides two exceptions to the data sufficiency requirements of Subsection of the proposed rule: Notwithstanding the requirements of paragraph (4), water segments shall be included on the planning list if: there are less than ten samples for the segment, but there are three or more temporally independent exceedances of an applicable water quality criterion, or there are more than one exceedance of an acute toxicity-based water quality criterion in any three year period. The "three or more exceedances" exception (found in Subsection (5)(a) of proposed Rule 62-303.320, Florida Administrative Code) to the proposed rule's minimum sample size requirement of ten was not something that the "TAC ever voted on." It was included in the proposed rule by Department staff at the request of Petitioners. As noted above, the only "acute toxicity-based water quality criterion" in Rule Chapter 62-302, Florida Administrative Code, is the criterion for silver in predominantly marine waters. Accordingly, Subsection (5)(b) of proposed Rule 62-330.320, Florida Administrative Code, applies only where that criterion has been exceeded (more than once in a three year period). Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, provides that certain data (described therein) will be excluded from consideration by the Department in determining whether a water should be placed on the "planning list" pursuant to the proposed rule. It reads as follows: Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors shall be excluded from the assessment. Outliers identified through statistical procedures shall be evaluated to determine whether they represent valid measures of water quality. If the Department determines that they are not valid, they shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. The exclusion of the data described in Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, is entirely appropriate. Indeed, it would be unreasonable for the Department to consider such data. Earlier versions of Subsection (6) of proposed Rule 62-330.320, Florida Administrative Code, automatically excluded outliers from consideration. The ERC-adopted version, however, provides that outliers will first be identified41 and then examined and, only if they are determined by the Department, using its "best professional judgment," not to be "valid measures of water quality," will they be excluded from consideration. (Values, although extreme, may nonetheless "represent valid measures of water quality."). Subsection (7) of proposed Rule 62-303.320, Florida Administrative Code, which provides as follows, addresses "[q]uality assurance and [q]uality control protocols," as those terms are used in Subsection (3)(b)3. of Section 403.067, Florida Statutes: The Department shall consider all readily available water quality data. However, to be used to determine water quality exceedances, data shall be collected and analyzed in accordance with Chapter 62-160, F.A.C., and for data collected after one year from the effective date of this rule, the sampling agency must provide to the Department, either directly or through entry into STORET, all of the data quality assessment elements listed in Table 2 of the Department's Guidance Document "Data Quality Assessment Elements for Identification of Impaired Surface Waters" (DEP EAS 01-01, April 2001), which is incorporated by reference. Rule Chapter 62-160, Florida Administrative Code, which is referenced in Subsection (7)(a) of proposed Rule 62- 303.320, Florida Administrative Code, contains "[q]uality assurance requirements" that, with certain limited exceptions, "apply to all programs, projects, studies, or other activities which are required by the Department, and which involve the measurement, use, or submission of environmental data or reports to the Department." Rule 62-160.110, Florida Administrative Code. Adherence to quality assurance requirements such as those in Rule Chapter 62-160, Florida Administrative Code, is essential to obtaining data that is objective and credible. Compliance with these requirements makes it less likely that sampling results will be inaccurate. DEP EAS 01-01, April 2001, which is incorporated by reference in Subsection (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, provides as follows: The Department relies on environmental data from a variety of sources to carry out its mission. Those data must satisfy the needs for which they are collected, comply with applicable standards, specifications and statutory requirements, and reflect a consideration of cost and economics. Careful project planning and routine project and data reviews, are essential to ensure that the data collected are relevant to the decisions being made. Many aspects of a project affect data quality. Sampling design, selection of parameters, sampling technique, analytical methodologies and data management activities are a few such aspects, whether the data are being collected for a compliance program, or for research activities. The level of quality of each of those elements will affect the final management decisions that are based on a project's outcome. Data quality assessment is one activity that is instrumental in ensuring that data collected are relevant and appropriate for the decisions being made. Depending on the needs of the project, the intended use of the final data and the degree of confidence required in the quality of the results, data quality assessment can be conducted at many levels. For the purposes of identification of impaired surface waters, the level of data quality assessment to be conducted (Table 1) requires providing the appropriate data elements (Table 2). If the data and applicable data elements are in an electronic format, data quality assessments can be performed automatically on large volumes of data using software tools, without significant impact to staffing. Department programs can realize significant improvement in environmental protection without additional process using these types of review routinely. Table 1: Recommended Quality Assessment Checks Quality Test Review to determine if analyses were conducted within holding times Review for qualifiers indicative of problems Screen comments for keywords indicative of problems Review laboratory certification status for particular analyte at the time analysis was performed Review data to determine if parts are significantly greater than the whole (e.g., ortho-P>total phosphorous, NH3>TKN, dissolved metal>total metal) Screen data for realistic ranges (e.g., is pH<14?) Review detection limits and quantification limits against Department criteria and program action levels to ensure adequate sensitivity Review for blank contamination Table 2: Data Elements Related to Quality Assessment ID Element Description Sample ID Unique Field Sample Identifier Parameter Name Name of parameter measured Analytical Result Result for the analytical measurement 4. Result Units Units in which measurement is reported DEP Qualifiers Qualifier code describing specific QA conditions as reported by the data provider Result Comments Free-form text where data provider relates information they consider relevant to the result Date (Time) of Sample Collection Date (Time) of Sample Preparations Date (Time) of Sample Analysis Analytical Method Method number used for sample analysis Prep Method Method number used for sample preparation prior to analysis Sample Matrix Was the sample a surface water or groundwater sample, a fresh- water or saltwater sample DOH Certificate Certificate number Number/ issued by the Laboratory ID Department of Health's lab certification program Preservatives Description of Added preservatives added to the sample after collection MDL Method detection limit for a particular result PQL Practical quantification limit for a particular result Sample Type Field identifying sample nature (e.g., environmental sample, trip blank, field blank, matrix spike, etc. Batch ID Unambiguous reference linking samples prepped or analyzed together (e.g., trip preparation, analysis Ids) 19 Field, Lab Blank Results Results for field/laboratory blank analysis required by the methods 20 CAS Number CAS registry number of the parameter measured Having the auxiliary information listed in Table 2 of DEP EAS 01-01 will help the Department evaluate the data that it receives from outside sources to determine whether the data are usable (for purposes of implementing the provisions of the proposed rule chapter). Subsection (8) of proposed Rule 62-303.320, Florida Administrative Code, also addresses "[q]uality assurance and [q]uality control protocols." It reads as follows: To be used to determine exceedances of metals criteria, surface water data for mercury shall be collected and analyzed using clean sampling and analytical techniques, and the corresponding hardness value shall be required to determine exceedances of freshwater metals criteria that are hardness dependent, and if the ambient hardness value is less than 25 mg/L as CaCO3, then a hardness value of 25 will be used to calculate the criteria. If data are not used due to sampling or analytical techniques or because hardness data were not available, the Department shall note for the record that data were excluded and explain why they were excluded. The "clean sampling and analytical techniques" referenced in Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, are, as noted above, defined in Subsection (2) of proposed Rule 62-303.200, Florida Administrative Code, as "those applicable field sampling procedures and analytical methods" permitted by the EPA's "Method 1669." "Method 1669" is a "performance-based," "guidance document" that, as its "Introduction" and introductory "Note," which read, in pertinent part, as follows, reveal, allows for the use of procedures other than those specifically described therein for "[s]ampling [a]mbient [w]ater for [t]race [m]etals at EPA [w]ater [q]uality [c]riteria [l]evels": . . . . In developing these methods, EPA found that one of the greatest difficulties in measuring pollutants at these levels was precluding sample contamination during collection, transport, and analysis. The degree of difficulty, however, is dependent on the metal and site-specific conditions. This method, therefore, is designed to provide the level of protection necessary to preclude contamination in nearly all situations. It is also designed to provide the protection necessary to produce reliable results at the lowest possible water quality criteria published by EPA. In recognition of the variety of situations to which this method may be applied, and in recognition of continuing technological advances, the method is performance-based. Alternative procedures may be used, so long as those procedures are demonstrated to yield reliable results. . . . Note: This document is intended as guidance only. Use of the terms "must," "may," and "should" are included to mean that the EPA believes that these procedures must, may, or should be followed in order to produce the desired results when using this guidance. In addition, the guidance is intended to be performance-based, in that the use of less stringent procedures may be used as long as neither samples nor blanks are contaminated when following those modified procedures. Because the only way to measure the performance of the modified procedures is through the collection and analysis of uncontaminated blank samples in accordance with this guidance and the referenced methods, it is highly recommended that any modification be thoroughly evaluated and demonstrated to be effective before field samples are collected. Subsection (8)(a) of proposed Rule 62-303.320, Florida Administrative Code, requires that "Method 1669"- permitted procedures be used only where a water is being tested to determine if it exceeds the criterion for mercury (.012 micrograms per liter in the case of Class I waters and Class III freshwaters, and .025 micrograms per liter in the case of Class II waters and Class III marine waters). Use of these procedures is necessary to avoid the sample contamination (from, among other things, standard lab bottles, hair, dandruff, atmospheric fallout, and pieces of cotton from clothing) which commonly occurs when standard, non- "Method 1669"-permitted techniques are used. Because "the criteria [for mercury are] so low" and may be exceeded due solely to such contamination, it is essential to employ "Method 1669"-permitted techniques in order to obtain results that are reliable and meaningful. The "Method 1669"-permitted techniques are approximately five times more costly to employ than standard techniques and the Department's laboratory is the only laboratory in the state (with the possible exception of a laboratory at Florida International University) able to provide "clean sampling and analytical techniques" to measure mercury levels in surface water. Nonetheless, as Timothy Fitzpatrick, the Department's chief chemist, testified at the final hearing in these consolidated cases: [I]f you want to measure methyl mercury or total mercury in surface water, you have to use clean techniques or you're measuring noise. And the whole purpose behind using clean techniques is to do sound science and to have confidence in the number. It's not to determine whether or not you're throwing out a body of data. It's to be able to get numbers that make sense. And there's no point in having a database full of information that's virtually worthless because it contains noise, analytical noise. As Subsection (8)(b) of proposed Rule 62-303.320, Florida Administrative Code, suggests, there are certain "metals for which the actual water quality criterion itself changes as the hardness [of the water, measured in milligrams per liter calcium carbonate] changes." Criteria for these metals are set (in the table contained in Rule 62-302.530, Florida Administrative Code) at higher levels for high hardness waters than for low hardness waters. To know which criterion applies in a particular case, the Department needs to know the hardness of the water sampled. Subsection (9) of proposed Rule 62-303.320, Florida Administrative Code, guards against reliance on data that, due to the use of inappropriate methods, may fail to reveal exceedances that actually exist. It provides as follows: Surface water data with values below the applicable practical quantification limit (PQL) or method detection limit (MDL) shall be assessed in accordance with Rules 62- 4.246(6)(b)-(d) and (8), F.A.C. If sampling entities want to ensure that their data will be considered for evaluation, they should review the Department's list of approved MDLs and PQLs developed pursuant to Rule 62-4.246, F.A.C., and, if available, use approved analytical methods with MDLs below the applicable water quality criteria. If there are no approved methods with MDLs below a criterion, then the method with the lowest MDL should be used. Analytical results listed as below detection or below the MDL shall not be used for developing planning lists if the MDL was above the criteria and there were, at the time of sample collection, approved analytical methods with MDLs below the criteria on the Department's list of approved MDLs and PQLs. If appropriate analytical methods were used, then data with values below the applicable MDL will be deemed to meet the applicable water quality criterion and data with values between the MDL and PQL will be deemed to be equal to the MDL. Subsections (6)(b) through (d) and (8) of Rule 62- 4.246, Florida Administrative Code, provide as follows: All results submitted to the Department for permit applications and monitoring shall be reported as follows: The approved analytical method and corresponding Department-established MDL and PQL levels shall be reported for each pollutant. The MDLs and PQLs incorporated in the permit shall constitute the minimum reporting levels for each parameter for the life of the permit. The Department shall not accept results for which the laboratory's MDLs or PQLs are greater than those incorporated in the permit. All results with laboratory MDLs and PQLs lower than those established in the permit shall be reported to the Department. Unless otherwise specified, all subsequent references to MDL and PQL pertain to the MDLs and PQLs incorporated in the permit. Results greater than or equal to the PQL shall be reported as the measured quantity. Results less than the PQL and greater than or equal to the MDL shall be reported as less than the PQL and deemed to be equal to the MDL. Results less than the MDL shall be reported as less than the MDL. * * * (8) The presence of toxicity (as established through biomonitoring), data from analysis of plant or animal tissue, contamination of sediment in the vicinity of the installation, intermittent violations of effluent limits or water quality standards, or other similar kinds of evidence reasonably related to the installation may indicate that a pollutant in the effluent may cause or contribute to violations of water quality criteria. If there is such evidence of possible water quality violations, then (unless the permittee has complied with subsection (9) below) in reviewing reports and applications to establish permit conditions and determine compliance with permits and water quality criteria, the Department shall treat any result less than the MDL of the method required in the permit or the method as required under subsection (10) below or any lower MDL reported by the permittee's laboratory as being one half the MDL (if the criterion equals or exceeds the MDL) or one half of the criterion (if the criterion is less than the MDL), for any pollutant. Without the permission of the applicant, the Department shall not use any values determined under this subsection or subsection (9) below for results obtained under a MDL superseded later by a lower MDL. The final subsection of proposed Rule 62-303.320, Florida Administrative Code, Subsection (10), provides as follows: It should be noted that the data requirements of this rule constitute the minimum data set needed to assess a water segment for impairment. Agencies or groups designing monitoring networks are encouraged to consult with the Department to determine the sample design appropriate for their specific monitoring goals. Proposed Rule 62-303.320, Florida Administrative Code, establishes a relatively "rigid" framework, based upon statistical analysis of data, with little room for the exercise of "best professional judgment," for determining whether a water qualifies for placement on the "planning list." There are advantages to taking such a "cookbook" approach. It promotes administrative efficiency and statewide uniformity in listing decisions. Furthermore, as Dr. Reckhow pointed out during his testimony, it lets the public know "how a [listing] decision is arrived at" and therefore "makes it easier for the public to get engaged and criticize the outcome." Such "rigidity," however, comes at a price, as Dr. Reckhow acknowledged, inasmuch as observations and conclusions (based upon those observations) made by the "experienced biologist who really understands the system . . . get[] lost." While proposed Rule 62-303.320, Florida Administrative Code, may rightfully be characterized as a "rigid statistical approach," it must be remembered that, in the subsequent portions of Part II of the proposed rule chapter, the Department provides other ways for a water to qualify for placement on the "planning list." A discussion of these alternatives follows. Code Part II: Proposed Rule 62-303.330, Florida Administrative Proposed Rule 62-303.330, Florida Administrative Code, is entitled, "Biological Assessment." As noted in Subsection (2) of proposed Rule 62-303.310, Florida Administrative Code, it "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon a failure to "meet biological assessment thresholds for its water body type." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." A "[b]iological [a]ssessment" provides more information about the overall ability of a water to sustain aquatic life than does the "data used for determining water quality exceedances" referenced in Subsection (2) of proposed Rule 62-303.320, Florida Administrative Code. This is because "[b]iological [a]ssessment[s]," as is noted in the NRC Publication, "integrate the effects of multiple stressors over time and space." As Mr. Joyner pointed out in his testimony, a "[b]iological [a]ssessment" is "more than just a snapshot like a water quality sample is of the current water quality [at the particular location sampled]." Unlike proposed Rule 62-303.320, Florida Administrative Code, proposed Rule 62-303.330, Florida Administrative Code, deals with "biological criteria," not "numerical criteri[a]," as those terms are used in Subsection (3)(c) of Section 403.067, Florida Statutes, and the method it establishes for determining "planning list" eligibility does not involve statistical analysis. Subsection (1) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]iological data must meet the requirements of paragraphs (3) and (7) in section 62- 303.320," Florida Administrative Code, which, as noted above, impose age ("paragraph" (3)) and quality assurance/quality control and data submission ("paragraph" (7)) restrictions on the use of data. While the "biological component of STORET is not . . . usable" at this time and the biological database maintained by the Department "is not a database where members of the public can input data," pursuant to "paragraph" (7)(b) of proposed Rule 62-303.320, Florida Administrative Code, data collected by someone outside the Department that is not entered into either STORET or the Department's own biological database may still be considered by the Department if it is provided "directly" to the Department. Inasmuch as "[b]iological [a]ssessment[s]" reflect the "effects of multiple stressors over time and space," failed assessments are no more likely during one particular time of the year than another. Consequently, there is no need to limit the time of year in which "[b]iological [a]ssessment[s]" may be conducted. The first sentence of Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, provides that "[b]ioassessments used to assess streams and lakes under this rule shall include BioRecons, Stream Condition Indices (SCIs), and the benthic macroinvertebrate component of the Lake Condition Index (LCI), which only applies to clear lakes with a color less than 40 platinum cobalt units." The BioRecon and SCI, as those terms are defined in Subsections (1) and (18), respectively, of proposed Rule 62- 303.200, Florida Administrative Code, are rapid bioassessment protocols for streams developed by the Department. They are "similar to the original rapid bioassessment protocols that were designed by the U.S. EPA in [19]89." Conducting a BioRecon or SCI requires the deployment of a Standard D frame dip net approximately one and a half meters in length (including its handle), which is used to obtain samples of the best available habitat that can be reached. The samples are obtained by taking "sweeps" with the one and a half meter long dip net. Both wadable and non-wadable streams can be, and have been, sampled using this method prescribed by the BioRecon and SCI, although sampling is "more challenging when the water body is deeper than waist deep." In these cases, a boat is used to navigate to the areas where sampling will occur. The sampling "methods are identical regardless of the depth of the water." The BioRecon and SCI both include an assessment of the health of the habitat sampled, including the extent of habitat smothering from sediments and bank instability. The purpose of such an assessment is "to ascertain alteration of the physical habitat structure critical to maintenance of a healthy biological condition." Like all bioassessment protocols, the BioRecon and SCI employ "reasonable thresholds" of community health (arrived at by sampling "reference sites," which are the least affected and impacted sites in the state) against which the health of the sampled habitat is measured. Impairment is determined by the sampled habitat's departure from these "reasonable thresholds" (which represent expected or "reference" conditions). The BioRecon is newer, quicker and less comprehensive than the SCI. Only four sweeps of habitat are taken for the BioRecon, compared to 20 sweeps for the SCI. Furthermore, the BioRecon takes into consideration only three measures of community health (taxa richness, Ephemeroptera/ Plecoptera/Tricoptera Index, and Florida Index), whereas the SCI takes into account four additional measures of community health. For these reasons, the BioRecon is considered a "screening version" of the SCI. Like the BioRecon and the SCI, the LCI is a "comparative index." Conditions at the sampled site are compared to those at "reference sites" to determine the health of the aquatic community at the sampled site. Samples for the LCI are taken from the sublittoral zone of the targeted lake,42 which is divided into twelve segments. Using a petite PONAR or Ekman sampler dredge, a sample is collected from each of the twelve segments. The twelve samples are composited into a single, larger sample, which is then examined to determine what organisms it contains. The results of such examination are considered in light of six measures of community health: Total taxa, EOT taxa, percent EOT, percent Diptera, the Shannon-Weiner Diversity Index, and the Hulbert Index. Lakes larger than 1,000 acres are divided into two subbasins or into quadrants (as appropriate), and each subbasin or quadrant is sampled separately, as if it were a separate site. It is essential that persons conducting BioRecons, SCIs, and LCIs know the correct sampling techniques to use and have the requisite amount of taxonomic knowledge to identify the organisms that may be found in the samples collected. For this reason, a second sentence was included in Subsection (2) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows: Because these bioassessment procedures require specific training and expertise, persons conducting the bioassessments must comply with the quality assurance requirements of Chapter 62-160, F.A.C., attend at least eight hours of Department sanctioned field training, and pass a Department sanctioned field audit that verifies the sampler follows the applicable SOPs in Chapter 62-160, F.A.C., before their bioassessment data will be considered valid for use under this rule. The Department has developed SOPs for BioRecons, SCIs, and LCIs, which are followed by Department personnel who conduct these bioassessments. The Department is in the process of engaging in rulemaking to incorporate these SOPs in Rule Chapter 62-160, Florida Administrative Code, but had not yet, as of the time of the final hearing in these consolidated cases, completed this task.43 Subsection (3) of proposed Rule 62-303.330, Florida Administrative Code, provides as follows: Water segments with at least one failed bioassessment or one failure of the biological integrity standard, Rule 62- 302.530(11), shall be included on the planning list for assessment of aquatic life use support. In streams, the bioassessment can be an SCI or a BioRecon. Failure of a bioassessment for streams consists of a "poor" or "very poor" rating on the Stream Condition Index, or not meeting the minimum thresholds established for all three metrics (taxa richness, Ephemeroptera/Plecoptera/Tricoptera Index, and Florida Index) on the BioRecon. Failure for lakes consists of a "poor" or "very poor" rating on the Lake Condition Index. Subsection (11) of Rule 62-302.530, Florida Administrative Code, prescribes the following "biological integrity standard[s]" for Class I, II and III waters: Class I The Index for benthic macroinvertebrates shall not be reduced to less than 75% of background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class II The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. Class III: Fresh The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three Hester-Dendy type artificial substrate samplers of 0.10 to 0.15m2 area each, incubated for a period of four weeks. Class III: Marine The Index for benthic macroinvertebrates shall not be reduced to less than 75% of established background levels as measured using organisms retained by a U.S. Standard No. 30 sieve and collected and composited from a minimum of three natural substrate samples, taken with Ponar type samplers with minimum sampling area of 2252. The "Index" referred to in these standards is the Shannon-Weaver Diversity Index. Subsection (4) of proposed Rule 62-303.330, Florida Administrative Code, which reads as follows, allows the Department to rely upon "information relevant to the biological integrity of the water," other than a failure of a BioRecon, SCI, or LCI or a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code, to place a water on the "planning list" where the Department determines, exercising its "best professional judgment," that such "information" reveals that "aquatic life use support has [not] been maintained": Other information relevant to the biological integrity of the water segment, including information about alterations in the type, nature, or function of a water, shall also be considered when determining whether aquatic life use support has been maintained. The "other information" that would warrant placement on the "planning list" is not specified in Subsection (4) because, as Mr. Frydenborg testified at the final hearing, "[t]he possibilities are so vast." Proposed Rule 62-303.330, Florida Administrative Code, does not make mention of any rapid type of bioassessment for estuaries, the failure of which will lead to placement of a water on the "planning list," for the simple reason that the Department has yet to develop such a bioassessment.44 Estuaries, however, may qualify for "planning list" placement under proposed Rule 62-303.330, Florida Administrative Code, based upon "one failure of the biological integrity standard," pursuant to Subsection (3) of the proposed rule,45 or based upon "other information," pursuant to Subsection (4) of the proposed rule (which may include "information" regarding seagrasses, aquatic macrophytes, or algae communities). Part II: Proposed Rule 62-303.340, Florida Administrative Code Proposed Rule 62-303.340, Florida Administrative Code, is entitled, "Toxicity," and, as noted in Subsection (3) of proposed Rule 62-303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon it being "acutely or chronically toxic." These requirements, like those found in proposed Rule 62-303.330, Florida Administrative Code, relating to "[b]iological [a]ssessment[s]," are not statistically-based. They are as follows: All toxicity tests used to place a water segment on a planning list shall be based on surface water samples in the receiving water body and shall be conducted and evaluated in accordance with Chapter 62- 160, F.A.C., and subsections 62-302.200(1) and (4), F.A.C., respectively. Water segments with two samples indicating acute toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart over a twelve month period, some time during the ten years preceding the assessment. Water segments with two samples indicating chronic toxicity within a twelve month period shall be placed on the planning list. Samples must be collected at least two weeks apart, some time during the ten years preceding the assessment. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of Rule 62-320.200, Florida Administrative Code, which is referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "acute toxicity." It provides as follows: "Acute Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-third (1/3) of the amount lethal to 50% of the test organisms in 96 hours (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Subsection (4) of Rule 62-320.200, Florida Administrative Code, which is also referenced in Subsection (1) of proposed Rule 62-303.340, Florida Administrative Code, defines "chronic toxicity." It provides as follows: "Chronic Toxicity" shall mean the presence of one or more substances or characteristics or components of substances in amounts which: are greater than one-twentieth (1/20) of the amount lethal to 50% of the test organisms in 96 hrs (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. Testing for "acute toxicity" or "chronic toxicity," within the meaning of Subsections (1) and (4) of Rule 62- 320.200, Florida Administrative Code (and therefore proposed Rule 62-303.340, Florida Administrative Code) does not involve measuring the level of any particular parameter in the water sampled. Rather, the tests focus upon the effects the sampled water has on test organisms. Mortality is the end point that characterizes "acute toxicity." "Chronic toxicity" has more subtle effects, which may include reproductive and/or growth impairment. Historically, the Department has tested effluent for "acute toxicity" and "chronic toxicity," but it has not conducted "acute toxicity" or "chronic toxicity" testing in receiving waters. The requirement of Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, that test data be no older than ten years old is reasonably designed to make it less likely that a water will be placed on the "planning list" based upon toxicity data not representative of the water's current conditions. Requiring that toxicity be established by at least "two samples" taken "at least two weeks apart" during a "twelve month period," as do Subsections (2) and (3) of proposed Rule 62-303.340, Florida Administrative Code, is also a prudent measure intended to minimize inappropriate listing decisions. To properly determine whether toxicity (which can "change over time") is a continuing problem that may be remedied by TMDL implementation, it is desirable to have more than one sample indicating toxicity. "The judgment was made [by the TAC] that two [samples] would be acceptable to make that determination." The TAC "wanted to include as much data regarding . . . toxicity . . . , and therefore lowered the bar in terms of data sufficiency . . . to only two samples." As noted above, the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," which, if not met, will result in a water being placed on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code, include the requirement that surface waters not be "acutely toxic." Whether a water should be placed on the "planning list" because it fails to meet this "minimum criterion" (or "free from") will be determined in light of the provisions of proposed Rule 62-303.340, Florida Administrative Code. Except for "[s]ilver in concentrations above 2.3 micrograms/liter in predominantly marine waters," "acute toxicity" is the only "free from" addressed in any portion of Part II of the proposed rule chapter outside of Subsection (1) of proposed Rule 62-303.300, Florida Administrative Code. Part II: Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code Proposed Rules 62-303.350 through 62-303.353, Florida Administrative Code, address "nutrients." Nutrients, which consist primarily of nitrogen and phosphorous, stimulate plant growth (and the production of organic materials). Waste water treatment facilities, certain industrial facilities that discharge waste water, phosphate mines, and agricultural and residential lands where fertilizers are used are among the sources of nutrients that affect water bodies in Florida. Nutrients are important to the health of a water body, but when they are present in excessive amounts, problems can arise. Excessive amounts of nutrients can lead to certain species, typically algaes, out-competing native species that are less able to use these nutrients, which, in turn, results in a change in the composition of the aquatic population and, subsequently, the animal population. Factors influencing how a water body responds to nutrient input include location, water body type, ecosystem characteristics, water flow, and the extent of light inhibition. As Mr. Frydenborg testified at the final hearing, nutrients are "probably the most widespread and pervasive cause of environmental disturbance in Florida" and they present "the biggest challenge [that needs to be] overcome in protecting aquatic systems." See also Rule 62-302.300(13), Florida Administrative Code ("The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State."). As noted above, nutrients are among the parameters for which water quality criteria have been established by the Department in Rule 62-302.530, Florida Administrative Code. The criterion for nutrients set forth in Subsection (48)(b) of the rule (which applies to all "water quality classifications") is a "narrative . . . criterion," as that term is used in Subsection (3)(c) of Section 403.067, Florida Statutes. It is as follows: "In no case shall nutrient concentrations of a body of water be altered as to cause an imbalance of natural populations of aquatic flora or fauna." Proposed Rule 62-303.350, Florida Administrative Code, is entitled, "Interpretation of Narrative Nutrient Criteria," and, as noted in Subsection (4) of proposed Rule 62- 303.310, Florida Administrative Code, "outline[s]" the requirements that must be met for a water to qualify for placement on the "planning list" based upon excessive "nutrient enrichment." It lists Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented." Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, reads as follows: Trophic state indices (TSIs) and annual mean chlorophyll a values shall be the primary means for assessing whether a water should be assessed further for nutrient impairment. Other information indicating an imbalance in flora or fauna due to nutrient enrichment, including, but not limited to, algal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation, changes in algal species richness, and excessive diel oxygen swings shall also be considered. Any type of water body (stream, estuary, or lake) may be placed on the "planning list" based upon the "other information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. Whether to do so in a particular case will involve the exercise of "best professional judgment" on the part of the Department. The items specifically mentioned in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, "[a]lgal blooms, excessive macrophyte growth, decrease in the distribution (either in density or areal coverage) of seagrasses or other submerged aquatic vegetation,46 changes in algal species richness, and excessive diel oxygen swings," are all indicators of excessive "nutrient enrichment." The "but not limited to" language in this sentence makes it abundantly clear that this is not an exhaustive listing of "other information indicating an imbalance in flora or fauna due to nutrient enrichment" that will be considered by the Department in determining whether a water should be placed on the "planning list." During the rule development process, there were a number of members of the public who expressed the view that the Department's possession of the "information" described in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code, should be the sole basis for determining "nutrient impairment" and that TSIs and annual mean chlorophyll a values should not be used. Department staff rejected these suggestions and drafted the proposed rule chapter to provide for additional ways, using TSIs and annual mean chlorophyll a values, for a water to make the "planning list" based upon excessive "nutrient enrichment." Chlorophyll a is the photosynthetic pigment in algae. Measuring chlorophyll a concentrations in water is a reasonable surrogate for measuring the amount of algal biomass present (which is indicative of the extent of nutrient enrichment inasmuch as nutrients promote algal growth). Chlorophyll a values, expressed in micrograms per liter, reflect the concentration of suspended algae (phytoplankton) in the water.47 High amounts of chlorophyll a indicate that there have been algal blooms. Algal blooms represent significant increases in algal population (phytoplankton) over a short period of time. They have a deleterious effect on the amount of dissolved oxygen in the water. Algal blooms may occur in any season. There are no adequate means to predict when they will occur. An annual mean chlorophyll a value reflects the level of nutrient enrichment occurring in a water over the course of a year. Biologists look at these values when studying the productivity of aquatic systems. Using an annual mean is the "best way" of determining whether nutrient enrichment is a consistent enough problem to cause an imbalance in flora or fauna. The TSI was developed for the Department's use in preparing 305(b) Reports. It is a "tried and true method" of assessing lakes (and only lakes) for "nutrient impairment." No comparable special index exists for other types of water bodies in this state. TSI values are derived from annual mean chlorophyll a, as well as nitrogen and phosphorous, values (which are composited). The process of "[c]alculating the Trophic State Index for lakes" was described in the "State's 1996 305(b) report" (on page 86) as follows: The Trophic State Index effectively classifies lakes based on their chlorophyll levels and nitrogen and phosphorous concentrations. Based on a classification scheme developed in 1977 by R.E. Carlson, the index relies on three indicators-- Secchi depth, chlorophyll, and total phosphorous-- to describe a lake's trophic state. A ten unit change in the index represents a doubling or halving or algal biomass. The Florida Trophic State Index is based on the same rationale but also includes total nitrogen as a third indicator. Attempts in previous 305(b) reports to include Secchi depth have caused problems in dark-water lakes and estuaries, where dark waters rather than algae diminish transparency. For this reason, our report drops Secchi depth as a category. We developed Florida lake criteria from a regression analysis of data on 313 Florida lakes. The desirable upper limit for the index is 20 micrograms per liter of chlorophyll, which corresponds to an index of 60. Doubling the chlorophyll concentration to 40 micrograms per liter increases the index to 70, which is the cutoff for undesirable (or poor) lake quality. Index values from 60 to 69 represent fair water quality. . . . The Nutrient Trophic State Index is based on phosphorous and nitrogen concentrations and the limiting nutrient concept. The latter identifies a lake as phosphorous limited if the nitrogen-to-phosphorous concentration ratio is greater than 30, nitrogen limited if the ratio is less than 10, and balanced (depending on both nitrogen and phosphorous) if the ratio is 10 to 30. The nutrient ratio is thus based solely on phosphorous if the ratio is greater than 30, solely on nitrogen if less than 10, or on both nitrogen and phosphorous if between 10 and 30. We calculated an overall Trophic State Index based on the average of the chlorophyll and nutrient indices. Calculating an overall index value requires both nitrogen and phosphorous measurements. Subsections (2) and (3) of proposed Rule 62-303.350, Florida Administrative Code, which provide as follows, impose reasonable data sufficiency and quality requirements for calculating TSIs and annual mean chlorophyll a values and changes in those values from "historical levels": To be used to determine whether a water should be assessed further for nutrient enrichment, data must meet the requirements of paragraphs (2)-(4), (6), and (7) in rule 62- 303.320, at least one sample from each season shall be required in any given year to calculate a Trophic State Index (TSI) or an annual mean chlorophyll a value for that year, and there must be annual means from at least four years, when evaluating the change in TSI over time pursuant to paragraph 62- 303.352(3). When comparing changes in chlorophyll a or TSI values to historical levels, historical levels shall be based on the lowest five-year average for the period of record. To calculate a five-year average, there must be annual means from at least three years of the five-year period. These requirements do not apply to the "other information" referenced in the second sentence of Subsection (1) of proposed Rule 62-303.350, Florida Administrative Code. As was stated in the NRC Publication, and as Department staff recognized, "data are not the same as information." Subsection (2)(b) of proposed Rule 62-303.350, Florida Administrative Code, being more specific, modifies Subsection (2)(a) of the proposed rule, to the extent that Subsection (2)(a) incorporates by reference the requirement of Subsection (4) of proposed Rule 62-303.320, Florida Administrative Code, that "at least one sampling event [be] conducted in [only] three of the four seasons of the calendar year." Requiring data from at least each season is appropriate because the data will be used to arrive at numbers that represent annual means. Furthermore, as noted above, there is no season in which bloom events never occur in this state. Four years of data, as required by Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, establishes a "genuine trend" in the TSI. The requirement, in Subsection (2)(c) of proposed Rule 62-303.350, Florida Administrative Code, that the "lowest five-year average for the period of the record" be used to establish "historical levels" was intended to make it easier for a water to be placed on the "planning list" for "nutrient impairment." 190. Proposed Rules 62-303.351, 62-303.352, and 62- 303.353, Florida Administrative Code, establish reasonable statewide TSI and annual mean chlorophyll a values, which if exceeded, will result in a water being placed on the "planning list."48 In establishing these statewide threshold values, Department staff took into consideration that averaging values obtained from samples taken during bloom events with lower values obtained from other samples taken during the course of the year (to get an annual mean value for a water) would minimize the impact of the higher values and, accordingly, they set the thresholds at levels lower than they would have if the thresholds represented, not annual mean values, but rather values that single samples, evaluated individually, could not exceed. Department staff recognized that the statewide thresholds they set "may not be protective of very low nutrient waters." They therefore, in proposed Rules 62-303.351, 62- 303.352, and 62-303.353, Florida Administrative Code, reasonably provided that waters not exceeding these thresholds could nonetheless get on the "planning list" for "nutrient impairment" based upon TSI values (in the case of lakes) or annual mean chlorophyll a values (in the case of streams and estuaries) if these values represented increases, of sufficient magnitude, as specified in the proposed rules, over "historical levels." Proposed Rule 62-303.351, Florida Administrative Code, is entitled, "Nutrients in Streams," and reads as follows: A stream or stream segment shall be included on the planning list for nutrients if the following biological imbalances are observed: algal mats are present in sufficient quantities to pose a nuisance or hinder reproduction of a threatened or endangered species, or annual mean chlorophyll a concentrations are greater than 20 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The TAC and Department staff investigated the possibility of evaluating "nutrient impairment" in streams by looking at the amount of attached algae (measured in milligrams of chlorophyll a per square meter) as opposed to suspended algae, but "weren't able to come up with" an appropriate "number." They were advised of a "paper" in which the author concluded that 150 milligrams of chlorophyll a per square meter was "indicative of imbalances in more northern conditions rivers." Reviewing Florida data, the TAC and Department staff determined that this threshold would be "non-protective in our state" inasmuch as the "the highest chlorophylls" in the Florida data they reviewed were 50 to 60 milligrams of chlorophyll a per square meter. Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, which describes, in narrative terms, another type of "information indicating an imbalance in flora or fauna due to nutrient enrichment" (in addition to those types of information specified in Subsection (1) of proposed Rule 62- 303.350, Florida Administrative Code), was included in proposed Rule 62-303.351 in lieu of establishing a numerical "milligrams of chlorophyll a per square meter" threshold. The term "nuisance," as used in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, was intended to have the same meaning as it has in Rule 62-302.500, Florida Administrative Code. "Nuisance species," as used in Rule Chapter 62-500, Florida Administrative Code, are defined as "species of flora or fauna whose noxious characteristics or presence in sufficient number, biomass, or areal extent may reasonably be expected to prevent, or unreasonably interfere with, a designated use of those waters." Mr. Joyner knew that the Suwannee River "had problems with algal mats49 and that those algal mats might hinder reproduction of the sturgeon" in the river. The "hinder reproduction of a threatened or endangered species" language was inserted in Subsection (1) of proposed Rule 62-303.351, Florida Administrative Code, "to address things like that" occurring in the Suwannee River. It was "very difficult" for the TAC and Department staff to come up with a "micrograms per liter" threshold for Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. All available data on Florida streams were reviewed before the TAC and Department staff decided on a threshold. The threshold ultimately selected, 20 micrograms per liter, "represents approximately the 80th percentile value currently found in Florida streams," according to the data reviewed. The "20 micrograms per liter" threshold, combined with the other provisions of the proposed rule and the second sentence of proposed Rule 62-303.350, Florida Administrative Code, was "thought to be something that would hold the line on future [nutrient] enrichment," particularly with respect to streams "like the lower St. Johns River which tends to act more like a lake." Anything over 20 micrograms per liter of chlorophyll a "is a clear indication that an imbalanced situation is occurring." There are some streams in Florida that have high nutrient concentrations but, because of flow conditions and water color, also have low levels of chlorophyll a in the water column (reflecting that the nutrients' presence in the water has not resulted in significant algal growth). That these streams would not qualify for placement on the "planning list" pursuant to proposed Rule 62-303.351, Florida Administrative Code, as drafted, did not concern the TAC and Department staff because they thought it appropriate "to focus on [the] realized impairment" caused by nutrients, not on their mere presence in the stream. If these nutrients travel downstream and adversely affect the downstream water to such an extent that the downstream water qualifies for a TMDL, "all the sources upstream would be addressed" in the TMDL developed for the downstream water. Pursuant to Subsection (2) of proposed Rule 62- 303.351, Florida Administrative Code, streams with "very, very low chlorophylls," well under 20 micrograms per liter, can nonetheless qualify for placement on the planning list based upon two consecutive years of increased annual mean chlorophyll a values "over historical values." In the case of a stream with "historical values" of two micrograms per liter, for instance, the increase would need to be only more than one microgram per liter. Proposed Rule 62-303.352, Florida Administrative Code, is entitled, "Nutrients in Lakes," and reads as follows: For the purposes of evaluating nutrient enrichment in lakes, TSIs shall be calculated based on the procedures outlined on pages 86 and 87 of the State's 1996 305(b) report, which are incorporated by reference. Lakes or lake segments shall be included on the planning list for nutrients if: For lakes with a mean color greater than 40 platinum cobalt units, the annual mean TSI for the lake exceeds 60, unless paleolimnological information indicates the lake was naturally greater than 60, or For lakes with a mean color less than or equal to 40 platinum cobalt units, the annual mean TSI for the lake exceeds 40, unless paleolimnological information indicates the lake was naturally greater than 40, or For any lake, data indicate that annual mean TSIs have increased over the assessment period, as indicated by a positive slope in the means plotted versus time, or the annual mean TSI has increased by more than 10 units over historical values. When evaluating the slope of mean TSIs over time, the Department shall use a Mann's one-sided, upper-tail test for trend, as described in Nonparametric Statistical Methods by M. Hollander and D. Wolfe 16 (1999 ed.), pages 376 and 724 (which are incorporated by reference), with a 95% confidence level. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New As noted above, a TSI value of 60, the threshold established in Subsection (1) of proposed Rule 62-303.352, Florida Administrative Code, for darker-colored lakes, is the equivalent of a chlorophyll a value of 20 micrograms per liter, which is the "micrograms per liter" threshold for streams established in Subsection (2) of proposed Rule 62-303.351, Florida Administrative Code. A TSI value 40, the threshold established in Subsection (2) of proposed Rule 62-303.352, Florida Administrative Code, for lighter-colored lakes, corresponds to a chlorophyll a value of five micrograms per liter, which "is an extremely low level." A TSI value of 40 is "very protective for that particular category of lake[s]." A lower threshold was established for these lighter- colored lakes (having a mean color less than or equal to 40 platinum cobalt units) because it was felt that these lakes needed "extra protection." Providing such "extra protection" is reasonably justified inasmuch as these lakes (due to their not experiencing the "infusion of leaf litter" that affects darker- colored lakes) tend to have a "lower nutrient content naturally" and therefore "very different aquatic communities" than their darker counterparts. Some lakes are naturally eutrophic or even hyper- eutrophic. Inasmuch as the TMDL program is not designed to address such natural occurrences, it makes sense to provide, as Subsections (1) and (2) of proposed Rule 62-303.352, Florida Administrative Code, do, that the TSI thresholds established therein will not apply if "paleolimnological information" indicates that the TSI of the lake in question was "naturally greater" than the threshold established for that type of lake (60 in the case of a darker-colored lake and 40 in the case of a lighter-colored lake). Lakes with TSI values that do not exceed the appropriate threshold may nonetheless be included on the "planning list" based upon "increas[es] in TSIs" pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. Any statistically significant increase in TSI values "over the assessment period," as determined by "use [of] a Mann's one-sided, upper-tail test for trend" and a "95% confidence level" (which the TAC recommended inasmuch as it is "the more typical scientific confidence level"), or an increase in the annual mean TSI of more than ten units "over historical values," will result in a lake being listed pursuant to Subsection (3) of proposed Rule 62-303.352, Florida Administrative Code. The first of these two alternative ways of a lake getting on the "planning list" based upon "increas[es] in TSIs" is "more protective" than the second. Under this first alternative, a lake could be listed before there was more than a ten unit increase in the annual mean TSI "over historical values." A ten-unit increase in the annual mean TSI represents a doubling (or 100 percent increase) "over historical values." As noted above, pursuant to Subsection (3) of proposed Rule 62- 303.351, Florida Administrative Code, only a 50 percent increase "over historical values" in annual mean chlorophyll a values is needed for a stream to make the "planning list" and, as will be seen, proposed Rule 62-303.353, Florida Administrative Code, contains a similar "50 percent increase" provision for estuaries; however, because "lakes are much more responsive to nutrients," Department staff reasonably believed that "the ten- unit change was a protective measure." Proposed Rule 62-303.353, Florida Administrative Code, is entitled, "Nutrients in Estuaries," and reads as follows: Estuaries or estuary segments shall be included on the planning list for nutrients if their annual mean chlorophyll a for any year is greater than 11 ug/l or if data indicate annual mean chlorophyll a values have increased by more than 50% over historical values for at least two consecutive years. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Estuaries are at "the very bottom" of the watershed. The amount of nutrients in an estuary is dependent, not only on what is occurring in and around the immediate vicinity of the estuary,50 but also "what is coming down" any river flowing into it. Not all of the nutrients in the watershed reach the estuary inasmuch as "there is assimilation and uptake along the way." The "11 micrograms per liter" threshold ultimately selected as a "protective number in terms of placing estuaries on the 'planning list'" was recommended by the TAC following a review of data reflecting trends with respect to chlorophyll a levels in various Florida estuaries. In addition, the TAC heard a presentation concerning the "modeling work" done by the Tampa Bay National Estuary Program to establish "site-specific" chlorophyll a targets for segments of Tampa Bay, including the target of 13.2 micrograms per liter that was established for the Hillsborough Bay segment of Tampa Bay, which is "closer to the [nutrient] sources" than other parts of Tampa Bay. The TAC also considered information about "various bloom situations" in estuaries which led to the "general feeling" that an estuarine algal bloom involved chlorophyll a values "considerably higher" than 11 micrograms per liter. An alternative method for an estuary to make the "planning list" for "nutrient impairment" based upon a 50 percent increase in annual mean chlorophyll a values "over historical values" was included in proposed Rule 62-303.353, Florida Administrative Code, because the "11 micrograms per liter" threshold was not expected "to be adequately protect[ive]" of "the very clear sea grass communities" like those found in the Florida Keys. Part II: Proposed Rule 62-303.360, Florida Administrative Code Proposed Rule 62-303.360, Florida Administrative Code, establishes four separate ways for a water to be placed on the "planning list" for failing to provide "primary contact and recreation use support." It reads as follows: Primary Contact and Recreation Use Support A Class I, II, or III water shall be placed on the planning list for primary contact and recreation use support if: the water segment does not meet the applicable water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or the water segment includes a bathing area that was closed by a local health Department or county government for more than one week or more than once during a calendar year based on bacteriological data, or the water segment includes a bathing area for which a local health Department or county government has issued closures, advisories, or warnings totaling 21 days or more during a calendar year based on bacteriological data, or the water segment includes a bathing area that was closed or had advisories or warnings for more than 12 weeks during a calendar year based on previous bacteriological data or on derived relationships between bacteria levels and rainfall or flow. For data collected after August 1, 2000, the Florida Department of Health (DoH) database shall be the primary source of data used for determining bathing area closures. Advisories, warnings, and closures based on red tides, rip tides, sewage spills, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when assessing recreation use support. However, the Department shall note for the record that data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The "water quality criteria for bacteriological quality" referenced in Subsection (1)(a) of proposed Rule 62- 303.360, Florida Administrative Code, are set forth in Subsections (6) and (7) of Rule 62-303.530, Florida Administrative Code, which provide as follows: Parameter: Bacteriological Quality (Fecal Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 5 samples taken over a 30 day period. Class II: MPN shall not exceed a median value of 14 with not more than 10% of the samples exceeding 43, nor exceed 800 on any one day. Class III: Fresh: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Class III: Marine: MPN or MF counts shall not exceed a monthly average of 200, nor exceed 400 in 10% of the samples, nor exceed 800 on any one day. Monthly averages shall be expressed as geometric means based on a minimum of 10 samples taken over a 30 day period. Parameter: Bacteriological Quality (Total Coliform Bacteria) Units: Number per 100 ml (Most Probable Number (MPN) or Membrane Filter (MF)) Class I: < = 1,000 as a monthly avg., nor exceed 1,000 in more than 20% of samples examined during any month, nor exceed 2,400 at any time using either MPN or MF counts. Class II: Median MPN shall not exceed 70 and not more than 10% of the samples shall exceed an MPN of 230. Class III: Fresh: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Class III: Marine: < = 1,000 as a monthly average, nor exceed 1,000 in more than 20% of samples examined during any month, < = 2,400 at any time. Monthly averages shall be expressed as geometric means based on a minimum or 10 samples taken over a 30 day period, using either the MPN or MF counts. Fecal coliform bacteria are found in the feces of animals and humans. They can be identified in the laboratory "fairly easily, usually within 24 to 48 hours" and "are used worldwide as indicators of fecal contamination and potential public health risks." Enterococci are another "distinct group of bacteria." They too are found in animal and human feces. The recommendation has been made that enterococci be used as bacteriological "indicators" for assessing "public health risk and swimmability," particularly in marine waters. The Department, however, is not convinced that there is "sufficient science at this time" to warrant adoption of this recommendation in states, like Florida, with "warmer climates," and it has not amended Rule 62-303.530, Florida Administrative Code, to provide for the assessment of bacteriological quality using enterococci counts.51 The statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code (which is incorporated by reference in Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code) is as appropriate for determining whether a water should be placed on the "planning list" based upon exceedances of bacteriological water quality criteria as it is for determining whether a water should be placed on the "planning list" for "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Unlike Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, Subsections (1)(b), (1)(c), and (1)(d) of the proposed rule, at least indirectly, allow for waters to be placed on the "planning list" based upon enterococci counts. The closures, advisories, and warnings referenced in Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, are issued, not by the Department, but by local health departments or county governments, and may be based upon enterococci sampling done by those governmental entities. Subsection (1)(b) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based exclusively upon bathing area closures. It was included in the proposed rule upon the recommendation of the EPA "to track their 305(b) guidance." Both freshwater and marine bathing areas in Florida may be closed if circumstances warrant. The Department of Health (which operates the various county health departments) does not close marine beaches, but county governments may. Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, provides for listing based upon any combination of closures, advisories, or warnings "totaling 21 days or more during a calendar year," provided the closures, advisories, and warnings were based upon up-to-date "bacteriological data." Department staff included this provision in the proposed rule in lieu of a provision recommended by the TAC (about which Petitioner Young had expressed concerns) that would have made it more difficult for a water to be placed on the "planning list" as a result of bacteriological data-based closures, advisories, or warnings. In doing so, Department staff exercised sound professional judgment. The 21 days or more of closures, advisories, or warnings needed for listing under the proposed rule do not have to be consecutive, although they all must occur in the same calendar year. Subsection (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, like Subsection (1)(c) of the proposed rule, provides for listing based upon a combination of closures, advisories, or warnings, but it does not require that it be shown that the closures, advisories, or warnings were based upon up-to-date "bacteriological data." Under Subsection (1)(d) of the proposed rule, the closures, advisories, or warnings need only have been based upon "previous [or, in other words, historical] bacteriological data" or "derived relationships between bacteria levels and rainfall or flow." Because assessments of current bacteriological quality based upon "previous bacteriological data" or on "derived relationships between bacteria levels and rainfall or flow" are less reliable than those based upon up-to-date "bacteriological data," Department staff were reasonably justified in requiring a greater total number of days of closures, advisories, or warnings in this subsection of the proposed rule (more than 84) than they did in Subsection (1)(c) of the proposed rule (more than 21). (Like under Subsection (1)(c) of the proposed rule, the days of closures, advisories, or warnings required for listing under Subsection (1)(d) of the proposed rule do not have to be consecutive days.) Subsection (1)(d) was included in the proposed rule in response to comments made at a TAC meeting by Mike Flannery of the Pinellas County Health Department concerning Pinellas County beaches that were "left closed for long periods of time" without follow-up bacteriological testing. Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably limits the closures, advisories, and warnings upon which the Department will be able to rely in determining whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule to those closures, advisories, and warnings based upon "factors . . . related to chronic discharges of pollutants." The TMDL program is designed to deal neither with short-term water quality problems caused by extraordinary events that result in atypical conditions,52 nor with water quality problems unrelated to pollutant discharges in this state. It is therefore sensible to not count, for purposes of determining "planning list" eligibility pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62-303.360, Florida Administrative Code, closures, advisories, and warnings that were issued because of the occurrence of such problems. A "spill," by definition (set out in Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, which is recited above), is a "short term" event that does not include "sanitary sewer overflows or chronic discharges from leaking wastewater collection systems." While a one-time, unpermitted discharge of sewage (not attributable to "sanitary sewer overflow") is a "short- term" event constituting a "sewage spill," as that term is used in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, repeated unpermitted discharges occurring over an extended period of time (with or without interruption) do not qualify as "sewage spills" and therefore Subsection (3) of the proposed rule will not prevent the Department from considering closures, advisories, and warnings based upon such discharges in deciding whether the requirements for listing set forth in Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met. Like "sewage spills," "red tides" are among the events specifically mentioned in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code. "Red tide" is a "very loose term" that can describe a variety of occurrences. It is apparent from a reading of the language in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, in its entirety, that "red tide," as used therein, was intended to describe an event "not related to chronic discharges of pollutants." Department staff's understanding of "red tides" was shaped by comments made at a TAC meeting by one of the TAC members, George Henderson of the Florida Marine Research Institute. Mr. Henderson told those present at the meeting that "red tides are an offshore phenomenon that move on shore" and are fueled by nutrients from "unknown sources" likely located, for the most part, outside of Florida, in and around the Mississippi River. No "contrary scientific information" was offered during the rule development process.53 Lacking "scientific information" clearly establishing that "red tides," as they understood the term, were the product of "pollutant sources in Florida," Department staff reasonably concluded that closures, advisories, and warnings based upon such "red tides" should not be taken into consideration in deciding whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of proposed Rule 62- 303.360, Florida Administrative Code, and they included language in Subsection (3) of the proposed rule to so provide. The "red tides" to which Mr. Henderson referred are harmful algae blooms that form off-shore in the Gulf of Mexico and are brought into Florida coastal waters by the wind and currents. There appears to be an association between these blooms of toxin-producing algae and nutrient enrichment, but the precise cause of these bloom events is "not completely understood." Scientists have not eliminated the possibility that, at least in some instances, these "red tides" are natural phenomena not the result of any pollutant loading either in or outside of Florida. The uncertainty surrounding the exact role, if any, that Florida-discharged pollutants play in the occurrence of the "red tides" referenced in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, reasonably justifies the Department's declining, for purposes of determining whether the listing requirements of Subsections (1)(b), (1)(c), or (1)(d) of the proposed rule have been met, to take into consideration closures, advisories, and warnings based upon such "red tides." The exclusions contained in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part II of the proposed rule chapter other than Subsections (1)(b), (1)(c), and (1)(d) of proposed Rule 62-303.360. This includes the provisions of proposed Rule 62-303.350, Florida Administrative Code, which, as noted above, provides, among other things, that "planning list" eligibility may be based upon "information indicating an imbalance in flora or fauna due to nutrient enrichment, including . . . algal blooms." Accordingly, notwithstanding the "red tides" exclusion in Subsection (3) of proposed Rule 62-303.360, Florida Administrative Code, the presence of algal blooms of any type "indicating an imbalance in flora or fauna due to nutrient enrichment" will result in the affected water making the "planning list" pursuant to proposed Rule 62-303.350, Florida Administrative Code, to be "assessed further for nutrient impairment." Part II: Proposed Rule 62-303.370, Florida Administrative Code Proposed Rule 62-303.370, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for fish and shellfish consumption." It reads as follows: Fish and Shellfish Consumption Use Support A Class I, II, or III water shall be placed on the planning list for fish and shellfish consumption if: the water segment does not meet the applicable Class II water quality criteria for bacteriological quality based on the methodology described in section 62-303.320, or there is either a limited or no consumption fish consumption advisory. issued by the DoH, or other authorized governmental entity, in effect for the water segment, or for Class II waters, the water segment includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification. Changes in harvesting classification from prohibited to unclassified do not constitute a downgrade in classification. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which effectively duplicates the provisions of Subsection (1)(a) of proposed Rule 62-303.360, Florida Administrative Code, to the extent that those provisions apply to Class II waters, establishes an appropriate means of determining whether a water should "be placed on the planning list for fish and shellfish consumption." Waters that do not qualify for listing pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, may make the "planning list" based upon "fish consumption advisories" under Subsection (2) of the proposed rule. The Department of Health, which issues these advisories, does so after conducting a statistical evaluation of fish tissue data collected from at least 12 fish. A large number of fish consumption advisories have been issued to date for a number of parameters, including, most significantly, mercury. The first fish consumption advisory was issued in 1989 after "high levels of mercury" were found in the sampled fish tissue. Many fish consumption advisories were issued ten or more years ago and are still in effect. Fish consumption advisories are continued until it is shown that they are not needed. Most of the fish tissue data for the fish consumption advisories now in effect were collected between 1989 and 1992. There is no reason to reject this data as not "being representative of the conditions under which those samples were collected." There has been data collected since 1992, but 1992 was "the last peak year" of sampling. Over the last ten years, the "focus has been on the Everglades" with respect to sampling for mercury, although sampling has occurred in "a broadly representative suite of water bodies statewide." The TAC recommended against using fish consumption advisories for listing coastal and marine waters because of the possibility that these advisories might be based upon tissue samples taken from fish who ingested mercury, or other substances being sampled, outside of the state. Department staff, however, rejected this recommendation and did not include a "coastal and marine waters" exclusion in Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Shellfish Evaluation and Assessment Program, which is referenced in Subsection (3) of proposed Rule 62- 303.370, Florida Administrative Code, is administered by the Florida Department of Agriculture and Consumer Services' Division of Aquaculture's Shellfish Environmental Assessment Section. The Shellfish Environmental Assessment Section (SEAS) is responsible for classifying and managing Florida shellfish harvesting areas in a manner that maximizes utilization of the state's shellfish resources and reduces the risk of shellfish- borne illness. In carrying out its responsibilities, the SEAS applies the "[s]hellfish [h]arvesting [a]rea [s]tandards" set forth in Rule 5L-1.003, Florida Administrative Code, which provides as follows: The Department shall describe and/or illustrate harvesting areas and provide harvesting area classifications as approved, conditionally approved, restricted, conditionally restricted, prohibited, or unclassified as defined herein, including criteria for opening and closing shellfish harvesting areas in accordance with Chapters II and IV of the National Shellfish Sanitation Program Model Ordinance. Copies of the document Shellfish Harvesting Area Classification Maps, revised October 14, 2001, and the document Shellfish Harvesting Area Classification Boundaries and Management Plans, revised October 14, 2001, containing shellfish harvesting area descriptions, references to shellfish harvesting area map numbers, and operating criteria herein incorporated by reference may be obtained by writing to the Department at 1203 Governors Square Boulevard, 5th Floor, Tallahassee, Florida 32301. Approved areas -- Growing areas shall be classified as approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that pathogenic microorganisms, radionuclides, and/or harmful industrial wastes do not reach the area in dangerous concentrations and this is verified by laboratory findings whenever the sanitary survey indicates the need. Shellfish may be harvested from such areas for direct marketing. This classification is based on the following criteria: The area is not so contaminated with fecal material or poisonous or deleterious substances that consumption of the shellfish might be hazardous; and The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet one of the following standards during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions: 1) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 43 per 100 ml. (per 5-tube, 3-dilution test) or 2) The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 14 per 100 ml., and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 33 per 100 ml. (per 12-tube, single-dilution test). Harvest from temporarily closed approved areas shall be unlawful. Conditionally approved areas -- A growing area shall be classified as conditionally approved when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvesting shellfish for direct marketing may be dependent upon attainment of established performance standards by wastewater treatment facilities discharging effluent directly or indirectly into the area. In other instances, the sanitary quality of the area may be affected by seasonal populations, climatic and/or hydrographic conditions, non-point source pollution, or sporadic use of a dock, marina, or harbor facility. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting approved area criteria. In order to develop effective operating procedures, these intermittent pollution events shall be predictable. Harvest from temporarily closed conditionally approved areas shall be unlawful. Restricted areas -- A growing area shall be classified as restricted when a sanitary survey, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that fecal material, pathogenic microorganisms, radionuclides, harmful chemicals, and marine biotoxins are not present in dangerous concentrations after shellfish from such an area are subjected to a suitable and effective purification process. The bacteriological quality of every sampling station in those portions of the area most probably exposed to fecal contamination shall meet the following standard: The median or geometric mean fecal coliform Most Probable Number (MPN) of water shall not exceed 88 per 100 ml. and not more than 10 percent of the samples shall exceed a fecal coliform MPN of 260 per 100 ml. (per 5-tube, 3-dilution test) in those portions of the area most probably exposed to fecal contamination during the most unfavorable meteorological, hydrographic, seasonal, and point source pollution conditions. Harvest is permitted according to permit conditions specified in Rule 5L-1.009, F.A.C. Harvest from temporarily closed restricted areas shall be unlawful. Conditionally restricted area -- A growing area shall be classified as conditionally restricted when a sanitary survey or other monitoring program data, conducted in accordance with Chapter IV of the National Shellfish Sanitation Program Model Ordinance, indicates that the area is subjected to intermittent microbiological pollution. The suitability of such an area for harvest of shellfish for relaying or depuration activities is dependent upon the attainment of established performance standards by wastewater treatment facilities discharging effluent, directly or indirectly, into the area. In other instances, the sanitary quality of such an area may be affected by seasonal population, non-point sources of pollution, or sporadic use of a dock, marina, or harbor facility, and these intermittent pollution events are predictable. Such areas shall be managed by an operating procedure that will assure that shellfish from the area are not harvested from waters not meeting restricted area criteria. Harvest is permitted according to permit conditions specified in Rule 5L- 1.009, F.A.C. Harvest from temporarily closed conditionally restricted areas shall be unlawful. Prohibited area -- A growing area shall be classified as prohibited if a sanitary survey indicates that the area does not meet the approved, conditionally approved, restricted, or conditionally restricted classifications. Harvest of shellfish from such areas shall be unlawful. The waters of all man-made canals and marinas are classified prohibited regardless of their location. Unclassified area -- A growing area for which no recent sanitary survey exists, and it has not been classified as any area described in subsections (2), (3), (4), (5), or (6) above. Harvest of shellfish from such areas shall be unlawful. Approved or conditionally approved, restricted, or conditionally restricted waters shall be temporarily closed to the harvesting of shellfish when counts of the red tide organism Gymnodinium breve[54] exceed 5000 cells per liter in bays, estuaries, passes or inlets adjacent to shellfish harvesting areas. Areas closed to harvesting because of presence of the red tide organism shall not be reopened until counts are less than or equal to 5000 cells per liter inshore and offshore of the affected shellfish harvesting area, and shellfish meats have been shown to be free of toxin by laboratory analysis. The Department is authorized to open and temporarily close approved, conditionally approved, restricted, or conditionally restricted waters for harvesting of shellfish in emergencies as defined herein, in accordance with specific criteria established in operating procedures for predictively closing individual growing areas, or when growing areas do not meet the standards and guidelines established by the National Shellfish Sanitation Program . Operating procedures for predictively closing each growing area shall be developed by the Department; local agencies, including those responsible for operation of sewerage systems, and the local shellfish industry may be consulted for technical information during operating procedure development. The predictive procedure shall be based on evaluation of potential sources of pollution which may affect the area and should establish performance standards, specify necessary safety devices and measures, and define inspection and check procedures. Under Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, only the "downgrading" of an area initially approved for shellfish harvesting to a more restrictive classification will cause a Class II water to be "placed on the planning list for fish and shellfish consumption." The temporary closure of an approved harvesting area will not have the same result. Temporary closures of harvesting areas are not uncommon. These closures typically occur when there is heavy local rainfall or flooding events upstream, which result in high fecal coliform counts in the harvesting areas. While these areas are not being harvested during these temporary closures, "[p]ropagation is probably maximized in closure conditions." This is because, during these periods, there are "more nutrients for [the shellfish] to consume" inasmuch as the same natural events that cause fecal coliform counts to increase also bring the nutrients (in the form detritus) into the area. The Department of Agriculture and Consumer Services (DACS) does not reclassify an area simply because there have been short-term events, like sewage spills or extraordinary rain events, that have resulted in the area's temporary closure. Where there are frequent, extended periods of closures due to high fecal coliform counts in an area that exceed Class II water quality criteria for bacteriological quality, however, one would reasonably expect that reclassification action would be taken. Even if the DACS does not take such action, the water may nonetheless qualify for placement on the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, based upon the fecal coliform data relied upon by the DACS in closing the area, provided the data meets the requirements set forth in proposed Rule 62-303.320, Florida Administrative Code. The DACS has never reclassified an area from "prohibited" to "unclassified." David Heil, the head of the SEAS, made a presentation at the April 20, 2000, TAC meeting, during which he enumerated various ways that the Department could determine "impairment as it relates to shellfish harvesting waters" and recommended, over the others, one of those options: combination of the average number and duration of closures over time. None of the options listed by Mr. Heil, including his top recommendation, were incorporated in proposed Rule 62- 303.370, Florida Administrative Code. The TAC and Department staff looked into the possibility of using the option touted by Mr. Heil, but determined that it would not be practical to do so. Relying on the DACS' reclassification of harvesting areas was deemed to be a more practical approach that was "consistent with the way the Department classifies waters as Class II and therefore it was included in the proposed rule."55 Code Part II: Proposed Rule 62-303.380, Florida Administrative Proposed Rule 62-303.380, Florida Administrative Code, provides three separate ways for a water to "be placed on the planning list for drinking water use support" and, in addition, addresses "human-health based criteria" not covered elsewhere in Part II of the proposed rule chapter. It reads as follows: Drinking Water Use Support and Protection of Human Health. A Class I water shall be placed on the planning list for drinking water use support if: the water segment does not meet the applicable Class I water quality criteria based on the methodology described in section 62-303.320, or a public water system demonstrates to the Department that either: Treatment costs to meet applicable drinking water criteria have increased by at least 25% to treat contaminants that exceed Class I criteria or to treat blue-green algae or other nuisance algae in the source water, or the system has changed to an alternative supply because of additional costs that would be required to treat their surface water source. When determining increased treatment costs described in paragraph (b), costs due solely to new, more stringent drinking water requirements, inflation, or increases in costs of materials shall not be included. A water shall be placed on the planning list for assessment of the threat to human health if: for human health-based criteria expressed as maximums, the water segment does not meet the applicable criteria based on the methodology described in section 62- 303.320, or for human health-based criteria expressed as annual averages, the annual average concentration for any year of the assessment period exceeds the criteria. To be used to determine whether a water should be assessed further for human-health impacts, data must meet the requirements of paragraphs (2), (3), (6), and (7) in rule 62-303.320. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Use of the statistical "methodology described in [proposed Rule] 62-303.320," Florida Administrative Code, is not only appropriate (as discussed above) for making "planning list" determinations based upon "[e]xceedances of [a]quatic [l]ife- [b]ased [c]riteria" and "water quality criteria for bacteriological quality," it is also a reasonable way to determine whether a water should "be placed on the planning list for drinking water use support" based upon exceedances of "applicable Class I water quality criteria" (as Subsection (1)(a) of proposed Rule 62-303.380, Florida Administrative Code, provides) and to determine whether a water should "be placed on the planning list for assessment of the threat to human health" based upon exceedances of other "human-health based criteria expressed as maximums" (as Subsection (2)(a) of the proposed Rule 62-303.380, Florida Administrative Code, provides). Subsection (1)(b) was included in proposed Rule 62- 303.380, Florida Administrative Code, because the TAC and Department staff wanted "some other way," besides having the minimum number of exceedances of "applicable Class I water quality criteria" required by Subsection (1)(a) of the proposed rule, for a Class I water to qualify for "place[ment] on the planning list for drinking water use support." Looking at the costs necessary for public water systems to treat surface water,56 as Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, allows, is a reasonable alternative means of determining whether a Class I water should be "placed on the planning list for drinking water use support." Under Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, the cost analysis showing that the requirements for listing have been met must be provided by the public water system. This burden was placed on the public water system because the Department "does not have the resources to do that assessment on [its] own." The Department cannot be fairly criticized for not including in Subsection (1)(b)1. of proposed Rule 62-303.380, Florida Administrative Code, references to the other contaminants (in addition to blue-green algae) that have "been put on a list by the EPA to be . . . evaluated for future regulations" inasmuch as there are no existing criteria in Chapter 62-302, Florida Administrative Code, specifically relating to these contaminants. Particularly when read together with the third sentence of Subsection (1) of proposed Rule 62-303.300 (which provides that "[i]t should be noted water quality criteria are designed to protect either aquatic life use support, which is addressed in sections 62-303.310-353, or to protect human health, which is addressed in sections 62-303.360-380"), it is clear that the "human health-based criteria" referenced in Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, are those numerical criteria in Rule Chapter 62-302, Florida Administrative Code, designed to protect human health. While laypersons not familiar with how water quality criteria are established may not be able to determine (by themselves) which of the numerical water quality criteria in Rule Chapter 62-302, Florida Administrative Code, are "human health-based," as that term is used Subsection (2) of proposed Rule 62-303.380, Florida Administrative Code, Department staff charged with the responsibility of making listing decisions will be able to so. "[H]uman health-based criteria" for non-carcinogens are "expressed as maximums" in Rule Chapter 62-302, Florida Administrative Code. "[H]uman health-based criteria" for carcinogens are "expressed as annual averages" in Rule Chapter 62-302, Florida Administrative Code. "Annual average," as that term is used in Rule Chapter 62-302, Florida Administrative Code, is defined therein as "the maximum concentration at average annual flow conditions. (see Section 62-4.020(1), F.A.C.)." Subsection (1) of Rule 62- 4.020, Florida Administrative Code, provides that "[a]verage [a]nnual [f]low "is the long-term harmonic mean flow of the receiving water, or an equivalent flow based on generally accepted scientific procedures in waters for which such a mean cannot be calculated." The "annual mean concentration" is not exactly the same as, but it does "generally approximate" and is "roughly equivalent to," the "maximum concentration at average annual flow conditions." Using "annual mean concentrations" to determine whether there have been exceedances of a "human health-based criteria expressed as annual averages" is a practical approach that makes Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, more easily "implementable" inasmuch as it obviates the need to calculate the "average annual flow," which is a "fairly complicated" exercise requiring "site-specific flow data" not needed to determine the "annual mean concentration."57 Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, does not impose any minimum sample size requirements, and it requires only one exceedance of any "human health-based criteri[on] expressed as [an] annual average[]" for a water to be listed. The limitations it places on the data that can be considered (by incorporating by reference the provisions of Subsections (2), (3), (6), and (7) of proposed Rule 62-303.320, Florida Administrative Code, which have been discussed above) are reasonable. Part III: Overview Part III of proposed Rule Chapter 62-303, Florida Administrative Code, contains the following provisions, which describe the "verified list" of impaired waters for which TMDLs will be calculated, how the list will be compiled, and the manner in which waters on the list will be "prioritized" for TMDL development: Proposed Rules 62-303.400, 62-303.420, 62- 303.430, 62-303.440, 62-303.450, 62-303.460, 62-303.470, 62- 303.480, 62-303.500, 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code. Code Part III: Proposed Rule 62-303.400, Florida Administrative Proposed Rule 62-303.400, Florida Administrative Code, is entitled, "Methodology to Develop the Verified List," and reads as follows: Waters shall be verified as being impaired if they meet the requirements for the planning list in Part II and the additional requirements of sections 62- 303.420-.480. A water body that fails to meet the minimum criteria for surface waters established in Rule 62-302.500, F.A.C.; any of its designated uses, as described in this part; or applicable water quality criteria, as described in this part, shall be determined to be impaired. Additional data and information collected after the development of the planning list will be considered when assessing waters on the planning list, provided it meets the requirements of this chapter. In cases where additional data are needed for waters on the planning list to meet the data sufficiency requirements for the verified list, it is the Department's goal to collect this additional data[58] as part of its watershed management approach, with the data collected during either the same cycle that the water is initially listed on the planning list (within 1 year) or during the subsequent cycle (six years). Except for data used to evaluate historical trends in chlorophyll a or TSIs, the Department shall not use data that are more than 7.5 years old at the time the water segment is proposed for listing on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Pursuant to the first sentence of proposed Rule 62- 303.400, Florida Administrative Code, if a water qualifies for placement on the "planning list" under a provision in Part II of the proposed rule chapter that does not have a counterpart in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, that water will automatically be "verified as being impaired." Examples of provisions in Part II of the proposed rule chapter that do not have counterparts in proposed Rules 62-303.420 through 62-303.480, Florida Administrative Code, are: the provision in Subsection (3) of proposed Rule 62- 303.330, Florida Administrative Code, that "water segments with at least . . . one failure of the biological integrity standard, Rule 62-302.530(11), shall be included on the planning list for assessment of aquatic life use support"; Subsection (1) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a water will be placed on the "planning list" if it "does not meet applicable Class II water quality criteria for bacteriological quality based upon the methodology described in section 62-303.320," Florida Administrative Code; Subsection (3) of proposed Rule 62-303.370, Florida Administrative Code, which provides that a Class II water will be placed on the "planning list" if it "includes an area that has been approved for shellfish harvesting by the Shellfish Evaluation and Assessment Program, but which has been downgraded from its initial harvesting classification to a more restrictive classification"; and Subsection (1)(b) of proposed Rule 62-303.380, Florida Administrative Code, pursuant to which a water may qualify for "planning list" placement based upon water treatment costs under the circumstances described therein. Waters that are "verified as being impaired," it should be noted, will not automatically qualify for placement on the "verified list." They will still have to be evaluated in light of the provisions (which will be discussed later in greater detail) of proposed Rule 62-303.600, Florida Administrative Code (relating to "pollution control mechanisms") and those of proposed Rules 62-303.700 and 62- 303.710, Florida Administrative Code (which require that the Department identify the "pollutant(s)" and "concentration(s)" that are "causing the impairment" before placing a water on the "verified list"). Of the "minimum criteria for surface waters established in Rule 62-302.500, F.A.C.," the only ones addressed anywhere in proposed Rules 62-303.310 through 62-303.380 and 62- 303.410 through 62-303.480, Florida Administrative Code, are the requirement that surface water not be "acutely toxic" and the requirement that predominantly marine waters not have silver in concentrations above 2.3 micrograms per liter. In determining whether there has been a failure to meet the remaining "minimum criteria," the Department will exercise its "best professional judgment." Like the second sentence of Proposed Rule 62-303.300, Florida Administrative Code, the second sentence of proposed Rule 62-303.400, Florida Administrative Code, incorporates the concept of "independent applicability" by providing that only one of the listed requirements need be met for a water to be deemed "impaired." Neither Subsection (1) of proposed Rule 62-303.400, Florida Administrative Code, nor any other provision in the proposed rule chapter, requires that a water be on the "planning list" as a prerequisite for inclusion on the "verified list." Indeed, a reading of Subsection (3)(c) of proposed Rule 62- 303.500, Florida Administration, the "prioritization" rule, which will be discussed later, leaves no reasonable doubt that, under the proposed rule chapter, a water can be placed on the "verified list" without having first been on the "planning list." The second sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, indicates when the Department hopes to be able to collect the "additional data needed for waters on the planning list to meet the [more rigorous] data sufficiency requirements for the verified list," which data the Department pledges, in subsequent provisions of Part III of the proposed rule chapter, will be collected (at some, unspecified time). The Department did not want to create a mandatory timetable for its collection of the "additional data" because it, understandably, wanted to avoid making a commitment that, due to funding shortfalls that might occur in the future, it would not be able to keep.59 If it has the funds to do so, the Department intends to collect the "additional data" within the time frame indicated in the second sentence of proposed Rule 62-303.400, Florida Administrative Code. The Department will not need to collect this "additional data" if the data is collected and presented to the Department by an "interested party" outside the Department. (The proposed rule chapter allows data collected by outside parties to be considered by the Department in making listing decisions, provided the data meets the prescribed quality requirements.) Requiring (as the third and final sentence of Subsection (2) of proposed Rule 62-303.400, Florida Administrative Code, does) that all data relied upon by the Department for placing waters on the "verified list," except for data establishing "historical trends in chlorophyll a or TSIs," under no circumstances be older than "7.5 years old at the time the water segment is proposed for listing on the verified list" is a reasonable requirement designed to avoid final listing decisions based upon outdated data not representative of the water's current conditions. As noted above, the TAC recommended that listing decisions be based upon data no older than five years old. Wanting to "capture as much data for the assessment process" as reasonably possible, Department staff determined that the appropriate maximum age of data should be two and half years older than that recommended by the TAC (the two and a half years representing the amount of time it could take to "do additional data collection" following the creation of the "planning list"). Part III: Proposed Rule 62-303.410, Florida Administrative Code Proposed Rule 62-303.410, Florida Administrative Code, is entitled, "Determination of Aquatic Life Use Support," and provides as follows: Failure to meet any of the metrics used to determine aquatic life use support listed in sections 62-303.420-.450 shall constitute verification that there is an impairment of the designated use for propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Like proposed Rule 62-303.310, Florida Administrative Code, its analogue in Part II of the proposed rule chapter, proposed Rule 62-303.410, Florida Administrative Code, incorporates the concept of "independent applicability." A failure of any of the "metrics" referenced in the proposed rule will result in "verification" of impairment. Code Part III: Proposed Rule 62-303.420, Florida Administrative Proposed Rule 62-303.420, Florida Administrative Code, the counterpart of proposed Rule 62-303.320, Florida Administrative Code, establishes a reasonable statistical method, involving binomial distribution analysis, to verify impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" due to pollutant discharges. It reads as follows: Exceedances of Aquatic Life-Based Water Quality Criteria The Department shall reexamine the data used in rule 62-303.320 to determine exceedances of water quality criteria. If the exceedances are not due to pollutant discharges and reflect either physical alterations of the water body that cannot be abated or natural background conditions, the water shall not be listed on the verified list. In such cases, the Department shall note for the record why the water was not listed and provide the basis for its determination that the exceedances were not due to pollutant discharges. If the Department cannot clearly establish that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges, it is the Department's intent to determine whether aquatic life use support is impaired through the use of bioassessment procedures referenced in section 62-303.330. The water body or segment shall not be included on the verified list for the parameter of concern if two or more independent bioassessments are conducted and no failures are reported. To be treated as independent bioassessments, they must be conducted at least two months apart. If the water was listed on the planning list and there were insufficient data from the last five years preceding the planning list assessment to meet the data distribution requirements of section 303.320(4) and to meet a minimum sample size for verification of twenty samples, additional data will be collected as needed to provide a minimum sample size of twenty. Once these additional data are collected, the Department shall re-evaluate the data using the approach outlined in rule 62- 303.320(1), but using Table 2, which provides the number of exceedances that indicate a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution. The Department shall limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph. Table 2: Verified List Minimum number of measured exceedances needed to put a water on the Planning list with at least 90% confidence that the actual exceedance rate is greater than or equal to ten percent. Sample Are listed if they Sizes have at least this From To # of exceedances 20 25 5 26 32 6 33 40 7 41 47 8 48 55 9 56 63 10 64 71 11 72 79 12 80 88 13 89 96 14 97 104 15 105 113 16 114 121 17 122 130 18 131 138 19 139 147 20 148 156 21 157 164 22 165 173 23 174 182 24 183 191 25 192 199 26 200 208 27 209 217 28 218 226 29 227 235 30 236 244 31 245 253 32 254 262 33 263 270 34 271 279 35 280 288 36 289 297 37 298 306 38 307 315 39 316 324 40 325 333 41 334 343 42 344 352 43 353 361 44 362 370 45 371 379 46 380 388 47 389 397 48 398 406 49 407 415 50 416 424 51 425 434 52 435 443 53 444 452 54 453 461 55 462 470 56 471 479 57 480 489 58 490 498 59 499 500 60 (3) If the water was placed on the planning list based on worst case values used to represent multiple samples taken during a seven day period, the Department shall evaluate whether the worst case value should be excluded from the analysis pursuant to subsections (4) and (5). If the worst case value should not be used, the Department shall then re-evaluate the data following the methodology in rule 62-303.420(2), using the more representative worst case value or, if all valid values are below acutely toxic levels, the median value. If the water was listed on the planning list based on exceedances of water quality criteria for metals, the metals data shall be validated to determine whether the quality assurance requirements of rule 62- 303.320(7) are met and whether the sample was both collected and analyzed using clean techniques, if the use of clean techniques is appropriate. If any data cannot be validated, the Department shall re-evaluate the remaining valid data using the methodology in rule 62-303.420(2), excluding any data that cannot be validated. Values that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, outliers the Department determines are not valid measures of water quality, water quality criteria exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters, water quality criteria exceedances within permitted mixing zones for those parameters for which the mixing zones are in effect, and water quality data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Once the additional data review is completed pursuant to paragraphs (1) through (5), the Department shall re-evaluate the data and shall include waters on the verified list that meet the criteria in rules 62-303.420(2) or 62-303.320(5)(b). Specific Authority: 403.061, 403.067, FS. Law Implemented: 403.021(11), 403.062, 403.067, FS. History -- New The TMDL program is intended to address only water quality impairment resulting from pollutant discharges (from point or non-point sources), as is made clear by a reading of Section 403.067, Florida Statutes, particularly Subsection 6(a)2. thereof (which, as noted above, provides that, "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution, no maximum daily load will be required"). Subsection (1)(a) of proposed Rule 62- 303.420(1)(a), Florida Administrative Code, is in keeping with this intent. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, should be read together with Subsection (1)(a) of the proposed rule. The "physical alterations of the water body" referred to in Subsection (1)(b) are the same type of "physical alterations" referred to in Subsection (1)(a), to wit: "physical alterations of the water body that cannot be abated." "Best professional judgment" will be used by the Department in determining, as it must under Subsection (1) of proposed Rule 62-303.420, Florida Administrative Code, whether or not exceedances are due to pollutant discharges. If the Department, exercising its "best professional judgment," finds that there is not proof "clearly establish[ing] that the exceedances are due to natural background or physical alterations of the water body but the Department believes the exceedances are not due to pollutant discharges," the Department, pursuant to Subsection (1)(b) of proposed Rule 62- 303.420, Florida Administrative Code, will determine whether the water in question should be "verified as impaired" for aquatic life use support by relying on "[b]iological [a]ssessment[s]" conducted in accordance with the procedures set forth in proposed Rule 62-303.330, Florida Administrative Code (which, among other things, prohibit reliance on "[b]iological [a]ssessment[s]" based on "data older than ten years"). The results of these "[b]iological [a]ssessment[s]" will not make the Department any better able to "answer the question of whether natural background or physical alterations were responsible for [the] exceedances," but, as noted above, it will enable the Department to make a more informed decision about the overall ability of the water to sustain aquatic life. Subsection (1)(b) of proposed Rule 62-303.420, Florida Administrative Code, reasonably provides that the water will not be "verified as impaired" for aquatic life use support if there have been two or more "[b]iological [a]ssessment[s]" conducted at least two months apart over the last ten years and "no failures [have been] reported." That a water has "passe[d]" these "[b]iological [a]ssessment[s]" establishes "that aquatic life use support is being maintained" and, under such circumstances, it would be inappropriate to include that water on the "verified list." Looking at just the data "from the last five years preceding the planning list assessment," as the first sentence of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, requires the Department to do, rather than all of the data supporting the placement of the water in question on the "planning list," regardless of when the data was collected, makes sense because, to properly discharge its responsibilities under Section 403.067, Florida Statutes, the Department must ascertain what the current overall condition of the water in question is. As noted above, Subsection (2) of proposed Rule 62- 303.420, Florida Administrative Code, requires a "minimum sample size for verification [of impairment based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria]" of twenty samples," with no exceptions. While this is more than the number of samples required for "planning list" compilation purposes under proposed Rule 62-303.320, Florida Administrative Code, it "is a very small number of samples relative to the [number of] samples that [the Department] would need to take to do a TMDL." Furthermore, unlike any provision in proposed Rule 62-303.320, Florida Administrative Code, Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, provides that, if a water (on the "planning list") lacks the required minimum number of samples, the "additional data" needed to meet the minimum sample requirement "will be collected" (at some unspecified time in the future). Because these additional samples "will be collected," the requirement of proposed Rule 62-303.420, Florida Administrative Code, that there be a minimum of 20 samples should not prevent deserving waters from ultimately being "verified as impaired" under the proposed rule (although it may serve to delay such "verification"). Such delay would occur if a water on the "planning list" had five or more exceedances within the "last five years preceding the planning list assessment" (five being the minimum number of exceedances required for "verification" under proposed Rule 62- 303.420, Florida Administrative Code), but these exceedances were based on fewer than 20 samples. The additional samples that would need to be collected to meet the minimum sample size requirement of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code, would have no effect on the Department's "verification" determination, even if these samples yielded no exceedances, given that proposed Rule 62-303.420, Florida Administrative Code, does not contain any provision comparable to Subsection (3) of Rule 62-303.320, Florida Administrative Code, providing that, under certain circumstances, "more recent data" may render "older data" unusable.60 The water would qualify for "verification" regardless of what the additional samples revealed. That is not to say, however, that taking these additional samples would serve no useful purpose. Data derived from these additional collection efforts (shedding light on the severity of the water quality problem) could be used by the Department to help it "establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations," as the Department is required to do pursuant to Subsection (4) of Section 403.067, Florida Statutes. The "calculations [reflected in the table, Table 2, which is a part of Subsection (2) of proposed Rule 62-303.420, Florida Administrative Code] are correct." They are based on "a minimum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution." As noted above, the Department did not act unreasonably in selecting this "exceedance frequency" and "confidence level" for use in determining which waters should be "verified as impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria." Subsection (4) of proposed Rule 62-303.420, Florida Administrative Code, imposes reasonable quality assurance requirements that must be met in order for "metals data" to be considered "valid" for purposes of determining whether a water has the minimum number of exceedances needed to be "verified as impaired" under the proposed rule. It requires that "Method 1669"-permitted procedures be used only where these procedures are "appropriate." Determining the appropriateness of these procedures in a particular case will require the Department to exercise its "best professional judgment," taking into consideration the amount of the metal in question needed to violate the applicable water quality criterion, in relation to the amount of contamination that could be expected to occur during sample collection and analysis if conventional techniques were used. Doing so should result in "Method 1669"-permitted procedures being deemed "appropriate" in only a few circumstances: when a water is being tested to determine if it exceeds the applicable criterion for mercury, and when testing low hardness waters61 for exceedances of the applicable criterion for cadmium and lead. It is necessary to use "Method 1669"-permitted procedures in these instances to prevent test results that are tainted by contamination occurring during sample collection and analysis. Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, reasonably excludes other data from the "verification" process. It contains the same exclusions that pursuant to Subsection (6) of proposed Rule 62-303.320, Florida Administrative Code, apply in determining whether a water should be placed on the "planning list" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [w]ater [q]uality [c]riteria" ("[v]alues that exceed possible physical or chemical measurement constraints (pH greater than 14, for example) or that represent data transcription errors, [and] outliers the Department determines are not valid measures of water quality"), plus additional exclusions. Among the additional types of data that will be excluded from consideration under Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are "exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters." Permit violations, by themselves, can cause water quality impairment; however, as the Department has reasonably determined, the quickest and most efficient way to deal with such impairment is to take enforcement action against the offending permittee. To take the time and to expend the funds to develop and implement a TMDL62 to address the problem, instead of taking enforcement action, would not only be unwise and an imprudent use of the not unlimited resources available to combat poor surface water quality in this state, but would also be inconsistent with the expression of legislative intent in Subsection (4) of Section 403.067, Florida Statutes, that the TMDL program not be utilized to bring a water into compliance with water quality standards where "technology-based effluent limitations [or] other pollution control programs under local, state, or federal authority" are sufficient to achieve this result. It is true that the Department has not stopped, through enforcement, all permit violations and that, as Mr. Joyner acknowledged during his testimony at the final hearing, "there are certain cases out there where there are chronic violations of permits." The appropriate response to this situation, however, is for the Department to step up its enforcement efforts, not for it to develop and implement TMDLs for those waters that, but for these violations, would not be impaired. (Citizens dissatisfied with the Department's enforcement efforts can themselves take action, pursuant to Section 403.412(2), Florida Statutes, to seek to enjoin permit violations.) It will be "extremely difficult" to know whether exceedances are due solely to permit violations. Because of this, it does not appear likely that the Department "will be using [the permit violation exclusion contained in] proposed [R]ule [62-303.420(5), Florida Administrative Code] very often." Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, will not exclude from consideration all water quality criteria exceedances in mixing zones . Only those exceedances relating to the parameters "for which the mixing zones are in effect" will be excluded. The exclusion of these exceedances is appropriate inasmuch as, pursuant to the Department's existing rules establishing the state's water quality standards (which the Legislature made clear, in Subsections (9) and (10) of Section 403.067, Florida Statutes, it did not, by enacting Section 403.067, intend to alter or limit), these exceedances are permitted and not considered to be violations of water quality standards. To the extent that there may exist "administratively- continued" permits (that is, permits that remain in effect while a renewal application is pending, regardless of their expiration date) which provide for outdated "mixing zones," this problem should be addressed through the permitting process, not the TMDL program. A "contaminant spill," as that term is used in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, is a short-term, unpermitted discharge [of contaminants63] to surface waters." (See Subsection (16) of proposed Rule 62-303.200, Florida Administrative Code, recited above, which defines "spill," as it is used in the proposed rule chapter). It is well within the bounds of reason to exclude from consideration (as Subsection (5) of proposed Rule 62- 303.420, Florida Statutes, indicates the Department will do in deciding whether a water should be "verified as being impaired" under the proposed rule) data collected in such proximity in time to a "contaminant spill" that it reflects only the temporary effects of that "short-term" event (which are best addressed by the Department taking immediate action), rather than reflecting a chronic water quality problem of the type the TMDL program is designed to help remedy. In deciding whether this exclusion applies in a particular case, the Department will need to exercise its "best professional judgment" to determine whether the post-"contaminant spill" data reflects a "short- term" water quality problem attributable to the "spill" (in which case the exclusion will apply) or whether, instead, it reflects a chronic problem (in which case the exclusion will not apply). "Bypass" is defined in Subsection (4) of Rule 62- 620.200, Florida Administrative Code, as "the intentional diversion of waste streams from any portion of a treatment works." "Upset" is defined in Subsection (50) of Rule 62- 620.200, Florida Administrative Code, as follows: "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, careless or improper operation. An upset constitutes an affirmative defense to an action brought for noncompliance with technology based permit effluent limitations if the requirements of upset provisions of Rule 62-620.610, F.A.C., are met. The "upset provisions of Rule 62-620.610, F.A.C." are as follows: (23) Upset Provisions. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: An upset occurred and that the permittee can identify the cause(s) of the upset; The permitted facility was at the time being properly operated; The permittee submitted notice of the upset as required in condition (20) of this permit; and The permittee complied with any remedial measures required under condition (5) of this permit. In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof. Before an enforcement proceeding is instituted, no representation made during the Department review of a claim that noncompliance was caused by an upset is final agency action subject to judicial review. Rule 62-620.610, Florida Administrative Code, also contains "[b]ypass [p]rovisions," which provide as follows: (22) Bypass Provisions. Bypass is prohibited, and the Department may take enforcement action against a permittee for bypass, unless the permittee affirmatively demonstrates that: Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated waste, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and The permittee submitted notices as required under condition (22)(b) of this permit. If the permittee knows in advance of the need for a bypass, it shall submit prior notice to the Department, if possible at least 10 days before the date of the bypass. The permittee shall submit notice of an unanticipated bypass within 24 hours of learning about the bypass as required in condition (20) of this permit. A notice shall include a description of the bypass and its cause; the period of the bypass, including exact dates and times; if the bypass has not been corrected, the anticipated time it is expected to continue; and the steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. The Department shall approve an anticipated bypass, after considering its adverse effect, if the permittee demonstrates that it will meet the three conditions listed in condition (22)(a)1. through 3. of this permit. A permittee may allow any bypass to occur which does not cause reclaimed water or effluent limitations to be exceeded if it is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of condition (22)(a) through (c) of this permit. The "bypasses" to which the Department refers in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, are those that are not prohibited (as Mr. Joyner testified and is evidenced by the grouping of "bypasses" in the same provision with "upsets" and by the fact that there is another provision in Subsection (5) of the proposed rule that deals with permit violations). Since these types of bypasses, as well as upsets, are exceptional events that, under the Department's existing rules, are allowed to occur without the permittee being guilty of a permit violation, it is reasonable, in verifying impairment under proposed Rule 62-303.420, Florida Administrative Code, to discount data tainted by their occurrence, which reflect atypical conditions resulting from legally permissible discharges. The "25-year, 24-hour storm" exclusion was included in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, in response to the TAC's recommendation that the proposed rule "exclude data from extreme storm events." The "25-year, 24-hour storm" is "commonly used in the regulatory context as a dividing line between extremely large rainfall events and less extreme events." It is a rainfall event (or as one witness, the chief of the Department's Bureau of Watershed Management, Eric Livingston, put it, a "gully washer") that produces an amount of rainfall within 24 hours that is likely to be exceeded on the average only once in 25 years. In Florida, that amount is anywhere from about eight to 11 inches, depending on location. Because a "25-year, 24-hour storm" is an extraordinary rainfall event that creates abnormal conditions in affected waters, there is reasonable justification for the Department's not considering, in the "verification" process under proposed Rule 62-303.420, Florida Administrative Code, "25-year, 24-hour storm"-impacted data. This should result in the exclusion of very little data. Data collected following less severe rainfall events (of which there are many in Florida)64 will be unaffected by the "25- year, 24-hour storm" exclusion in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.430, Florida Administrative Proposed Rule 62-303.430, Florida Administrative Code, the counterpart of proposed Rule 62-303.330, Florida Administrative Code, establishes a reasonable non-statistical approach, involving "[b]iological [a]ssessment," to be used as an alternative to the statistical method described in proposed Rule 62-303.420, Florida Administrative Code, in verifying aquatic life use support impairment. Proposed Rule 62-303.430, Florida Administrative Code, reads as follows: Biological Impairment All bioassessments used to list a water on the verified list shall be conducted in accordance with Chapter 62-160, F.A.C., including Department-approved Standard Operating Procedures. To be used for placing waters on the verified list, any bioassessments conducted before the adoption of applicable SOPs for such bioassessments as part of Chapter 62-160 shall substantially comply with the subsequent SOPs. If the water was listed on the planning list based on bioassessment results, the water shall be determined to be biologically impaired if there were two or more failed bioassessments within the five years preceding the planning list assessment. If there were less than two failed bioassessments during the last five years preceding the planning list assessment the Department will conduct an additional bioassessment. If the previous failed bioassessment was a BioRecon, then an SCI will be conducted. Failure of this additional bioassessment shall constitute verification that the water is biologically impaired. If the water was listed on the planning list based on other information specified in rule 62-303.330(4) indicating biological impairment, the Department will conduct a bioassessment in the water segment, conducted in accordance with the methodology in rule 62-303.330, to verify whether the water is impaired. For streams, the bioassessment shall be an SCI. Failure of this bioassessment shall constitute verification that the water is biologically impaired. Following verification that a water is biologically impaired, a water shall be included on the verified list for biological impairment if: There are water quality data reasonably demonstrating the particular pollutant(s) causing the impairment and the concentration of the pollutant(s); and One of the following demonstrations is made: if there is a numeric criterion for the specified pollutant(s) in Chapter 62-302, F.A.C., but the criterion is met, an identification of the specific factors that reasonably demonstrate why the numeric criterion is not adequate to protect water quality and how the specific pollutant is causing the impairment, or if there is not a numeric criterion for the specified pollutant(s) in Chapter 62- 302, F.A.C., an identification of the specific factors that reasonably demonstrate how the particular pollutants are associated with the observed biological effect. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, was written in anticipation of the "adoption of applicable SOPs" for BioRecons, SCIs, and LCIs "as part of [Rule] Chapter 62-160," Florida Administrative Code, subsequent to the adoption of the proposed rule chapter. As noted above, at the time of the final hearing in these cases, the Department was in the process of engaging in rulemaking to incorporate in Rule Chapter 62-160, Florida Administrative Code, the SOPs for BioRecons, SCIs, and LCIs that Department personnel currently use to conduct these "[b]iological [a]ssessment[s]." Until the rulemaking process is completed and any amendments to Rule Chapter 62-160, Florida Administrative Code, become effective,65 to be "used to list a water on the verified list" pursuant to Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, "[b]iological [a]assessment[s]" need meet only the quality assurance requirements of the pre-amendment version of Rule Chapter 62-160 (which does not include SOPs for BioRecons, SCIs and LCIs). Once the amendments become effective, however, "[b]iological [a]assessment[s]," both pre- and post-amendment, will have to have been conducted in substantial compliance with the applicable SOPs included in the new version of Rule Chapter 62-160. No "[b]iological [a]assessment" will be rejected under Subsection (1) of proposed Rule 62-303.430, Florida Administrative Code, because it fails to comply with an SOP that, at the time of the "verification" determination, has not been made a part of the Department's rules. The TAC-approved requirement of Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, that there be at least "two failed bioassessments during the last five years preceding the planning list assessment" (as opposed to a longer period of time) in order for a water to be "verified as being [biologically] impaired," without the need to conduct another "[b]iological [a]assessment," is reasonably designed to avoid listing decisions that are based upon test results not representative of the existing overall biological condition of the water in question. Two such failed "[b]iological [a]assessment[s]" will provide the Department with a greater degree of assurance that the water truly suffers from "biological impairment" than it would have if only one failed "[b]iological [a]assessment" was required. If there are fewer than "two failed bioassessments during the last five years preceding the planning list assessment," Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, provides that the Department will conduct another "[b]iological [a]ssessment" to determine whether the water should be "verified as being [biologically] impaired," and failure of this additional "[b]iological [a]assessment" will constitute "verification that the water is biologically impaired." The requirement that there be another failed "[b]iological [a]assessment" to confirm "biological impairment" before a water is "verified as being [biologically] impaired" under Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, is scientifically prudent, particularly in those cases where the water was placed on the "planning list" based upon a "[b]iological [a]ssessment" conducted more than five years earlier. The failure of this additional "[b]iological [a]ssessment" is enough to get the water "verified as being [biologically] impaired" even if there were no failed "[b]iological [a]ssessment[s]" in the "last five years preceding the planning list assessment." Inasmuch as the SCI, compared to the BioRecon, is a more comprehensive and rigorous test, it is reasonable to require (as Subsection (2) of proposed Rule 62-303.430, Florida Administrative Code, does) that, in the case of a stream placed on the "planning list" as a result of a failed BioRecon, the additional "[b]iological [a]ssessment" be an SCI, not a BioRecon, and to also require (as Subsection (3) of proposed Rule 62-303.430, Florida Administrative Code, does) that an SCI, rather than a BioRecon, be conducted where a stream has been placed on the "planning list" based upon "other information specified in rule 62-303.330(4) indicating biological impairment." Until such time as the Department develops a rapid bioassessment protocol for estuaries, where the Department is required in Part II of the proposed rule chapter to conduct an additional "[b]iological [a]ssessment, the Department intends to meet this obligation by engaging in "biological integrity standard" testing. TMDLs are pollutant-specific. If a water is "verified as [biologically] impaired," but the Department is not able to identify a particular pollutant as the cause of the impairment, a TMDL cannot be developed. See Section 403.031(21), Florida Statutes (to establish TMDL it is necessary to calculate the "maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards"); and Section 403.067(6)(a)2., Florida Statutes ("The total maximum daily load calculation shall establish the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards"). Accordingly, as noted above, in Subsection (3)(c) of Section 403.067, Florida Statutes, the Legislature has imposed the following perquisites to the Department listing, on its "updated list" of waters for which TMDLs will be calculated, those waters deemed to be impaired based upon "non-attainment [of] biological criteria": If the department has adopted a rule establishing a numerical criterion for a particular pollutant, a narrative or biological criterion may not be the basis for determining an impairment in connection with that pollutant unless the department identifies specific factors as to why the numerical criterion is not adequate to protect water quality. If water quality non-attainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria for that surface water or surface water segment. Furthermore, Subsection (4) of Section 403.067, Florida Statutes, provides that, if a water is to placed on the "updated list" on any grounds, the Department "must specify the particular pollutants causing the impairment and the concentration of those pollutants causing the impairment relative to the water quality standard." The requirements of Subsection (4) of proposed Rule 62-303.430, Florida Administrative Code, are consistent with these statutory mandates. Proposed Rule 62-303.430, Florida Statutes, does not address waters placed on the "planning list" based upon a failure of the "biological integrity standard" set forth in Subsection (11) of Rule 62-302.530, Florida Administrative Code. Therefore, by operation of proposed Rule 62-303.400, Florida Administrative Code, waters meeting the minimum requirements for "planning list" placement based upon failure of the "biological integrity standard" (a single failure within the ten-year period preceding the "planning list" assessment) will automatically be "verified as being impaired." This is a less stringent "verification" requirement than the Department adopted in proposed Rule 62-303.430, Florida Administrative Code, for "verification" of waters placed on the "planning list" based upon a failed BioRecon, SCI, or LCI. While the results of BioRecons, SCIs, and LCIs are more accurate indicators of "biological impairment" than are the results of "biological integrity standard" testing, the Department's decision to make it more difficult for a water to be "verified as being impaired" if it was placed on the "planning list" based upon a failed BioRecon, SCI, or LCI (as opposed to a failure of the "biological integrity standard") is reasonably justified inasmuch as the "biological integrity standard" is one of the water quality criteria that have been established by the Department in Rule 62-302.530, Florida Administrative Code, whereas, in contrast, neither the BioRecon, SCI, nor LCI are a part of the state's water quality standards. Code Part III: Proposed Rule 62-303.440, Florida Administrative Proposed Rule 62-303.440, Florida Administrative Code, the counterpart of proposed Rule 62-303.340, Florida Administrative Code, prescribes another reasonable method, that is not statistically-based, to verify aquatic life use support impairment. It reads as follows: : Toxicity A water segment shall be verified as impaired due to surface water toxicity in the receiving water body if: the water segment was listed on the planning list based on acute toxicity data, or the water segment was listed on the planning list based on chronic toxicity data and the impairment is confirmed with a failed bioassessment that was conducted within six months of a failed chronic toxicity test. For streams, the bioassessment shall be an SCI. Following verification that a water is impaired due to toxicity, a water shall be included on the verified list if the requirements of paragraph 62-303 430(4) are met. Toxicity data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded. Specific Authority 403.061, 403.067, FS. Law Implemented 403. 062, 403.067, FS. History -- New Pursuant to Subsections (1)(a) and (3) of proposed Rule 62-303.440, Florida Administrative Code, a water will automatically be "verified as impaired" for aquatic life use support if it was placed on the "planning list" on the basis of being "acutely toxic," provided that the data supporting such placement was "not collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm." The TAC and Department staff determined that additional testing was not necessary for "verification" under such circumstances because the end point that characterizes "acute toxicity" is so "dramatic" in terms of demonstrating impairment that it would be best to "just go ahead and put [the water] on the list with the two acute [toxicity] failures and start figuring out any potential sources of that impairment." The TAC and Department staff, however, reasonably believed that, because "chronic toxicity tests, in contrast, are measuring fairly subtle changes in a lab test organism" and there is "a very long history within the NPDES program of people questioning the results of the chronic toxicity test," before a water is "verified as being impaired" due to "chronic toxicity," the impairment should be "confirmed with a bioassessment that was conducted within six months of a failed chronic toxicity test"66 (as Subsection (1)(b) of proposed Rule 62-303.440, Florida Administrative Code, provides). It is reasonable to require that the bioassessment, in the case of a stream, be an SCI, rather than a BioRecon, because, as noted above, of the two, the former is the more comprehensive and rigorous test. The requirements of Subsection (2) of proposed Rule 62-303.440, Florida Administrative Code, are consistent with the provisions of the Subsections (3)(c) and (4) of Section 403.067, Florida Statutes. It may be difficult to identify the pollutant causing the impairment inasmuch as toxicity tests are not designed to yield such information. The rationale for excluding, in the assessment process described in proposed Rule 62-303.440, Florida Administrative Code, "data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm" (as Subsection (3) of the proposed rule does) is the same, justifiable rationale (discussed above) supporting the exclusion of such data in the assessment of impairment under proposed Rule 62-303.420, Florida Administrative Code. Code Part III: Proposed Rule 62-303.450, Florida Administrative Proposed Rule 62-303.450, Florida Administrative Code, the counterpart of proposed Rules 62-303.350 through 62- 303.353, Florida Administrative Code, provides other reasonable ways, not based upon statistics, for waters to be "verified as [being] impaired" for aquatic life use support. It reads as follows: Interpretation of Narrative Nutrient Criteria. A water shall be placed on the verified list for impairment due to nutrients if there are sufficient data from the last five years preceding the planning list assessment combined with historical data (if needed to establish historical chlorophyll a levels or historical TSIs), to meet the data sufficiency requirements of rule 62- 303.350(2). If there are insufficient data, additional data shall be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the thresholds provided in rule 62-303.351- .353, for streams, lakes, and estuaries, respectively, or alternative, site-specific thresholds that more accurately reflect conditions beyond which an imbalance in flora or fauna occurs in the water segment. In any case, the Department shall limit its analysis to the use of data collected during the five years preceding the planning list assessment and the additional data collected in the second phase. If alternative thresholds are used for the analysis, the Department shall provide the thresholds for the record and document how the alternative threshold better represents conditions beyond which an imbalance in flora or fauna is expected to occur. If the water was listed on the planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna as provided in Rule 62-303 350(1), the Department shall verify the imbalance before placing the water on the verified list for impairment due to nutrients and shall provide documentation supporting the imbalance in flora or fauna. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The requirement of the first sentence of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, that there be sufficient (non-historical) data (as measured against the requirements of Subsection (2) of proposed Rule 62- 303.350, Florida Administrative Code67) "from [just] the last five years preceding the planning list assessment" in order for a "nutrient impair[ed]" water to go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62-303.700, and 62-303.710, Florida Administrative Code) is reasonably designed to avoid listing decisions based upon outdated data not representative of the water's current conditions. According to the second and third sentences of Subsection (1) of proposed Rule 62-303.450, Florida Administrative Code, if there is not enough data from this five- year time period, the additional data needed to meet the data sufficiency requirements "will be collected" by the Department, and such additional data, along with the data "from the last five years preceding the planning list assessment," will be evaluated to determine whether one of the applicable thresholds set out in proposed Rules 62-303.351 through 62-303.353, Florida Administrative Code, or an "alternative" threshold established specifically for that water, has been met or exceeded. Deciding whether "alternative, site-specific thresholds" should be used and, if so, what they should be, will involve the exercise of the Department's "best professional judgment," as will the determination as to how, in each case the Department is presented with a water placed on the "planning list for nutrient enrichment based on other information indicating an imbalance in flora or fauna," it should go about "verify[ing] the imbalance," as the Department will be required to do by Subsection (2) of proposed Rule 62-303.450, Florida Administrative Code. In some instances, the Department will only need to thoroughly review the "other information" to "verify the imbalance." In other cases, where the "other information" is not sufficiently detailed, new "information" will need to be obtained. How the Department will proceed in a particular case will depend upon the specific circumstances of that case. Code Part III: Proposed Rule 62-303.460, Florida Administrative Proposed Rule 62-303.460, Florida Administrative Code, the counterpart of proposed Rule 62-303.360, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as [being] impaired" for primary contact and recreation use support. It reads as follows: Primary Contact and Recreation Use Support The Department shall review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62-160. If the segment is listed on the planning list based on bathing area closures, advisories, or warnings issued by a local health department or county government, closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when verifying primary contact and recreation use support. The Department shall then re-evaluate the remaining data using the methodology in rule 62- 303.360(1)(c). Water segments that meet the criteria in rule 62-303.360(1)(c) shall be included on the verified list. If the water segment was listed on the planning list due to exceedances of water quality criteria for bacteriological quality, the Department shall, to the extent practical, evaluate the source of bacteriological contamination and shall verify that the impairment is due to chronic discharges of human-induced bacteriological pollutants before listing the water segment on the verified list. The Department shall take into account the proximity of municipal stormwater outfalls, septic tanks, and domestic wastewater facilities when evaluating potential sources of bacteriological pollutants. For water segments that contain municipal stormwater outfalls, the impairment documented for the segment shall be presumed to be due, at least in part, to chronic discharges of bacteriological pollutants. The Department shall then re-evaluate the data using the methodology in rule 62-303.320(1), excluding any values that are elevated solely due to wildlife. Water segments shall be included on the verified list if they meet the requirements in rule 62-303.420(6). Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The first sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, was included in the proposed rule in response to comments made by stakeholders during the rule development process that the Department would be "abdicating [its] authority" if, in determining whether a water was impaired for purposes of TMDL development, it relied solely on action taken by other governmental entities. Department staff agreed that the Department, "as the agency responsible for preparing this list," should at least "review the data used by the DoH as the basis for bathing area closures, advisories or warnings and verify that the values exceeded the applicable DoH thresholds and the data meet the requirements of Chapter 62- 160," Florida Administrative Code. The rationale for the Department not considering bathing area "closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants . . . when verifying [impairment of] primary contact and recreation use support" (per the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code) is the same, justifiable rationale (discussed above) supporting the exclusions of these closures, advisories, and warnings from consideration in the determination of whether a water should be placed on the "planning list" pursuant to Subsections (1)(b), (1)(c), or (1)(d) of the proposed Rule 62-303.360, Florida Administrative Code. The exclusions set forth in the second sentence of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, will have no effect on the "information" or "data" that the Department will be able to consider under any provision in Part III of the proposed rule chapter other than Subsection (1) of proposed Rule 62-303.460. Pursuant to the third and fourth sentences of Subsection (1) of proposed Rule 62-303.460, Florida Administrative Code, after the Department determines, in accordance with the first and second sentences of this subsection of the proposed rule, what bacteriological data-based bathing area closures, advisories, and warnings should be counted, it will determine whether there were a total of at least 21 days of such closures, advisories, and warnings during a calendar year (the number required by Subsection (1)(c) of proposed Rule 62-303.360, Florida Administrative Code, for placement on the "planning list") and, if there were, it will verify the water in question as being impaired for primary contact and recreation use support. This is the only way for a water to be "verified as being impaired" based upon bathing area closures, advisories, or warnings under the proposed rule chapter. The "criteria" set forth in Subsections (1)(b) and (1)(d) of proposed Rule 62-303.360, Florida Administrative Code (unlike the criteria set forth in Subsection (1)(c) of proposed Rule 62-303.360) are not carried forward in proposed Rule 62- 303.460, Florida Administrative Code. Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, provides another way, based upon a statistical analysis of "exceedances of water quality criteria for bacteriological quality," for a water to be "verified as being impaired" for primary contact and recreation use support. It reasonably requires the Department, in determining whether such impairment exists, to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Under Subsection (2) of proposed Rule 62-303.460, Florida Administrative Code, the Department, to the extent practical, will evaluate the source of an exceedance to make sure that it is "due to chronic discharges of human-induced bacteriological pollutants," and, if such evaluation reveals that the exceedance was "solely due to wildlife," the exceedance will be excluded from the calculation. While it is true that "microbial pollutants from [wildlife] do constitute a public health risk in recreational waters," the purpose of the TMDL program is to control human-induced impairment and, consequently, the Department is not required to develop TMDLs "[f]or waters determined to be impaired due solely to factors other than point and nonpoint sources of pollution." See Section 403.067(6)(a)2., Florida Statutes. Part III: Proposed Rule 62-303.470, Florida Administrative Code Rule 62-303.470, Florida Administrative Code, the counterpart of proposed Rule 62-303.370, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for fish and shellfish consumption use support. It provides as follows: Fish and Shellfish Consumption Use Support In order to be used under this part, the Department shall review the data used by the DoH as the basis for fish consumption advisories and determine whether it meets the following requirements: the advisory is based on the statistical evaluation of fish tissue data from at least twelve fish collected from the specific water segment or water body to be listed, starting one year from the effective date of this rule the data are collected in accordance with DEP SOP FS6000 (General Biological Tissue Sampling) and FS 6200 (Finfish Tissue Sampling), which are incorporated by reference, the sampling entity has established Data Quality Objectives (DQOs) for the sampling, and the data meet the DQOs. Data collected before one year from the effective date of this rule shall substantially comply with the listed SOPs and any subsequently developed DQOs. there are sufficient data from within the last 7.5 years to support the continuation of the advisory. If the segment is listed on the planning list based on fish consumption advisories, waters with fish consumption advisories for pollutants that are no longer legally allowed to be used or discharged shall not be placed on the verified list because the TMDL will be zero for the pollutant. Waters determined to meet the requirements of this section shall be listed on the verified list. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.470, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" based upon fish consumption advisories pursuant to Subsection (2) of proposed Rule 62- 303.370, Florida Administrative Code. Waters placed on the "planning list" pursuant to Subsections (1) and (3) of proposed Rule 62-303.370, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62- 303.600, 62-303.700, and 62-303.710, Florida Administrative Code). The mere fact that a fish consumption advisory is in effect for a water will be enough for that water to qualify for placement on the "planning list" under Subsection (2) of proposed Rule 62-303.370, Florida Administrative Code. The Department will not look beyond the four corners of the advisory at this stage of the "identification of impaired surface waters" process. Proposed Rule 62-303.470, Florida Administrative Code, however, will require the Department, before including the water on the "verified list" based upon the advisory, to conduct such an inquiry and determine the adequacy of the fish tissue data supporting the initial issuance of the advisory and its continuation. Mandating that the Department engage in such an exercise as a prerequisite to verifying impairment based upon a fish consumption advisory is a provident measure in keeping with the Legislature's directive that the TMDL program be "scientifically based." Department staff's intent, in requiring (in Subsection (1)(a) of proposed Rule 62-303.470, Florida Administrative Code) that there be fish tissue data from at least 12 fish, "was to maintain the status quo" and not require any more fish tissue samples than the Department of Health presently uses to determine whether an advisory should be issued. The SOPs incorporated by reference in Subsection (1)(b) of proposed Rule 62-303.470, Florida Administrative Code, contain quality assurance requirements that are essentially the same as those that have been used "for many years" to collect the fish tissue samples upon which fish consumption advisories are based. These SOPs have yet to be incorporated in Rule Chapter 62-160, Florida Administrative Code. Data Quality Objectives are needed for sampling to be scientifically valid. There are presently no Data Quality Objectives in place for the sampling that is done in connection with the Department of Health's fish consumption advisory program. Pursuant to Subsection (1)(b) of proposed Rule 62- 303.470, Florida Administrative Code, after one year from the effective date of the proposed rule, in order for data to be considered in determining data sufficiency questions under the proposed rule, the sampling entity will have to have established Data Quality Objectives for the collection of such data and the data will have to meet, or (in the case of "data collected before one year from the effective date of this rule") substantially comply with, these Data Quality Objectives. As noted above, the majority of fish consumption advisories now in effect were issued based upon fish tissue data collected more than 7.5 years ago that has not been supplemented with updated data. It "will be a huge effort to collect additional data that's less than seven-and-a-half years old" for the waters under these advisories (and on the "planning list" as a result thereof) to determine, in accordance with Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, whether the continuation of these advisories is warranted. Undertaking this "huge effort," instead of relying on data more than 7.5 years old to make these determinations, is reasonably justified because this 7.5-plus-year-old data that has already been collected may no longer be representative of the current conditions of the waters in question and it therefore is prudent to rely on more recent data. Subsection (1)(c) of proposed Rule 62-303.470, Florida Administrative Code, does not specify the amount of fish tissue data that will be needed in order for the Department to determine that there is sufficient data to "support the continuation of the advisory." The Department will need to exercise its "best professional judgment" on a case-by-case basis in making such sufficiency determinations. Part III: Proposed Rule 62-303.480, Florida Administrative Code Proposed Rule 62-303.480, Florida Administrative Code, the counterpart of proposed Rule 62-303.380, Florida Administrative Code, establishes a reasonable means to determine whether waters should be "verified as being impaired" for the protection of human health. It provides as follows: Drinking Water Use Support and Protection of Human Health If the water segment was listed on the planning list due to exceedances of a human health-based water quality criterion and there were insufficient data from the last five years preceding the planning list assessment to meet the data sufficiency requirements of section 303.320(4), additional data will be collected as needed to meet the requirements. Once these additional data are collected, the Department shall re-evaluate the data using the methodology in rule 62-303.380(2) and limit the analysis to data collected during the five years preceding the planning list assessment and the additional data collected pursuant to this paragraph (not to include data older than 7.5 years). For this analysis, the Department shall exclude any data meeting the requirements of paragraph 303.420(5). The following water segments shall be listed on the verified list: for human health-based criteria expressed as maximums, water segments that meet the requirements in rule 62-303.420(6), or for human health-based criteria expressed as annual averages, water segments that have an annual average that exceeds the applicable criterion. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New Proposed Rule 62-303.480, Florida Administrative Code, imposes additional requirements only for those waters placed on the "planning list" for "assessment of the threat to human health" pursuant to Subsection (2) of proposed Rule 62- 303.380, Florida Administrative Code. Notwithstanding that proposed Rule 62-303.480, Florida Administrative Code, is entitled, "Drinking Water Use Support and Protection of Human Health," waters placed on the "planning list" for drinking water use support pursuant to Subsection (1) of proposed Rule 62- 303.380, Florida Administrative Code, are not addressed in the proposed rule (or anywhere else in Part III of the proposed rule chapter). Accordingly, as noted above, these waters will go directly from the "planning list" to the "verified list" (subject to the provisions of proposed Rules 62-303.600, 62- 303.700, and 62-303.710, Florida Administrative Code). Proposed Rule 62-303.480, Florida Administrative Code, reasonably requires the Department, in determining whether a water should be "verified as being impaired" for the protection of human health based upon exceedances of "human health-based criteria expressed as maximums," to use the same valid statistical methodology (discussed above) that it will use, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to determine whether a water should be "verified as being impaired" based upon "[e]xceedances of [a]quatic [l]ife-[b]ased [c]riteria." Proposed Rule 62-303.480, Florida Administrative Code, also sets forth an appropriate method for use in determining whether a water should be "verified as being impaired" based upon exceedances of "human health-based criteria expressed as annual averages." Only one exceedance of any "human health-based criteria expressed as an annual average" will be needed for a water to be listed under the proposed rule, the same number needed under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, for a water to make the "planning list." Under proposed Rule 62-303.480, Florida Administrative Code, however, unlike under Subsection (2)(b) of proposed Rule 62-303.380, Florida Administrative Code, the data relied upon by the Department will have to meet the "data sufficiency requirements of section [62]-303.320(4)," Florida Administrative Code, and, in addition, data of the type described in Subsection (5) of proposed Rule 62-303.420, Florida Administrative Code, as well as data collected more than "five years preceding the planning list assessment," will be excluded from the Department's consideration. Code Part III: Proposed Rule 62-303.500, Florida Administrative As noted above, Subsection (4) of Section 403.067, Florida Statutes, directs the Department, "[i]n association with [its preparation of an] updated list [of waters for which TMDLs will be calculated, to] establish priority rankings and schedules by which water bodies or segments will be subjected to total maximum daily load calculations." Proposed Rule 62- 303.500, Florida Administrative Code, explains how the Department will go about carrying out this statutory directive. It reads as follows: When establishing the TMDL development schedule for water segments on the verified list of impaired waters, the Department shall prioritize impaired water segments according to the severity of the impairment and the designated uses of the segment taking into account the most serious water quality problems; most valuable and threatened resources; and risk to human health and aquatic life. Impaired waters shall be prioritized as high, medium, or low priority. The following waters shall be designated high priority: Water segments where the impairment poses a threat to potable water supplies or to human health. Water segments where the impairment is due to a pollutant regulated by the CWA and the pollutant has contributed to the decline or extirpation of a federally listed threatened or endangered species, as indicated in the Federal Register listing the species. The following waters shall be designated low priority: [W]ater segments that are listed before 2010 due to fish consumption advisories for mercury (due to the current insufficient understanding of mercury cycling in the environment). Man-made canals, urban drainage ditches, and other artificial water segments that are listed only due to exceedances of the dissolved oxygen criteria. Water segments that were not on a planning list of impaired waters, but which were identified as impaired during the second phase of the watershed management approach and were included in the verified list, unless the segment meets the criteria in paragraph (2) for high priority. All segments not designated high or low priority shall be medium priority and shall be prioritized based on the following factors: the presence of Outstanding Florida Waters. the presence of water segments that fail to meet more than one designated use. the presence of water segments that exceed an applicable water quality criterion or alternative threshold with a greater than twenty-five percent exceedance frequency with a minimum of a 90 percent confidence level. the presence of water segments that exceed more than one applicable water quality criteria. administrative needs of the TMDL program, including meeting a TMDL development schedule agreed to with EPA, basin priorities related to following the Department's watershed management approach, and the number of administratively continued permits in the basin. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is anticipated that most waters on the Department's "updated list" will fall within the "medium priority" category. Subsections (4)(a) through (4)(e) of proposed Rule 62-303.500, Florida Administrative Code, describe those factors (including, among others, the "presence of Outstanding Florida Waters" and "the number of administratively continued permits in the basin," the latter being added "based on input from the Petitioners") that will be taken into account by the Department in prioritizing waters within this "medium priority" category; but nowhere in the proposed rule does the Department specify how much weight each factor will be given relative to the other factors. This is a matter that, in accordance with the TAC's recommendation, will be left to the "best professional judgment" of the Department. "[T]here is a lot known about mercury" and its harmful effects; however, as the Department correctly suggests in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, there is not yet a complete understanding of "mercury cycling in the environment" and how mercury works its way up the food chain. "[T]here are a series of projects that are either on the drawing board or in progress now" that, hopefully, upon their conclusion, will give the Department a better and more complete understanding of what the sources of mercury in Florida surface waters are and how mercury "cycles" in the environment and ends up in fish tissue. Until the Department has such an understanding, though, it is reasonable for waters "verified as being impaired" due to fish consumption advisories for mercury to be given a "low priority" designation for purposes of TMDL development (as the Department, in Subsection (3)(a) of proposed Rule 62-303.500, Florida Administrative Code, indicates it will). Code Part III: Proposed Rule 62-303.600, Florida Administrative As noted above, proposed Rule 62-303.600, Florida Administrative Code, like Subsection (5) of proposed Rule 62- 303.100, Florida Administrative Code, is designed to give effect to and make more specific the language in Subsection (4) of Section 403.067, Florida Statutes, that an impaired water may be listed on the Department's "updated list" of waters for which TMDLs will be calculated only "if technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards." It reads as follows: Evaluation of Pollution Control Mechanisms Upon determining that a water body is impaired, the Department shall evaluate whether existing or proposed technology- based effluent limitations and other pollution control programs under local, state, or federal authority are sufficient to result in the attainment of applicable water quality standards. If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA,[68] the segment shall not be listed on the verified list. The Department shall document the basis for its decision, noting any proposed pollution control mechanisms and expected improvements in water quality that provide reasonable assurance that the water segment will attain applicable water quality standards. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New It is beyond reasonable debate that, pursuant to Subsection (4) of Section 403.067, Florida Statutes, before the Department may include impaired waters on the "updated list" of waters for TMDLs will be calculated, it must evaluate whether "technology-based effluent limitations and other pollution control programs" are sufficient for water quality standards in these waters to be attained in the future. (To construe the statute as requiring the Department to simply look back, and not forward into the future, in conducting its mandated evaluation of "pollution control programs" would render meaningless the language in the statute directing the Department to conduct such an evaluation after having determined that these waters are impaired.69 As Mr. Joyner testified at the final hearing in explaining what led Department staff "to conclude that [the Department] should be considering future achievement of water quality standards or future implementation of such [pollution control] programs": [I]t [Subsection (4) of Section 403.067, Florida Statutes] basically requires two findings. It's impaired and these things won't fix the problem. If the "won't fix the problem" required it to be fixed right now in the present tense [to avoid listing], then it couldn't be impaired. So it would just be an illogical construction of having two requirements in the statute.) Proposed Rule 62-303.600, Florida Administrative Code, does not specify when "in the future" water quality attainment resulting from an existing or proposed "pollution control program" must be expected to occur in order for a presently impaired water to not be listed; but neither does Subsection (4) of Section 403.067, Florida Statutes, provide such specificity. Indeed, the statute's silence on the matter was the very reason that Department staff did "not set a time frame for [expected] compliance with water quality standards." Rather than "set[ting] such a time frame," Department staff took other measures "to address the open nature of the statute" and limit the discretion the Legislature granted the Department to exclude presently impaired waters from the "updated list" based upon there being pollution control programs sufficient to result in these waters attaining water quality standards in the future "for the pollutant of concern." They included language in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, requiring that the Department, before exercising such discretion to exclude a presently impaired water from the "updated list," have "reasonable assurance" that water quality standards will be attained and that "reasonable progress" will be made in attaining these standards within a specified time frame, to wit: "by the time the next 303(d) list is scheduled to be submitted to EPA." "Reasonable assurance" is a term that has a "long history" of use by the Department in various programs,70 including its wastewater permitting program.71 Neither sheer speculation that a pollution control program will result in future water quality attainment, nor mere promises to that effect, will be sufficient, under Subsection of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code, to exclude an impaired water from the "updated list." The Department will need to examine and analyze the specific characteristics of each impaired water, as well as the particular pollution control program in question, including its record of success and/or failure, if any, before determining (through the use of its "best professional judgment") whether there is the "reasonable assurance" required by these proposed rule provisions. How much time it will take for an impaired water to attain water quality standards will depend on various water- specific factors, including the size of the water body, the size of the watershed, and whether there are pollutants stored in the sediment. The particular circumstances of each case, therefore, will dictate what constitutes "reasonable progress72 towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA," within the meaning of Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and proposed Rule 62-303.600, Florida Administrative Code. Because of the case-specific factors involved in determining "reasonable assurance" and "reasonable progress," it was not practicable for Department staff to specify in Subsection (5) of proposed Rule 62-303.100, Florida Administrative Code, and in proposed Rule 62-303.600, Florida Administrative Code, exactly what would be needed to be shown in each case to establish "reasonable assurance" and "reasonable progress." At the April 26, 2001, rule adoption hearing, Department staff proposed an amendment to proposed Rule 62- 303.600, Florida Administrative, to make the proposed rule more specific by adding "a list of elements that needed to be addressed to provide reasonable assurance" and defining "reasonable progress." The amendment, which was opposed by the DACS and regulated interests, was withdrawn before being considered by the ERC because Department staff felt that is was not "quite well thought out enough," particularly insofar as it addressed the concept of "reasonable progress." Part III: Proposed Rule 62-303.700, Florida Administrative Code As noted above, proposed Rule 62-303.700, Florida Administrative Code, describes the first two phases of the "basin management cycle" and the TMDL-related events that will occur during these phases. It reads as follows: Listing Cycle The Department shall, to the extent practical, develop basin-specific verified lists of impaired waters as part of its watershed management approach, which rotates through the State's surface water basins on a five year cycle. At the end of the first phase of the cycle, which is designed to develop a preliminary assessment of the basin, the Department shall update the planning list for the basin and shall include the planning list in the status report for the basin, which will be noticed to interested parties in the basin. If the specific pollutant causing the impairment in a particular water segment is not known at the time the planning list is prepared, the list shall provide the basis for including the water segment on the planning list. In these cases, the pollutant and concentration causing the impairment shall be identified before the water segment is included on the verified list to be adopted by Secretarial Order. During the second phase of the cycle, which is designed to collect additional data on waters in the basin, interested parties shall be provided the opportunity to work with the Department to collect additional water quality data. Alternatively, interested parties may develop proposed water pollution control mechanisms that may affect the final verified list adopted by the Secretary at the end of the second phase. To ensure that data or information will be considered in the preliminary basin assessment, it must be submitted to the Department or entered into STORET or, if applicable, the DoH database no later than September 30 during the year of the assessment. Within a year of the effective date of this rule, the Department shall also prepare a planning list for the entire state. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The preference expressed in proposed Rule 62-300.700, Florida Administrative Code, for verified lists to be developed on a "basin-specific" basis "as part of the Department's watershed management approach" is consistent with the directive in the first sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that the Department conduct its TMDL assessment for the “basin in which the water body . . . is located.” Proposed Rule 62-300.700, Florida Administrative Code, carries out the mandate in the second sentence of Subsection (3)(a) of Section 403.067, Florida Statutes, that, in conducting its TMDL assessment, the Department "coordinate" with "interested parties." Furthermore, the proposed rule makes clear that parties outside the Department will have the opportunity "work with the Department to collect additional water quality data" needed to meet data sufficiency requirements. Identifying the "pollutant and concentration causing the impairment" before including a water on the "verified list," as proposed Rule 62-303.700, Florida Administrative Code, requires be done, is something the Department will need to do to comply with the directive contained in the third sentence of Subsection (4) of Section 403.067, Florida Statutes. Part III: Proposed Rule 62-303.710, Florida Administrative Code Proposed Rule 62-303.710, Florida Administrative Code, addresses the "[f]ormat of [v]erified [l]ist and [v]erified [l]ist [a]pproval." It reads as follows: The Department shall follow the methodology established in this chapter to develop basin-specific verified lists of impaired water segments. The verified list shall specify the pollutant or pollutants causing the impairment and the concentration of the pollutant(s) causing the impairment. If the water segment is listed based on water quality criteria exceedances, then the verified list shall provide the applicable criteria. However, if the listing is based on narrative or biological criteria, or impairment of other designated uses, and the water quality criteria are met, the list shall specify the concentration of the pollutant relative to the water quality criteria and explain why the numerical criterion is not adequate. For waters with exceedances of the dissolved oxygen criteria, the Department shall identify the pollutants causing or contributing to the exceedances and list both the pollutant and dissolved oxygen on the verified list. For waters impaired by nutrients, the Department shall identify whether nitrogen or phosphorus, or both, are the limiting nutrients, and specify the limiting nutrient(s) in the verified list. The verified list shall also include the priority and the schedule for TMDL development established for the water segment, as required by federal regulations. The verified list shall also note any waters that are being removed from the current planning list and any previous verified list for the basin. The verified basin-specific 303(d) list shall be approved by order of the Secretary. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New The second and fourth sentences of Subsection (1) of proposed Rule 62-303.710, Florida Administrative Code, track the requirements of the third sentence of Subsection (4) and the first and second sentences of Subsection (3)(c), respectively, of Section 403.067, Florida Statutes. Furthermore, as a practical matter, a TMDL cannot be developed if the culprit pollutant is not able to be identified. Subsection (2) of proposed Rule 62-303.710, Florida Administrative Code, was included in the proposed rule because, in most instances, the Department does not consider dissolved oxygen to be a pollutant. The pollutants most frequently associated with exceedances of the dissolved oxygen criteria are nutrients (nitrogen and/or phosphorous). It is essential to identify the "limiting nutrient," as Subsection (3) of proposed Rule 62-303.710, Florida Administrative Code, requires the Department to do, inasmuch as the "limiting nutrient" is the particular pollutant for which a TMDL will be developed. Part IV: Overview Part IV of proposed Rule Chapter 62-303, Florida Administrative Code, is entitled, "Miscellaneous Provisions." It includes two proposed rules, proposed Rule 62-303.720, Florida Administrative Code, and proposed Rule 62-303.810, Florida Administrative Code. Part IV: Proposed Rule 62-303.720, Florida Administrative Code Proposed Rule 62-303.720, Florida Administrative Code, describes how waters may be removed from the "planning list" and the "verified list." The proposed rule, which is entitled, "Delisting Procedures," cites Sections 403.061 and 403.067, Florida Statutes, as its "[s]pecific [a]uthority" and Sections 403.062 and 403.067, Florida Statutes, as the "[l]aw [i]mplemented" by the proposed rule. Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, addresses the removal of waters from the "planning list." It reads as follows: Waters on planning lists developed under this Chapter that are verified to not be impaired during development of the verified list shall be removed from the State's planning list. Once a water segment is verified to not be impaired pursuant to Part III of this chapter, the data used to place the water on the planning list shall not be the sole basis for listing that water segment on future planning lists. The "removal" provisions of Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will apply to all waters on the planning list "that are verified to not be impaired during development of the verified list," including those waters that had been placed on the "planning list" pursuant to Subsection (2) of proposed Rule 62-303.300, Florida Administrative Code, by virtue of their having been on the state's 1998 303(d) list. Waters removed from the "planning list" pursuant to Subsection (1) of proposed Rule 62-303.720, Florida Administrative Code, will be eligible to reappear on "future planning lists," but not based exclusively on "the data used to [initially] place the water on the planning list." Additional data will be needed. Subsections (2) and (3) of proposed Rule 62-303.720, Florida Administrative Code, address the removal of waters from the "verified list." They read as follows: Water segments shall be removed from the State's verified list only after completion of a TMDL for all pollutants causing impairment of the segment or upon demonstration that the water meets the water quality standard that was previously established as not being met. For waters listed due to failure to meet aquatic life use support based on water quality criteria exceedances or due to threats to human health based on exceedances of single sample water quality criteria, the water shall be delisted when: the number of exceedances of an applicable water quality criterion due to pollutant discharges is less than or equal to the number listed in Table 3 for the given sample size, with a minimum sample size of 30. This table provides the number of exceedances that indicate a maximum of a 10% exceedance frequency with a minimum of a 90% confidence level using a binomial distribution, or following implementation of pollution control activities that are expected to be sufficient to result in attainment of applicable water quality standards, evaluation of new data indicates the water no longer meets the criteria for listing established in section 62-303.420, or following demonstration that the water was inappropriately listed due to flaws in the original analysis, evaluation of available data indicates the water does not meet the criteria for listing established in section 62-303.420. New data evaluated under rule 62- 303.720(2)(a)1. must meet the following requirements: they must include samples collected during similar conditions (same seasons and general flow conditions) that the data previously used to determine impairment were collected with no more than 50% of the samples collected in any one quarter, the sample size must be a minimum of 30 samples, and the data must meet the requirements of paragraphs 62-303.320(4), (6) and (7). For waters listed due to failure to meet aquatic life use support based on biology data, the water shall be delisted when the segment passes two independent follow-up bioassessments and there have been no failed bioassessments for at least one year. The follow-up tests must meet the following requirements: For streams, the new data may be two BioRecons or any combination of BioRecons and SCIs. The bioassessments must be conducted during similar conditions (same seasons and general flow conditions) under which the previous bioassessments used to determine impairment were collected. The data must meet the requirements of Section 62-303.330(1) and (2), F.A.C. For waters listed due to failure to meet aquatic life use support based on toxicity data, the water shall be delisted when the segment passes two independent follow-up toxicity tests and there have been no failed toxicity tests for at least one year. The follow-up tests must meet the following requirements: The tests must be conducted using the same test protocols and during similar conditions (same seasons and general flow conditions) under which the previous test used to determine impairment were collected. The data must meet the requirements of rules 62-303.340(1), and the time requirements of rules 62-303.340(2) or (3). For waters listed due to fish consumption advisories, the water shall be delisted following the lifting of the advisory or when data complying with rule 62-303.470(1)(a) and (b) demonstrate that the continuation of the advisory is no longer appropriate. For waters listed due to changes in shellfish bed management classification, the water shall be delisted upon reclassification of the shellfish harvesting area to its original or higher harvesting classification. Reclassification of a water from prohibited to unclassified does not constitute a higher classification. For waters listed due to bathing area closure or advisory data, the water shall be delisted if the bathing area does not meet the listing thresholds in rule 62-303.360(1) for five consecutive years. For waters listed based on impacts to potable water supplies, the water shall be delisted when applicable water quality criteria are met as defined in rule 62- 303.380(1)(a) and when the causes resulting in higher treatment costs have been ameliorated. For waters listed based on exceedance of a human health-based annual average criterion, the water shall be delisted when the annual average concentration is less than the criterion for three consecutive years. For waters listed based on nutrient impairment, the water shall be delisted if it does not meet the listing thresholds in rule 62-303.450 for three consecutive years. For any listed water, the water shall be delisted if following a change in approved analytical procedures, criteria, or water quality standards, evaluation of available data indicates the water no longer meets the applicable criteria for listing. Table 2: Delisting Maximum number of measured exceedances allowable to DELIST with at least 90% confidence that the actual exceedance rate is less than or equal to ten percent. Sample Sizes From To Maximum # of exceedances allowable for delisting 30 37 0 38 51 1 52 64 2 65 77 3 78 90 4 91 103 5 104 115 6 116 127 7 128 139 8 140 151 9 152 163 10 164 174 11 175 186 12 187 198 13 199 209 14 210 221 15 222 232 16 233 244 17 245 255 18 256 266 19 267 278 20 279 289 21 290 300 22 301 311 23 312 323 24 324 334 25 335 345 26 346 356 27 357 367 28 368 378 29 379 389 30 390 401 31 402 412 32 413 423 33 424 434 34 435 445 35 446 456 36 457 467 37 468 478 38 479 489 39 490 500 40 Any delisting of waters from the verified list shall be approved by order of the Secretary at such time as the requirements of this section are met. Subsection (2)(a)1. of proposed rule 62-303.720, Florida Administrative Code, establishes a statistical methodology appropriate for "delisting" waters that have been listed as impaired based upon {e]xceedances of [a]quatic [l]ife- [b]ased [w]ater [q]uality [c]riteria." This "delisting" methodology" is the "equivalent" (as that term is used in Subsection (5) of Section 403.067, Florida Statutes) of the statistical methodology that will be used, pursuant to proposed Rule 62-303.420, Florida Administrative Code, to verify impairment based upon such exceedances. Both methodologies are based on the binomial model and use an "exceedance frequency" threshold of ten percent with a minimum confidence level of 90 percent. A greater minimum sample size is required under Subsection (2)(a)1. of proposed Rule 62-303.720, Florida Administrative Code, because the Department will need, thereunder, "to have at least 90 percent confidence that the actual exceedance rate is less than ten percent" "as opposed to greater than ten percent, which is a bigger range." The "calculations [reflected in the table, Table 3, which is a part of Subsection (2)(a)1. of proposed Rule 62- 303.720, Florida Administrative Code] are correct." There is nothing unreasonable about the "delisting" criteria set forth in Subsections (2)(c) and (2)(j) of proposed Rule 62-303.720, Florida Administrative Code. Subsection (2)(c) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department, where waters have been "listed due to failure to meet aquatic life use support based on toxicity data" (in the form of two failed toxicity tests conducted "two weeks apart over a twelve month period"), to "delist" these waters if the Department has more recent "equivalent [toxicity] data" (in the form of two passed "follow-up toxicity tests," with no failed tests for at least twelve months) showing that the waters are not toxic. Subsection (2)(j) of proposed Rule 62-303.720, Florida Administrative Code, reasonably requires the Department to "delist" a water "following a change in approved analytical procedures" only where the change calls into question the validity and accuracy of the data that was relied upon to make the original listing determination and there is other data demonstrating that the water meets water quality standards. Code Part IV: Proposed Rule 62-303.810, Florida Administrative Proposed Rule 62-303.810, Florida Administrative Code, is entitled, "Impairment of Interstate and Tribal Waters." It reads as follows: The Department shall work with Alabama, Georgia, and federally recognized Indian Tribes in Florida to share information about their assessment methodology and share water quality data for waters that form state boundaries or flow into Florida. In cases where assessments are different for the same water body, the Department shall, to the extent practical, work with the appropriate state, Indian Tribe and EPA to determine why the assessments were different. Specific Authority 403.061, 403.067, FS. Law Implemented 403.062, 403.067, FS. History -- New
Findings Of Fact The Parties The City is a municipal corporation of the State of Florida. The City owns and operates a public water utility system which supplies potable water to the City of Cocoa, Cocoa Beach, Rockledge, Cape Canaveral, certain unincorporated areas of Brevard County, Merritt Island, Patrick Air Force Base, Cape Kennedy, Cape Canaveral Air Force Station, and the Cocoa Beach Ocean Tracking Annex. Potable water is provided to approximately 136,000 persons in that service area. The District is an agency created pursuant to Chapter 373, F.S., with the responsibility for regulating consumptive uses of water in a nineteen county area of the State of Florida, including all of Brevard County and that part of Orange County on which the City's wellfield is located. Deseret Ranches is a Utah corporation authorized to do business in the State of Florida. Deseret owns real property in eastern Orange County surrounding the City's existing wells. Twenty-one of the City's proposed wells are to be located on Deseret's property. Deseret's operations in the vicinity of the wells include citrus, cattle, sod harvesting, forestry, and wildlife management for hunting leases. Holland Properties, Inc., is a closely-held Florida corporation owning real property in eastern Orange County on which three of the City's proposed wells are to be located. Holland's business is primarily citrus and cattle. Holland has four wells on its property, one at a dwelling, one at the bunkhouse and cattle pens, and two in the citrus groves. Doris Keller, the Isle of Pine Property Owners Association and remaining individual petitioners own residential property near and bordering Lake Mary Jane within a two-mile radius of proposed City wells #32 and 33. The property owners generally maintain individual wells for domestic and irrigation purposes. The corporate and individual petitioners are existing legal users of water. The System and WellField The City's public water utility system consists of a wellfield and raw water collection lines, the Wewahootee pump station, transmission lines from the pump station to the treatment plant, the Dyal water treatment plant, and a distribution system which includes both elevated and ground storage. The distribution system is located in Brevard County; the wellfield and rest of the utility are located in eastern Orange County, west of the St. Johns River. The entire system and its users are located within the boundaries of the District. The City's wellfield is divided into an eastern wellfield and a western wellfield which together have a total of twenty-three active wells and nine inactive wells. Active wells 7A, 13, 14, 15, 16, 17, 18, and 19 are located in the western wellfield. Active wells 1, 2, 3, 4, 4A 1, 5, 7, 7T, 8, 9, 10, 11, 12A, 12B and R-1; and inactive wells 1T, 2T, 3T, 4T, R-2, R-3, R-4, R-5, and R-6 are in the eastern wellfield. The wells designated with a prefix "R" are aquifer storage and recovery (ASR) wells. These are used to inject partially treated water into an underground formation for storage and later use in meeting maximum day demands on the utility. All six ASR wells have been constructed, and well R-1 is operating under a temporary consumptive use permit. All of the ASR wells are located on the 63-acre Dyal water treatment plant site owned by the City. When all are operational the six ASR wells will have a combined recovery capacity of approximately 8 million gallons a day (MGD). The City has been operating its wellfield for more than thirty years. The Application On February 20, 1979, the District issued consumptive use permit (CUP) #2-095-0005 to the City for its eastern Orange County wellfield. The permit approved a total of 30 MGD average daily withdrawal and 40 MGD maximum daily withdrawal. This total included an existing use of 16 MGD average daily withdrawal and 23 MGD maximum daily withdrawal, approved for a period of 25 years. The new use, 14 MGD average daily withdrawal and 17 MGD maximum daily withdrawal, was approved for 10 years. In September 1988, the City submitted its CUP application to renew the new use approval due to expire in February 1989. This application also sought an increased allocation to meet projected demand for the City's service area. The application included a request for authority to withdraw surface water from the Taylor Creek Reservoir, but this request was withdrawn in February 1989. The total consumptive use allocation sought in CUP application #2-095-0005 is 31 MGD average daily withdrawal and 48 MGD maximum daily withdrawal, which total includes the approved existing use which will not expire until the year 2004. The City proposes to add seven new Floridan aquifer wells (wells 38, 39, 40, 41, 42, 43 and 44) and eleven new intermediate aquifer wells (wells 5T, 6T, 8T, 9T, 10T, 11T, 12T, 13T, 14T, 15T and 16T) to the eastern wellfield; all to be located on land currently owned by Deseret. The City proposes to add six new Floridan aquifer wells to the western wellfield: wells 20, 21, 22, 31, 32 and 33. Wells 20, 21 and 22 will be located on land currently owned by Deseret. Wells 31, 32 and 33 will be located on land currently owned by Holland. The application includes the addition of all six ASR wells on land owned by the City. The City proposes to activate two existing Intermediate aquifer wells, 2T and 3T. District staff issued a technical staff report dated February 6, 1989, recommending approval of the September 1988 application, with conditions. After the application was amended in November 1989, District staff again reviewed it and prepared revised permit conditions, dated February 21, 1990. Petitioners have not directly contested those conditions but have proposed their own conditions if their position regarding denial of the permit is rejected. Description of the Geology and Hydrogeology An aquifer is a geologic unit, portion of a geologic unit or combination of geologic units containing water that can be withdrawn economically. There are four significant aquifer systems in the area of the City wellfield: the Surficial aquifer, the Intermediate aquifer, the upper Floridan aquifer and the lower Floridan aquifer. The potentiometric surface, or "head" of an aquifer refers to the pressure surface of a confined or semi-confined aquifer. It is the level above the top of the aquifer to which water will rise within a tightly cased well completed in the aquifer. Fine grained sands, clay and shell deposits exist from land surface to approximately 50 feet below land surface (BLS). The saturated portion of this unit comprises the Surficial aquifer, sometimes called the shallow or water table aquifer. From approximately 50 feet to 60 feet BLS there is a discontinuous clay lens. This unit acts as a semi-confining unit between the Surficial aquifer and the underlying Intermediate aquifer. There is a reasonably good hydraulic connection between the Intermediate and Surficial aquifer in the vicinity of Lake Mary Jane. The Intermediate aquifer lies approximately 60 feet to 100 feet BLS, and is comprised of water-bearing shell layers mixed with sand. Below the Intermediate aquifer is a thick clay layer, called the Hawthorn formation, which is a confining layer separating the Intermediate from the underlying Floridan aquifer. Within the Hawthorn are discontinuous lenses of marl (clayey limestone) which in some areas can produce water. The Hawthorn extends from approximately 100 feet BLS to 250 feet BLS, and becomes less thick heading west. The Hawthorne formation in the subject area has extremely low permeability, making it very difficult for water to move through the formation. It is widely accepted that there is a poor hydraulic connection between the Floridan aquifer beneath the Hawthorne, and the Intermediate and Surficial aquifers above the Hawthorne. The subject area has one inch or less per year recharge to the Floridan from the overlying aquifers. "Recharge" means the supply of water to an aquifer from an outside source, for example, rainfall. Below the Hawthorne formation is the massive limestone and dolomite sequence of the Floridan aquifer, divided generally into an upper and lower region, with the upper Floridan beginning at approximately 250 feet BLS descending to 650 feet BLS, and the lower region extending from approximately 650 feet BLS to greater than 1100 or 1200 feet BLS. Most of the water in the Floridan aquifer in the subject area enters horizontally from the Floridan aquifer in the recharge area of western Orange County. There is a natural flow from west to east, from the high recharge area and higher head, to the lower head in the east. All but one of the active wells in Cocoa's existing wellfield draws from the upper Floridan aquifer. Well 7T withdraws water from the Intermediate aquifer. Wells 1T, 2T, 3T and 4T, currently inactive, are designed to withdraw water from the Intermediate aquifer. None of the proposed new wells will draw from the lower Floridan or Surficial aquifers. The Floridan and Intermediate aquifers are capable of producing the quantity of water requested by the City, a fact which at various times in this proceeding has been admitted by Petitioners' experts, Lichtler and Drake. Wellfield Design and Operation In its 30 years of operation the City has made some wellfield management errors. A number of wells were drilled too deep and pumped too hard, causing deterioration in the water quality of wells in the eastern wellfield when poorer quality water located deep within the Floridan aquifer was drawn upward into the wells. The City has begun addressing elevated chloride levels by backplugging some of its upper Floridan aquifer wells, with success. The Petitioners are urging expansion of the City's backplugging program. However, the production capacity of a well is reduced by backplugging. The total capacity of the City's wellfield with all existing active wells operating is approximately 38 MGD. In 1989 the peak demands for water came close to exceeding capacity on several occasions, thus there is currently no reserve capacity in the wellfield. Due to the lack of reserve, the District issued water shortage orders dated November 14, 1989 and April 10, 1990, imposing water shortage restrictions in the City's service area. Reserve capacity is essential to sound wellfield management. It provides flexibility and the ability to meet water demands during routine maintenance or in the event of loss of a well due to pump breakdown or lightning strike. Additional wells will allow the City to redistribute pumpage to reduce the negative impacts of pumping in the eastern wellfield. Twenty percent, the amount requested in the City's application, is a reasonable and appropriate reserve in excess of the City's projected maximum daily demand. The City's current wellfield is physically incapable of meeting projected 1997 water demands, even without a reserve. Water Demand Conservation and Reuse In 1989 the City withdrew water from its wellfield at a rate of 26 MGD average daily withdrawal and 38 MGD maximum daily withdrawal. The City's application requests an increased allocation to meet a reasonable projected demand over the next seven years. In 1989 the City served approximately 136,000 persons and anticipates serving 160,000 by 1997, based on projections from the Brevard County planning department. In projecting need for the year 1997, the City took an average of the results of two projection methods: a straight line method and a population- based method. The straight line method is based on historical average and maximum daily demands on the system from 1984 through 1987, the four full years prior to the City's application submittal. This method projects a demand in 1997 of approximately 36 MGD average daily withdrawal and 57 MGD maximum. The population-based method calculates future average daily demands based on projections of future equivalent residential connections. Future maximum daily demands are calculated by applying an historic ratio of maximum day to average day demands. The ratio for the period 1983-1987 was 1.57. This method predicts an average daily demand of 29 MGD and maximum daily demand of 45 MGD in 1997. Averaging the two results yields a prediction of 32.5 MGD average demand and 51 MGD maximum daily demand for the City's service area in 1997. Reasonable persons can differ as to future demand projections. Gerald Hartman, Deseret's expert, projected less demand but only projected to the year 1995, as he advocates a shorter term permit than the seven years requested by the City. He also obtained historical data over an eighteen year period between 1970 and 1987, when the area was experiencing a lower growth rate. When extrapolated to a seven, rather than five year projection, Hartman's figures are reasonably close to those projected by the City. Historical demand data for the years 1988 and 1989 since the City's application was filed, are consistent with the City's projections. It is generally preferable to over-project demand, rather than under- project and have insufficient water available for the service area's needs. The District staff's proposed special permit conditions #12 and 13 provide a gradual increase in allocation over the period of the permit, up to 48 MGD maximum daily withdrawal in 1997. In addition, permit condition #9 reserves to the District the right to modify annual allocations if the permittee does not reach its new projected demand in the service area. Although the projected maximum daily demand is 51 MGD, the application seeks 3 MGD less, or an allocation of 48 MGD. Some of this deficit will be mitigated by more effective reuse and conservation methods. The City employs a full-time conservation officer to conduct education and retrofitting programs. The City's conservation efforts are consistent with other permitted users, and its commitment to reuse measures has been reasonable. The City and other governmental units or installations within its service area are reusing domestic wastewater at a rate of approximately 30%. Except for its contract with the City of Cocoa Beach, the City currently does not have the authority to impose reuse and conservation beyond its own municipal jurisdiction. As the contracts expire, renewal contracts will include such provisions. The District requires additional information to support requests with per capita usage above 150 GPD. Based on the total number of residential connections and water usage billed to residential meters, the City reasonably derives a per capita usage rate of 72 gallons per day. Alternate sources are not reasonably available to meet the City's system's near future water demands. Development of the Taylor Creek Reservoir as a surface water source will take approximately five to eight years -- too long to meet the City's needs now and in the interim. Reverse osmosis plants (sometimes called desalination) may be a viable source of water in the Brevard County area in the future, but they have a limited potential yield and are a costly alternative. Moreover, this alternative is not available now for Cocoa's near-future needs. Storage facilities are useful for meeting hourly demands during the day. They are filled at night and drained during the day when necessary. However, with a lightning strike or mechanical failure which might take several days or several weeks to repair, the storage tanks will not replace a lost well. ASR wells are a relatively new technology. The first in Florida became operational in 1984. They do not produce new water, but rather provide additional storage capacity, much like above-ground tanks. Operation of the City's one permitted ASR well has raised questions as to how long the quality of water injected into the well may be maintained. ASR wells cannot be considered a reliable substitute for additional production wells at this time. Nor is expansion of interconnections with neighboring water systems a reasonable present alternative. The City has two interconnections with the Melbourne water system and one is planned with the Titusville system. These are for emergency use only, as these two municipalities do not have excess water supply for Cocoa's service area needs. Impact of the Proposed Consumptive Use on Water Levels The City's wellfield has been in operation for thirty years and there is no evidence of adverse impact on water levels in wells owned by the Petitioners. No one has ever complained to the City regarding interference with the production of water from his or her well, with lake levels, or with vegetation. At the request of the District, the City's consultants conducted studies to determine the impact of the proposed withdrawals on existing legal users of water. The Intermediate aquifer studies consisted of aquifer performance tests (APT) and pump tests at the Wewahootee Pump Station and along Wewahootee Road, and groundwater flow modeling. The Floridan aquifer studies included APT's at ASR Well R-1 at the Dyal treatment plant, and groundwater flow modeling of proposed withdrawals from the Floridan aquifer. An APT involves withdrawing water from a well and measuring the withdrawals on water levels in that or other monitor wells. The test is used to determine hydraulic characteristics of a well and the aquifer within the vicinity of the well. Groundwater flow models are used in the field of hydrology to mathematically simulate impacts of withdrawals on one or more hydrologic formations. They are commonly relied on by regulatory agencies in evaluating applications for consumptive use. In many cases these models are the only tool available for assessing impact of water supply facilities that have not been constructed. For its groundwater flow model, the City's consultants used a model prepared by the U.S. Geological Survey (USGS) called USGS MODFLOW. This is a numerical model used to calculate groundwater flows and aquifer levels for various hydrogeologic units in a system. It is a model to determine regional, rather than local, impacts. The consultants also used a more limited "analytic" model to predict the effects on water levels at various locations near the existing and proposed production wells. In measuring impacts to the upper Floridan aquifer, parameters or aquifer characteristics were obtained from historical data on the existing wellfield, published hydrogeologic information and past APT's and pump tests performed on existing city wells. This data made it unnecessary to conduct additional APT's. It was unnecessary to model the impact of proposed upper Floridan withdrawals on the Intermediate and Surficial aquifers because of the poor hydraulic connection between the Floridan and overlying aquifers. The MODFLOW model was appropriately calibrated by comparing the simulated potentiometric surface with a USGS potentiometric surface map showing the actual measured 1987 potentiometric surface of the upper Floridan aquifer, using both 1985 and 1987 pumpage amounts. Although USGS potentiometric surface maps involve, by necessity, some extrapolation and interpretation of surfaces between a series of observation wells, these maps are commonly relied upon by hydrogeologists. Calibration such as that conducted by the City produces a reasonable simulation of actual measured levels. Because there was very little information available on the characteristics of the Intermediate aquifer in the subject area, three APT's were conducted by the City's consultants to determine the hydraulic characteristics of the Intermediate Aquifer and to establish its lateral extent in the wellfield. Additionally, single well pumping tests were conducted at several sites along Wewahootee Road. The parameters derived from these tests were used with the groundwater flow model to predict area drawdowns and the impact of the City's proposed withdrawals on the area's water resources. For the groundwater flow model the City used a one mile by one mile grid at the center of the study area. There are no standard grid sizes, and the size used by the City is adequate for determining regional impacts. In the area of the City wellfield, the City's groundwater flow model tends to overestimate expected drawdowns. The city's analytical model was used to predict water level changes locally within the grids at varying distances from existing and proposed wells. This included withdrawal impacts on the potentiometric surface of the Upper Floridan Aquifer in the immediate vicinity of the production wells and beneath the properties owned by Deseret, Holland, and the individual property owners. The analytical model and its parameters applied by the City were reasonable. The City's proposed consumptive use will cause a redistribution of wellfield pumping that will reduce stress on the upper Floridan aquifer in the eastern wellfield and will shift withdrawals into the western wellfield. The potentiometric surface of the Upper Floridan in the eastern wellfield will rebound (rise), and the surface will decline slightly in the western wellfield. This will more evenly spread the stress. Because of the poor hydraulic connection between the upper Floridan and overlying aquifers (Intermediate and Surficial) the reduction in potentiometric surface of the upper-Floridan by the City's proposed withdrawal will not have a measurable impact on the withdrawal capability of any Surficial or Intermediate aquifer well. Nor will the levels of any surface water bodies or wetlands be impacted by the City's use. The City's withdrawals will have no effect on users of the lower Floridan aquifer. The closest existing legal user is the Orlando Utility commission and its facilities are so far away that there is virtually no interaction between the City's withdrawals and the potentiometric surface of the lower Floridan at Orlando Utility's wellsites. It is reasonably predicted that the difference between proposed and current City withdrawals from the upper Floridan will cause approximately 0.6 to 0.8 feet additional drawdown in Deseret's wells; 2.4 to 3.3 feet drawdown in Holland's wells; and 1.3 to 4.4 feet in Keller and other individual Petitioners' wells. Effects on the withdrawal capability and operation of any existing well due to the City's proposed upper Floridan withdrawals will be insignificant and well below the 10% or greater reduction which, according to the District's Applicants' Handbook, Section 9.4.4., is the threshold for presumption of interference with an existing legal use. The results of modeling Cocoa's withdrawals from the Intermediate aquifer predicted a worst case scenario of no more than 25 feet drawdown in the Intermediate aquifer. Water table (Surficial aquifer) drawdowns will range from approximately .24 feet to .34 feet. The drawdown is too insignificant to adversely affect the use of lakes and impoundments. Drawdown effect decreases rapidly with distance from the wells, with any decline in water table inconsequential beyond a half mile radius. The District has not established minimum flows for surface water courses nor minimum levels for aquifers or surface water sources. No Intermediate or Surficial aquifer wells are located close enough to the area of influence to be affected by the City's Intermediate aquifer withdrawals. Because of the poor hydraulic connection between the Floridan and Intermediate aquifer, no Floridan wells will be affected by the City's Intermediate aquifer withdrawals. Withdrawals from the single existing ASR well has not caused any adverse impacts to the water resources of the area, to existing wells, land uses, vegetation or lakes. There has been no saline intrusion nor land subsidence problems. All six ASR wells are located in the same area, 300-400 feet apart, and no adverse impacts from these are reasonably foreseen. Even the Petitioners encourage their use. None of the Petitioners performed modeling or other analysis to show drawdowns or other impacts from the City's proposed upper Floridan and Intermediate aquifers. Instead, Petitioners' experts concentrated on criticisms of the City's parameters, assumptions and methodology in an effort to erode confidence in the City's findings. The experts presented by Petitioners had little or no experience in preparing or using the groundwater flow model USGS MODFLOW, used by the City. Nor did the Petitioners' experts actually apply other parameters to the model to determine ultimate results. District staff reviewed the groundwater flow model and analytic modeling performed by the City's consultants. Richard Levin, a hydrologist employed by the District who was trained by the authors of USGS MODFLOW, ran the model on his computer to verify the results reported by the City. Levin's calibration scenario included an additional 20 existing withdrawal sources not utilized by the City, but his results did not significantly vary from those obtained by the City. Levin also reran and confirmed the results of the City's analytic model. If, as urged by Petitioners, there is no substitute for actual experience in determining adverse impacts, that actual experience will be derived once the new wells are in place and operating. As a condition of permit approval, the District has the authority to curtail withdrawals if such impacts occur. The City will be required to mitigate any adverse impacts. There are methods available for the City to mitigate impacts on the use of other wells and the City is capable of implementing those methods. Impacts of Proposed Consumptive Use on Chloride Levels Concern about the chloride problem addressed in paragraphs 30 and 31, above, led the District staff to require that the City conduct solute transport modeling in the application process. A solute transport model is a computer simulation of the changes in water quality in an aquifer due to changes in water level in the aquifer. A solute transport model is used to evaluate the impact of groundwater withdrawals on water quality and the impact of withdrawals on the movement of naturally occurring low quality water. The use of such models in the field of hydrology is universally accepted. It is considered a highly sophisticated tool. The City's consultants used a solute transport model prepared by the USGS referred to as "USGS MOC". Calibrated parameters from the Floridan aquifer USGS MODFLOW Model were used to create a solute transport model of the smaller area immediately surrounding the City's wellfield. Within this area, water quality baseline conditions were input and the model was run to simulate recent chloride levels at the wellfield. It was run again to simulate the impact of the proposed Floridan Aquifer withdrawals on chloride levels. It was not necessary to analyze the Intermediate or Surficial aquifers, as historic data from these sources indicate no change in water quality; therefore elevated chlorides in these units is not a concern. Withdrawals from the Intermediate aquifer will not affect water quality of the Floridan aquifer due to the poor hydraulic connection. The modeling analysis did not take into account the beneficial effects of rehabilitating Floridan aquifers in the eastern wellfield (the backplugging), thus the model results are a conservative prediction of anticipated chloride levels. The parameters input into the MOC Model are reasonable. The grid size was selected to provide twice the resolution of the MODFLOW model, or 1/2 mile by 1/2 mile. Chloride concentrations used in the model came from data from existing production wells as they were being installed. They represent the original unstressed condition of the Floridan aquifer. Petitioners have posited that the City's proposed new wells will draw poorer water quality from the east into the area of the western wellfield and into their own wells. This theory suggests that chloride contamination is based on lateral intrusion, rather than "upconing" of poor quality water from below. The modeling, as well as experience in management of the City's existing wellfield, with one peculiar exception, disprove that theory. Monitoring of the eastern wellfield has not shown significant lateral movement of the lower quality water. The higher chloride levels appear confined to the production wells themselves. Success of the City's backplugging program also suggests that the chloride is moving up from below, rather than laterally. When wells experiencing higher chlorides in the eastern wellfield have been allowed to rest for short periods, the heavier chloride-laden water subsides back into the lower zones of the aquifer, and water quality is immediately improved when pumping resumes. Lateral intrusion problems resolve more slowly since horizontal movement through the aquifer is quite slow. The predominant natural groundwater flow in this region is from west to east, and lateral instrusion from east to west would have to flow against the natural gradient of the pieziometric surface. This fact is acknowledged in an informative although perhaps somewhat outdated, 1968 treatise co-authored by Deseret's expert, William F. Lichtler, Water Resources of Orange County, Florida, (Holland exhibit #20, p. 127) The District performed a geochemical pattern analysis of the City's wells to determine the relative dominance of calcium chloride versus sodium chloride. Water in the recesses of the lower Floridan aquifer is relic seawater, characterized by a predominant sodium chloride content. A fault or fracture along the St. Johns River to the east of the wellfield has allowed relic seawater to move upward into the upper Floridan in that area. The lower reaches of the upper Floridan contains water with calcium chloride content where fresh water from the western recharge area has moved in to displace the relic sea water, but which, because of its age, has picked up calcium ions from the limestone through which it has traversed. The chloride water found in the City's wells is predominately calcium chloride, drawn upwards, rather than laterally, through the aquifer. An anomaly occurs in the monitor well C, close to wells 7A, 13 and 14, where upconing occurred between depths of 1351 and 1357 feet BLS, and not between depths of 1044 and 1050 feet BLS. Chlorides concentration occurred, however, in Cocoa well 14 accross the road at depths of only 252 to 761 feet BLS. Deseret's expert claims that this is explained by the fact that chlorides have travelled horizontally from the east into well 14. The City's experts conjecture that the better water quality in the deeper zone and abrupt decrease in quality is caused by a dead pocket of fresh water, removed from the usual exchange and flow system, or a lens of fresh water similar to that which has occurred in other areas of the state even when no pumping stress is found. The weight of evidence supports the City's position that degradation of water quality is occurring primarily through upconing, and very insubstantially through lateral intrusion. This means that the City's proposed plan to reduce withdrawals from the existing eastern wellfield Floridan aquifer wells, redistributing pumping over the new wellfield configuration, continuing to backplug wells with elevated chlorides and submitting a wellfield operations plan pursuant to the District's recommended conditions, will improve existing conditions in the eastern wellfield. The proposed withdrawals in the western wellfield should not draw the poorer quality water westerly into Petitioner's wells. Saline water intrusion or encroachment is considered significant when a consumptive use causes chloride concentrations to exceed 250 milligrams per liter (mg/l), the state standard for drinking water. The City's solute transport model comparing existing permitted withdrawals to the proposed consumptive use reveals that the modeled area having chloride concentration exceeding 250 mg/l will substantially decrease from 3.4% to .4%, and the modeled area having chloride concentration between 50 and 150 mg/l will increase from 34.2% of the area to about 37% of the area. These predictions do not take into consideration the additional improvements which will occur by rehabilitating the eastern wellfield Floridan aquifer wells. The water quality in the Intermediate aquifer remains very good, and lack of a good hydraulic connection with the underlying Floridan makes it extremely unlikely that higher chloride concentrations will be moved from the Floridan into the Intermediate and surficial aquifers. Proposed use of the six ASR wells will not harm the quality of the groundwater underlying the Dyal treatment plant. It is more likely that injection of partially treated drinking water will help flush out the brackish water in the area. Petitioners did not perform modeling or other analysis demonstrating that water quality impacts from the City's proposed consumptive use are any different from those presented by the City. As with the groundwater flow model, Petitioner's experts instead sought to impeach the presumptions and techniques employed by the City's consultants in the solute transport model. Some of these are the same as used in MODFLOW. Although qualified as experts in solute transport modeling, Petitioner's witnesses have no experience in using the model, USGS MOC, at issue in this proceeding. The City proposes three new monitor wells in its 1988 and 1989 applications: one each in the eastern and western wellfield, and a third to be located north of the wellfield, somewhere between the wellfield and the Orange County landfill. These and existing monitor wells will facilitate monitoring of the flow of lower quality water. The District's conditions drafted in February 1990 to address the City's application, as amended, prescribe a detailed water quality monitoring regimen, including the submittal of water quality test results to the District prior to production withdrawals from any of the proposed Floridan aquifer wells in the eastern and western wellfields. Certain supply and monitor wells are required to be sampled and analyzed, with the results to be sent to the District semi-annually. The wellfield operation program which will be developed by the City and approved by the District must include the provision that the eastern wellfield Floridan aquifer wells will not pump more than 5.20 MGD on a combined average annual basis and the western wellfield Floridan aquifer wells will not pump more than 2.07 MGD each on an average annual basis. These conditions and the condition that the City must mitigate any adverse water quality impacts caused by its withdrawals will protect Petitioners and other existing legal users. Environmental Impacts of the Proposed Consumptive Use District staff and the City's consultants conducted field investigations in the one mile corridor of Deseret's property, the center of which is the site of existing and proposed City Intermediate aquifer wells. This area is characterized by improved pasture land, pine flatwoods, citrus groves, freshwater marsh, wetland mixed forest, cypress sloughs and domes, freshwater swamps, and borrow pits and ditches. Land uses found in this area are forestry, livestock production, citrus production, sod production, landscape plant harvesting, hunting and fishing leases, and borrow pit operation. Vegetation and land uses on Holland's property are improved pasture, citrus groves, pine flatwoods and pine/palmetto rangeland, mixed hardwood wetland, cypress forest, wetland mixed forest, wet prairie, and ponds and borrow pits. The land use existing on the individual Petitioner's property is low density single family residential. In order to analyze the impact of withdrawals on vegetation and land uses, the City's consultants looked at rainfall data and water level data from three monitor wells, performed a double mass analysis for each of the three wells, examined operation records of the City's Intermediate aquifer well 7T, and made field site visits to the properties. The double mass analysis compares cumulative well stages with cumulative rainfall for the available period of record. The analysis plots the cumulative sum of one set of data against the other set of data over a common period of time. A trend line is established from the plot, and a change in the slope of the double mass line implies a change in the relationship between the two data sets. Double mass analysis is used in the fields of biology, botany and ecology to examine how groundwater and surface water levels are affected by man-made activities--in this case, pumping. Changes in water levels can in turn affect natural biological systems. The three monitoring wells selected in the analysis were installed by and maintained by the USGS for the purpose of monitoring the City wellfield. One is located in the center of the pumping area, and the other two are outside the influence of the wellfield. Rainfall data was collected from the National Oceanographic and Atmospheric Agency (NOAA) station at the Orlando International Airport, within ten miles of the center of the City's wellfield. This is the closest station with a continuous record dating back 30 or more years, the period covered by the City's pumping history. Data used in the analysis was appropriate. The analysis establishes that historical operation of the Cocoa wellfield under progressively greater withdrawals has had no discernible impact on the water table. Pumping from Intermediate Aquifer well 7T did not impact water table elevations in monitoring well Cocoa M, approximately one-half mile away, indicating that drawdown from Intermediate Aquifer wells is very localized. Historic water table declines have been the result of rainfall deficits, and as to Deseret's and Holland's properties specifically, due to the landowners' and others' drainage practices. A number of large ditches and pits have been constructed throughout Deseret's property, mostly located within improved pasture and interspersed wetlands. Ditches, five feet deep, and swales, one to two feet deep, have been constructed on Holland's property to lower the water table elevation in the grove area and to promote runoff and reduce ponding in the pastures. In addition, there are major drainage works in the vicinity of Holland's property and the Lake Mary Jane area less than one mile from the western boundary of Holland's property. These works include the Disston Canal and various U.S. Army Corps of Engineer projects constructed in the 1960's and 1970's to control flooding. Because water table decline due to pumping is highly localized (confined to an approximate one-half mile radius), pumping from the City's Intermediate aquifer wells will have no measurable effect on Holland's or the individual Petitioners' property. Upper Floridan withdrawals will have no measurable effect on the water table, surface water levels, vegetation or land use because the Floridan is not well connected hydraulically to the overlying regions. The City's proposed withdrawals will not cause land collapse or sinkholes, as the area is not hydrologically prone to such, and these phenomena have not occurred during the history of the wellfield. Land collapse or subsidence caused by a reduction in water levels is a specific adverse impact required by the District to be mitigated in its proposed permit conditions. The Petitioners have presented no evidence of modeling or other analysis indicating drawdowns or water table impacts different from those presented by the City or the District. The Petitioners presented no experts qualified in the fields of botany, biology or ecology. The District's proposed permit conditions #28-38 dictate detailed evaluation methods to determine the impact of the City's Intermediate aquifer wells on wetlands and vegetation. This involves the installation of pieziometers and gauges in selected wetlands, and installation of a rain gauge at the Wewahootee pump station to record daily rainfall data for the duration of the permit. Data must be reported to the District. Vegetative monitoring is required for a period of one year prior to the operation of any Intermediate aquifer wells other than 2T, 3T and 7T. Standing and Other Matters Petitioners failed to prove that they will suffer an immediate injury in fact of the type which this proceeding is designed to protect if the City's CUP application is approved subject to the District's 1990 proposed permit conditions. Rather than present affirmative evidence of actual injury, they attempted in a thorough manner to discredit the findings of the City's studies and the District's review. Modeling and predictive analysis such as that provided by the City and the District may be imperfect, but the ultimate conclusions are supported by the weight of evidence. In the unlikely event that, as suggested by Petitioners, the City has been so reckless as to pick and choose parameters to "fix" the results of its studies, this folly will quickly be exposed in the monitoring performed under the District's conditions. The District's recommended permit conditions are appropriate regulatory requirements to assure that the City's proposed use will not cause unmitigated adverse impacts. The City has accepted those conditions. The conditions proposed by Holland and Keller, et al., and by Deseret, are already covered within the District's conditions or are unnecessary. The City has proven its entitlement to the permit it seeks.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That a Final Order be entered, approving the City of Cocoa's application for consumptive use permit, as amended in November 1989, and with the conditions proposed by District staff in February 1990; and dismissing the petitions of Deseret, Holland, and Keller, et al.. DONE AND RECOMMENDED this 26th day of October, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 26th day of October, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Findings Proposed by Deseret Adopted in paragraph 1. Adopted in paragraph 2. 3.-5. Adopted in paragraph 3. 6. Adopted in paragraph 1. 7.-11. Adopted in substance in paragraph 8. Rejected as unnecessary. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 13. 16.-17. Rejected as unnecessary. 18. Adopted in paragraph 13. 19.-46. The parties' stipulation is included in the record of this proceeding. The legal descriptions of the well sites are established without dispute and need not be repeated here. Adopted in paragraph 15. Adopted in paragraph 9. 49.-50. Adopted in paragraph 3. Adopted in paragraph 30. Adopted in paragraph 19; except for the second sentence, which is rejected as contrary to the weight of evidence. 53.-54. Adopted in part in paragraphs 58 and 77, otherwise rejected as unnecessary. 55. Adopted in paragraph 60. 56.-58. Rejected as unnecessary. 59.-70. Rejected as contrary to the weight of evidence. Adopted in substance in paragraph 30. Addressed in part in paragraph 90, otherwise rejected as contrary to the weight of evidence. Adopted in substance in paragraph 31. 74.-84. Rejected as unnecessary or contrary to the weight of evidence. 85. Adopted in substance in paragraph 78. 86.-91. Rejected as unnecessary or contrary to the weight of evidence. 92.-96. Addressed in summary in paragraph 90, but the conclusion with regard to the cause is rejected as contrary to the weight of evidence. 97.-105. Rejected as contrary to the weight of evidence or unnecessary. 106.-110. Addressed in paragraph 63; however, the conclusions reflected in these paragraphs, with regard to the reasonableness of the calibration, are rejected as contrary to the weight of evidence. 111.-116. Rejected as unnecessary or contrary to the weight of evidence. Findings Proposed by Holland and Keller, et al. Adopted in paragraph 1. Adopted in paragraph 2. 3.-4. Rejected as unnecessary. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 1. Adopted in paragraph 7. 9.-10. Adopted in substance in paragraph 8. 11. Adopted in paragraph 10. 12.-13. Adopted in paragraph 30. 14.-15. Adopted in paragraph 8. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. 21.-24. Adopted in paragraph 9. 25.-30. Addressed in Preliminary Statement. Adopted in summary in paragraph 4. Adopted in summary in paragraph 5. Rejected as unnecessary. 34.-50. Rejected as unnecessary or contrary to the weight of evidence. 51.-52. Adopted in paragraph 30. Rejected as unnecessary. Adopted in substance in paragraph 31. 55.-66. Rejected as unnecessary or contrary to the weight of evidence. 67. Adopted in paragraphs 67 and 70. 68.-96. Rejected as unnecessary or contrary to the weight of evidence. Findings Proposed by the City of Cocoa 1.-4. Adopted in paragraphs 1 and 7. Rejected as unnecessary. Adopted in paragraph 10. 7.-8. Adopted in substance in paragraph 8. 9.-17. Rejected as unnecessary. 18.-26. Adopted in paragraphs 13-16. 27. Adopted in paragraph 2. 28.-45. Addressed in summary in Preliminary Statement. Adopted in paragraph 19. Adopted in paragraph 27. 48.-49. Adopted in paragraph 25. 50. Adopted in paragraph 28. 51.-52. Adopted in paragraph 29. 53.-54. Adopted in paragraph 36. Adopted in paragraph 37. Rejected as cumulative. Adopted in paragraph 38. 58.-60. Adopted in paragraph 40. Adopted in paragraph 39. Adopted in paragraph 39. Adopted in paragraph 38. Adopted in substance in paragraph 41. Adopted in substance in paragraph 45. Adopted in substance in paragraph 42. Adopted in substance in paragraph 44. Adopted in substance in paragraph 42. 69.-77. Rejected as unnecessary. Adopted in paragraph 47. Rejected as contrary to the weight of evidence. Adopted in paragraph 47. 81.-82. Adopted in paragraph 48. 83. Adopted in paragraph 47. 84.-85. Rejected as unnecessary. Adopted in paragraph 46. Adopted in paragraph 45. 88.-89. Adopted in paragraph 34. 90.-91. Adopted in paragraph 35. 92.-93. Rejected as unnecessary. 94.-96. Adopted in paragraph 33. Rejected as cumulative. Adopted in paragraph 53. 99.-101. Adopted in paragraph 54. 102.-104. Rejected as cumulative. 105.-108. Adopted in substance in paragraph 56. 109.-110. Adopted in paragraph 57. 111. Adopted in paragraph 60. 112.-113. Adopted in paragraph 62. Adopted in paragraphs 60, 65 and 66. Rejected as unnecessary. 116.-117. Adopted in paragraph 61. 118. Rejected as unnecessary. 119. Adopted in paragraph 65. 120.-126. Rejected as unnecessary. 127.-128. Adopted in paragraph 75. 129. Adopted in paragraph 65. 130.-140. Rejected as unnecessary. 141. Adopted in paragraph 66. 142.-144. Rejected as unnecessary. 145.-146. Adopted in paragraph 74. 147.-148. Adopted in paragraph 67. 149.-150. Adopted in paragraph 68. 151. Adopted in paragraph 69. 152.-160. Adopted in paragraph 70. 161.-162. Rejected as cumulative. 163. Adopted in paragraph 64. 164. Rejected as cumulative. 165. Adopted in paragraph 64. 166.-167. Rejected as cumulative. 168.-174. Adopted in substance in paragraph 71. 175. Adopted in paragraph 72. 176. Rejected as contrary to the weight of evidence. 177.-179. Adopted in paragraph 73. 180. Adopted in paragraph 74. 181.-183. Rejected as cumulative. 184.-185. Adopted in substance in paragraph 76. 186.-187. Adopted in paragraphs 30 and 31. 188.-190. Rejected as unnecessary. 191. Adopted in paragraph 31. 192. Rejected as unnecessary. 193.-194. Adopted in paragraph 31. 195. Rejected as unnecessary. 196.-197. Adopted in paragraph 77. 198.-199. Adopted in paragraph 78. 200.-201. Adopted in paragraph 79. 202.-203. Rejected as cumulative. 204. Adopted in paragraph 85. 205. Rejected as unnecessary. 206. Addressed in paragraph 90. 207. Adopted in paragraph 85. 208.-209. Adopted in paragraph 91. 210. Rejected as unnecessary. 211.-212. Adopted in paragraph 96. 213.-218. Adopted in substance in paragraph 92. 219.-223. Adopted in paragraph 79. 224. Adopted in paragraph 95. 225. Adopted in paragraph 92. 226. Adopted in paragraph 93. 227. Rejected as cumulative. 228.-229. Adopted in paragraph 97. 230. Adopted in paragraph 98. 231. Adopted in paragraphs 100.-101. 232. Adopted in paragraph 102. 233. Adopted in paragraph 103. 234. Rejected as contrary to the weight of evidence and unnecessary. 235.-236. Adopted in paragraph 114. 237. Adopted in paragraph 107. Adopted in paragraph 106. Adopted in paragraph 105. Adopted in paragraph 108. 241.-243. Adopted in paragraph 109. 244. Adopted in paragraph 105. 245.-246. Rejected as unnecessary. 247. Adopted in paragraph 112. 248.-253. Adopted in paragraph 111. 254.-261. Adopted in substance in paragraph 113. 262. Adopted in paragraph 115. 263.-264. Rejected as unnecessary. 265. Adopted in paragraph 52. 266. Adopted in paragraph 51. 267. Adopted in paragraph 55. 268. Rejected as cumulative and unnecessary. 269.-274. Rejected as cumulative or unnecessary. 275.-279. Adopted in paragraph 116. 280. Adopted in paragraphs 118. and 119. Findings Proposed by St. Johns River Water Management District Adopted in paragraphs 1. and 7. Adopted in paragraph 1. Adopted in paragraph 7. Adopted in paragraph 10. Adopted in substance in paragraph 8. 6.-7. Adopted in paragraph 11. 8.-9. Rejected as unnecessary. Adopted in paragraph 12. Rejected as unnecessary. 12.-13. Adopted in paragraph 12. Adopted in paragraph 19. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in paragraph 23. Adopted in paragraph 24. Adopted in paragraphs 25. and 26. Adopted in paragraph 26. 21.-22. Adopted in paragraph 28. 23.-24. Adopted in paragraphs 13. and 14. 25.-26. Rejected as unnecessary. 27. Adopted in paragraph 29. 28.-31. Rejected as cumulative or unnecessary. Adopted in paragraph 9. Rejected as unnecessary. Adopted in paragraph 28. Adopted in paragraph 7. Adopted in paragraph 36. Adopted in paragraph 37. Rejected as unnecessary. 39.-40. Adopted in paragraph 36. Adopted in paragraph 38. Adopted in paragraph 39. Adopted in paragraph 40. Adopted in paragraph 41. Adopted in paragraph 43. 46.-49. Adopted in substance in paragraph 47. 50. Adopted in paragraph 49. 51.-53. Rejected as cumulative or unnecessary. Adopted in paragraph 47. Rejected as unnecessary. 56.-57. Rejected as unnecessary or cumulative. Adopted in paragraph 46. Adopted in paragraph 45. Adopted in paragraph 52. Adopted in paragraph 51. Adopted in paragraph 55. Adopted in paragraph 35. Adopted in paragraph 34. Adopted in paragraph 32. Adopted in paragraph 33. Adopted in paragraph 54. 68.-69. Adopted in paragraph 56. 70. Adopted in paragraph 57. 71.-72. Adopted in paragraph 60. 73. Adopted in paragraph 61. 74.-76. Adopted in summary in paragraph 70. 77. Adopted in paragraph 65. 78.-80. Rejected as unnecessary. 81. Adopted in paragraph 75. 82.-83. Adopted in paragraph 63. 84.-85. Rejected as unnecessary. 86. Adopted in paragraph 60. 87.-89. Adopted in paragraph 66. 90. Adopted in paragraph 67. 91.-92. Adopted in paragraph 68. Adopted in paragraph 69. Rejected as cumulative. Adopted in paragraph 70. Rejected as cumulative. 97.-98. Adopted in paragraph 70. Adopted in paragraph 57. Adopted in paragraph 64. 101.-102. Rejected as unnecessary and cumulative. 103.-106. Adopted in paragraph 71. 107. Adopted in paragraph 72. 108.-109. Adopted in paragraph 73. 110. Adopted in paragraph 76. 112.-113. Adopted in paragraph 71. 113.-115. Adopted in paragraphs 30, 31 and 77. Rejected as unnecessary. Adopted in paragraph 31. 118.-120. Rejected as unnecessary or cumulative. 121. Adopted in paragraph 77. 122.-123. Adopted in paragraph 78. Adopted in paragraph 80. Adopted in paragraph 85. Adopted in paragraph 84. Adopted in paragraph 86. 128.-129. Adopted in paragraph 85. 130. Adopted in paragraph 87. 131.-132. Adopted in paragraph 88. 133. Adopted in paragraph 89. 134.-135. Adopted in paragraph 93. 136.-138. Adopted in paragraph 94. 139. Adopted in paragraph 95. 140.-141. Adopted in paragraph 97. 142. Adopted in paragraph 111. 143.-147. Adopted in paragraph 100. 148. Adopted in paragraph 102. 149. Adopted in paragraph 103. 150.-151. Adopted in paragraph 104. 152.-155. Adopted in paragraph 108. 156.-159. Adopted in paragraph 109. 160.-165. Rejected as cumulative or unnecessary. 166. Adopted in paragraph 112. 167. Adopted in paragraph 113. 168.-169. Adopted in paragraph 118. 170. Adopted in paragraph 116. Copies furnished: Kathryn L. Mennella, Esquire P.O. Box 1429 Palatka, FL 32078-1429 Robert Morrison, Esquire Donald Morrison, Esquire P.O. Box 3628 Orlando, FL 32802 Frederick Reeves, Esquire 202 Madison St. Tampa, FL 33602 Richard A. & Judith Pearce 14147 Nell Road Orlando, FL 32832 Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire 705 E. Kennedy Blvd. P.O. Box 172537 Tampa, FL 33672-0537 Henry Dean, Executive Director St. Johns River Water Mgmt. District P.O. Box 1429 Palatka, FL 32178-1429
The Issue Whether the Petitioner is entitled to an extension of time of 565 days for the completion of the project which is the subject of this proceeding, as opposed to the 367 days time extension which was granted for completion, and thereby is free from liquidated damages in the amount of $31,680.
Findings Of Fact On February 21, 1973, a contract was entered into between the Petitioner and Respondent for the construction of Phase II, University of North Florida, at Jacksonville, Florida, State Project No. BR-6504/7801-D. The Form of Agreement Between Contractor and Owner For Construction of Buildings, through its Article 4.2 identifies the conditions of liquidated damages. Article 8.5 states the conditions for settlement of claims and disputes. Contained as part of the contract, was standard form AlA Document, A201, American Institute of Architects, General Conditions of the Contract for Construction. Within the document A201, was Article 4.5, warranty of the work by the contractor; Article 8.3.1 discussing the matter of delays and extensions and Article 13.2.1 discussing uncovering and correcting. All these contract conditions are found in Petitioner's Exhibit "A" which was admitted into evidence. In pursuit of the contract obligations, the Petitioner entered into a contract with W. W. Gay, Mechanical Contractor, Inc., 523 Estelle Lane, Jacksonville, Florida. This contract with W. W. Gay as subcontractor contemplated the installation of mechanical parts of the contract work, and the agreement between the Petitioner and W. W. Gay is Petitioner's Exhibit "B", admitted into evidence. Part of the work to be performed by W. W. Gay involved the installation of a hot water piping system. According to Mr. W. W. Gay, President of W. W. Gay, Mechanical Contractor, Inc., 95 percent of the pipe to be used in the Phase II project was already available, having been left over from Phase I of the University of North Florida Project. This pipe had been stored for as long as 16 months, exposed to the weather. The storage itself was in accordance with the conditions of modification to contract document prepared by Reynolds, Smith and Hills, Architects, Engineers and Planners of Jacksonville, Florida. Petitioner's Exhibit "C" sets out the requirements for storing the aforementioned pipe. In addition, Mr. Gay testified that some of the type resin epoxy utilized in the Phase I project was left over and was stored in a facility whose temperatures reached 90 degrees Fahrenheit, although the recommended storage temperature for the substance was 70 degrees Fahrenheit. The piping spoken of was a type manufactured by Ric-wil Manufacturing known as FRP, Dual Gard 250. The pipe was identified in the course of the hearing by Carl Bowles, General Superintendent for W. W. Gay, as being a fiberglass type pipe. This pipe had been selected in lieu of the job specification pipe which is a form of asbestos pipe manufactured by Johns Manville, due to the fact that the Johns Manville pipe had not been approved for release by Johns Manville's quality control department. The substitution of the Ric-wil pipe was approved by the project architect, John Brickert, who was also the project manager and an employee of Reynolds, Smith and Hills. The approval for substitution was on the basis that the Ric-wil pipe was acceptable because it was a non-metallic pipe and the Johns Manville pipe was a non-metallic pipe. Approval for the substitution had been granted in Phase I and carried over into Phase II. In addition to the hot water piping system in Phase II, W. W. Gay installed a chill water system using a PVC type pipe identified as Ric-wil Chil Gard. Prior to the installation of the Ric-wil Dual Gard pipe in Phase I, W. W. Gay had never installed that type piping system. In the course of the installation of the piping system in Phase I, some problems were experienced with the installation which were not similar to the problems that would be experienced in the construction of the Phase II University of North Florida project. Phase I was completed utilizing the Ric-wil Dual Gard pipe. In the beginning of Phase II, W. W. Gay ran the cold water system and hot water system in a common area underground from valve pit one to valve pit six, in order to put into operation buildings 008 and 009 of the University of North Florida. These locations are shown on the engineering drawing which is Petitioner's Exhibit "K", entered into evidence. Installation of the two piping systems commenced in October of 1973. Sometime in the middle part of November, 1973, a test was conducted on the hot and chilled water systems between valve pits one and six. The hot water system passed the test. The chilled water system failed. Later in November, the chilled water system also passed. This successful test opened up the hot and chilled water systems to buildings 008, 009 and 011. Further tests were conducted in early January, 1974 and again the hot and chilled water lines passed. In January, 1974, W. W. Gay began to run the hot water piping system from valve pit six to valve pit seven and in the area of building 010 found that the line would not hold pressure. A decision was made to retest between valve pit one and six, a leek as found in the area of valve pit one. This leak was discovered in late January, 1974. A subsequent test of the hot water piping system was run in early February, 1974, between valve pit one and valve pit six and into the buildings 008, 009 and 011. This test failed. In the middle of February, 1974, a further test was made from valve pit one to the end of the line, to the northwest corner of building 011, and this test failed. For the balance of February, 1974, time was spent trying to repair the leaks in the hot water piping system. These continued failures in the system brought about two meetings to discuss the solution of the problem. These meetings will be discussed subsequently. At the time the subcontractor was experiencing problems with the installation of the hot water system, problems were also being experienced with the chill water system. Throughout March, the chill water system was continuing to be installed and in late March a leak was discovered opposite building 010. This leak was repaired. In mid April a leak was found in the chill water system in the area of valve pit six and an attempt to repair it was unsuccessful. Problems continued until June, 1974, at which time replacement of the water pipe and fittings was begun between valve pit one and six. Further testing showed a failure in the chill water piping. Finally in September, 1974, the chill water system passed. One of the problems with the chill water piping system concerned the couplings for that system which were found to be defective. An example of the problems associated with the couplings in the chill water system is demonstrated through Exhibit "N", by the Petitioner, which is a cross section of one of the couplings which was removed after being installed in the Phase II University of North Florida Project. This cross section shows numerous surface irregularities, which promote leaks. On February 28, 1974, a meeting was held in the offices of Reynolds, Smith and Hills which was attended by the project manager, John Brickert; representatives of the Petitioner; representatives of Ric-wil, Incorporated; representatives of the University of North Florida; representatives of the subcontractor W. W. Gay, and other representatives of Reynolds, Smith and Hills associated with the project. Varying theories were advanced in trying to explain the problems associated with the hot water piping system. From the subcontractor's point of view, expressed by W. W. Gay, this difficulty was not obvious because it was his contention that the pipe was being installed according to the directions of the manufacturer's representative who was on the job site for some 90 percent of the installation. Jack Green, the mechanical construction specialist for Reynolds, Smith and Hills, testified that from his on site observations, which occurred about the general time frame of the meeting of February 28, 1974, that he had seen water in the trenches around the building 010. Furthermore, according to Green, the subcontractor had undercut the ditches and had attempted to install the hot water piping system while the ditch was too wet, using loose soil which was not compacted. In addition Mr. Green stated that he felt that the joints were dirty and moist and had not been sanded properly. Finally, Mr. Green stated that he had stopped the installation of the pipe because of the conditions mentioned. The deposition upon written questions of C. G. Schoor, Service Manager with Ric-wil, said that he had been at the job site on February 11, 1974, and had noticed water leaks in the fringes and couplings of the hot water pipes. He felt that in the area of the flanges there was improper sanding because when the pipe was pulled out, the surface was clean and resin remained in the flange. He also commented in his deposition that there was improper surface sanding and a large area of entrapped air on one of the 10" couplings pulled out between points two and three on the second joint north of two and this occurred during an initial 150 lb. hydro test. In one joint the resin epoxy had not hardened and was still in a plastic state, according to Ben Schoor. In speculating about the plasticity, Schoor said that it could have been promoted by long storage of the material, or contamination of the material which constitutes the resin epoxy or improper mixture of the two components of the epoxy resin on the part of the subcontractor. He felt that this plasticity would probably promote leaks but he observed no such leaks where the resin epoxy was plastic. The deposition on written questions of Ben Schoor was entered into evidence as Respondent's Exhibit "B". Discussion at the February 28, 1974, meeting considered two alternatives: First, to allow for the further installation of the Ric-wil Dual Gard System using the expertise of the Ric-wil employees; second, to substitute the Ric-wil Dual Gard pipe with Ric-wil Hi-Gard Pipe, which is steel. A further meeting on March 4, 1974, was held with representatives of the Petitioner; the subcontractor, W. W. Gay; Reynolds, Smith and Hills, by John Brickert, and other representatives of that firm. It was decided at that meeting, that due to the effect of oil shortages causing the unavailability of the Ric-wil Dual Gard pipe and fittings, the Ric-wil Company would design a pipe system to utilize steel pipes, and the subcontractor would determine the necessary adjustments to use the steel pipe. At this meeting the subcontractor, W. W. Gay, requested some relief from possible liquidated damages, and the minutes of that meeting indicate that consideration of that request was deferred. According to notes from time sheets of Reynolds, Smith and Hills, which was admitted as Respondent's Exhibit "A", installation of the steel piping system was commenced on July 1, 1974, and completed August 21, 1974. Minutes of the meetings of February 28, 1974, and March 4, 1974, are found as Petitioner's Exhibits "E" and "F" respectively, admitted into evidence. After the March 4, 1974, meeting, discussion was continued on the question of liquidated damages in view of the substitution of the type of piping, and conjecture was made about the problems with the piping system. In correspondence of March 22, 1974, Neil A. Porter, Vice President of the Petitioner, makes reference to the liquidated damages question in this letter to John Brickert, and suggests holding the matter in abeyance. This letter enclosed a letter from W. W. Gay dated March 21, 1974, directed to the Petitioner, which sets out the approximate time to complete the system will be 105 days. The Gay letter also states opinions by Mr. Gay as to what was determined in the course of the February 28, 1974, meeting on the subject of the cause of the problems with the Ric-wil Dual Gard piping. Mr. Gay made further comments that he felt that the change in temperature, from 70 degrees to 90 degrees as stored, adversely effects the resin epoxy and that the ultra violet rays of the sun also effected the pipe which was stored outside. Mr. Gay's letter of March 21, 1974 and Mr. Brickert's letter of March 22, 1974 are Petitioner's composite Exhibit "G", which was admitted into evidence. Mr. Brickert responded to Mr. Porter by letter of March 29, 1974, in which he suggests the question of liquidated damages cannot be addressed at present because the amount of delay is unknown, and Reynolds, Smith and Hills is not a part of the contract and cannot accept a stipulation for extension. This letter is Petitioner's Exhibit "H", which was admitted into evidence. On April 19, 1974, a change order was entered by Mr. Brickert which allowed for the substitution of Ric-wil Hi-Gard steel pre-insulated pipe for the Ric-wil Dual Gard 250 plastic pre-insulated pipe. Page three of that change order indicates the rationale for accepting such a substitute and alludes to the possibility of a time extension which is not subject to identification at the moment of the change order, but which will be requested. This change order is Petitioner's Exhibit "I", which was admitted. A further statement on the Chil Gard pipe and the problems with the couplings is found in Petitioner's composite Exhibit "J", a letter of May 29, 1974, with attachments from John T. Brickert to Neil A. Porter. By Change Order #19 and the accompanying letter of explanation from John T. Brickert, addressed to Jack C. Koons, Administrator, Department of General Services; the project manager has denied, and the Respondent has agreed to such denial, of any time extension conditioned upon problems with the piping systems. This denial by the letter of September 8, 1975, is premised on the conclusion that any failure on the system was due to faulty installation or failure of material which was subject to the control of the Petitioner. As a result of Change Order #19, 198 days of time overrun at $160.00 a day have been assessed as liquidated damages, totaling $31,680.00. These items of Change Order #19 and the correspondence alluded to are found in composite Exhibit "D" by the Petitioner, which was admitted into evidence. A review of the evidence offered on the question of the cause of the problems in the hot water system which was being installed as Ric-wil Dual Gard indicates a possible problem associated with the manufacture of Ric-wil Dual Gard pipe; a possible problem with the storage of the Ric-wil Dual Gard pipe at the job site for a period of up to 16 months prior to its installation; possible problems associated with the storage of the resin epoxy at temperatures which would damage the compound; possible contamination of the resin epoxy; possible improper mixture of the resin epoxy and possible improper application of the resin epoxy on the surface of the piping; possible improper sanding of the surfaces of the pipe where it was joined; possible improper preparation of the ditch in which the pipe was being placed, and possible improper installation of the pipe itself. From an examination of the testimony and the evidence offered in support of that testimony, the cause of the problems with the pipe would appear to be a combination of all the factors mentioned above, but it cannot be discerned with reasonable exactness what the percentage of responsibility is in determining the factors which lead to the rejection of the Ric-wil Dual Gard System in favor of the Ric-wil Hi-Gard System. From the testimony and the exhibits offered on the question of the problems associated with the Chil Water System, the testimony points to defective couplings as the responsible agent for the problems associated with that installation. These defective couplings are found to be the primary cause of the problems associated with the Chill Water System. On the question of liquidated damages penalties to be associated with a substitution of the Ric-wil Hi-Gard System for the Ric-wil Dual Gard System testimony was offered, as described before, by W. W. Gay who was under the impression that he was receiving relief from any liquidated damages and thought that relief would be afforded. This testimony is supported by the testimony of Neil Porter, the Vice President of the Petitioner who likewise had such an understanding. It is also supported by the testimony of John Daniel Cheatwood, the President of Petitioner, who was in attendance at the March 4, 1974 meeting at the offices of Reynolds Smith and Hills. In addition, Jack Green, Field Representative Mechanical, for Reynolds, Smith and Hills recalled that W. W. Gay requested relief from any possible liquidated damages for substitution of the pipe and the appearance was given that some consideration would be made of the necessity for extension of time. Mr. Brickert, as spokesman for the owner, felt that the meeting of March 4, 1974, did not commit the owner to grant an extension, and upon ultimate assessment an extension of time associated with the substitution of the pipe was denied. It is found as a matter of fact that the owner through negotiations with the contractor and/or his subcontractor, W. W. Gay, and through the Petitioner's Exhibit "I" agreed to an extension of time for the installation of the Ric-wil Hi-Gard Pipe in substitution for the Ric-wil Dual Gard pipe.
Recommendation It is recommended that the relief requested from the imposition of liquidated damages due to the delays associated with the installation of the hot water system and chill water system, which were assessed as 198 days at a $160.00 per day, for a total of $31,860, be reduced in an amount which would equate to the time necessary to install the substituted hot water system, and be upheld in the amount which would equate to the time necessary to install the chill water system. DONE and ENTERED this 23rd day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1976. COPIES FURNISHED: William S. Stevens, III, Esquire For the Executive Director Department of General Services State of Florida 725 South Calhoun Street Tallahassee, Florida 32304 S. Gordon Blalock, Esquire Suite 2301 Independent Square Building Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Respondent, Florida Power & Light Company, is entitled to the renewal of Permit No. FL0001562-012-IW1N, the combined Industrial Wastewater/National Pollutant Discharge Elimination System permit for the continued operation of the Turkey Point Cooling Canal System.
Findings Of Fact The Parties Respondent FPL is the largest energy company in the United States, serving more than five million customer accounts in the state of Florida. FPL owns and operates the Turkey Point Clean Energy Center ("Turkey Point"), which consists of three electrical generating units. FPL is the holder of the Permit, an industrial wastewater ("IWW")/National Pollutant Discharge Elimination System ("NPDES") permit for the Turkey Point CCS, which provides wastewater treatment and effluent disposal for two of the three electrical generating units at Turkey Point. As stated above, FPL is the applicant for the Renewal Permit that has been challenged in this proceeding. Respondent DEP is the state agency authorized to regulate the construction and operation of wastewater treatment and effluent disposal facilities, pursuant to chapter 403, Florida Statutes, and implementing rules. As part of its responsibilities, DEP issues permits to authorize the treatment and discharge of industrial wastewater under the state industrial wastewater program, and the federal NPDES program pursuant to delegation from the United States Environmental Protection Agency ("EPA").4 Petitioner FKAA is a public water supply utility authority, established pursuant to chapter 76-441, Laws of Florida. It is responsible for providing potable water services in Monroe County, and domestic wastewater and reclaimed water services to select areas within its geographic jurisdiction. FKAA operates a potable water wellfield in Florida City, Florida, approximately 9.5 miles west of the CCS that withdraws water from the Biscayne Aquifer. Petitioner FKFGA is a volunteer association comprised of professional fishing guides who conduct business, and engage in conservation and education activities, in and around south Florida. Intervenor Monroe County is a county and political subdivision of the state of Florida, the geographic boundaries of which include the Florida Keys, the Florida Keys National Marine Sanctuary, and a portion of Biscayne Bay. Monroe County receives its potable drinking water services from FKAA. 4 The NPDES program is a federal pollution control program established by the Clean Water Act at 33 U.S.C. §1342, the purpose of which is to control point source discharges of industrial and domestic wastewater and stormwater into navigable waters of the United States. The Turkey Point Clean Energy Center and the CCS Turkey Point is an electrical generating facility located on approximately 11,000 acres in unincorporated southeast Miami-Dade County. Its business address is 9760 Southwest 344th Street, Florida City, Florida. The Biscayne National Park is east of, and adjacent to, the facility, and the Biscayne Bay Aquatic Preserve is located northeast, east, and southeast of the facility. The Model Land area, which is a tract of freshwater and brackish wetlands, is generally located to the north, west, and south of the CCS. Several water management canals are located in close proximity to Turkey Point. Specifically, the South Florida Water Management District's ("SFWMD") L-31E Canal, C-106 North Model Land Canal, and C-107 South Model Land Canal are located west of the CCS. Additionally, the Card Sound Road Canal is located west and southwest of the facility, and discharges into Biscayne Bay south of the CCS. The SFWMD S-20 Discharge Canal is located west and south of the CCS, and the Sea-Dade Canal is south of the facility; these canals discharge into Biscayne Bay south of the CCS. Additionally, remnant once-through cooling water canals are located at Turtle Point and the Barge Basin, at the eastern boundary of the facility. These canals have been plugged, so that they no longer are connected to Biscayne Bay. As stated above, Turkey Point currently consists of three electrical generating units: Units 3 and 4, which are nuclear units; and Unit 5, which is a natural gas-fired combined-cycle unit. These electrical generating units are authorized pursuant to the Certification. The Turkey Point facility is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. The CCS consists of a network of canals covering approximately 5,900 acres and providing wastewater treatment and effluent disposal for Units 3 and 4, as well as functioning like a radiator to dissipate heat from the cooling water generated by the operation of these units. The heated cooling water is discharged into the CCS at an internal outfall located at the northwest end of the CCS. Water pumps and gravity circulate the heated water in a counterclockwise direction, north to south, through the CCS, dissipating heat as the water flows through the CCS. Once the cooling water has circulated through the CCS, it is pumped back into Units 3 and 4 at the northeast end of the CCS for reuse as cooling water for those units. The CCS was excavated into sediments and limestone that are part of the surficial Biscayne Aquifer. The CCS is not lined, so there is no physical barrier that prevents water in the canals from entering the Biscayne Aquifer ground water beneath the CCS. Most of the canals comprising the CCS are between three and four feet deep, with an approximately 20-foot-deep canal that formerly was part of the once-through cooling system. A perimeter berm system blocks the CCS from having a direct connection to surface waters, and there are no water control structures, such as culverts, pipes, or pumps, which allow water to be directly discharged from the CCS into offsite surface waters. There are approximately 4.5 billion gallons of water in the CCS, on average. Although some small wastewater streams from the electrical generating units and stormwater are discharged into the CCS, the water in the CCS is comprised of rainfall, cooling water for the electrical generating units, water pumped into the CCS from the Upper Floridan Aquifer, and ground water seepage. Evaporation is the predominant means by which water leaves the CCS, and water from the CCS also seeps into ground water. Evaporation, rainfall, and water inflows from other sources affect the salinity of the water in the CCS canals. As a result of evaporation and periods of low rainfall, the salinity of the water in the CCS has increased over time. The addition of water from rainfall, ground water seepage, and other sources counteracts the effect of evaporation on salinity in the canals. Thus, the salinity of the water in the canals at any given time is driven by the balance of evaporation, water inflows, and water outflows. The Interceptor Ditch, which is located immediately west of the CCS and immediately east of the L-31E Canal, was constructed to create a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. Permitting History of Turkey Point and the CCS The Turkey Point electrical generating facility was constructed in the 1960s. As originally constructed, Turkey Point had a once-through cooling water system through which heated cooling water was directly discharged into Biscayne Bay. Pursuant to a 1971 Consent Decree between FPL and the U.S. Department of Justice, FPL constructed the CCS to alleviate the adverse environmental effects of the direct discharge of heated cooling water into Biscayne Bay. When the CCS was designed, the U.S. Atomic Energy Commission prepared an Environmental Impact Statement ("EIS"), which recognized that water from the CCS could seep, via ground water, into Biscayne Bay. The EIS concluded that the effect of this seepage would be insignificant and was outweighed by the benefit of stopping direct discharges of heated water from Turkey Point into Biscayne Bay. In order to construct the CCS, FPL obtained numerous permits and approvals from multiple regulatory agencies, including the U.S. Atomic Energy Commission, EPA, the U.S. Army Corps of Engineers, the Florida Water Pollution Control Board, and Miami-Dade County, Florida. FPL has operated the CCS, consistent with its original design, since 1973. EPA issued NPDES permits for the CCS, and these permits periodically were renewed. Additionally, since approximately 1982, DEP and its predecessor agency have issued industrial wastewater permits for the CCS. EPA delegated the NPDES permitting program to DEP in 1995, and since that time, DEP has issued combined IWW/NPDES permits5 for the CCS. These permits typically have been issued for a five-year period, and renewed for subsequent five-year periods. The existing Permit authorizes discharges of stormwater and industrial wastewater from the electrical generating units through internal outfalls into the CCS. The Permit does not authorize direct discharges from the CCS into surface waters of the state. The Permit authorizes discharges from the CCS into the Class G-III6 ground water underlying the CCS, provided that these discharges do not cause a violation of the minimum criteria for ground water codified in Florida Administrative Code Rules 62-520.400 and 62-520.430, and do not impair the reasonable and beneficial use of adjacent ground waters or surface waters, in violation of rule 62-520.400. In order to ensure compliance with the Permit, FPL conducts extensive monitoring7 of a range of water quality parameters in surface water, porewater, and ground water near the CCS; the seagrass, mangroves, and freshwater marshes near the CCS; and numerous environmental parameters, including rainfall, at, and proximate to, the CCS. FPL reports its data to regulatory agencies on a regular basis, and submits annual reports to 5 DEP's industrial wastewater regulatory jurisdiction extends to discharges into ground water and surface waters, while the NPDES regulatory jurisdiction extends to point source discharges into navigable surface waters. The combined IWW/NPDES permit issued by DEP covers all of these types of discharges. 6 As discussed below, Class G-III ground water has a concentration of 10,000 milligrams per liter ("mg/L") or greater of total dissolved solids. 7 As an example of the extent of FPL's monitoring associated with the operation of Turkey Point and the CCS, FPL collected over 4.5 million data points through its monitoring network for the period from June 1, 2019, to May 31, 2020. SFWMD, addressing all data collected over the previous year. FPL also provides reports to the Miami-Dade County Department of Environmental Resource Management ("DERM") regarding its remediation program at the CCS, and provides access to its monitoring data to other regulatory agencies, including DEP. The most recent version of the Permit was issued in 2005. The Biscayne Aquifer As stated above, the CCS is excavated into the sediments and limestone of the surficial portion of the Biscayne Aquifer. The Biscayne Aquifer is a water-bearing formation consisting of porous, highly permeable limestone that underlies Broward County, Miami- Dade County, parts of Palm Beach County, and parts of Monroe County. The surficial portion of the Biscayne Aquifer is connected to surface waters, including Biscayne Bay, and to the CCS and other canals in south Florida that are excavated to sufficient depth to connect to the surficial aquifer. The Biscayne Aquifer contains both saltwater and fresh water. Saltwater enters the aquifer from Biscayne Bay, canals containing saltwater, and saltwater wetlands. Fresh water enters the aquifer from rainfall, canals containing fresh water, and freshwater wetlands. The transmissivity of the Biscayne Aquifer varies. Generally, the horizontal transmissivity is greater than the vertical transmissivity in the aquifer, and the horizontal transmissivity varies between different layers of the aquifer. In the vicinity of the CCS, the shallowest portions of the aquifer, from land surface to approximately 20 feet below land surface, are less transmissive than some deeper portions of the aquifer. Beneath this shallow portion of the aquifer, there are three more transmissive, preferential flow zones through which water flows more readily: the Upper Flow Zone, located approximately 25 to 35 feet below ground surface; the Lower Flow Zone, located approximately 50 to 65 feet below ground surface; and the Deep Flow Zone, located approximately 70 to 80 feet below ground surface. Portions of the Biscayne Aquifer serve as the primary drinking water source for portions of southern Florida, including Miami-Dade and Monroe counties. The FKAA operates a potable water wellfield, located approximately 9.5 miles west of the CCS in Florida City, that withdraws water from the Biscayne Aquifer. The portions of the Biscayne Aquifer immediately west of the CCS are not used as a potable water source, and there are no drinking water wells in the portion of the Biscayne Aquifer where hypersaline water is present. For purposes of these proceedings, the saltwater interface is the location in the aquifer at which Class G-II and G-III ground water intersect. The saltwater interface is not a vertical line, but, rather, is wedge-shaped, with the lighter, more buoyant fresh water above, and the denser, heavier saltwater below. The location of the saltwater interface changes, depending on hydrologic conditions. Before the substantial drainage of, and development in, south Florida, the saltwater interface was located at the edge of Biscayne Bay in many locations. As a result of the construction and operation of drainage canals, wellfields, water withdrawals, mining activities, and land use practices throughout the 20th century, the saltwater interface has moved inland. By 1955, the saltwater interface already was located west of where the CCS is now located. Thus, by the time the CCS was constructed and became operational in 1973, saline water already had intruded inland along the coast, and saline ground water existed beneath the CCS site and in the deeper portions of the aquifer west of the current location of the CCS. Thus, portions of the Biscayne Aquifer located west of the CCS did not meet Class G-II8 ground water quality standards, even before construction and operation of the CCS. Additionally, due to sea level rise and other factors, the saltwater interface in the Biscayne Aquifer generally is continuing to move inland in southeast Florida. Interaction of the CCS with Ground Water The ground water under the CCS westward to the L-31E Canal is classified as Class G-III ground water, which is non-potable ground water. At the time the CCS was constructed and began operation, the water in the canals had an average salinity of approximately 34 practical salinity units ("PSU"), close to that of Biscayne Bay. Over time, the salinity of the water in the CCS has increased, primarily due to evaporation, which leaves salt behind. By the early 2000s, the salinity level of the water in the CCS had significantly increased. By 2015, the average salinity of the water in the CCS averaged 50 to 60 PSU and peaked at close to 90 PSU. As the water in the CCS became more saline,9 it became more dense than the water in the portion of the aquifer immediately underlying the CCS. As a result, the saline water sank out of the CCS into the underlying ground water until it reached the bottom of the aquifer, approximately 80 feet below land surface. From there, the saline water spread horizontally, primarily westward due to the hydraulic head pressure of seawater to the east. By 2013, a body of hypersaline ground water (referred to, for purposes of these proceedings, as the "hypersaline plume") extended 1.5 to 2.5 miles west of the CCS. Due to its greater density, the hypersaline plume is located 8 As discussed below, Class G-II ground water is potable ground water having a total dissolved solids concentration of less than 10,000 mg/L. 9 This term generally means that the water has a salinity level greater than seawater. at the bottom of the Biscayne Aquifer, with less saline water immediately above it, and fresher water floating near the surface of the aquifer. Over the approximately 48 years of operation of the CCS, the saltwater interface has moved approximately one to 1.5 miles westward from its location when the CCS was constructed and began operating. To date, the greatest westward extent of the saltwater interface is at a point along the Card Sound Road Canal, west and southwest of the CCS, and near the Florida City Canal, north of the CCS. Administrative Enforcement and Remedial Measures Pursuant to the Certification for Turkey Point, starting in 2009, FPL implemented an extensive surface water and ground water monitoring program to determine the vertical and horizontal extent of saline CCS water and its effects on existing and projected surface water and ground water resources. Specifically, FPL installed an extensive water quality monitoring network consisting of 42 ground water monitoring wells and 33 surface water monitoring stations. Each ground water monitoring well consisted of a station comprised of a cluster of three wells: a deep well, an intermediate well, and a shallow well. The ground water monitoring wells and surface water monitoring stations measured and recorded salinity, specific conductance, and other parameters, at established frequencies. As a result of this monitoring program, FPL has collected a substantial amount of data, which has been analyzed and submitted in reports to various regulatory agencies and entities, including SFWMD and DEP. Based on the monitoring data and analysis, in 2013, SFWMD issued a letter to FPL, concluding that the Interceptor Ditch was effective in restricting the westward movement of saline water from the CCS in the upper portion of the aquifer, but was not effective in restricting the movement of saline water from the CCS into the deeper portions of the Aquifer. SFWMD concluded that, as a result of the operation of the CCS, saline water has moved westward of the L-31E Canal. Also based on the monitoring data and analysis, and in consultation with SFWMD and other regulatory entities, DEP determined that the westward migration of saline water from the CCS needed to be abated to prevent further harm to waters of the state, and that, in order to do so, the water in the CCS needed to be freshened to a salinity of approximately 34 PSU. In December 2014, DEP issued Administrative Order 14-0741, directing FPL to develop a CCS salinity management plan to reduce the salinity of the CCS, in order to abate the westward movement of saline CCS water into Class G-II ground water. The Administrative Order was challenged by third parties, and, following an administrative hearing in DOAH Case Nos. 15-1746 and 15-1747, DEP issued a Final Order on April 21, 2016, approving the Administrative Order and the remedial measures established therein.10 On April 1, 2016, the Siting Board issued a Final Order in OGC Case No. 14-051, DOAH Case No. 15-1559EPP,11 approving the modification of the Certification, to authorize FPL to construct and operate two wells to withdraw up to 14 million gallons per day ("mgd") of water from the Upper Floridan Aquifer and discharge that water into the CCS as part of the salinity management plan to lower the salinity of the water in the CCS. On April 25, 2016, DEP issued a Warning Letter to FPL, stating that water quality sampling indicated that water originating in the CCS was reaching tidal surface waters connected to Biscayne Bay, possibly violating surface water quality standards and ground water quality standards. Also on April 25, 2016, DEP issued a Notice of Violation ("NOV"), incorporating findings in DEP's Final Order in DOAH Case Nos. 15-1746 10 DEP entered a Final Order approving the Administrative Order, which was appealed by one of the parties, Atlantic Civil, Inc. ("ACI") in DCA Case No. 3D16-978. ACI ultimately dismissed its appeal. 11 ACI and other third parties unsuccessfully challenged the modification of the Certification, authorizing the construction and operation of these wells to freshen the CCS. and 15-1747. These findings were that the CCS is the major contributing cause of the continued westward movement of the saltwater interface; that the discharge of saline CCS water into ground water contributes to saltwater intrusion; and that saltwater intrusion into the aquifer west of the CCS is impairing the reasonable and beneficial use of adjacent G-II ground water, in violation of rule 62-520.400. Among other things, the NOV directed FPL to consult with DEP to determine appropriate abatement and remediation measures to address the violations identified in the NOV. In May 2016, FPL submitted to DEP nutrient monitoring results from surface water quality monitoring stations in deep channels in Biscayne Bay adjacent to the CCS. Based on the surface water quality monitoring results, DEP determined, and found in the Consent Order, that no violations of surface water quality standards in Biscayne Bay had occurred due to operation of the CCS. On June 20, 2016, FPL and DEP executed a Consent Order to address the ground water quality violations identified in the NOV and to preemptively address future surface water quality violations which were the subject of the Warning Letter. The Consent Order was not timely challenged, so became final agency action and is in effect. To address ground water violations identified in the NOV, and to help ensure that surface water quality standards are not violated in the future, the Consent Order established three objectives: (1) ceasing discharges from the CCS that impair the reasonable and beneficial use of the G-II ground water to the west of the CCS, in violation of rule 62-520.400; (2) preventing releases of ground water from the CCS into surface waters connected to Biscayne Bay that exceed surface water quality standards in Biscayne Bay; and (3) providing mitigation for environmental impacts related to the historic operation of the CCS. The Consent Order identified specific measures for achieving these objectives; established standards for determining compliance with the objectives and measures; and established timeframes for implementing the measures to accomplish the objectives. To achieve the first objective, the Consent Order directed FPL to engage in freshening activities by pumping essentially fresh water from the Floridan Aquifer into the CCS, as authorized under the modification to the Certification12 to reduce the salinity of the water in the CCS to an average annual salinity of 34 PSU. To implement this remedial measure, FPL installed five wells, having a collective pumping capacity of 14 mgd, to pump brackish water from the Floridan Aquifer into the CCS to reduce the overall salinity of the water in the CCS. The Consent Order established a specific schedule for meeting this target salinity level, and, if necessary, requires FPL to submit a plan containing additional measures to meet that salinity level. FPL began implementing these freshening measures in November 2016, and the CCS had reached a salinity of 34 PSU by November 2020; however, FPL did not achieve the 34 PSU target on an average annual basis because there was less rainfall than in the ten-year period of record on which the freshening plan was based. As previously noted, FPL has proposed additional freshening measures, as required by the Consent Order; however, that proposal, which would be addressed by modifying the Certification, is in the early stages of review and addressed in, or authorized by, the Renewal Permit.13 FPL also has implemented a thermal efficiency plan, as required by the Consent Order, to maintain the water in the CCS at a lower temperature in order to reduce evaporation. 12 Neither the freshening activity authorized in the Certification nor the freshening activity recently proposed by FPL—which, if approved, would be authorized by a modification of the Certification—are authorized by the Renewal Permit. Therefore, these activities are not within the scope of these proceedings. 13 Refer to notes 3 and 12, above. Another key component of the Consent Order aimed at accomplishing the first objective was to require FPL to halt the migration of the hypersaline plume of water seeping from the CCS within three years of the commencement (i.e., May 15, 2018) of the remediation measures, and to reduce the westward extent of the hypersaline plume back to the L-31E Canal within ten years of commencement of the remediation measures.14 To withdraw the hypersaline plume eastward to the L-31E Canal, FPL has installed a Recovery Well System ("RWS"), consisting of ten wells located along the northern and western boundary of the CCS. These wells, which are cased to the Lower Flow Zone of the Biscayne Aquifer, collectively withdraw hypersaline water from the bottom hypersaline plume at a rate of 15 mgd. The hypersaline water removed by the wells is injected, by deep underground injection control wells, into the Floridan Aquifer Boulder Zone, a deep isolated geological formation which does not contain potable water and is used for the disposal of domestic and industrial wastewater. As further discussed below, operation of the RWS creates a hydrologic barrier to prevent water beneath the CCS from flowing west of the boundary of the CCS, and also functions as a remediation measure by drawing hypersaline water that previously had migrated westward from the CCS, back to the L-31E Canal. The Consent Order provides that the westward migration of the hypersaline plume will be deemed halted when the third Continuous Surface Electromagnetic Mapping ("CSEM") survey shows no net increase in hypersaline water volume and no net westward movement in the leading edge of the hypersaline plume. As stated above, the RWS became operational on May 15, 2018. 14 The rate of discharge of water from the CCS into ground water is directly related to the salinity level of the water in the CCS, with more saline water discharging at a greater rate than less saline water. Reducing the salinity of water in the CCS will reduce the rate of discharge into ground water, and also will reduce the salinity gradient that pushes ground water westward from the CCS. Once the water in the CCS no longer is hypersaline, there will be no further discharge of hypersaline water into the aquifer. To accomplish the second objective of the Consent Order, FPL filled in the Turtle Point Canal and the Barge Basin Canal in order to reduce the potential for CCS-origin ground water to flow or seep into surface waters at these locations. In addition, FPL has implemented a nutrient management plan to reduce nutrient concentrations in the water in the CCS and has undertaken other measures, further discussed below, to mitigate for the impacts of the hypersaline plume. The Renewal Permit On or about October 22, 2009, FPL timely filed the application (hereafter, "Application") to renew Permit No. FL0001562-012-IW1N with DEP, requesting authorization for the continued operation of the CCS as a wastewater treatment and effluent disposal facility for the Turkey Point electrical generating facility. Because FPL timely filed the Application,15 the validity period of the Permit was administratively extended, so that the 2005 version of the Permit is the current operative regulatory authorization for the CCS. Pursuant to rule 62-620.335(3), the 2005 version of the Permit remains in effect until a final order is issued in these proceedings, approving or denying the Renewal Permit. DEP reviewed the Application and supporting information and determined, based on those submittals; an analysis of FPL's Annual Remedial Action Annual Status Reports ("RAASRs"); the Electronic Document Management System ("EDMS," also known as "OCULUS") database for the Turkey Point facility; and data and information provided by third parties and other regulatory agencies, including SFWMD and DERM. In addition, consistent with federal and state rule requirements, DEP 15 The Application was filed at least 180 days before expiration of the Permit. See Fla. Admin. Code r. 62-620.335(1), (3). coordinated with EPA regarding renewal of the Permit; EPA did have any objections to issuance of the Renewal Permit DEP complied with all applicable permit application review process requirements, pursuant to rule 62-620.510. On January 2, 2019, DEP issued a Notice of Draft Permit, which was published in the Miami Herald on January 15, 2019. A public notice announcing a public meeting on the Draft Permit was published in the Miami Herald on April 4, 2019, and a public meeting on the Draft Permit was held in Homestead, Florida, on May 7, 2019. Additionally, DEP received public comment through May 21, 2019. Pursuant to the comments received and input at the public meeting, DEP made approximately 28 revisions to the Draft Permit. On April 20, 2020, DEP issued the Notice of Intent to Issue the Renewal Permit. The Notice of Intent was published in the Miami Herald on April 23, 2020, Petitioners and Intervenor received written notice on April 22, 2020. After receiving an extension of time to challenge the proposed issuance of the Renewal Permit, on June 4, 2020, FKAA and FKFGA each timely filed a separate petition for administrative hearing, challenging the proposed issuance of the Renewal Permit. The Renewal Permit authorizes FPL to continue to operate the CCS as a wastewater treatment and effluent disposal facility; establishes numeric and narrative limits for constituents in the water leaving the CCS; establishes extensive surface water, ground water, and pore water monitoring requirements, and establishes requirements regarding operation of the CCS. There are no new surface water or ground water discharges authorized by the Renewal Permit. Like the Permit issued in 2005, the Renewal Permit is a "no discharge" NPDES permit, in that it does not authorize a direct point source discharge to surface waters. Consistent with the 1972 EIS prepared for the construction of the CCS, the Renewal Permit continues to authorize seepage of CCS water into surface waters, provided that such seepage does not cause or contribute to a violation of applicable surface water quality standards and criteria established in Florida Administrative Code Chapter 62-302 and does not impair the designated use of contiguous surface waters. The Renewal Permit also continues to authorize the diffuse discharge of CCS water into Class G-III ground water, provided such discharge meets the water quality standards in rules 62-520.400, 62-520.420, and 62-430 applicable to Class G-III ground water and does not impair the reasonable and beneficial use of adjacent ground waters. The Renewal Permit establishes a compliance schedule for meeting this condition that is consistent with the timeframes set forth in the Consent Order for halting the westward migration of the hypersaline plume of water from the CCS and retracting the hypersaline plume back to the L-31E Canal.16 Specifically, Renewal Permit paragraphs I.1. and VI.8 through VI.10 require that the westward migration of the hypersaline plume from the CCS be halted within three years of commencement of the remedial measures established in the Consent Order, and that the hypersaline plume be retracted back to the L-31E Canal within ten years of commencement of those remedial measures. Compliance with these requirements is determined by CSEM surveys. As stated above, the remedial measures were commenced on May 15, 2018, so the westward migration of the hypersaline plume must be halted by May 16, 2021, and the hypersaline plume must be retracted back to the L-31E Canal by May 16, 2028.17 As further discussed below, the competent substantial evidence establishes that by implementing the RWS, FPL already is meeting the 16 The Renewal Permit refers to the Consent Order, and imposes a compliance schedule for halting and retracting the hypersaline plume that is consistent with specified provisions of the Consent Order, but it does not incorporate the Consent Order. 17 FPL's progress in meeting these compliance milestones, in order to demonstrate reasonable assurance that it will comply with the Renewal Permit's ground water-related conditions, is discussed below. requirement to halt the westward migration of the hypersaline plume from the CCS, and is on track to meet the requirement to withdraw the hypersaline plume back to the L-31E Canal within the timeframe set forth in the Renewal Permit. The Renewal Permit provides that if the compliance milestone established in paragraph VI.9, regarding halting the westward migration of the hypersaline plume, is not met, as determined by the CSEM surveys, FPL must develop and submit a plan for halting the westward migration of the hypersaline plume with the compliance schedule established in the Renewal Permit. The Renewal Permit also provides that at the conclusion of the fifth year of implementing the remedial measures—i.e., May 16, 2023—FPL must evaluate and report to DEP regarding the effectiveness of the remedial measures in retracting the hypersaline plume back to the L-31E Canal by May 16, 2028. If FPL's evaluation shows that such measures are not sufficient to achieve the hypersaline plume ten-year retraction requirement, FPL must provide an alternate plan for DEP review and approval to achieve this requirement. The Renewal Permit authorizes the continued operation of internal outfalls that discharge plant process water and stormwater to the CCS. The Renewal Permit imposes additional protective measures in order to provide reasonable assurance that surface and ground water quality standards will be met by operation of the CCS. Specifically, these measures include a new ground water monitoring group, Ground Water Monitoring Group G-001, which consists of cluster wells that sample ground water at shallow, intermediate, and deep depths, at 20 specified locations in the relative vicinity of the CCS—specifically, west of the L-31E Canal; west of the south-central portion of the CCS; south of the CCS; Southwest Model Lands; Northwest Model Lands; west-central Model Lands; West of Card Sound Canal Road; Biscayne Bay channel entrance to the Barge Basin; Biscayne Bay east of the CCS; north of the CCS; in the central portion of the CCS; Biscayne Bay southeast of the CCS; the northwest corner of the CCS; east of the south-central portion of the CCS; east of the L- 31E Canal, adjacent to the S-20 water control structure; Model Lands west of the L-3 well; Model Lands west of the Florida City Canal—and one deep well adjacent to the City of Homestead baseball complex; the L-3 well sampling at two depths; the L-5 well sampling at two depths; the G-28 well sampling at two depths; and the G-21 well sampling at two depths. These ground water monitoring wells will sample and monitor numerous ground water parameters, including specific conductance; salinity; total dissolved solids ("TDS"); chloride; sodium; nitrogen species, including total ammonia, ammonium ion, nitrate plus nitrite, and total Kjeldahl nitrogen ("TKN"); phosphorus; orthophosphate; magnesium; sulfate; sulfide; and tritium. These sampled parameters include those that Petitioners have raised in these consolidated challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Ground water monitoring wells TPGW-1, 4, 5, 6, 17, 18, and 19 are specifically designated for use in determining compliance with the permit requirement to retract the hypersaline plume. In addition, the Renewal Permit authorizes a new series of surface water monitoring sites, Surface Water Monitoring Group D-01A, at locations in Biscayne Bay, the L-31E Canal, the S-20 Canal, and the Card Sound Canal. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable surface water standards as a result of operation of the CCS. The Renewal Permit also authorizes a new series of porewater18 monitoring sites, Porewater Monitoring Group D-02A, in coastal marine wetlands located north, east, and south of the CCS. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Additionally, the Renewal Permit requires monitoring, at several specified monitoring locations in the CCS, of a range of parameters in non-process wastewater and stormwater discharges into the CCS through and existing internal outfall. The parameters to be sampled include total suspended solids; biochemical oxygen demand; dissolved oxygen; pH; salinity; specific conductance; TDS; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; orthophosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. The Renewal Permit also requires FPL to develop and implement a detailed Best Management Practices ("BMPs") Plan, the purpose of which is to prevent or minimize the generation, and potential for release, of pollutants from operation of the Turkey Point facility that would be discharged into the CCS. As discussed above, after FPL submitted the Application for the Renewal Permit in 2009, and before DEP issued the Notice of Intent to issue the Renewal Permit, DEP determined that the discharge of water from the 18 Porewater is the free water present in sediment. It is water within the interstitial distance between ground water, where ground water standards apply, and surface water, where surface water quality standards apply. Porewater sampling and analysis is a useful tool in determining whether constituents in ground water are seeping into surface water. CCS into ground water was impairing the reasonable and beneficial use of adjacent Class G-II ground water, and issued the NOV. FPL and DEP entered into the Consent Order to resolve that violation, as well as to ensure that water seeping from the CCS into ground water would not cause violations of surface water quality standards. In implementing the remediation measures required under the Consent Order,19 FPL constructed, and is operating, the RWS. As further discussed below, the RWS already has halted the westward migration of the hypersaline plume, so that the operation of the CCS under the Renewal Permit will not violate applicable ground water quality standards. Thus, when DEP issued the Notice of Intent, FPL no longer was in violation of any conditions of the Permit or applicable ground water or surface water quality standards; accordingly, DEP determined that the Renewal Permit should not be denied on the basis of a violation of any permit condition. Challenge to the Renewal Permit As discussed above, on June 4, 2020, Petitioners FKAA and FKFGA each filed a petition, challenging DEP's proposed issuance of the Renewal Permit. These challenges were referred to DOAH and respectively assigned Case Nos. 20-2967 and 20-2968. As noted above, on August 24, 2020, Monroe County filed its unopposed Motion to Intervene, challenging the proposed issuance of the Renewal Permit. Monroe County became a party to these consolidated proceedings on August 26, 2020. At their core, the Administrative Petitions and Motion to Intervene allege, in part, that continued operation of the CCS will result in the 19 The specific purpose of the Consent Order was to address and resolve the ground water quality standard violation that had resulted from the discharge of hypersaline water from the CCS into ground water. continued westward migration of the hypersaline plume, threatening drinking water and other ground water-dependent natural resources.20 The Administrative Petitions and Motion to Intervene also allege that the operational changes authorized by the Renewal Permit will increase nutrient loading, including nitrogen and phosphorus, in Biscayne Bay, thereby disrupting populations of aquatic flora and fauna, in violation of surface water quality standards. The Administrative Petitions and Motion to Intervene allege that FPL has not provided the necessary reasonable assurance that the continued operation of the CCS, through issuance of the Renewal Permit, meets the applicable statutory and rule requirements and standards. Specifically, the Administrative Petitions and Motion to Intervene allege that operation of the CCS, including discharges to ground waters and surface waters, as authorized in the Renewal Permit: (1) will impair designated uses of adjacent surface waters and ground waters, in violation of applicable surface water and ground water rules in chapters 62-302 and 62-520, respectively; (2) will cause or contribute to violations of the surface water quality standards in chapter 62-302; (3) does not adequately protect against discharges of nuisance, acutely toxic, carcinogenic, mutagenic, teratogenic, and dangerous compounds, as required by rules 62-520.400 and 62-520.430; (4) will result in discharges into ground water that will impair contiguous surface waters, in violation of rule 62-520.310(2); (5) will cause a violation of the estuary specific numeric nutrient criteria applicable 20 The Petitions also allege that adding water to freshen the CCS will increase the seepage rate of hypersaline water, resulting in maintenance or increase of the westward movement of the hypersaline plume, which will, in turn, result in the alleged harm to drinking water and natural resources. However, as discussed above, the Renewal Permit does not authorize the addition of freshening water to the CCS; that activity is required under the Consent Order— which was not challenged and is in effect—and was authorized by modification of the Certification, which also is in effect, after being unsuccessfully challenged. Therefore, any effects of freshening activities that already have been authorized, or any future freshening that may be authorized pursuant to further modification of the Certification, are not at issue in this proceeding. to Biscayne Bay which are established in rule 62-302.532(1)(h); (6) will fail to maintain and protect Biscayne Bay National Preserve, as required by rule 62-302.200(27), by virtue of being designated an Outstanding Florida Water ("OFW") and an Outstanding Natural Resource Water ("ONRW")21; (7) will fail to protect Biscayne Bay, as an OFW, pursuant to rule 62-302.700(9)(h)5. and 6.; (8) is inconsistent with the anti-degradation policy set forth in rules 62-302.300, 62-302.700, and 62-4.242(1); (9) has not been shown to be necessary or desirable under federal standards or under circumstances which are clearly in the public interest, if it is shown that the discharges from the CCS will result in water quality degradation; (10) is not in the public interest because: it is not important and beneficial to the public health, safety, or welfare, taking into account policies in rules 62-302.300 and 62-302.700; it will adversely affect the conservation of fish and wildlife, including threatened or endangered species, or their habitats; it will adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and is not consistent with any applicable surface water improvement and management plan that has been adopted by a water management district and approved by DEP; should be denied on the basis of prior permit violations, pursuant to rules 62-4.070(5) and 62-302.320(7); (12) constitutes a menace to public health; creates a public nuisance; is harmful to wildlife and to fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water, in violation of section 403.021(1) and implementing rules; (13) is inconsistent with the State of Florida's declared public policy to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies; the propagation of wildlife, fish, and other aquatic life; and domestic, agricultural, industrial, 21 Biscayne Bay has been designated as an ONRW by rule 62-302.700(10)(a); however, that designation is not in effect, and was not in effect at the time of the final hearing, because the Legislature has not enacted legislation specifically authorizing protection and maintenance of ONRWs to the extent required by federal regulation. recreational, and other beneficial uses; and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water, as provided in section 403.021(2) and implementing rules; (14) is inconsistent with the State of Florida's declared public policy, in section 403.012(5), that the prevention, abatement, and control of pollution of the air and waters of this state are affected with a public interest; (15) is inconsistent with rule 62-4.070(1) requirement that a permit shall be issued to the applicant upon such conditions as DEP may direct, only if the applicant affirmatively provides DEP with reasonable assurance, based on plans, rest results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules, and the corresponding requirement, in rule 62-4.070(2), that DEP deny any application where reasonable assurances are not provided; (16) is inconsistent with the requirement in rule 62-4.242(2)(a) that DEP not issue a permit or water quality certification for any proposed activity or discharge in an OFW, or which significantly degrades, either alone or in combination with other stationary installations, any OFWs, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest, and either a DEP permit for the activity has been issued or an application for such permit was complete on the effective date of the OFW designation, or the existing ambient water quality within OFWs will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed 30 days; that lowered water quality would occur only within a restricted mixing zone approved by DEP; and that water quality criteria would not be violated outside the mixing zone; (17) will violate the prohibition in rule 61-4.242(3) that all discharges or activities that may cause degradation of water quality in ONRWs are prohibited, other than discharges that are exempted by statute from DEP permitting or regulation, or discharges or activities described in rules 62-4.242(2)(a)1.b. or c., and 62-4.242(2)(a)2.b.; (18) will violate the anti-degradation policy in rule 62-302.300(14) through (16),22 that existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected; that pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this state and shall not be allowed and that waters having water quality below the criteria established for them shall be protected and enhanced, except that DEP shall not strive to abate natural conditions; that if DEP finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any DEP rule or standard, it shall refuse to permit the discharge; that if an applicant for either a general or generic permit or renewal of an existing permit for which no expansion of discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest; and that if DEP determines that the applicant has caused degradation of water quality over and above that allowed by previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards, or under circumstances which are clearly in the public interest and are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge; (19) will violate the requirement in rule 62-302.500(1)(a)6. and (1)(b) that surface waters remain free from man-induced non-thermal components of discharges which post a serious danger to the public health, safety, and welfare, and/or which produce conditions so as to create a nuisance; (20) will violate the requirement in rule 62-520.400(1)(f) that the permitted discharge from the 22 The petitions also allege violations of rule 62-302.300(18)(a) and (b), which have not been specifically cited. CCS shall not impair the reasonable and beneficial use of adjacent waters beyond the facility boundary; (21) will violate the requirement in rule 62-520.420 that water quality standards for Class G-II and Class G-III ground water shall not be violated; (22) will violate the requirement in rule 62-520.430 that water quality standards for Class G-III ground water shall not be violated; (23) will violate the requirement in rule 62-620.300(5) that the permitted activity is operated consistent with the proposed permit conditions; (24) will violate the requirement in rule 62-620.320(1) that a permit shall only be issued if the applicant affirmatively provides DEP with reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the wastewater facility or activity will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules; and (25) will violate the requirement in rule 62-620.320(9) that the permit conditions provide for compliance with chapter 403 and applicable DEP rules. Effect of the CCS on Offsite Surface Waters Potential for Seepage of CCS Water into Offsite Surface Waters As previously discussed, there is no direct surface water connection between the canals and water in the CCS and surface waters, including Biscayne Bay. The competent substantial evidence establishes that the berm system, as constructed, creates a relatively impermeable barrier to the direct discharge of CCS water into Biscayne Bay. Moreover, in any event, any net surface flow that could exist between the CCS and Biscayne Bay would predominantly be from east to west—i.e., from Biscayne Bay toward the CCS. Also, as previously discussed, when the CCS was constructed and became operational in the early 1970s, the EIS recognized that there was the potential for some indirect discharge of CCS water into surface waters, including Biscayne Bay, via seepage of CCS water into the ground water immediately underlying the CCS and seepage of that ground water into surface water. In order for water in the CCS to travel through ground water to surface waters, including to Biscayne Bay, three conditions must collectively exist: a pathway that allows the significant flow of water; a hydraulic gradient—i.e., energy potential difference—between the water levels in the CCS and Biscayne Bay; and sufficient time for the water to flow the distance from the CCS to Biscayne Bay, which, in turn, is dependent on the hydraulic conductivity of the geologic unit through which the water flows. If any of these conditions is not present, then water cannot flow from the CCS to Biscayne Bay or other surface waters. The Evidence Does Not Establish that there is Seepage of CCS Water into Biscayne Bay The competent substantial evidence establishes that these conditions do not collectively exist such that there is little, if any, flow or seepage of water from the CCS, via ground water, into Biscayne Bay. As discussed above, the Biscayne Aquifer generally is highly permeable; however, its permeability—and, therefore, its ability to enable significant water flow—varies at different depths and locations. The upper 20 feet of the Biscayne Aquifer is comparatively less permeable than some of the deeper layers in the aquifer. Thus, the upper portion of the Biscayne Aquifer immediately underlying the CCS does not enable any appreciable flow or seepage of ground water containing CCS water into Biscayne Bay. To this point, a comparison of the height of the water in the CCS relative to that in Biscayne Bay shows that the water height in the CCS remains relatively constant, while the water height in Biscayne Bay fluctuates with tidal cycles. This constitutes strong evidence that CCS water does not enter, or have any appreciable exchange with, Biscayne Bay surface waters through a ground water connection. The evidence also does not bear out that CCS water flows into Biscayne Bay through the more permeable preferential flow zones within the Biscayne Aquifer. CCS water may seep into the Upper Flow Zone, which is a layer of the aquifer located approximately 20 to 30 feet below the land surface that acts as a preferential flow zone; however, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone does not intersect the bottom of Biscayne Bay at any location, so that a pathway does not exist for CCS water which has seeped into the ground water in the Upper Flow Zone to ultimately seep or flow into Biscayne Bay. The competent, substantial, and persuasive evidence also shows that CCS-origin water does seep, via ground water, into Biscayne Bay through submarine springs. Some small karst depressions, which Petitioners and Intervenor have characterized as caves,23 exist in the limestone at the bottom of Biscayne Bay east of the CCS. The competent, substantial, and persuasive evidence establishes that these depressions are not deep enough to intersect the Upper Flow Zone of the Biscayne Aquifer. That CCS water does not seep into Biscayne Bay via these karst depressions is borne out by tritium data from water samples collected at the bottom of the depressions, showing that very little of the water at the bottom of the depressions is CCS-origin water, and that to the extent CCS-origin water is present in the depressions, it can be explained entirely by atmospheric deposition. Tritium is a mildly radioactive isotope of hydrogen that is naturally present in the upper atmosphere and waters distal from the Turkey Point facility at average levels of approximately 6 picocuries per liter ("pCi/L"). 23 Dr. Mark Stewart, FPL's expert hydrogeologist, testified that "caves" are solution features in limestone large enough for a person to enter, and that the karst depressions at the bottom of Biscayne Bay, immediately east of the CCS, are not large enough to be considered caves. Tritium also is created as a by-product of the nuclear reaction process, and is part of all water in the CCS, at an average level of approximately 6,000 pCi/L. Because tritium is part of the water molecule in all CCS-origin water, it is an excellent tracer for CCS-origin water. The atmospheric background level of tritium in the vicinity of the CCS averages approximately 11.2 pCi/L, due to evaporation of tritium- containing water from the CCS. By comparing tritium levels in surface water and ground water samples collected at, and in the vicinity of, Turkey Point with the natural atmospheric background tritium level, one can ascribe any tritium levels in the samples which exceed the natural background level to CCS-origin water. The level of tritium in water quality monitoring samples taken at the bottom of the karst depressions ranges between approximately 12 and 20 pCi/L, which shows that highly diluted CCS-origin water—i.e., approximately one one-thousandth of the water sample—exists in these depressions. The competent, substantial, and persuasive evidence establishes that if there were any significant groundwater seepage of CCS-origin water, via ground water, into these depressions in Biscayne Bay, the sustained tritium levels in the depressions likely would be comparable to the tritium levels of the water in the CCS. However, nowhere in Biscayne Bay, including at the bottom of these karst depressions, do tritium levels approach the 6,000+ pCi/L tritium levels of CCS-origin water that would exist if there were seepage or flow of CCS water into Biscayne Bay. Surface water samples taken in Biscayne Bay consistently show tritium levels in the range of 11 to 20 pCi/L, which is entirely explained by atmospheric deposition in the form of rainfall or water vapor, rather than by ground water seepage. To this point, Dr. Kip Solomon, FPL's expert on tritium transport in atmospheric and aqueous mediums, persuasively opined that the overwhelmingly dominant pathway for transport of tritium into Biscayne Bay is via evaporation and atmospheric deposition. This conclusion is supported by the persuasive evidence establishing that neither the karst depressions, nor any other location at the bottom of Biscayne Bay, intersect the Upper Flow Zone or any other deeper preferential flow zones in the Biscayne Aquifer. Additionally, if there were ground water seepage from the CCS into Biscayne Bay, that ground water would enter the bay through the porewater in the sediment at the bottom of the bay. However, porewater sampling in sediment at the bottom of Biscayne Bay consistently shows an average tritium level of approximately 9.3 pCi/L, which is less than the average concentration of tritium in the surface water of Biscayne Bay. This supports the conclusion that tritium likely enters Biscayne Bay at the surface of the water, consistent with an atmospheric deposition source, rather than by ground water seepage from the CCS. Ground water monitoring of tritium levels at various locations under, and in the vicinity of, the CCS, further shows that the predominant movement of tritium-containing water, via seepage from the CCS into ground water, is downward, rather than eastward. These monitoring results further support the conclusion that there is no significant seepage of CCS-origin water, via ground water, into Biscayne Bay. The competent substantial evidence also does not show the existence of a hydraulic gradient that would favor flow of CCS water, via ground water, into Biscayne Bay. The hypersaline water in the CCS is more saline, and, therefore, denser, and heavier per volume, than the seawater in Biscayne Bay, which averages between 34 and 36 PSU. Thus, any hypersaline CCS water in the Upper Flow Zone is generally denser and heavier than the seawater above it, in Biscayne Bay and the uppermost portions of the Biscayne Aquifer. This density and weight difference creates a stable stratification of ground water, with the denser, heavier hypersaline water sinking to, and present at, the lower levels, and the fresher, lighter seawater floating on the top of the stratified ground water column. This stable stratification prevents any hypersaline water that may move from the CCS eastward under Biscayne Bay from rising in the stratified water column up into the bay. Additionally, as discussed above, the water levels in Biscayne Bay typically are higher than the water levels in the CCS, even at low tide in the bay. The lowest water levels in the CCS are on its eastern side, closest to Biscayne Bay, due to operation of the CCS pumps, which pump the water counterclockwise through the CCS, starting at its northwestern corner and ending at its northeastern corner. The difference in the water levels between the CCS and Biscayne Bay creates a hydraulic gradient that results in a net flow of water from east to west—i.e., toward the CCS, rather than toward Biscayne Bay. FPL's expert hydrogeologist, Stewart, determined that for the period from 2011 to 2018, there was a westward hydraulic gradient, favoring water movement from east to west, 70 to 75 percent of the time, and that in the relatively short period when an eastward gradient existed—in 2015, an outlier period during which the CCS water levels were at historic highs—the duration of that eastward gradient was insufficient to allow CCS-origin water to flow to and reach Biscayne Bay. Thus, the prevailing westward hydraulic gradient significantly limits the potential for CCS-origin water to flow or seep into areas beneath Biscayne Bay or reach surface waters in Biscayne Bay. Additionally, the competent substantial evidence establishes that there is no significant flow of ground water from the CCS into Biscayne Bay via the Turtle Point Canal or Barge Basin Canal. These canals, which are located at the northeast corner of the Turkey Point facility, are remnants of the cooling water pass-through system that existed before construction of the CCS. Pursuant to the Consent Order, FPL filled these canals specifically to reduce the potential for CCS water to flow, via ground water seepage or flow, into Biscayne Bay. The Turtle Point Canal previously was approximately 20 feet deep, but has been almost completely filled,24 as required by the Consent Order. The Barge Basin Canal, which provides water access to Turkey Point, previously was approximately 30 feet deep; this canal has been filled, pursuant to the Consent Order, to a depth of approximately nine feet, which is the depth of the channel in Biscayne Bay leading to it. If these canals had constituted a significant source of CCS water discharge into Biscayne Bay before they were filled, a stable, density- stratified, high-salinity and high-tritium layer of water would have filled the canal cuts. However, sampling at the canal sites before they were filled did not indicate the existence of such conditions. This shows that even before the canals were filled, they likely were not a significant source of discharge of CCS-origin water into Biscayne Bay. Moreover, the tritium data collected through water quality monitoring at the Turtle Point and Barge Basin canals shows that tritium levels are very similar to those in the surface water of Biscayne Bay, further indicating that there is no significant flow or seepage of CCS-origin water, via ground water connection through these canals, into Biscayne Bay. In sum, the competent, substantial, and persuasive evidence establishes that there is little, if any, seepage or flow of CCS-origin water into Biscayne Bay. The Evidence Does Not Establish that CCS Water Seeps into Offsite Canals Additionally, the competent substantial evidence does not show that CCS-origin water is seeping, via ground water, to offsite canals or surface waters west of the CCS. As discussed above, the Interceptor Ditch is located immediately to the west of the CCS. As previously noted, it was constructed for the purpose 24 The Turtle Point Canal also has been plugged with a dam consisting of bentonite clay, which has very low permeability so acts as an effective barrier to water flow or percolation. of creating a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. The water level in the Interceptor Canal is maintained at a level that establishes an eastward hydraulic gradient from the L-31E Canal to the CCS, so that shallow surface flow from the CCS to the west is restricted. Tritium analysis of the surface water in the L-31E Canal shows that very little, if any, CCS water is seeping or flowing into the L-31E Canal. The competent substantial evidence further establishes that, since FPL's operation of the RWS beginning in 2018, the hydraulic gradient is toward the wells in the RWS, rendering it highly unlikely that CCS water is seeping or flowing into the L-31E Canal. There are other canals located west and south of the CCS. These include the S-20 Discharge Canal, which is located west and south of the southern end of the CCS, and the Card Sound Road Canal and Sea-Dade Canal, both which are located west and south of the CCS. The same hydrological principles that govern the potential for ground water seepage toward Biscayne Bay govern the potential for ground water seepage to the offsite canals. Specifically, there must be a ground water pathway through which water can readily travel from the CCS to the offsite canals; a hydraulic gradient favoring the movement of water from the CCS toward the offsite canals must exist; and the hydraulic gradient must exist for a sufficient duration to allow water seeping from the CCS to reach the canals. The competent, substantial, and persuasive evidence does not establish that pathway exists for CCS-origin water to seep into the L-31E Canal. The L-31E Canal is approximately 15 to 18 feet deep, so is not deep enough to intersect the Biscayne Aquifer Upper Flow Zone. Additionally, the hydraulic gradient does not favor flow or seepage of ground water from the CCS into the L-31E Canal. As noted above, the water level in the Interceptor Ditch is maintained at a lower water elevation than in the L-31E Canal, so there is a continual west to east gradient, from the L-31E Canal toward the CCS. Moreover, and importantly, because the RWS has been implemented along the western boundary of the CCS, the hydraulic gradient of ground water is toward the RWS, such that any ground water seeping westward from the CCS is intercepted by the RWS and pumped into the Boulder Zone of the Floridan Aquifer; thus, that water cannot seep into the L-31E Canal. The S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal are all approximately 18 feet deep—too shallow to intersect the Upper Flow Zone, which would constitute the pathway for CCS-origin water to seep, via ground water, into these canals. Water quality monitoring data in and around the S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal indicates that little, if any, CCS-origin water reaches these offsite canals via ground water seepage. Additionally, the tritium data does not show significant CCS-origin water seepage or flow, via ground water, into these canals. Water quality data collected in 2015 and 2016 indicates that the Turtle Point Canal and Barge Basin Canal may have intersected the Upper Flow Zone, so that CCS-origin water could have seeped into these canals. However, as discussed above, as required by the Consent Order, these canals have been filled with a bentonite slurry wall down to a depth of approximately 30 feet below land surface, so that they no longer intersect the Upper Flow Zone. In sum, the competent, substantial, and persuasive evidence shows that there is very little, if any, seepage of CCS-origin water, via ground water, into the canals or other surface waters proximate to the Turkey Point facility. The Evidence does not Establish that the CCS Causes Surface Water Quality Violations or Degrades Water Quality in Biscayne Bay Because there is no surface water connection of the CCS to Biscayne Bay, to the extent nutrients—i.e., phosphorus and nitrogen—were to seep or flow from the CCS into Biscayne Bay, the only mechanism by which these nutrients in CCS water could reach Biscayne Bay would be through seepage of CCS-origin water into ground water, and then up into the bay. Further to this point, dissolved nutrients generally do not travel with water molecules that evaporate. Therefore, unlike tritium, nutrients cannot be atmospherically deposited into Biscayne Bay via water vapor or rain. As discussed above, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone of the Biscayne Aquifer does not intersect the bottom of Biscayne Bay, so there is no significant pathway for CCS water carrying dissolved nutrients to flow or seep into Biscayne Bay. Additionally, as discussed above, even if a pathway existed for CCS water to flow or seep, via ground water, into Biscayne Bay, the predominant westward hydraulic gradient, which is from Biscayne Bay toward the CCS, significantly limits the potential for CCS-origin water carrying dissolved nutrients to seep or flow, via ground water, into the surface waters of the bay. Also, as discussed above, to the extent a short-lived eastward hydraulic gradient were to exist, the evidence establishes that it is not of sufficient duration to enable CCS water to reach Biscayne Bay surface waters. The competent substantial evidence also establishes that, in any event, the water in the CCS does not contain excessive amounts of phosphorus and nitrogen. As noted above, FPL has implemented a nutrient management plan. Therefore, even if a pathway, hydraulic gradient, and sufficient time for seepage of water from the CCS into Biscayne Bay all existed, the CCS does not constitute a significant potential source of nutrient pollution. Furthermore, because phosphorus is biologically active, and because the movement of nitrogen and phosphorus dissolved in CCS water is retarded by physical and geochemical processes as the water flows through the sediments comprising the aquifer, to the extent CCS water were to seep, via ground water, into Biscayne Bay, nutrient concentrations in that water would be even less than that of tritium25—i.e., less than one-one thousandth of the water sample—so would not constitute a significant source of nutrient input into Biscayne Bay. Compliance with Numeric and Narrative Nutrient Criteria Biscayne Bay is classified as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well-balanced population of fish and wildlife. Rule 62-302.530 codifies numeric and narrative surface water quality criteria for a range of constituents. With respect to total phosphorus and total nitrogen, rule 62-320.530(48)(a) and (48)(b) establish narrative criteria.26 Specifically, rule 62-302.530(48)(a) requires that the discharge of nutrients shall be limited as needed to prevent violations of other standards contained in chapter 62-302, regarding surface water quality standards. The rule further states that man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of rules 62-302.300, 62-302.700, and 62-4.242. Additionally, rule 62-302.530(48)(b) provides that "[i]n no case will nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." 25 As discussed above, tritium is an excellent tracer of CCS-origin water because it is part of the water molecule in all CCS-origin water. Because dissolved nitrogen and phosphorus ions are not part of the water molecule, and physically and chemically react with the sediment comprising the aquifer, they would be present in smaller concentrations than tritium in CCS- origin water. 26 DEP has not adopted generally applicable Class III surface numeric water quality standards for total phosphorus or total nitrogen. Rule 62-302.531, titled Numeric Interpretations of Narrative Nutrient Criteria, requires that the narrative water quality criterion for nutrients set forth in rule 62-302.530(48)(b) be numerically interpreted for nutrients (i.e., total phosphorus and total nitrogen) and nutrient response variables (i.e., chlorophyll-a),27 in a hierarchical manner. Fla. Admin. Code R. 62-302.531(2). Numeric nutrient criteria generally are developed by determining a threshold level of nutrients in a water body beyond which additional nutrients will cause an imbalance in the flora and fauna. Importantly, the rule provides that when a site-specific interpretation of the narrative criterion in rule 62-302.530(48)(b) has been established, that numeric interpretation will constitute the primary interpretation for that criterion. Fla. Admin. Code R. 62-302.531(2)(a). Thus, pursuant to this rule, for locations for which DEP has adopted site-specific numeric interpretations of the narrative criteria, those site-specific numeric nutrient criteria are used to determine whether there is an exceedance of the narrative nutrient criterion. In rule 62-302.532, titled Estuary Specific Numeric Interpretations of the Narrative Nutrient Criterion, DEP has established site-specific numeric interpretations of the narrative criterion for the estuaries in Florida. With respect to Biscayne Bay, DEP has adopted numeric nutrient criteria for total nitrogen, total phosphorus, and chlorophyll-a that are applicable to specific areas of Biscayne Bay called Estuary Nutrient Regions ("ENRs"). ENRs are regions in the Bay which have similar physical and biological characteristics. The ENR-specific numeric nutrient criteria were adopted to maintain nutrient levels within the ENR at concentrations consistent with the very low nutrient levels that existed in the 1970s, pre-development of much of the area around Biscayne Bay. 27 Chlorophyll-a is a nutrient response variable that can be used as an indicator of algal biomass in a water body. In order to maintain healthy conditions in the ENR, the numeric nutrient criteria for nitrogen, phosphorus, and chlorophyll-a all must be met for that ENR. These site-specific numeric nutrient criteria are codified in rule 62-302.532(1)(h), which went into effect on July 3, 2012. To determine compliance with the numeric nutrient criteria adopted for a specific ENR, water quality sampling for each nutrient is conducted in that ENR at least four times per year, with one sampling event in the winter and one in the summer. In order for the water quality within an ENR to be in compliance with the numeric nutrient criteria established for that ENR, the numeric nutrient criterion for the specific nutrient cannot be exceeded more than once in a three-year period. The ENRs that are immediately proximate to the CCS are ENR H1 (Card Sound Estuary), ENR H6 (South Central Inshore Estuary), and ENR H7 (South Central Mid-Bay Estuary). Russell Frydenborg, who served as a water quality program administrator with DEP and had substantial involvement in developing the site-specific numeric nutrient criteria for the ENRs in Biscayne Bay, presented testimony and supporting evidence regarding compliance with the numeric nutrient criteria in these ENRs. The water quality monitoring data for ENRs H1, H6, and H7 show, for the period from 2013 to 2020, there were no exceedances of the total phosphorus numeric nutrient criterion in ENRs H1, H6, and H7. Accordingly, the numeric nutrient criterion for total phosphorus is being met in the ENRs immediately proximate to the CCS. For the period from 2013 to 2020, the water quality monitoring data for ENRs H1, H6, and H7 show that the numeric nutrient criterion for total nitrogen was exceeded once, in 2018, in ENR H6. However, because the criterion was exceeded only once during the sampling period, which is longer than the three-year period necessary for compliance, the water quality within each of these ENRs was in compliance for total nitrogen over the sampling period. Accordingly, the numeric nutrient criterion for total nitrogen is being met in the ENRs immediately proximate to the CCS. The competent, substantial, and persuasive evidence establishes that the proposed surface water monitoring stations included in the Application for the Renewal Permit are located such that they will accurately detect any potential exceedances of the numeric nutrient criteria in ENRs H1, H6, and H7. The water quality monitoring data for ENRs H1, H6, and H7 show that over the period from 2013 to 2020, the numeric nutrient criterion for chlorophyll-a was exceeded once, in 2017, in ENR H7. Again, because the criterion was exceeded only once during the sampling period—which is longer than the three-year period necessary for compliance—the water quality within each of these ENRs was in compliance for chlorophyll-a over the sampling period. Kenneth Weaver, DEP's program administrator who oversees the development and administration of water quality standards, also testified regarding the results of water quality monitoring for chlorophyll-a, total nitrogen, and total phosphorus conducted over a 20-year period, between 1980 and 2020, in ENRs H1, H6, and H7. The results of his analysis, which were consistent with the evidence presented by Frydenborg, confirm that there currently are no exceedances of the numeric nutrient criteria for chlorophyll-a, total nitrogen, and total phosphorus in ENRs H1, H6, and H7. Weaver's long-term water quality analysis also showed that, for the period between approximately 1970—before the CCS commenced operation— and 2020, salinity levels in ENRs H1, H6, and H7 fluctuated over a range from approximately 25 PSU to 40 PSU, but that there were, and are, no upward trends in salinity levels in these areas of Biscayne Bay. This evidence further supports the conclusion that the CCS is not contributing significant amounts of water, via surface water or ground water seepage or flow, in these areas of the bay. Additionally, porewater samples taken over a ten-year period at transects proximate to the CCS show lower nutrient levels than at areas distal from potential influence of the CCS. This constitutes further evidence that the CCS is not a significant source of nutrient input into Biscayne Bay. Collectively, this competent, substantial, and persuasive evidence demonstrates that ENRs H1, H6, and H7 are meeting—and, over a substantial period of time, have met—the numeric nutrient criteria established for these parts of the bay. Weaver also testified, persuasively, that there is no evidence of any imbalance of flora or fauna related to nutrient concentrations in ENRs H1, H6, and H7. Rather, over time, the water quality in the areas of Biscayne Bay proximate to the CCS has improved. This is borne out by the competent, substantial, and persuasive evidence, discussed in detail below, showing that the marine ecosystem in the areas of Biscayne Bay proximate to the CCS is in a relatively healthy, high-functioning condition, particularly compared to other areas in the bay. Additionally, Weaver and Frydenborg both explained that the estuary-specific numeric nutrient criteria adopted in rule 62-302.532(1) for Biscayne Bay, including ENRs H1, H6, and H7, are more stringent than the narrative nutrient criteria for those ENRs. The numeric nutrient criteria for Biscayne Bay were developed using a "no observed effect" standard, rather than an imbalance threshold, so that the numeric criteria will be exceeded before an imbalance in natural populations of aquatic flora or fauna occurs. Thus, compliance with the numeric nutrient criteria for the ENR means that the narrative nutrient criteria for the ENR are met. In sum, the competent, substantial, and persuasive evidence establishes that the continued operation of the CCS pursuant to the Renewal Permit will comply with the applicable estuary-specific numeric nutrient criteria, and, therefore, will comply with the applicable narrative nutrient criteria. Discharge from the CCS does not Degrade Surface Water Quality in Biscayne Bay As noted above, Biscayne Bay is designated as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. Florida's anti-degradation policy, codified at rule 62-302.300, states, in pertinent part, that pollution that causes or contributes to new violations of water quality standards or to the continuation of existing violation is harmful to the waters of this State and will not be allowed. Fla. Admin. Code R. 62-302.300(15). The policy further states if DEP finds that a new or existing discharge will reduce the quality of the receiving water below the classification established for that water body—here, the Class III designation—or violate any DEP rule or standard, then DEP shall refuse to permit the discharge. Fla. Admin. Code R. 62-302.300(16). Rule 62-302.300(18) further provides that, with limited exception,28 an applicant for the renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Fla. Admin. Code R. 62-302.300(18)(a). 28 Under rule 62-302.300(18)(b), if an applicant for the renewal of an existing permit has caused water quality degradation beyond that allowed in the permit, then the applicant must show that the lowering of water quality is necessary or desirable under federal standards and under circumstances that are clearly in the public interest. As discussed below, the competent substantial evidence does not establish that any discharge from the CCS into surface waters has resulted in the degradation of water quality in Biscayne Bay or other surface waters. The anti-degradation permitting requirements, which implement the anti-degradation policy set forth in rule 62-302.300, are codified at rule 62-4.242. This rule authorizes the issuance of permits when consistent with the anti-degradation policy set forth in rule 62-302.300, and, if applicable, rule 62-302.700, regarding OFWs. Fla. Admin. Code R. 62-4.242(1)(a). Rule 62-4.242(1)(b), which—importantly—applies only when a proposed discharge would result in water quality degradation, provides that, in determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, DEP will consider and balance four factors: whether the proposed project is beneficial to the public health, safety or welfare, taking into account the policies in rule 62-302.300 and, if applicable, rule 62-302.700; whether the proposed discharge will adversely affect the conservation of fish and wildlife, including threatened or endangered species or their habitats; whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity; and whether the proposed discharge is consistent with any applicable adopted and DEP-approved surface water improvement and management ("SWIM") plan. Additionally, the open surface waters of Biscayne Bay adjacent to the CCS are designated an OFW, pursuant to rule 62-302.700. This designation prohibits discharges which degrade water quality, except as allowed under rule 62-4.242(2), below the ambient water quality that existed in the water body as of the date of its designation as an OFW. Biscayne Bay was designated an OFW in 1979. Rule 62-4.242(2) prohibits DEP from issuing a permit for a proposed activity or discharge within an OFW, or which significantly degrades, either alone or in combination with activities or discharges, any OFW, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest. Here, the competent, substantial, and persuasive evidence establishes that, to the extent there may be some indirect discharge or seepage from the CCS, via ground water, into Biscayne Bay, that discharge or seepage does not degrade, and has not degraded, the quality of the surface waters of the Bay. First, as discussed above, the applicable numeric nutrient criteria for Biscayne Bay, including ENRs H1, H6, and H7, are intended to maintain nutrient levels at concentrations necessary to maintain healthy conditions in the ENR. Thus, compliance with the applicable numeric nutrient criteria constitutes compliance with the OFW anti-degradation standard. As discussed above, ENRs H1, H6, and H7 all are in compliance with the applicable estuary-specific numeric nutrient criteria. Therefore, the evidence does not show that there has been any degradation of water quality in these ENRs. Further, the competent substantial evidence shows that, to the extent there may be any discharge of nutrients from the CCS into Biscayne Bay, the nutrient levels in such discharge do not vary from, or exceed, the natural variability of the levels for those nutrients established in the numeric nutrient criteria for ENRs H1, H6, and H7. As discussed above, water quality monitoring over a recent multi-year period (2013 to 2020) establishes that there have not been any exceedances of the numeric nutrient criteria for total phosphorus, total nitrogen, or chlorophyll-a in these areas of the bay, which are closest to the CCS. Additionally, to establish that the water quality in ENRs H1, H6, and H7 has not been degraded by nutrient discharges since 1979, when Biscayne Bay was designated an OFW, Frydenborg presented the results of water quality monitoring conducted between approximately 1970 and 2020, for total phosphorus, total nitrogen, and chlorophyll-a in these ENRs. The water quality monitoring results for total phosphorus for ENR H1 shows that in 1985 and 1988, the level of total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, more recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and, in fact, have declined and remained well below the numeric nutrient criterion for total phosphorus for that ENR through 2020. Water quality monitoring for total phosphorus in ENR H6 shows that in 1971, before the CCS commenced operation, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. More recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H6 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. Water quality monitoring for total phosphorus in ENR H7 shows that in 1970 and 1971, and in 1976 through 1979, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, starting in 1980, water quality monitoring shows that, with the exception of total phosphorus levels in 1985, 1987, and 1988, total phosphorus has not exceeded the level that has been established as the numeric nutrient criterion for total phosphorus for that ENR. Since 1990, the total phosphorus levels in ENR H7 have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. The water quality monitoring results for total nitrogen for ENR H1 shows that in 1970, 1979, and 1981 through 1984, total nitrogen exceeded the level that has since been established as the numeric nutrient criterion for total nitrogen. However, more recent water quality monitoring shows that between 1993 and 2020, total nitrogen levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H6 for the period between 1993 and 2020 shows that the total nitrogen level that has been established as the numeric nutrient criterion has been exceeded twice, in 2008 and 2018. The water quality monitoring results otherwise generally show that since 2009, the total nitrogen level in ENR H6 has been well below that established as the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H7 for the period between 1970 and 2020 shows five exceedances—in 1970, 1974, 1975, 1981, and 2003—of the total nitrogen level that has been established as the numeric nutrient criterion for that ENR. Recent water quality monitoring results, for the period between 2009 and 2020, show that the total nitrogen level in ENR H7 has remained at or below the level that constitutes the numeric nutrient criterion for total nitrogen for that ENR. Water quality monitoring for chlorophyll-a for ENR H1 for the period between 1979 and 2020 shows that, with the exception of, 1982, 1991, and 2007, the level of chlorophyll-a that has been established as the numeric nutrient criterion for this ENR has not been exceeded. In fact, since 2008, the chlorophyll-a levels in ENR H1 have been well below the level established as the numeric nutrient criterion for this ENR. Water quality monitoring for chlorophyll-a for ENR H6 for the period between 1979 and 2020 show that the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Water quality monitoring results for chlorophyll-a for ENR H7 for the period between 1979 and 2020 show that, with the exception of an exceedance in 2017, the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Collectively, this evidence shows that, to the extent that there may be an indirect discharge from the CCS, via ground water seepage or flow, into Biscayne Bay, that discharge has not caused or contributed to the violation of the applicable estuary-specific numeric nutrient criteria established in rule 62-302.532(1)(h) for the ENRs adjacent to the CCS, and has not caused or contributed to the violation of any applicable Class-III surface water criteria or standards codified in rules 62-302.500 or 62-302.530. This evidence also establishes that, to the extent there is any discharge of water from the CCS into Biscayne Bay, the discharge has not caused or contributed to the degradation of Biscayne Bay below Class-III surface water quality standards, nor has it degraded surface water quality beyond that allowed in the Permit. Thus, FPL is not required, to demonstrate, under rule 62-4.242(1)(b), that such discharge is necessary or desirable under federal standards and under circumstances that are clearly in the public interest, pursuant to the factors set forth in that rule. However, even if a discharge from the CCS degraded water quality, that discharge would meet the "necessary and desirable under federal standards" and "clearly in the public interest" requirements of rule 62-4.242(1)(b). Specifically, the Turkey Point electrical generating facility is an essential source of electricity for south Florida and is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. Because the CCS dissipates heat from, and serves as a source of cooling water for, the operation of Units 3 and 4, these electrical generating units cannot be operated without the CCS. Closure of Units 3 and 4 would deprive FPL's customers in south Florida, and, particularly, in Miami-Dade County, of an essential source of electricity. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is important and beneficial to the public health, safety, and welfare. Additionally, as discussed below, the competent, substantial, and persuasive evidence establishes that the CCS does not, and, under the Renewal Permit, will not, adversely affect the conservation of fish and wildlife, including threatened and endangered species, or fishing or water- based recreational values or marine productivity in the vicinity of the CCS. Moreover, to the extent CCS water were to discharge into Biscayne Bay, and that discharge resulted in water quality degradation for these nutrients—neither of which has been demonstrated by the competent substantial evidence, discussed above—because the CCS was in operation before Biscayne Bay was designated an OFW, FPL would not be required to show that any such degradation was in the public interest unless it proposed to expand its discharge into surface waters. As discussed above, the competent substantial evidence establishes that there is no surface water discharge, and very little, if any, ground water discharge, from the CCS into Biscayne Bay, and no evidence was presented showing that FPL has proposed to expand its discharge from the CCS into surface waters. Finally, if FPL were required, pursuant to rule 62-4.242(2), to show that a discharge from the CCS into Biscayne Bay is clearly in the public interest, the competent substantial evidence in the record shows that this standard is met. As discussed above, the Turkey Point electrical generating facility is an essential source of electricity for south Florida, and Units 3 and 4 cannot be operated without the CCS as a source of cooling water and heat dissipation for the thermal discharge from these units. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is clearly in the public interest. Furthermore, under any circumstances, the competent substantial evidence, discussed above and also addressed below, does not establish that, to the extent there is any discharge of CCS water into Biscayne Bay, that discharge has caused or contributed to degradation of surface water quality in the bay. In sum, the competent, substantial, and persuasive evidence establishes that continued operation of the CCS pursuant to the Renewal Permit will not violate Florida's anti-degradation policies codified in rules 62-302.300 and 62-302.700, and will comply with the applicable anti- degradation permitting provisions in rule 62-4.242. The CCS has not Adversely Affected the Marine Ecosystem Immediately Offshore of the CCS The existence of a high-functioning marine ecosystem in Biscayne Bay immediately offshore of the CCS constitutes additional, strong evidence that the CCS is not a source of nutrient introduction into Biscayne Bay. FPL's expert marine ecologist, Dr. Jerald Ault, testified regarding the condition and function of the marine ecosystem immediately adjacent to the CCS. Based on his extensive onsite investigations, he opined that the condition and ecological function of this portion of the bay is as good, or better, than at any other location in the bay. Specifically, unlike many other areas in Biscayne Bay, the portion of the bay immediately contiguous to the CCS, including the remnant water intake and discharge canals at Turkey Point, has an undisturbed, healthy mangrove forest and healthy seagrass communities. That the marine ecosystem is functioning at a high level in the vicinity of Turkey Point is evidenced by the substantial abundance and diversity of bait fish species, such as mullet, anchovies, and sardines; the substantial abundance of pink shrimp, which serves as a food source for many marine fish species; the substantial abundance, diversity, and individual size of predator species of fish, such as tarpon, snapper, snook, and schoolmaster; and the presence of many predator species of bird, such as pelicans, cormorants, ospreys, and terns. The presence, abundance, diversity, and individual size of these organisms immediately offshore of Turkey Point evidences the existence of high-quality, high-functioning marine habitat in this area. Additionally, the presence of threatened and endangered species, such as the smalltooth sawfish, in the portion of Biscayne Bay proximate to the CCS is another indicator of high quality, relatively unstressed marine habitat in this area.29 The good condition and high-level function of the ecosystem in this part of Biscayne Bay shows that the CCS is not adversely affecting the ecology of this portion of the bay. To this point, if the CCS were a source of nutrient introduction to Biscayne Bay, or were otherwise harming the ecological functioning of this part of the bay, the marine ecosystem in the area closest to the CCS would exhibit stress and degradation—which it does not. Dr. Ault compared the good condition and high-level ecological function of the portion of Biscayne Bay proximate to the CCS with that of other parts of the bay which are suffering significant ecological decline as a result of development, urban and agricultural discharges to the bay, and extensive pressure from recreational overfishing. Historically, Biscayne Bay was a highly productive estuarine ecosystem. Before the network of drainage canals was constructed in south Florida, the bay received diffuse freshwater sheet flow from the Everglades, across the land. Construction and operation of the multiple drainage canals in the area has replaced the diffuse freshwater discharge from sheet flow with intermittent high-volume discharges from the canals, transforming portions of Biscayne Bay from an estuary to a partially-enclosed saltwater lagoon. This transformation has resulted in significant ecological degradation in parts of Biscayne Bay, particularly in those areas proximate to the drainage canals. By contrast, the CCS has not affected the delivery of freshwater to Biscayne Bay. Additionally, much of the shoreline habitat along the littoral edge of Biscayne Bay has been eliminated by seawalls and bulkheads associated with 29 Species that have become threatened or endangered often become endangered or threatened because they are particularly sensitive to changes to natural environmental conditions. urban development. Undisturbed, healthy mangrove shoreline habitat now only exists in the southern portion of Biscayne Bay, including at the shoreline adjacent to Turkey Point. To this point, Turkey Point has essentially functioned as a buffer from development of the shoreline along that portion of Biscayne Bay. Dr. Ault also opined that recreational overfishing and boating, directly related to the substantial population increase of Miami-Dade County, along with the impacts of commercial shrimping operations on seagrass habitat and quantities of shrimp available as a food source for fish species, have substantially contributed to the significant decline of fish populations in Biscayne Bay. Additionally, water quality has significantly declined in the portions of Biscayne Bay closest to the points where the drainage canals, which convey agricultural and urban runoff containing nitrogen, phosphorus, and other pollutants, discharge into the bay. These canals have been established as constituting the primary source of nutrient introduction into Biscayne Bay. The addition of nutrients to historically-oligotrophic Biscayne Bay has degraded the water quality and disrupted the ecology of many portions of the Bay, particularly areas to the north of Turkey Point, where these canals discharge into the bay. Dr. Ault developed, and presented the results of, a hydrodynamic model that he conducted, demonstrating the transport, in Biscayne Bay, of fresh water containing dissolved phosphorus and other nutrients discharged from the drainage canals north of Turkey Point into the bay. This model shows that the net movement of water particles containing dissolved nutrients is from north to south along the western shore of Biscayne Bay. The results of this model constitute strong evidence that, to the extent water quality monitoring in Biscayne Bay in the vicinity of Turkey Point were to show the presence of elevated levels of phosphorus or nitrogen, the discharge from the drainage canals north of Turkey Point, rather than the CCS, is the source of those nutrients. Dr. David Tomasko, director of the Sarasota Bay Estuary Program, testified regarding the condition of seagrass in Biscayne Bay, including the areas of the bay closest to the CCS. Seagrass meadows are a good indicator of ecosystem health in Florida estuarine ecosystems. The existence and extent of coverage of seagrass meadows in Biscayne Bay are highly variable, and there is not uniform coverage of seagrass at all locations at all times of the year. Based on Tomasko's investigation, in which he analyzed data gathered through FPL's extensive seagrass monitoring program over a ten- year period at 54 locations near the CCS,30 he opined that the CCS is not having an adverse impact on seagrasses in the vicinity of the CCS. Specifically, he noted that turtlegrass continues to grow at the monitoring sites. While the density of the seagrass is highly variable from site to site, and its distribution is patchy due to shallow bottom sediment depths, there is no underlying trend of seagrass decline or nutrient enrichment at the monitored sites near the CCS. The monitoring information also does not show any increase of macroalgae, or replacement of seagrass by macroalgae, in the immediate vicinity of the CCS. Additionally, unlike the seagrasses at a reference site at Barnes Sound, further south in the bay, the condition of the seagrasses in the vicinity of the CCS generally is good. To this point, Tomasko testified, credibly, that the coverage and condition of the seagrasses along transects in Card Sound proximate to the CCS remain similar to the conditions and coverage that he observed in Card 30 FPL's seagrass monitoring program features three pairs of transects located in Biscayne Bay near the CCS, and another reference site south of the CCS, in Barnes Sound, distal from any potential influence from the CCS. Sound in the 1990s. The evidence does not show that there has been any significant die-off of seagrass in the portion of Biscayne Bay immediately proximate to the CCS. Additionally, the nitrogen-to-phosphorus ratios measured in the leaves of the seagrasses sampled along the transects in the vicinity of the CCS are similar to, or greater than, the nitrogen-to-phosphorus ratios measured in seagrasses at the reference site in Barnes Sound.31 If the CCS were a localized phosphorus input source, the seagrasses sampled along the transects nearest to the CCS would have lower nitrogen-to-phosphorus ratios than those at the reference site. In formulating his opinion, Tomasko relied on findings in a 2019 DERM comprehensive report regarding the decline of seagrass and hardbottom habitat in Biscayne Bay. Based on many years of water quality and habitat monitoring, the DERM report concluded that the areas experiencing significant seagrass die-off are north of the CCS, in the 79th Street Basin, Julia Tuttle Basin, Venetian Basin, and Rickenbacker Basin; in central Biscayne Bay, where several drainage canals, including the Coral Gables Canal and the Snapper Creek Canal, discharge into the bay; and south of the CCS, in the Barnes Sound/Manatee Bay Basin, where canals discharge stormwater into the bay. As discussed above, the water entering the bay from these canals contains substantial amounts of nutrients, including phosphorus, which causes algal blooms that adversely affect seagrass. In sum, although there is substantial temporal and spatial variability in the density and coverage of seagrass at locations closest to the CCS, the evidence establishes that the seagrass in these areas are in relatively good condition compared to other locations in Biscayne Bay. If the CCS were a 31 In nitrogen-to-phosphorus ratios, nitrogen levels constitute the numerator and phosphorus levels constitute the denominator. Therefore, the greater the phosphorus level in the seagrass, the lower the nitrogen-to-phosphorus ratio will be. Conversely, the lower the level of phosphorus in the seagrass, the higher the nitrogen-to-phosphorus ratio will be. significant source of phosphorus input into Biscayne Bay, the seagrasses proximate to the CCS would likely be in significantly worse condition. Dr. William Nuttle testified on behalf of Petitioners regarding the flow of CCS-origin water, via ground water, into Biscayne Bay. Based on information contained in FPL's annual water quality monitoring reports for the Turkey Point facility, Nuttle analyzed water and salt budgets for the CCS and interaction of the CCS with the Biscayne Aquifer. Based on his analysis of the amounts of inflow of water into, and outflow of water from, the CCS, Nuttle opined that water leaves the CCS at a depth of around ten feet deep, flows easterly through ground water, and reaches the surface water of Biscayne Bay, and vice versa. As a basis for his opinion, he relied on what he characterized as "elevated" salinity levels in water in the karst depressions in the Bottom of Biscayne Bay at the lowest point of low tide, when the hydraulic gradient from the CCS toward the bay would be greatest. However, he did not compare the salinity levels in the karst depressions, which he characterized as elevated, with the average salinity levels in other areas of Biscayne Bay, or with the average salinity level of the bay as a whole. He also acknowledged that he does not know how much water from the CCS flows into Biscayne Bay, and that, consequently, he could not opine as to the effect that any flow from the CCS has on surface water quality in Biscayne Bay. Nuttle conceded that most of the time, the hydraulic gradient favors movement of water from Biscayne Bay to the CCS. He further acknowledged that in formulating his opinion that water leaves the CCS and enters Biscayne Bay through the karst depressions, he did not take into account the or absence of a significant pathway for flow between the CCS and the bay, or whether there was sufficient time for CCS water to seep or flow into Biscayne Bay. He did not use tritium as a tracer in his investigation of salinity in the karst depressions, so that he was unable to confirm that water in the depressions having what he characterized as "elevated" salinity levels was, in fact, CCS-origin water. Nuttle acknowledged that, to the extent the Turtle Point and Barge Basin canals may previously have been a source of nutrient input into Biscayne Bay, those canals have been filled, creating an impervious barrier to flow or seepage of water from the CCS to the bay. He did not present any evidence showing nutrient levels associated with these remnant canals after they were filled. Petitioners and Intervenor also presented the testimony of Dr. James Fourqurean, who opined that the CCS is adversely affecting the balance of flora and fauna in the region of Biscayne Bay immediately offshore of the CCS. Fourqurean testified regarding the effect of introducing nutrients to seagrass-dominated ecosystems in south Florida. Specifically, when phosphorus is added to sediment in which turtlegrass is growing, the turtlegrass becomes denser, up to the point at which continued addition of phosphorus then favors the growth of benthic macrophyte species, such as shoal grass and widgeon grass. These species outcompete the turtlegrass, thereby causing a decline in the density, coverage, and condition of the turtlegrass. With the continued addition of phosphorus to the system, seagrass communities eventually give way to communities dominated by seaweed and macroalgae, and, ultimately, single-celled microalgae. In 2018 and 2020, Fourqurean conducted investigations of seagrass communities in the offshore areas adjacent to the CCS. In 2018, he found that some turtlegrass beds in the area generally were dense, indicating what he referred to as a phosphorus "sweet spot" for turtlegrass growth. However, in other turtlegrass beds in the area, he found that macro- and microalgae had overgrown the beds, so that little turtlegrass was left. He ascribed the decline of turtlegrass coverage and density, and the preferred growth of algae to increased levels of phosphorus in the sediment. In 2020, he found that in some areas near the CCS, the turtlegrass beds were still dense, but single- celled microalgae were beginning to grow on the turtlegrass blades, indicating the continued addition of phosphorus to the water in that area. He compared the results of his investigations with historic seagrass coverage maps prepared by DERM from seagrass data collected between the 1980 and 1983, with seagrass coverage in 2020, for the immediate offshore areas of Biscayne Bay north of the CCS, adjacent to the CCS, and south of the CCS. This comparison shows that in 2020, for most, if not all, areas of Biscayne Bay immediately offshore, starting north of the CCS and heading south past the CCS, seagrass coverage has significantly declined. The areas north of the CCS, where urban drainage canals discharge into the bay, show the greatest percentage of increased macroalgal coverage and concomitant decline of seagrass coverage, and increased areas of bare sediment having no seagrass or algal coverage. The areas immediately east of the CCS show also show increased percentage of macroalgal coverage, decreased seagrass coverage, and increased areas having no coverage. The area south of the CCS, where the Sea-Dade Canal discharges into the bay, which historically supported seagrass, now shows mostly macroalgae and bare sediment, with little seagrass coverage. Fourqurean also presented testimony and supporting information showing that over the 20-year period between 1999 and 2020, at all areas of Biscayne Bay, starting north of the CCS and going south of the discharge points of the Sea-Dade Canal, with the exception of one area north of the CCS and immediately east of the Homestead Airforce Base, seagrass coverage has declined at annual rates of between 0.1 and 2.5 percent, with the greatest decreases in coverage occurring southeast and south of the CCS, in relative proximity to discharge points of the Sea-Dade Canal and the Card Sound Road Canal. He also presented evidence that some of the highest phosphorus levels in seagrasses have been observed immediately east of, and adjacent to, the CCS. Fourqurean also investigated, and presented evidence regarding, the concentration of tritium in the sediment porewater at some locations immediately east of the CCS which exhibited the highest phosphorus levels in seagrasses. His investigation showed the existence of a positive correlation between the highest concentrations of porewater tritium and the greatest amount of phosphorus in seagrasses. His analysis did not take into account any background level of tritium. Based on this evidence, Fourqurean opined that the areas immediately adjacent to the CCS have experienced the greatest seagrass decline over the 20-year period, and he attributed that decline to phosphorus input from the CCS, through ground water seepage, into Biscayne Bay. For several reasons, the undersigned finds his testimony and opinions unpersuasive. First, although his opinion is based on the assumption that CCS- origin water carrying dissolved phosphorus is seeping into Biscayne Bay, he did not know either the quantity of such water, or the concentrations of phosphorus in such water, that he contended seep into the Bay. Furthermore, in developing his opinion, Fourqurean did not take into account the other significant sources of phosphorus input to Biscayne Bay, including urban and agricultural runoff that enters the bay through discharges from canals located to the north and south of the CCS. He acknowledged that his opinion that the CCS was the source of the high phosphorus levels that he observed in seagrasses near the CCS was predicated on the assumption that the CCS was the source of all of the phosphorus that he observed in the seagrasses. Fourqurean's failure to consider other significant sources of phosphorus in Biscayne Bay while attributing phosphorus levels in seagrass solely to CCS- origin water renders his opinion unpersuasive. Fourqurean also acknowledged that he did not consider hydrodynamic modeling showing that water containing dissolved phosphorus discharged from canals north of the CCS flows south toward the CCS. He also did not take into account geochemical processes, including adsorption, which would attenuate phosphorus levels in CCS-origin water in ground water flowing through a limestone aquifer, which would reduce the amount of phosphorus that may seep into surface water. Additionally, Fourqurean did not take into account natural background tritium levels near the CCS when he developed his opinion that, based on tritium levels in porewater he measured at some locations east of the CCS, where he also observed high phosphorus levels in seagrasses, the phosphorus levels in those seagrasses came from CCS-origin water seeping into Biscayne Bay. Notably, the tritium levels observed in the porewater at the locations that Fourqurean sampled averaged approximately 4.6 pCi/L— far below the 6,000 pCi/L average tritium concentration of CCS water. These tritium levels can entirely be explained by atmospheric deposition into surface waters in the vicinity of the CCS.32 Fourqurean's analysis of porewater in locations where he also calculated high levels of phosphorus in seagrass showed a positive correlation between the concentration of tritium and higher levels of phosphorus in seagrass; however, he acknowledged that this correlation did not demonstrate a causal relationship between the presence of CCS-origin porewater in sediment and the higher levels of phosphorus in seagrasses at the locations he sampled. Stated succinctly, Fourqurean conceded that the 32 Dr. Kip Solomon, FPL's expert on tritium and its transport in the environment, credibly opined that, due to atmospheric deposition, background levels of tritium in surface waters in the area of Biscayne Bay proximate to the CCS consistently range between 11 and 20 pCi/L, and porewater levels of tritium in this area have an average concentration of approximately 9.3 pCi/L. presence of phosphorus-enriched seagrasses near the CCS did not establish a cause-and-effect relationship between such phosphorus enrichment and seepage of water from the CCS into the bay. Fourqurean included, in his expert report, a graphic depicting areas near the CCS where there was seagrass die-off due to high levels of phosphorus. He acknowledged that when he sampled tritium levels in the porewater at these locations in 2020, the tritium levels at these specific locations were some of the lowest he detected in his porewater sampling investigation, thus indicating that very little, if any, CCS-origin water was the source of the high phosphorus levels in seagrass at these locations. He acknowledged that this evidence did not support his hypothesis that excessive nutrients seeping from the CCS via groundwater caused seagrass die-off at these locations. He also acknowledged that, at specific locations in Biscayne Bay where he contended there was significant seagrass decline and die-off from historic levels that were mapped by DERM in the early 1980s, many factors other than phosphorus input from CCS-origin water seeping into the bay— including guano from roosting birds and numerous other potential sources of phosphorus—could be the cause of such seagrass decline and die-off. He also acknowledged that the areas of Biscayne Bay near the CCS are not the only areas of the bay in which there has been extensive seagrass decline and die- off over the nearly 40-year period between DERM's seagrass mapping and his investigation of the levels and locations of that decline. Fourqurean performed a regression analysis of data on seagrass percent coverage in delineated areas near the CCS in order to determine whether the seagrass decline in those areas was statistically significant; however, he did not perform a similar analysis to determine whether other areas in Biscayne Bay also were experiencing statistically significant levels of decline. He acknowledged that, for the areas of the bay closest to the CCS for which he did perform a regression analysis, the areas showing the greatest decline were those south of the CCS, near the location where the Card Sound Canal discharges into the bay. Fourqurean acknowledged that some of the areas east of the CCS which had the greatest levels of phosphorus in seagrasses are proximate to islands that provide bird roosting habitat, thus providing a rich source of phosphorus input to the surface water in the area. He also acknowledged that in the areas closest to the CCS, the levels of phosphorus are much lower than the areas closest to the bird roosting habitat. Fourqurean also acknowledged that in the area where the karst depressions that Petitioners and Intervenor have characterized as "caves" are located, near the southeastern end of the CCS, lower levels of phosphorus were detected in the seagrasses than at other locations where Fourqurean analyzed seagrass phosphorus levels. This indicates that these depressions do not constitute a point of phosphorus input into the bay. Fourqurean did not take water or porewater samples in the karst depressions to analyze for tritium levels in the depressions. It is noted that FPL's expert hydrogeologist, Stewart, performed an analysis of tritium levels in water samples taken in the depressions, and concluded that the tritium levels of water sampled in the depressions are similar to those in water samples taken in other open water locations in Biscayne Bay relatively close to the depressions. This indicates that these depressions do not constitute a connection between the CCS and Biscayne Bay. Fourqurean concurred with Tomasko that seagrass communities in Biscayne Bay are highly variable, and that even under natural conditions, seagrass location and coverage changes over time. He also acknowledged that the most accurate way to determine whether there is a trend with respect to seagrass density at a specific location is to sample that specific location over time in order to determine whether there is a change in density. In formulating his opinions, he did not perform such an investigation, nor did he rely on FPL's extensive seagrass transect data, which shows no adverse trend in seagrass over a ten-year period. He also did not review the 2019 DERM report, which, in part, concluded that the seagrass in areas near Turkey Point are in relatively good condition compared to the seagrasses in areas of the bay north and south of the CCS. In sum, the competent, substantial, and persuasive evidence demonstrates that the continued operation of the CCS will not result in the input of nutrients into Biscayne Bay. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to Biscayne Bay. The Evidence Does Not Show that the CCS Causes Violations of Surface Water Quality Standards Applicable to Other Offsite Surface Waters As previously discussed, there is no direct surface water connection between the CCS and offsite surface waters, including the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals in the vicinity of the CCS. Additionally, as discussed above, the evidence does not show that there is significant, if any, seepage of CCS-origin water, via ground water seepage, into the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals or surface waters in the vicinity of the CCS, and the evidence does not show that the CCS is a source of nutrient input into these canals or other surface waters. Moreover, the RWS is operating to prevent CCS-origin water that seeps into ground water from moving westward past the boundary of the CCS. Thus, under any circumstances, operation of the RWS ensures that future operation of the CCS will not cause nutrient input into offsite canals or other offsite surface waters. Petitioners and Intervenor did not present any evidence showing that there are any water quality violations or ecological imbalances resulting from nutrient discharge or seepage from the CCS into offsite canals or other offsite surface waters. To the contrary, the competent substantial evidence established that continued operation of the CCS will not result in any exceedances of surface water quality standards or criteria applicable to the offsite canals or other surface waters, nor will it alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna in these canals or in other offsite surface waters. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to offsite canals and other surface waters. Effect of Continued Operation of CCS on Offsite Ground Water The Biscayne Aquifer horizontally extends into western Miami-Dade County. Historically, parts of the Biscayne Aquifer have been naturally saline. As a result of the construction of drainage canals, mining, land development, and ground water withdrawals, and other activities, significant saltwater intrusion has occurred in southeastern Miami-Dade County. As discussed above, by 1955, the location of the saltwater interface in the Model Land area in south Miami-Dade County had moved inland, from its original location near the coastline, to near Florida City, with its greatest landward extent at the Card Sound Road Canal, which, at the time, was an uncontrolled source of saltwater intrusion inland. A water control structure was installed in the Card Sound Road Canal in approximately 2010, and the evidence shows that, as of 2012, the inland extent of the saltwater interface along the Card Sound Road Canal had retracted slightly eastward. As discussed above, by the time the CCS became operational in 1973, the saltwater interface was located approximately three to three-and-a-half miles inland from the coast in the Model Land area. Since then, the saltwater interface has moved approximately one to one-and-a-half miles further inland in the Model Land area, to where it currently is located, approximately four- and-a-half miles from the coast. The NOV issued by DEP in April 2016 found that the CCS was the major contributing cause of the continued westward movement of the saltwater interface in the Model Land area, and that saltwater intrusion into the area west of the CCS was impairing the reasonable and beneficial use of adjacent Class G-II ground water in that area. To resolve this ground water standard violation, and to prevent future violations of surface water quality standards and criteria, FPL and DEP entered into the Consent Order. Allen Stodghill, a geologist with DEP who has worked on various ground and surface water-related issues for the Turkey Point facility since approximately 2008, and who was involved in drafting the Consent Order, testified regarding FPL's compliance with the Consent Order.33 As previously discussed, a key objective of the Consent Order was, and is, to cease saline water discharges from the CCS that impair the 33 To the extent FPL is implementing, or has implemented, remedial measures imposed in the Consent Order to address past violations of ground water standards and to prevent future violations of surface water quality standards, FPL's compliance with the Consent Order is germane to determining whether FPL has provided reasonable assurance that it is in compliance with applicable surface water and ground water quality standards, and, therefore, is entitled to issuance of the Renewal Permit. reasonable beneficial use of the adjacent Class G-II ground water to the west. FPL is in compliance with this objective. Although FPL did not achieve a 34 PSU salinity level in the CCS, it submitted a supplemental salinity management plan and also submitted, and is implementing, a thermal efficiency plan to lower the temperature of the cooling water being discharged into the CCS; this will reduce evaporation, which will help reduce the salinity concentration of water in the CCS. As discussed above, FPL also has implemented the RWS, which consists of a series of ten wells located immediately adjacent to the northern and western boundaries of the CCS. These wells collectively pump approximately 15 mgd, or approximately 5.4 billion gallons per year, of water from the Lower Flow Zone of the Biscayne Aquifer, from depths between 70 and 90 feet below land surface. As hypersaline water is withdrawn, the hypersaline plume decreases in vertical and horizontal extent, with the adjacent lower salinity ground water replacing the area formerly containing the hypersaline water that originated from the CCS. As of the final hearing, over 12.5 billion gallons of hypersaline ground water had been extracted from the Biscayne Aquifer by the RWS. The saline water withdrawn through the recovery wells is disposed, through deep underground injection control wells, into the Floridan Aquifer Boulder Zone, approximately 3,000 feet below land surface. The RWS became fully operational in May 2018. The 5.4 billion gallons per year of hypersaline water extracted by the RWS exceeds the approximately four billion gallons per year of water that discharges from the CCS into the ground water beneath the CCS, so that more hypersaline water is being withdrawn by the RWS than is being added to ground water by the CCS. The RWS wells function to withdraw hypersaline water by creating a potentiometric trough, or hydraulic gradient, in the surface of the aquifer. The wells draw water from the hypersaline plume west of the CCS, thereby withdrawing hypersaline water that had migrated west of the CCS before May 2018, when the RWS was implemented. The wells also draw hypersaline water from the CCS that has seeped into ground water to the east of the RWS, thereby creating a hydraulic barrier such that none of the CCS water that seeps into ground water is able to move westward past the RWS. The extraction of the hypersaline ground water beneath the CCS reduces the driving force that contributed to lateral movement away from the CCS, thereby halting the westward migration of hypersaline water from the CCS. Thus, since May 2018, the RWS has functioned—and continues to function— as a hydrologic barrier that has halted the westward movement of hypersaline water from the CCS. The Consent Order also requires that, by May 2028, the hypersaline plume resulting from historical migration of saline water from the CCS in ground water be retracted back to the L-31E Canal. Based on the results of the RWS operation over the past two-plus years, as determined by CSEM data and water quality monitoring, it is anticipated that the hypersaline plume will be retracted back to the L-31E Canal within the ten-year timeframe established in the Consent Order. Another key objective of the Consent Order was, and is, to prevent releases of ground water from the CCS which violate surface water quality standards in Biscayne Bay. This objective was met by filling the Turtle Point and Barge Basin canals. Thus, to the extent these canals intersected the Upper Flow Zone of the Biscayne Aquifer such that there have been a potential pathway for the migration of nutrients from the CCS, via ground water, into Biscayne Bay, that pathway no longer exists at these locations. Additionally, FPL has submitted and implemented a nutrient management plan, and conducted and completed an inspection of the peripheral impoundment structures. The Consent Order also required FPL to mitigate impacts related to historic operation of the CCS. To meet this objective, FPL completed an analysis, using a variable density three-dimensional ground water model developed under an agreement with DERM to allocate the relative contributions of other entities and factors to the inland movement of the saltwater interface. FPL also has entered into an agreement regarding the conveyance to SFWMD of FPL properties to facilitate the Comprehensive Everglades Restoration Plan, and has provided $1.5 million dollars to DEP to be used to finance saltwater intrusion mitigation projects in the Turkey Point region. FPL also conducted, and completed, the surface water quality sampling program to improve trend analysis in Biscayne Bay and Card Sound. FPL also is in compliance with the water quality monitoring requirements imposed in the Consent Order, including conducting the CSEM surveys and monitoring the salinity of ground water in and around the CCS. FPL submits RAASR reports on an annual basis, summarizing activities related to implementing the Consent Order, which contain CSEM survey and water quality monitoring data. As further discussed below, the results of this monitoring provide strong evidence that the RWS has halted the westward migration, via ground water movement, of CCS-origin water. The monitoring wells associated with the RWS consist of a cluster of three wells, one of which samples from the Upper Flow Zone, one of which samples from the Lower Flow Zone, and one that samples the deep aquifer. The results of the ground water monitoring associated with the RWS generally show that the wells are retracting the hypersaline plume. Some deep well monitoring results show an increase in the chloride levels as the RWS extracts the hypersaline water. This is because, as the RWS system draws water from the bottom of the aquifer, the heavier, more saline water sits, and tends to stay, at the bottom of the aquifer, while the less saline water is extracted by the recovery wells. The increase in chloride levels at the deep monitoring wells is expected because the RWS was recently implemented, and as the RWS operates over time, the chloride levels in the deep monitoring wells are anticipated to drop, as the denser, more saline water located at the bottom of the aquifer ultimately is extracted by the RWS. Based on the foregoing, it is determined that FPL is in compliance with the requirements of the Consent Order. Data collected by CSEM surveys and interpreted by FPL's expert hydrologist, Mark Stewart, confirms that the RWS is functioning effectively to halt the westward migration of the hypersaline plume and to retract the hypersaline plume back to the L-31E Canal, as required by the Consent Order. Using the CSEM data, Stewart conducted ground water modeling for chloride levels for each of 14 layers representing the Biscayne Aquifer at different depths, from land surface down to approximately 99 feet below land surface. Stewart's model, which has been peer-reviewed and accepted as accurate by regulatory agencies, including SFWMD, shows that the RWS is functioning to retract the hypersaline plume eastward to the L-31E Canal. Specifically, for the Upper Flow Zone, which constitutes Layer 7 of Stewart's model and ranges from 7.9 to 9.8 meters (approximately 25.9 to 33 feet) below land surface, the modeling results show significant retraction of the hypersaline plume between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. Layer 10 of Stewart's model, which constitutes the Lower Flow Zone and ranges from 14.2 to 16.8 meters (approximately 46.5 to 55 feet) below land surface, also shows significant retraction of the hypersaline between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. The accuracy of Stewart's modeling was confirmed by water quality monitoring data for chloride taken at numerous ground water quality monitoring wells west and north of the CCS. Most of these monitoring wells showed a statistically significant decrease in chloride concentration, while others showed decreases that were not statistically significant. Some wells showed no trend regarding chloride concentration, while a very small number of the wells had an apparent increase in chloride that was not statistically significant. Stewart noted that the hypersaline plume is not being retracted uniformly in each layer of the aquifer, and that in some of the lower layers of his model, which correspond to greater depths below land surface, the extent of retraction of the hypersaline plume has not been as great as that at shallower layers. However, the RWS is reducing the volume of the plume, which, in Stewart's opinion, shows that the RWS is working to retract the hypersaline plume back toward the L-31E Canal. Stewart further noted that, due to operation of the RWS, there is no additional water coming out of the CCS and flowing westward in the aquifer. Based on the conservative assumption that the original position of the saltwater interface originally was located near the current position of the CCS, and that it moved westward to the TPGW-7 monitoring well by 2018, Stewart estimated that the saltwater interface is moving inland at a rate of approximately 450 feet per year. It is noted that this rate is similar to FKAA's 500-feet-per-year rate estimated movement rate for the saltwater interface. Stewart opined, persuasively, that because the RWS has created a hydrologic barrier such that CCS water no longer is flowing into the aquifer west of the CCS boundary, and because water in the CCS is now less saline, due to freshening, than the ground water under the CCS, such that there no longer is a density drive for CCS water to move downward into the aquifer, it is unlikely that CCS water will move to FKAA's Biscayne Aquifer wellfield. E.J. Wexler, a hydrologist whose expertise is in ground water modeling, solute transport modeling, and contaminant hydrogeology, testified on behalf of Petitioners and Intervenor regarding FPL's remedial measures to withdraw the hypersaline plume east to the L-31E Canal by May 2028. Wexler developed a three-dimensional solute transport model in connection with ACI's proposed expansion of its aggregate mining operation. His study entailed an investigation of the hydrogeology of the area around the ACI site and considered the effects of the SFWMD canals, other lakes and discharge canals, municipal water supply wells, agricultural wells, and the CCS. He modeled the area between the Mowry Canal to the north, the C-111 Canal to the west, and the shoreline of Biscayne Bay to the east and southeast, to determine the location of the saltwater interface and the body of hypersaline water in the Biscayne Aquifer, and to predict the movement of both over time. As part of his modeling, Wexler performed an attribution analysis similar to that performed by FPL, pursuant to the Consent Order. Wexler's model confirmed that hypersaline water seeping from the CCS displaced ground water in the Model Land area, and, thus, acted as the main driver of inland movement of the saltwater interface in the Model Land area. Wexler's ran predictive modeling simulations for a ten-year period, between 2018 and 2027, taking into account the RWS and freshening of the CCS by the addition of 12 mgd of water from the Floridan Aquifer.34 The results of his modeling showed that in the shallower layers of the aquifer, the hypersaline plume will mostly have been retracted back to the western edge of the CCS by 2027. His model also shows that at a depth of approximately 65 feet below land surface, the 35 PSU isochlor remains west of the boundary of the CCS at the end of the ten-year model run, in 2027. 34 Wexler also testified that his model also showed that existing freshening of the addition of 12.2 mgd per day of Floridan Aquifer water to the CCS will not reduce the salinity of the CCS to approximately 34 PSU, as required by the Consent Order. However, the 34 PSU salinity level target for the CCS is not a rule standard and has not been incorporated into the Renewal Permit. Rather, it is a condition of the Consent Order, which is a final, separately enforceable administrative order that is not at issue in these proceedings. Wexler's modeling also shows that the position of the saltwater interface, which is at the approximately 10,000 mg/L, or 10 PSU isochlor line, shows slight eastward movement over the ten-year period simulated.35 Based on the results of his modeling, Wexler opined that the RWS will preferentially retract high salinity ground water from the west in the highly permeable layers of the Biscayne Aquifer, but will leave a persistent body of highly saline ground water in the deeper layers of the aquifer west of the L-31E Canal,36 despite the operation of the RWS. Based on Wexler's modeling simulations for the ten-year period from 2018 to 2027, taking into account the RWS, he opined that the RWS functions more as an interceptor system than a true recovery well system. Specifically, he opined that much of the saline water seeping from the CCS into ground water is intercepted by the RWS, but that the recovery wells comprising the RWS are spaced too far apart, so that when there are high water levels in the CCS, some ground water containing saline CCS-origin water will still seep westward of the CCS in the deep portion of the aquifer. Thus, Wexler opined, the RWS does not create an effective hydrologic barrier to prevent CCS-origin water from continuing to move west of the CCS in the deep aquifer and will not retract hypersaline water back toward the L-31E Canal in the deep aquifer.37 35 Importantly, the Renewal Permit does not require the saltwater interface—which has moved inland due to numerous activities, not just operation of the CCS—to be retracted back to L-31E Canal by May 2028; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by the end of that period. 36 This is consistent with Allen Stodghill's and Mark Stewart's testimony that the RWS will draw hypersaline water down into the deeper layers of the aquifer as it operates and that it will take some time for the RWS to withdraw all of that hypersaline water from the bottom of the aquifer. 37 Wexler also opined that FPL will not meet the requirement, in Condition VI.10 of the Renewal Permit, to retract the hypersaline plume back to the L-31E Canal by 2028. However, Condition VI.10 of the Renewal Permit requires FPL, at the end of the fifth year of operation of the RWS, to evaluate the effectiveness of the RWS in retracting the hypersaline plume to the L-31E Canal within ten years of RWS operation. If this evaluation shows that the RWS will not retract the hypersaline plume to the L-31E Canal by the end of the ten- year period, then FPL must provide an alternative plan for retracting the hypersaline plume Nonetheless, Wexler opined that the RWS would function to retract the saltwater interface slightly over the ten-year compliance period for retracting the hypersaline plume. Wexler's model used different aquifer transmissivity values than those used by Stewart, whose transmissivity values were obtained from United States Geological Survey data. Additionally, Wexler's ground water model—unlike the model prepared and run by Stewart—has neither been peer-reviewed nor reviewed or accepted as accurate by any government agencies. Wexler also opined that highly saline water carrying nutrients, that seeps from the CCS into ground water could flow eastward under Biscayne Bay via preferential pathways and discharged directly to Biscayne Bay. However, he did not investigate whether there are any points at which CCS- origin water seeping into ground water can discharge into Biscayne Bay. As previously discussed, the persuasive evidence, consisting of the testimony and supporting evidence presented by Stewart and Stodghill, shows that there is little, if any, hydrologic connection of the CCS to Biscayne Bay, and, therefore, little, if any, seepage of CCS-origin water into Biscayne Bay. As discussed above, the persuasive evidence does not establish that the karst depressions at the bottom of Biscayne Bay are connected to the Upper Flow Zone or any other preferential pathway in the Biscayne Aquifer, such that CCS-origin water has a pathway to flow or seep into Biscayne Bay. by the end of that period. This interim compliance evaluation provides a "safety check" to help ensure that the hypersaline plume is retracted, such that it no longer is a factor in the location of the saltwater interface. Kirk Martin testified on behalf of Petitioners and Intervenor regarding the projected effect of the hypersaline plume and the movement of the saltwater interface38 on FKAA's Biscayne Aquifer wellfield39 near Florida City, and FKAA's actions in exploring the development of another wellfield so that it can continue to fulfill its obligations to provide potable water to the Florida Keys.40 FKAA operates a wellfield that yields approximately 20 million gallons of water per day from the Biscayne Aquifer, which has been as a sole source aquifer by EPA. This designation means that this portion of the Biscayne Aquifer is the sole source of fresh ground water for southeast Florida. The portion of the Biscayne Aquifer below FKAA's wellfield from which it withdraws fresh water is designated by rule 62-520.410 as a Class G-II aquifer, which, as noted above, means that it is designated for potable water use and has a total dissolved solids concentration of less than 10,000 mg/L. As part of his work for FKAA, Martin analyzed several hydrological components, such as sea level rise, rainfall patterns, ground water levels, ground water pumpage, and water control management for the network of canals in the area, and compared each of these components to noted changes in salinity in monitoring wells. He determined that the most substantial contributor to movement of the saltwater interface in what he termed the "southern front"—which is 38 As discussed above, the saltwater interface is the intersection of Class G-II and G-III ground waters. Class G-III ground water has a total dissolved solids concentration of 10,000 mg/L or greater, and Class G-II ground water has a total dissolved solids concentration of less than 10,000 mg/L. Ten thousand mg/L is roughly equivalent to a 5,000 to 6,000 mg/L chloride concentration. 39 FKAA also has a co-located brackish water wellfield that yields approximately six million gallons of water per day from the Upper Floridan Aquifer. 40 It is important that FKAA monitor for saltwater intrusion because that is the primary threat to the portion of the Biscayne Aquifer from which FKAA withdraws potable water. located south and east of FKAA's wellfields—is manipulation of canal levels, particularly the level of the C-111 Canal, by SFWMD. He opined that operation of the CCS is the major contributor to movement of the saltwater interface within the Model Land area, west of the CCS, and that the movement of the saltwater interface inland is a threat to the portion of the Biscayne Aquifer from which FKAA obtains its source of potable water. The movement of the saltwater interface inland in the Model Land area has impaired the reasonable beneficial use of the adjacent Class G-II ground water, which consists of the Biscayne Aquifer in this location. Martin opined that because implementation of the RWS only withdraws the hypersaline plume, and does not remediate areas in the Model Land in which the ground water has become more saline but is not hypersaline, the implementation of the RWS does not provide reasonable assurance that the saltwater interface will not continue to move inland due to operation of the CCS, thereby violating Class G-II water quality standards and impairing the reasonable and beneficial use of adjacent ground water. However, because the saltwater interface already was located west of the CCS when it commenced operation in 1973, and has continued to move westward due to many other causes besides those solely attributable to the CCS, the Renewal Permit does not require the saltwater interface to be retracted; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by May 2028. Additionally, if, as Martin also opined, the hypersaline plume from the CCS is the primary driver of the westward movement of the saltwater interface, and given that westward movement already has been halted by the RWS and that, assuming successful operation of the RWS, the hypersaline plume will be retracted to the L-31E Canal by May 2028, then implementation of the RWS under the Consent Order will stop the westward movement of the saltwater interface, to the extent such movement is caused by the discharge of hypersaline water from the CCS into ground water. Additionally, as discussed above, the competent, substantial, and persuasive evidence establishes that the operation of the RWS already has halted the westward movement, beyond the boundary of the CCS, of water seeping from the CCS into ground water. Therefore, by definition, the continued operation of the CCS under the Renewal Permit will not result in additional CCS-origin water moving via ground water, westward into the Model Land area or other areas. Martin also opined that FPL's freshening of the CCS, as required by the Consent Order and authorized by the Certification for Turkey Point increases the hydrostatic head of water seeping from the CCS, and will exacerbate the movement, or increase the size, of the hypersaline plume. This opinion fails to take into account that the RWS is removing the water that seeps from the CCS into ground water. Thus, operation of the RWS prevents any water seeping from the CCS into ground water from moving west of the CCS. Accordingly, water seeping from the CCS will not affect the size of the hypersaline plume; to the contrary, the persuasive evidence shows that the RWS already is significantly retracting the hypersaline plume in the Upper Flow Zone and Lower Flow Zone. As discussed above, it is anticipated that as the RWS operates over time, the chloride levels in the deep monitoring wells will drop as the denser, more saline water sitting at the bottom of the aquifer ultimately is extracted. The persuasive evidence indicates that the hypersaline plume retraction conditions in the Renewal Permit will be met within the timeframe set forth in that condition. Martin also testified that current discharges from the CCS will impact the FKAA's use of the potable water, through reduction of the amount of fresh water available and reduction of the buffer between the saltwater interface and FKAA's wellfield. However, again, Martin's opinion fails to take into account that the operation of the RWS already has halted the migration of CCS-origin water west of the boundary of the CCS, so the current operation of the CCS is not affecting the aquifer offsite. To the extent that past discharges from the CCS have caused salinity levels to increase in the Class G-II aquifer west of the CCS and have impaired the reasonable and beneficial uses of that ground water, those past discharges are being retracted by the RWS back to the L-31E Canal, pursuant to the Consent Order. Additionally, the Renewal Permit, Condition VI.9, requires that the westward migration of the hypersaline plume must be halted by May 15, 2021, and Condition VI.10 requires that the hypersaline plume must be retracted back to the L-31E Canal by May 2028. Operation of the CCS in compliance with these conditions will ensure that FPL's future operation of the CCS pursuant to the Renewal Permit does not violate Class G-II ground water standards or impair the reasonable beneficial use of adjacent ground waters. Martin acknowledged that he does not know the quantities or rates of seepage of water from the CCS into ground water for years 2018, 2019, and 2020, and that he did not consider this information in opining that continued operation of the CCS under the Renewal Permit will result in further westward movement of the saltwater interface. He also acknowledged that he does not know the amount of hypersaline water being extracted by the RWS, which has been in operation since May 2018, and he did not take the operation of the RWS into consideration in formulating his opinion. For these reasons, Martin's opinion regarding the lack of effectiveness of the RWS in halting the westward migration of, and retracting, the hypersaline plume is not supported by the evidence and is unpersuasive. The competent substantial evidence establishes that, assuming the saltwater interface is moving westward at a rate of approximately 500 feet per year,41 it would take approximately ten years for the saltwater interface to move one mile westward. At this rate of movement, without any ongoing corrective actions pursuant to the Consent Order, Martin estimates that it would take approximately 40 years for the saltwater interface to reach FKAA's Biscayne Aquifer wellfield. This estimate is consistent with other experts' estimates of the amount of time it will take, if rate of movement of the saltwater interface remains similar to its current rate. Based on the foregoing, it is determined that the continued operation of the CCS under the Renewal Permit will not violate applicable ground water standards. Petitioners' and Intervenor's Standing FKAA's Standing JoLynn Reynolds, Director of Engineering for FKAA, testified regarding the FKAA's interest in challenging the Renewal Permit. As noted above, the FKAA was created by chapter 76-441, Laws of Florida. Pursuant to this law, FKAA supplies water to the Monroe County/Florida Keys area, and wastewater services for parts of Monroe County and the Florida Keys. To meet its legal obligations under this law, FKAA has developed, and operates, two potable water wellfields in Florida City. At its Biscayne Aquifer wellfield, FKAA has ten fresh water-producing wells that withdraw water from the Biscayne Aquifer. At its Floridan Aquifer wellfield, FKAA has four brackish water-producing wells that withdraw water from the Floridan Aquifer, and one deep injection well associated with the reverse osmosis plant. FKAA's water supply pipeline leads from Florida City to the Keys, and traverses a route from Ocean Reef to Key West. 41 Martin testified that monitoring well measurements show that the saltwater interface is moving as slowly as 280 feet per year, while other wells show it moving as fast as 480 feet per year. Martin testified that assuming a rate of 500 feet per year is reasonable for water supply planning purposes, given the uncertainty of measurement. Currently, FKAA produces approximately 18 mgd to meet the potable water demand of its customers. FKAA prepares a Water System Master Plan ("Master Plan") in order to plan its water demands, projected demands, water supply sources, and capital improvement projects over a 20-year planning horizon. However, the Master Plan is updated every two years in order to stay current. FKAA's current Master Plan covers the 2020 to 2040 planning period. FKAA's existing water production wells have a useful life of approximately 50 years. The wells, which were installed in the 1980s, will reach the end of their service life at the end of the 20-year planning horizon. Currently, FKAA does not anticipate having to upgrade or replace any of its water production wells during its current 20-year planning horizon. FKAA has a lime-softening water treatment plant that treats approximately 23.8 mgd of water withdrawn from the Biscayne Aquifer. In addition, FKAA operates a reverse osmosis brackish water treatment plant that treats Floridan Aquifer water and produces approximately six mgd of potable water. FKAA also operates two emergency reverse osmosis plants: one in Marathon, which produces approximately one mgd of potable water, and one in Stock Island, which produces approximately two mgd of potable water. The lime-softening plant, which is used to treat water withdrawn from the Biscayne Aquifer, cannot be used to treat water withdrawn from another aquifer. This plant must treat the water to the drinking water standards of 160 parts per million of sodium and 250 parts per million of chloride. The lime-softening plant is unable to be used to remove salt from the water produced by the wells; thus, the water that is treated by the lime- softening plant must meet drinking water standards for salinity, even before it is treated by the plant. The reverse osmosis plant has a salinity treatment threshold of 4,000 parts per million for chloride, so it cannot be used to treat hypersaline water.42 As part of its water use permit, FKAA is required to have a saltwater intrusion monitoring program. This monitoring program currently consists of 15 wells located east, southeast, and south of the Florida City wellfield site. These wells sample water from depths of 35 feet to 80 feet below land surface. Using USGS-developed isochlor lines, FKAA prepared a graphic showing the approximate location of the saltwater interface for the years 2008, 2011, and 2016. This graphic shows that the saltwater interface is closest to—i.e., approximately 2.99 miles east of—the FKAA's Florida City wellfield at the Card Sound Road Canal. Notably, the saltwater interface at this location did not significantly move in the period between 2008 and 2016. As previously discussed, that canal was open to Biscayne Bay until approximately 2010, and provided a direct conduit for saltwater intrusion inland. The graphic shows that, as of 2016, the next closest location of the saltwater interface is in the Model Land area, approximately 4.48 miles east of the Florida City wellfield. Due to the continued inland movement of the saltwater interface inland over time, in 2017, FKAA installed six new saltwater interface monitoring wells, at an estimated cost of approximately $400,000, to enable continued monitoring of the movement of the saltwater interface.43 One of the wells installed in 2017, FKS-14, showed sharply rising chloride levels at depths from 55 feet to 80 feet below land surface over the period between approximately February 2018 and July 2018. This well also 42 This plant treats water withdrawn from the Floridan Aquifer. There are no allegations in this case that the hypersaline plume has affected, or may affect, any part of the Floridan Aquifer. 43 Notably, three of FKAA's monitoring wells, FKS-1, FKS-2, and FKS-8, which are located east of the saltwater interface, are located immediately proximate to, respectively, the C-111, C-110, and Card Sound Road canals. showed chloride levels beginning to rise at the 40 to 45 feet below land surface level starting in approximately April 2018.44 FKAA's Biscayne Aquifer water production wells withdraw water from between 20 and 60 feet below land surface, so increasing chloride levels have given rise to FKAA's concern regarding the movement of the saltwater interface inland. Based on information showing that the hypersaline plume is pushing the saltwater interface westward toward its Florida City wellfield, FKAA has challenged the Renewal Permit. Currently, FKAA's Biscayne Aquifer wellfield is not contaminated with saline or hypersaline water. However, based on the estimated rate of movement of the saltwater interface of approximately 500 feet per year, the saltwater interface—if its movement is unchecked—is estimated to reach FKAA's Biscayne Aquifer wellfield between 34 and 43 years. As Reynolds explained, FKAA intends to continue producing water from the Biscayne Aquifer because that water already meets drinking water standards for sodium and chlorides, so requires less extensive and expensive treatment than water produced by Floridan Aquifer wells, which would require more costly treatment by reverse osmosis to meet drinking water standards. Thus, in response to its concern that chloride levels may rise in its production wells, FKAA is exploring other locations to which it could relocate its Biscayne Aquifer wellfield if chloride levels continue to rise at accelerated rates in its monitoring wells. To this end, FKAA has Kirk Martin, FPL's water supply planning consultant, to identify available properties north/northwest of its Florida City wellfield that may be suitable for relocation of its water production wellfield. 44 FKS-14 is located southeast of, and in close proximity to, the ACI quarry. FKAA roughly estimates that it will cost approximately $4 million to locate and purchase land suitable for development as a wellfield, and it also estimates that installing additional pipeline to transmit water from a new wellfield to the Florida City lime-softening treatment plant would cost between $1.5 and 2 million dollars per mile. FKAA also would have to install a new pump station, at additional cost, to pump water from a new wellfield to the lime-softening treatment plant. Due to the monitoring results for well FKS-14, which show chloride levels rising sharply once they become elevated, FKAA currently is planning—and incurring cost—in anticipation that it may be required to relocate its wellfield. Reynolds estimated that the process of planning, purchasing, designing, constructing, and commencing operation of a wellfield would take many years. She explained that, given its legal obligation under its special act to provide potable water to the Florida Keys, FKAA does not have the luxury to adopt a wait-and-see approach with respect to preparing for impacts of movement of the saltwater interface on the Biscayne Aquifer. FKAA's water use permit issued by SFWMD grants it the legal right to continue to withdraw from the Biscayne Aquifer up to March 13, 2028. FKFGA's Standing Stephen Friedman, Commodore of the FKFGA, testified regarding that entity's interest in the outcome of these proceedings. The FKFGA, which was established in 1956, is a conservation organization having slightly over 100 members, who are professional fishing guides in and around south Florida. Among other things, the FKFGA helps to educate its members and the public regarding best practices on the water in order to preserve and protect fishery resources and habitat. Its members also assist in sampling activity and in conducting censuses related to natural resources in south Florida. Its members engage in fishing activities all over south Florida, including in Biscayne Bay and the Florida Keys. Friedman testified that he and other members fish in the portion of Biscayne Bay east of the CCS, in the vicinity of the Arsenicker Keys. He testified that he has observed changes in the environmental conditions in this area. According to Friedman, when he started fishing in that area, it had good fishing habitat; however, since 2000, he has observed sparse and dead seagrass, and the quality of the fishing has declined. He testified that bonefish and permit, which are the "target" species for his clientele, are not as plentiful. Consequently, he does not fish there as often as he did in the past. He testified that other members of the FKFGA have related similar experiences to him. Friedman stated that the FKFGA and its members' concerns are that [W]e have a nuclear power plant sitting in between two national parks, and where we're having some environmental difficulties in the Everglades, and we're seeing environmental difficulties in Biscayne Bay National Park. . . . And when we see habitat degrade, and know that it could be prevented, that's where we try to step in and gain as much knowledge as we can, and educate ourselves to find out how we can change something and bring back what used to be great habitat in certain areas. . . . Especially if it's something that we've found that science corroborates our observations. Due to these concerns, as expressed by Friedman, the FKFGA has challenged the Renewal Permit. Benjamin Blanco, a member of the FKFGA, testified regarding his own experiences, as a professional fishing guide and in his personal capacity as a recreational fisherman, regarding fishing in Biscayne Bay and, specifically, in the area offshore of the Turkey Point facility. According to Blanco, he fishes the area offshore of Turkey Point approximately 100 days per year. He testified that, in the past, there were plentiful turtlegrass beds in the area, but that now the bottom of the bay in the area is mostly sand, with no grass. The decline of the abundance and condition of turtlegrass beds in this area has negatively affected the abundance and movement of the game fish species in these areas. As a result, this area no longer supports extensive fishing for these species, and Blanco and other professional fishing guides have had to change their fishing practices. Additionally, as a result of the decline of fish habitat in this area, Blanco no longer engages in personal recreational fishing in this area. He acknowledged that he is not a scientist and has not engaged in any scientific studies on fish populations in Biscayne Bay. He also acknowledged that there are many other factors that are adversely affecting the environment in south Florida, including in Biscayne Bay. Specifically, he acknowledged that the decrease of fresh water flow into Biscayne Bay, the destruction of shoreline habitat, the decline of water quality due to nutrient discharges, and the increase in recreational fishing, all have harmed fish populations in the bay. Monroe County's Standing Michael Forster, County Commissioner for Monroe County District 5, testified on behalf of Intervenor Monroe County, Florida, regarding the County's interest in these proceedings. The County, and the municipalities in the County, receive their potable water supply from FKAA. The County has entered into an interlocal agreement with FKAA, establishing the respective roles of FKAA and the County with respect to FKAA's provision of potable water to the County. Additionally, the County has adopted, in the Monroe County, Florida, Comprehensive Plan (hereafter, "County Plan"), a goal, objectives, and policies recognizing and supporting the role of FKAA in providing the potable water supply to meet the needs of present and future County residents. Under the County Plan, in order for a certificate of occupancy or its functional equivalent to be issued for land development activity for which such approval is required, there must be an adequate potable water supply available to support the development. If a reliable potable water supply is not available to the County, no certificates of occupancy can be issued, thereby severely affecting the County, its economy, and its residents. Forster also testified that the County has an interest in protecting Biscayne Bay as a natural resource. Under the County Plan, the County has planning obligations with respect to, and allocates resources for, the monitoring of environmental and natural resources within its boundaries. In particular, the County is obligated to work cooperatively with various federal and state agencies, including the Florida Keys National Marine Sanctuary ("FKNMS"), which is located in Monroe County, to protect water quality within the FKNMS. Forster testified, credibly, that the County's economy is water-based, and that recreational and commercial fisheries are a major part of that economy. To that end, the County expends resources to monitor the health of fisheries in the County. Ecotourism also constitutes a large part of the County's economic base. Specifically, through the taxes the County collects as a result of tourism, including ecotourism, the County is able to provide a range of local government services to its residents that it otherwise would not be able to provide if it did not have such revenue. The County requested to intervene in these proceedings due to its concerns that the continued operation of the CCS would adversely affect the potable ground water in FKAA's wellfield from which the County obtains its potable water. The County also requested to intervene due to its concerns regarding protecting and maintaining the quality of surface waters in Biscayne Bay, which constitutes an important resource that supports the County's ecotourism.
Conclusions For Petitioners and Intervenor: Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 For Respondent, Department of Environmental Protection: Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent, Florida Power & Light Company: Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. FL0001562-012-IW1N to Florida Power & Light Company. DONE AND ENTERED this 18th day of February, 2022, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2022. COPIES FURNISHED: Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 Brian Stamp Florida Power & Light Company 9760 Southwest 344 Street Florida City, Florida 33035 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Joseph Ianno, Esquire Florida Power & Light Company 700 Universe Boulevard Juno Beach, Florida 33408-2657 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Christopher J. Wahl, Esquire Abbie Schwaderer Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Shawn Hamilton, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue for determination in this proceeding is whether Respondent, E. Speer and Associates, Inc. (the "Applicant"), should be granted a permit for the construction of a permanent docking facility pursuant to Sections 403.91-403.929, Florida Statutes, and Florida Administrative Code Chapter 17.
Findings Of Fact Whether Quantified Hydrographic Studies Are Necessary For All Marina Applications To Provide Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards Speer's Exceptions Nos. 1, 4, 5, 6, 7 and 8 in whole or in part take exception to the Hearing Officer's conclusion (stated as a finding of fact) that it is not possible to demonstrate adequate flushing without "quantifying flushing rates and pollutant dispersal rates using objective methods and appropriate hydrodynamic data." (R.O. at 20, 22-24, 47, 49-50, 54, 57-58; F.O.F. Nos. 33, 35, 38-39, 40, 43-45, 64, 66, and 69) It is clear from the tenor of the entire recommended order that the Hearing Officer believes that as a matter of law an expert's opinion is not sufficient to provide reasonable assurances that flushing will be adequate to prevent violations of water quality standards unless that opinion is based on quantified conclusions generated by objective methods and appropriate hydrodynamic data. (R.O. at 47, 49-50, 57-58) Thus, for example, the Hearing Officer opines that quantification of flushing rates and pollutant dispersal rates using objective measurements of appropriate hydrodynamic data is an essential element of the prima facie showing required to be made by the applicant. (R.O. at 47; C.O.L. No. 11) The Hearing Officer places great significance an the following excerpt from the opinion in 1800 Atlantic Developers v. Department of Environmental Reculation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990): 1800 Atlantic filed 34 exceptions to the recommended order, most of which were denied in the Department's final order . . . . The final order approved and adopted most of the findings of fact and conclusions of law in the recommended order and denied the permit. The following stated rulings and reasons there for are significant to the issues on this appeal. (emphasis added) We must note at this point that there is no finding of fact in the hearing officer's recommended order that quantifies how productive the marine habitat may be in this case, and no record support for the suggestion that there would be some quantifiable diminution in the quality of the marine habitat attributable to this project [footnote omitted]. (emphasis added) Exception 23 filed by 1800 Atlantic challenged the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity . . . The Department rejected this exception based upon the hearing officer's general statements, without any quantification whatsoever, of adverse effects upon these matters . . . (emphasis added) 1800 Atlantic, 552 So.2d at 951-952. I do not concur that 1800 Atlantic stands for the proposition that quantified hydrographic measurement of flushing is in all cases an essential element of a prima facie showing that a marina project will not cause violations of water quality standards. Notwithstanding the above noted statement of the court in 1800 Atlantic that "there is no finding of fact . . . that quantifies 'how productive the marine habitat may be' . and no record support . . . that there would be some quantifiable diminution in the quality of marine habitat attributable to [the] project," 552 So.2d 951, the court did not reject the finding that the project adversely affected the conservation of fish and wildlife, fishing or recreation values, and marine productivity. Indeed, had the court rejected the above finding due to lack of quantified findings the court would never have gone on to reach the issue of mitigation because in 1800 Atlantic mitigation could only become relevant if the applicant was unable to provide reasonable assurance that the project satisfies the public interest criteria of Section 403.918(2) (a), Florida Statutes. See Section 403.918(2)(b), Florida Statutes. I do agree that in some cases quantified hydrographic studies of flushing may be required in order to provide reasonable assurances. Thus, in Rudloe v. Dickerson Bavshore, Inc., 10 FALR 3426 (DER Case No. 87-0816, June 9, 1988), my predecessor held that a dye tracer study was necessary to provide quantitative information about dilution rates and directions on dispersion of pollutants emanating from a proposed marina site which was in "close proximity" to Class II waters approved for shellfish harvesting. 10 FALR at 3447-48. However, the need for such quantified studies must be determined on a case by case basis and is not required as a matter of law for all marinas. 5/ Far me to determine as a matter of law that experts may establish a fact only by certain types of evidence would be an unwarranted and unwise intrusion into the scientific domain of the expert. Thus, in Kralik v. Ponce Marine, Inc., 11 FALR 669, 671 (DER Final Order, Jan. 11, 1989), my predecessor held that expert testimony with regard to flushing does not lack credibility just because a hydrographic study had not been conducted. Of course, the finder of fact has the ultimate say on how much weight an expert opinion should be given if it is not based on a quantified study. Thus, whether an expert testifying on adequacy of flushing has conducted a quantifiable hydrographic study merely goes to the weight of the evidence. Kralik, 11 FALR at 671. I only conclude that a quantified hydrographic study for a proposed marina is not in all cases essential for a showing of reasonable assurances that water quality standards will not be violated. Accordingly, to the extent that the Hearing Officer's findings of fact state that a quantified hydrographic study is required in all cases as a prima facie element of a showing of reasonable assurance that a project will not violate water quality standards, I reject such statement as a mislabled and incorrect conclusion of law. Reasonable Assurance That Flushing Is Adequate To Prevent Violations of Water Quality Standards I read Speer's Exceptions Nos. 1, 3, 4, 5, 6, 7 and 8 in whole or in part as taking exception to the Hearing Officer's finding that under the facts of this case a quantified hydrographic study was needed in order to provide reasonable assurance that the project would not cause violations of water quality standards, and that because such a quantified hydrographic study had not been conducted, reasonable assurances had not been provided. (F.O.F. Nos. 33, 35, 38- 39, 40, 43-45, 64, 66 and 69) As noted by the Hearing Officer, the applicant's expert testimony concerning the adequacy of the flushing consisted of general statements describing visual observations of river and tidal flows which, together with past experience and knowledge of the general area of the project, formed the basis for the experts' opinions that a quantified hydrographic study was not necessary for this project. (R.O. at 22-23) Thus, far example, Mr. Charles C. Isiminger, accepted as an expert in marina design and hydrographic engineering testified that based on his knowledge of the area, its riverine and tidal flows, a hydrographic documentation was not needed to provide reasonable assurance that the project would not cause water quality violations. Mr. Isiminger also testified that any pollutants entering the water from the marina would be flushed out of the area within one tidal cycle. (Tr. at 65-66, 70, 77- 79, 93, 110, 125, 128, 134) Mr. Thomas Franklin, an environmental supervisor from the Department testified that: the hydrographic survey was not really necessary due to the location of the project being in open waters and in close vicinity to the Inlet with a large volume of tidal waters moving in this area, plus the fact that it was further enhanced by flushing due to the St. Lucie River being -- basically coming around Hell Gate point [sic] and funneling out into this estuary. (emphasis added) TR at 437. Other experts also testified that the area was well flushed and that a quantified hydrographic study was not needed in this case. (Jacqueline Kelly, Tr. at 187; John Meyer, Tr. at 319, 322, 341; Gerald Ward, Tr. at 44749) 6/ Speer asserts that the Hearing Officer's finding that a quantified hydrographic study is required in this case cannot stand in light of the unrebutted expert testimony that the marina site will be well flushed and that the rate of flushing provides reasonable assurances the water quality standards will not be violated. I have found no competent substantial evidence in the record which would support a finding that under the facts of this case a quantified hydrographic study is required. I did note that in Footnote 21 of the Recommended Order (R.O. at 20) the Hearing Officer states: Tidal range is only one of the types of data used to quantify flushing rates and pollutant dispersal rates. See TR at 78. Other appropriate data include: overall flow rates, mid tide flow, flow amplitude (the magnitude of the flow without regard to direction, i.e., speed as opposed to velocity), horizontal current distribution, downstream plume characteristics, and field verification using a dye tracer. All of this data is needed to fully describe and quantify flushing rates and pollutant dispersal rates. (citing testimony of Mr. Isiminger at Tr. 88-94) At first blush this may appear to be competent substantial evidence supporting a finding that a quantified hydrographic study is necessary in this case. However, when the testimony is read in its complete context, it is clear that Mr. Isiminger is testifying as to what is necessary to do a hydrographic study when one is needed, and is not testifying that such a study is needed in this case. (Tr. 88-94). I also note that the record contains a memo written by Dr. Kenneth Echternacht, a hydrographic engineer employed by the Department. (Tr. at 67-70) This memo was admitted without objection. (Tr. at 23) The memo states in part that "without . . . hydrographic documentation, reasonable assurance cannot be given that the project will not cause problems." (Tr. at 70; Pet. Exh. No. 10) 7/ Dr. Echternacht was not called as a witness at the hearing and the letter was not offered as evidence of the opinion of Dr. Echternacht or the Department at the time of the de novo hearing. To the contrary, the above noted testimony of Mr. Franklin and the testimony of Jacqueline D. Kelly, an environmental specialist of the Department accepted as an expert in evaluating impacts of environmental dredge and fill projects (Tr. at 187, 195; R.O. at 3), clearly establish that at the time of the de novo hearing the Department was of the opinion that further hydrographic documentation was not needed. The Hearing Officer noted that Mr. Meyer testified that the flushing is a "very, very complicated dynamic situation." (Tr. at 320). The testimony was as follows: Q. So you don't know for sure whether the currents here impact this at all or stay offshore from it? A. Oh, the currents definitelv affect it, and you do have interchange -- as I mentioned before, a very high rate of interchange on a daily basis on every tide. Q. Are you saying that the current that flows through here every day flows right through the site? A. We're dealing with two different things here. We're dealing with your currents, your general migration of waters from the estuary from the inland areas down. You're also dealing with tidal effects coming in and out, and it's a very, very complicated dynamic situation. For me to try to tell you exactly how these things work would be impossible without having a very, very long drawn-out expensive study done on the entire area, and I have not reviewed any studies like that. Tr. at 319-20 (emphasis added) When taken in its context it is clear that Mr. Meyer is testifying that there is a very high rate of exchange on a daily basis on every tide. The fact that he viewed the exact details of the flushing as very complicated in no way retracted his statement that there was a very high rate of exchange on every tide. My review of the record leads me to concur with Speer that no testimony, either on direct, cross-examination, or examination by the Hearing Officer, nor any other evidence was introduced to rebut the expert testimony presented by Speer and the Department that flushing on the site was adequate to provide reasonable assurance that water quality standards will not be violated. 8/ As a general rule, the trier of fact may not arbitrarily reject uncontroverted evidence as proof of a contested fact. Merrill Stevens Dry Dock Co. v. G. & J. Investments, 506 So.2d 30 (Fla. 3d DCA 1987), rev. den., 515 So.2d 229 (Fla. 1987); City of St. Petersburg v. Vinoy Park Hotel, 352 So.2d 149 (Fla. 2d DCA 1977); In Re: Estate of Hannon, 447 So.2d 1027 (Fla. 4th DCA 1984). This does not mean that a mere scintilla of unrebutted evidence is sufficient to establish a contested fact in an administrative hearing. At least in the context of administrative proceedings, the unrebutted evidence still must be competent substantial evidence to support a finding of fact. 9/ There is no suggestion that the Hearing Officer rejected the unrebutted testimony of the experts of Speer and the Department as not being competent substantial evidence. In fact, in the light of the testimony of Mr. Isiminger (Tr. at 65- 66), Mr. Ward ( Tr. at 447-449), Mr. Meyer (Tr. at 238- 239), and Mr. Franklin (Tr. at 345-350), it is beyond peradventure that there is competent substantial evidence to support a finding that flushing is adequate to provide reasonable assurance that the marina will not cause violations of water quality standards. It is clear from the context of the Recommended Order that the Hearing Officer believed that reasonable assurance had not been provided only because he believed that a quantified hydrographic study was required as a matter of law. Although I reject the Hearing Officer's conclusion that a quantified hydrographic study must be conducted as a matter of law for all marina applications, I must still determine whether a quantified hydrographic analysis is required under the facts of this case. In Rudloe v. Dickerson Bayshore, 10 FALR 3426 (DER Final Order, June 9, 1988) it was held that a hydrographic study was not adequate because it did not include a quantified dye tracer study. Id., 10 FALR at 3448. In Rudloe, as in this case, the marina was located in Class III waters, but near Class II waters. However, in Rudloe, the marina site was much closer to the Class II waters (approximately 1,700 feet in Rudloe (10 FAIR at 3430) as compared to approximately 8,000 feet in this case). (R.O. at 16, F.O.F. No. 26) Also, the Rudloe case is significantly different from this case in that competent substantial expert opinion was presented in Rudloe that the marina would adversely impact the Class II shellfish harvesting area. See Rudloe, 10 FALR at 3433-35, 3437-38 (testimony of DNR expert that operation of marina would result in closure of waters to the harvest of shellfish; testimony of Dr. Robert Livingston that the hydrographic drogue studies conducted were inadequate.) In this case, neither expert nor lay testimony was offered by Barringer to show that operation of the marina would result in violation of water quality standards or have any adverse impact on the Class II shellfish waters. 10/ I conclude that the facts of this case as found by the Hearing Officer are not sufficiently similar to the facts of Rudloe so as to justify holding as a matter of law a quantified hydrographic study is necessary to establish the required reasonable assurances. Since the record contains competent substantial evidence that flushing is adequate to provide reasonable assurance that the marina will not cause water quality violations, and since there is no competent substantial evidence in the record to support the Hearing Officer's contrary finding, I must accept the exception of Speer and reject the Hearing Officer's findings of fact to the contrary. In this case I note that I am not so much rejecting findings of fact as rejecting a conclusion of law. As I noted, the Hearing Officer's finding is really based on a conclusion of law which I reject. This leaves only unrebutted competent substantial evidence that there will be adequate flushing to provide reasonable assurance that the operation of the marina will not result in water quality violations. There is no rational basis to reject this unrebutted competent substantial evidence. Therefore, I must accept as proven that the applicant has provided the reasonable assurances that operation of the marina will not result in water quality violations. Merrill Stevens Dry Dock; City of St. Petersburg; Estate of Hannon; supra, Effect On Class II Waters Speer's Exceptions Nos. 7 and 8 take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the marina would not have a "negative effect" an the Class II waters of the St. Lucie Inlet and the Great Pocket. (F.O.F. No. 43) Rule 17-312.080(6)(b), Fla. Admin. Code provides: The Department also shall deny a permit for dredging and filling in any class of waters where the location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging or filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. In this case expert testimony was presented by Speer and the Department that due to the distance of the marina site from the Class II waters (8,000 feet) the marina site was not in close proximity to the Class II waters, and due to the rapid flushing of the area, the construction and operation of the marina would neither have a negative effect nor would result in violations of water quality standards in the Class II waters of St. Lucie Inlet and the Great Pocket. (Isiminger, Tr. at 96, 126-27; Meyer, Tr. at 254-55) I find that the record contains no competent substantial evidence to rebut the evidence introduced by Speer and the Department that the marina will have no negative effect on Class II waters and will not result in violation of water quality standards in Class II waters. Accordingly, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In Re: Estate of Hannon; supra. Reasonable Assurance That Operation Of The Marina Will Not Result In Prop Dredging Or Violations Of The State Water Quality Criterion For Turbidity Speer's Exceptions Nos. 1, 2, 9-12, and 16 in whole or in part take exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the boat traffic from operation of the marina would not cause prop dredging or violations of the water quality criterion for turbidity. (F.O.F. Nos. 33-34, 45, 48, 52-53, 64, and 67) 11/ On one hand, there was testimony that the depths of the marina, in combination with the size of boats allowed in the various slips, would allow for a one foot clearance from the bottom of the boats to the bottom of the marina, and that this clearance, in combination with speed limits in the marina, would provide reasonable assurance that operation of the marina would not result in prop dredging or turbidity violations. (Isiminger, Tr. at 104-107, 118; Meyer Tr. at 263-65, 299, 304- 305; Kelly, Tr. at 189-190; Ward, Tr. at 460) On the other hand, Bruce Graham, admitted as an expert in marine biology testified that: "A large boat, three feet from the bottom, I think would resuspend sediment." (Graham, Tr. at 378). The Hearing Officer, noting that when asked if one foot clearance is sufficient to prevent prop dredging and resultant turbidity violations, a Department witness, testified: I would have to say that we simply don't have enough documentation to know this for a fact. We know that a foot gives us a degree of comfort that there will not be prop wash. In certain instances -- a tug boat, for instance, you know, with huge engines, you're going to have prop wash over a much -- over a large area and with probably much more than a foot of clearance. But for the normal, typical marina a foot, as I say, gives us a degree of comfort that we have settled on. Neyer, Tr. at 264. The Hearing Officer concluded that the witnesses of Speer and the Department could not explain the reasons or efficacy of the "one foot policy" except to say that in their experience the one foot policy was adequate to prevent prop dredging and turbidity violations. (R.O. at 28 n.35)0 The Hearing Officer thus found that Speer and the Department failed to "prove up" the one foot policy -- i.e., failed to elucidate and explicate the reason for the policy. 12/ Clearly the Hearing Officer placed more weight on the testimony of Mr. Bruce Graham than that of Isiminger, Meyer, Kelly and Ward. Since I cannot say that the testimony of Graham was not competent substantial evidence, I am not at liberty to reweigh the evidence or reject the Hearing Officer's finding of fact. See, Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Speer contends that Barringer presented no evidence that prop dredging will cause sufficient turbidity to violate the state water quality turbidity criterion of 29 NTUs. 13/ That contention misses the point. The burden is on Speer to establish by the preponderance of evidence that reasonable assurance has been provided that operation of the marina will not result in violations of the water quality criterion for turbidity. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Hearing Officer, as the finder of fact, concluded that Speer failed to do so. Accordingly, I reject the exception of Speer and accept the Hearing Officer's finding of fact that Speer failed to provide reasonable assurance that operation of the marina would not cause prop dredging or violations of the state water quality criterion for turbidity. Manatee Impacts and the Public Interest Test Speer's Exceptions Nos. 13 and 17 take exception to the Hearing Officer's finding that Speer failed to do a quantified study of impacts to manatees and therefore failed to provide reasonable assurance that the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat. (F.O.F. Nos. 61, 64 and 68) The Hearing Officer reasoned as follows: Instead of a traffic study, the Applicant and DER presented evidence in the form of general statements that manatees need not migrate north and south through the approach channel. According to the Applicant and DER, manatees can migrate across the project site by one of two alternative routes. They can migrate in one or two feet of water under moored boats and then under wave breaks on the north and east piers, or they can migrate in the shallow water landward of the west boundary of the project. That evidence was not persuasive and was controverted by competent, substantial, and persuasive evidence that manatees would be deterred from migrating under the project footprint by substantial obstacles in their path. Manatees migrating under the project footprint would be exposed to 86 or more moving boats with powerful engines and drafts of four to five feet in waters covering approximately 20,800 square feet. It could be argued, or course, that 86 or more boats would not be moving in and out of the marina at one time. However, it is impossible to estimate occupancy rates, length of stay, and frequency of boat trips without a traffic study. (R.O. at 35, n. 51) As Speer's exception notes, there was testimony that because of the width of the river and boat speed restrictions in the project area, there would be no adverse impacts an the manatee from the marina. (Kelly, Tr. at 162; Meyer, Tr. at 255-56, 331- 32; Isiminger, Tr. at 130) The St. Lucie/Jupiter/Hobe Sound waterways are a major travel corridor for manatees. (DER Exh. No. 4) Between 1974 and December 1990, there were ten water craft related manatee fatalities within the boating sphere of influence of the project. (DER Exh. No. 4) In order to reduce impacts on the manatees, the proposed permit contains the following specific conditions: S.C. No. 13: The permittee agrees to install and maintain a minimum of one manatee education/display on the main access pier during and after construction. S.C. No. 15: The permittee agrees that any collision with a manatee shall be reported immediately [to DNR and U.S. Fish and wildlife Service]. S.C. No. 18: The permittee shall post four (4) manatee area/slow speed signs, two of which would be spaced along the perimeter pier and two of which would be located on the outside of the marina for all boating traffic to observe within the marina facility. (DER Exh. No. 3) 14/ There was testimony that the piers, once constructed, would not impair the passage of manatees. (Isiminger, Tr. at 114- 115) On the other hand, there was some testimony that manatees may have to go around the project rather than through it. (Meyer, Tr. at 311) The existing boat traffic past the site of the project to the Inlet was "rough1y estimated" at 50 to 100 boats a day. (Meyer, Tr. at 337) The U.S. Fish and Wildlife Service determined that "while [the project] may negatively affect, it is not likely to jeopardize the continued existence of the West Indian Manatee." (Tr. at 120-21) The Hearing Officer concluded that reasonable assurance as to adverse impacts on manatees could not be provided absent a quantified traffic study. (R.O. at 35, n. 51) In Coscan Florida, Inc. v. Department of Environmental Regulation, 12 FAIR 1359 (DER Final Order March 9, 1990), the Department held that the information needed to determine a marina's impact on manatees and the necessary actions to mitigate such impacts must be decided an a case by case basis. For example, in Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER Final Order, Aug. 24, 1989), 15/ a marina sought to expand by adding 113 new wet slips. The marina was required to develop a manatee protection plan far the surrounding portions of the Caloosahatchee River, all new slips were limited to sail boats until the manatee protection plan was implemented and enforced, and power boat occupancy was limited to 75% of the total 174 wetslips in any event. The marina also made available a wet slip for use by the Florida Marine Patrol. In this case there is evidence of significant boat related manatee fatalities in the boating sphere of influence of the proposed marina. There is also evidence of existing traffic of 50-100 boats per day past the project site. In view of the fact that this project would add 86 slips and a public fueling facility, it seems likely that that the project will significantly increase both boat traffic and the threat of manatee collisions. Accordingly, I concur with the Hearing Officer that there is competent substantial evidence to support a finding that further studies are needed to determine what, if any, additional manatee protection conditions are needed to provide reasonable assurance that manatees will not be adversely affected. I conclude that the applicant did not provide reasonable assurance that the operation of the marina will not have an adverse impact on manatees, their migratory patterns, and their habitat, and therefore failed to provide reasonable assurance that the project is not contrary to the public interest. Therefore, I reject the exception of Speer. Cumulative and Secondary Impacts Speer's Exception No. 15 takes exception to the Hearing Officer's finding that the applicant failed to provide reasonable assurance that there will be no adverse cumulative pacts created either by the cumulative effects of the object and existing similar projects, or by secondary pacts of the project itself. (F.O.F. No. 66) 16/ Cumulative impact analysis takes into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Conservancy v. A. Vernon Allen Builder, supra; Section 403.919, Florida Statutes. Secondary impact analysis considers the impact of the project itself and of any other relevant activities that are very closely linked or causally related to the permitted project. Conservancy, 580 So.2d at 778; J.T. McCormick v. City of Jacksonville, 12 FALR 960, 980. 17/ Thus, in Conservancy the secondary impact analysis was required to consider the environmental impacts of development of 75 estate homes on an island where the development would be reasonably expected as a result of the permitted laying of a subaqueous sewer line. Similarly, in del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), the Department was required to consider the environmental impacts of the foreseeable development of an island facilitated by the permitted building of a bridge to the island. In this case there is competent substantial evidence that there are other marinas located 1,750 feet downstream in Willoughby Creek, and 5,000 feet downstream in Manatee Pocket. (R.O. F.O.F. 31; Isiminger, Tr. at 112; Meyer, Tr. at 261) The record contains competent substantial evidence that the cumulative impact of the project and the existing marinas in Willoughby Creek and Manatee Pocket will not result in violations of state water policy. (Isiminger, Tr. at 125; Kelly, Tr. at 167) I cannot say that the testimony of Isiminger and Kelly on cumulative impacts is not competent, substantial evidence. In light of the fact that there is no competent substantial evidence to indicate that cumulative impacts would result in water quality violations, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersbur; In re: Estate of Hannon; supra. As to secondary impacts, the Hearing Officer pointed out that Speer did not introduce any evidence as to whether there would be secondary impacts to water quality as the result of further development or increased utilization of the uplands facilities. (See F.O.F. 66, n.59, R.O. at 39) Such further development or increased utilization of upland facilities is reasonably foreseeable and would be very closely linked or causally related to the building of an 86 slip marina with public fuel services. As noted above, the applicant has the burden of providing reasonable assurances as to cumulative and secondary impacts. Brown v. DER, supra; Conservancy, supra. However, neither the pleadings nor the pre-hearing stipulation raised the issue of the adequacy of the secondary impact analysis. In a case such as this where the Department's notice of intent to issue a permit has been challenged by a third party, the applicant's prima facie case need only include the application and the accompanying documentation and information relied on by the Department as the basis of its intent to issue. Florida Department of Transportation v. J.W.C., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The petitioner challenging the permit must identify the areas of controversy and allege a factual basis for its contentions that the applicant did not provide the necessary reasonable assurances. J.W.C., 396 So.2d at 789. See also Woodholly Assoc. v. Department of Natural Resources, 451 So.2d 1002, 1004 (Fla. 1st DCA 1984). Since Barringer did not identify this issue and did not allege any factual basis for a contention that the secondary impact analysis was inadequate or incorrect, I may not rule on the issue in this order. Miscellaneous Exceptions To Findings of Fact Speer's Exception No. 14 takes exception to the Hearing Officer's finding that Speer failed to provide reasonable assurance that the project will have no adverse impact on (1) the relative value of functions being performed by areas affected by the project, including seagrasses, shell fish, and fin-fish, and (2) recreational and commercial values in the vicinity. (F.O.F. No. 64) Speer contends that this finding is not supported in the record by competent substantial evidence and is contrary to unrebutted testimony of Ms. Kelly and Mr. Isiminger. (Kelly, Tr. at 159, 161-62, 165-67; Isiminger, Tr. at 73) I cannot say that the testimony of Isiminger and Kelly is not competent, substantial evidence, and I find no evidence in the record to rebut the testimony of Kelly and Isiminger. Therefore, I must accept Speer's exception and reject the Hearing Officer's finding. Merrill Stevens Dry Dock; City of St. Petersburg; In re: Estate of Hannon; supra. Speer's Exception No. 3 takes exception to the Hearing Officer's finding that Speer failed to provide a current water quality analysis. (F.O.F. No. 35) A water quality analysis was submitted in April of 1990, shortly after the permit application was filed. (R.O. at 2, 19; F.O.F. No. 34) I find no competent substantial evidence in the record to suggest any reason for believing that the water quality has changed since April of 1990. I agree with Speer that, absent some specific reason for believing that the water quality has changed since the date of a study conducted contemporaneously with the permit application, there is no requirement to provide an updated water quality analysis. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Need For Quantified Hydrographic Study Speer's Exceptions Nos. 1, 7 and 9, in whole or in part, take exception to the Hearing Officer's conclusions of law that a quantified hydrographic study was needed to provide reasonable assurances that the operation of the marina would not result in violations of water quality standards and would would not have a negative effect on Class II waters. For the reasons stated in Parts III(1), (2) and (3) above, I accept this exception and reject the above noted conclusions of law. Introduction Of Issues Not Set Forth In Pleadings Or Pre-Hearing Stipulations Speer's Exceptions Nos. 1, 2, 3, and 5, in whole or in part, take exception to the Hearing Officer's consideration of issues of (1) the need for a quantified hydrographic study, (2) the proximity of the site to Class II waters, (3) turbidity and prop dredging, (4) cumulative impacts, and (5) the need for a quantified study on manatee impacts. For the reasons set forth in Part 111(6) above, I agree that, absent waiver, a petitioner challenging an intent to issue a permit may not raise issues at the hearing which were not raised in the pleadings or pre-hearing stipulations. However, in this case the issue of manatee impacts was raised in the pleadings, and Speer was on notice that it had the burden of proof on that issue. As to the other issues, even if I accepted far the sake of argument that they were not raised in the pleadings or pre-hearing stipulations, Speer failed to timely object to the raising of these issues at the hearing and therefore waived any objection. See Sarasota County and Midnight Pass Society v. Department of Environmental Regulation, 13 FAIR 1727 (DER Final Order, April 4, 1991). Therefore, I reject the above exceptions. Proximity To Class II Waters Speer's Exception No. 2 takes exception to the Hearing Officer's conclusion of law that Speer was required to submit a plan which demonstrated that the marina would not have a negative effect on Class II waters. (C.O.L. Nos. 12 and 13) I do not agree that where a proposed marina site is 8,000 feet from Class II waters and where the site is rapidly flushed as noted in Parts 111(1), (2) and (3) above, that the site is in close proximity with the Class II waters within the meaning of Rule 17-312.080(6), Fla. Admin. Code. Accordingly, I accept this exception and reject the above note conclusion of law. Public Interest Test Speer's Exception No. 4 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurance that the project was not contrary to the public interest. (C.O.L. Nos. 17 and 20) For the reasons set forth in Parts III(4) and (5) above, I reject this exception. Cumulative Impacts Speer's Exception No. 5 takes exception to the Hearing Officer's conclusion of law that Speer failed to provide reasonable assurances that cumulative impacts would not result in water quality violations, and that such assurances could only be provided by a quantified study. For the reasons set forth in Parts III (1), (2), (3) and (6) above, I accept this exception and reject the above noted conclusions of law. Modification Of Permit Conditions Speer's Exception No. 6 takes Exception to the Hearing Officer's conclusions of law Nos. 24-34. These conclusions of law concern questions of the authority of the Hearing Officer and me to modify the conditions of the permit. I agree with Speer that since none of the parties have requested any modifications, these conclusions of law are irrelevant. 18/ Therefore I accept the exception and reject the above noted conclusions of law as irrelevant. Miscellaneous Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that Speer and the Department failed to provide reasonable assurance as to prop dredging and turbidity violations because neither Speer nor the Department sufficiently proved the basis for the one-foot clearance policy. For the reasons set forth in Part III(4) above, I reject this exception. Speer's Exception No. 8 in part takes exception to the Hearing Officer's conclusion that the question of whether mitigation is adequate is a question of law. I agree with the Hearing Officer and reject this exception. See 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Environmental Regulation, enter a Final Order denying the application for a permit to construct the proposed project and denying the request for determination of improper purposes. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of June, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 1550 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992.
