The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue in this case is whether, and what, reasonable mitigative conditions are necessary to protect the interest of the public and the environment, prior to issuing Petitioner's default permit.
Findings Of Fact Application and Default Petitioner's application is to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing 650 foot-long man-made canal of the same width and depth, normal (perpendicular) to old Central and South Florida Flood Control (now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the northwest shore of Lake Okeechobee. Petitioner's initial, incomplete application filed in DEP's Port St. Lucie office on August 31, 2000, included: the proposed project's location by County, section, township, and range; its legal description; a sketch of its general location and surrounding landmarks; a SFWMD letter verifying conformity with the requirements of a "No Notice General Permit for Activities in Uplands" of a drawing for a proposed pond expansion (to a size less than half an acre), "which will provide borrow material necessary for a house pad and access drive"; a description of water control Structure 127, together with its purpose, operation, and flood discharge characteristics, which were said to describe water levels in Buckhead Ridge, the name of the subdivision where the project was proposed; two virtually identical copies of a boundary survey for Petitioner's property (one with legal description circled) showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, at a scale of one inch equals 200 feet; two more virtually identical copies of the boundary survey at the same scale showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, and the proposed canal extension and house locations; and a copy of a 1996 aerial photograph of Petitioner's property and existing canal, and vicinity. The application did not describe a proposed method or any other details of construction, include any water quality information, or include a water quality monitoring plan. On September 15, 2000, Petitioner filed an additional page of the application form with DEP's Punta Gorda office. The page added the information: "Digging to be done with trac-hoe." No other specifics of the proposed construction method were included. What happened after the filing of the application is described in Tuten I and Tuten II, which are the law of the case. However, those opinions do not explain the delay between Tuten I and the issuance of DEP's proposed ERP with conditions approximately two years later. The evidence presented at the final hearing explained only that counsel of record for DEP promptly asked district staff to draft a proposed default ERP with conditions that "would probably track the RAI that had been sent out prior to the default." DEP's district staff promptly complied and forwarded the draft to DEP's Office of General Counsel in Tallahassee, which did not provide any legal advice as to the draft ERP for almost two years. There was no further explanation for the delay. As reflected in Tuten II and in the Preliminary Statement, it was DEP's position that the proper procedure to follow after its default was to issue a proposed ERP with conditions and that it would be Petitioner's burden to request an administrative hearing to contest any conditions and to prove Petitioner's entitlement to a default ERP with conditions other than those in DEP's proposed ERP. DEP's Proposed General Conditions The conditions DEP wants attached to Petitioner's default permit include general conditions taken from SFWMD's Rule 40E-4.381, which are appropriate, as indicated in the Preliminary Statement and Conclusions of Law, and as conceded by Petitioner's expert. While the Rule 40E-4.381 general conditions are appropriate, Petitioner takes the position (and his expert testified) that some of the general permit conditions contained in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that "issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules"), are more appropriate general conditions to attach to Petitioner's default ERP, even if technically inapplicable, because the Chapter 62 Rules govern the operation of a permitted project (whereas the former govern the construction of a permitted project) and are "more protective of the environment." Actually, all of the rules contain general conditions that govern both construction and operation phases of an ERP, and all are "protective of the environment." There is no reason to add general conditions taken from Rules 62-4.160 and 62-4.070(7) to the applicable general conditions contained in Rule 40E-4.381. DEP's Proposed Specific Conditions (i) In General The conditions DEP wants attached to Petitioner's default permit also include specific conditions which essentially require that Petitioner provide the information in the RAI sent in December 2000, together with additional specific conditions thought necessary to protect the environment in light of the lack of detail in the application without the answers to the RAI. Some DEP's proposed specific conditions are designed to ascertain whether the application would provide reasonable assurance that permitting criteria would be met. (They make the requested information subject to DEP "approval" based on whether reasonable assurance is provided.) In general, those specific conditions no longer are appropriate since DEP is required to issue a default permit. (Looked at another way, inclusion of those specific conditions effectively would un-do the default, in direct contradiction of the court's opinion Tuten I and Tuten II.) See Conclusion of Law 52, infra. On the other hand, some of the RAI information was designed to ascertain the proposed method and other details of construction. Pending the "answers" to those "RAI conditions," DEP also wants broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. Petitioner opposes DEP's proposed broad specific conditions. He takes the position that it was incumbent on DEP in this proceeding to use discovery procedures to ascertain Petitioner's intended method of construction and tailor specific conditions to the method of construction revealed through discovery. At the same time, Petitioner opposes DEP's proposed specific conditions requiring RAI-type information, including the details of his proposed construction method. Notwithstanding the positions Petitioner has taken in this case, his expert testified that Petitioner intends to use a steel wall inserted between the water and upland at the end of the existing canal, phased excavation from the upland side, and removal of the steel wall in the final phase of construction. Assuming that method of construction, Petitioner takes the position (and his expert testified) that the statutes, rules, and permit conditions acceptable to Petitioner, and which generally prohibit pollution of the environment, are adequate. Even if the statutes, rules, and permit conditions acceptable to Petitioner would be adequate for the method of construction Petitioner now says he will use, Petitioner's application does not in fact commit to a method of construction. All Petitioner's application says is that he intends to dig with a trac-hoe. Without a binding commitment to a method of construction, it was appropriate for DEP to take the position that specific conditions were necessary to ascertain the method of construction Petitioner would use and, pending the "answers" to those "RAI conditions," and to impose broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. In his PRO, Petitioner committed to use the construction method described by his expert during the hearing, as follows: Excavation of any spoil shall be done by means of a mechanical trac-hoe; Prior to the excavation of any soil, Petitioner shall first install an isolating wall, such as interlocking sheet pile, between the existing man-made canal, and the proposed canal extension; The mechanical excavation shall be done in such a manner such that the excavated soil is not deposited in wetlands or in areas where it might be reasonably contemplated to re-enter the waters of the State of Florida; After the proposed canal extension is excavated to its project limits in the foregoing manner, the side slopes of the canal extension shall be allowed to revegetate prior to removal of the isolating wall. With a condition imposing this method of construction, fewer and narrower specific conditions will be necessary. ii. Seriatim Discussion DEP's proposed Specific Condition 1 requires a perpetual conservation easement prohibiting docking and mooring of water craft on all portions of Petitioner's property within the canal extension in order to "address cumulative impacts." But DEP did not prove that the proposed conservation easement was reasonably necessary to protect the interest of the public and the environment. First, DEP did not prove that there would be any cumulative impacts, much less unacceptable cumulative impacts, from Petitioner's project. See § 373.414(8), Fla. Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if unacceptable cumulative impacts were proven, those could be addressed in other permit cases (assuming no DEP default in those proceedings), since the concept of cumulative impacts essentially requires an applicant to share acceptable cumulative impacts with other similar permittees, applicants, and foreseeable future applicants. See Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27, 2002). As Petitioner points out, the easement further described in Specific Condition 1 appears to be overly broad for its stated purpose in that it would cover "the legal description of the entire property affected by this permit and shown on the attached project drawings," which could be interpreted to include not just the canal extension but the entire extended canal, or even the entirety of Petitioner's 6.6 acres of property. Indeed, the latter might have been the actual intention, since DEP's witness testified that Specific Condition 1 also was intended to address impacts from fertilizer runoff and septic tank leaching from new homes built along the canal. Although some of those impacts (as well as future construction of additional homes and docks) actually are secondary impacts, not cumulative impacts, it is possible that they can be addressed in DEP or SFWMD proceedings on future applications, as well as in Department of Health proceedings on septic tank installations. DEP's proposed Specific Condition 2 requires that: spoil material from the dredging to be "used for the sole purpose of constructing a single-family fill pad" on Petitioner's property under a pending permit; spoil "be placed in a manner so as not to affect wetlands or other surface waters"; and the "spoil disposal location shall be shown in the drawings required by Specific Condition #4 below." DEP did not prove that the first requirement was reasonably necessary to protect the interest of the public and the environment. First, it is unreasonable since Petitioner already has built the referenced single-family fill pad and a home on top of it. Second, the reason DEP's witness gave for this requirement was that, under an operating agreement with SFWMD (which was officially recognized), DEP only has jurisdiction to take action on single-family uses (which he defined to include duplexes, triplexes, and quadriplexes) but not on larger multi-family and certain other projects. However, the operating agreement on jurisdiction is not a reason to place Specific Condition 1 on the use of spoil material on Petitioner's default permit. SFWMD can regulate, in permitting proceedings under its jurisdiction, the placement of fill material for multi- family construction or other projects not under DEP jurisdiction. In addition, under the operating agreement, jurisdiction can be "swapped" by written agreement in cases where deviation from the operating agreement would result in more efficient and effective regulation. The second two requirements under Specific Condition 2 are reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 3 requires disclosure of all pending and issued permits for the property from SFWMD, Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP did not prove that this is reasonable or reasonably necessary to protect the interest of the public and the environment. DEP probably has all such permits and can easily obtain any it does not have. DEP's proposed Specific Condition 4 requires fully dimensional plan view and cross-sectional drawings of the property and area to be dredged, before and after dredging, including a north arrow and the water depths in and adjacent to the dredge area. DEP's witness stated that the primary purpose of this part of the condition is to provide hydrographic information normally provided in an application (or required in an RAI) so that DEP's hydrographic engineer can ascertain flushing characteristics, which are pertinent primarily to the dissolved oxygen water quality parameter and to heavy metals from boat use. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate since DEP is required to issue a default permit. See Finding 9, supra. However, information regarding flushing characteristics, combined with other specific conditions, is reasonable and necessary to protect the interest of the public and the environment. See Finding 27, infra. In addition, the plan view and cross-sectional drawings required by Specific Condition 4 are to include the location of navigational obstructions in the immediate area, any roads, ditches, or utility lines that abut the property; any encumbrances, and any associated structures. DEP's witness stated that the primary purpose of this information is to determine whether Petitioner has provided reasonable assurance that the "public interest" test under Rule 40E-4.302 is met, and make sure that management, placement, and disposal of spoil material do not infringe on property rights or block culverts and cause flooding. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. However, information regarding the location of culverts to assure that management of spoil does not cause flooding is reasonable and necessary to protect the interest of the public and the environment. In addition to objecting to having to provide RAI information as a "default permittee," Petitioner's expert asserted that the information requested in Specific Condition 4 would be provided as part of the "as-built" drawings required by General Condition 6. But General Condition 6 does not require "as-built" drawings. Rather, it requires an "as-built" certification that can be based on "as-built" drawings or on-site observation. Besides, the purpose of the "as-built" certification is to determine "if the work was completed in compliance with permitted plans and specifications." Without the information requested in Specific Condition 4, there would only be vague and general permitted plans and specifications and hydrographic information. Finally as to Specific Condition 4, Petitioner objects to the requirement that the drawings be sealed by a registered professional engineer. However, Petitioner cites to General Condition 6, which requires that the "as-built" certification be given by a "registered professional" and cites Rule Form 62- 343.900(5), which makes it clear that "registered professional" in that context means a registered professional engineer. DEP's proposed Specific Condition 5 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that the canal extension will not violate water quality standards due to depth or configuration; that it will not cause a violation of water quality standards in receiving water bodies; and that it will be configured to prevent creation of debris traps or stagnant areas that could result in water quality violations. The reasonable assurance is to include hydrographic information or studies to document flushing time and an evaluation of the maximum desirable flushing time, taking several pertinent factors into consideration. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. In addition, Petitioner's expert testified without dispute that the information requested could take more than 180 days and cost approximately $20,000. However, it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be configured so as have the best practicable flushing characteristics. DEP's proposed Specific Condition 6 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that construction of the canal extension will meet all permit criteria set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. DEP's proposed Specific Condition 7 requires Petitioner to submit existing water quality information for DEP approval within 180 days of permit issuance and before any construction. In this instance, DEP's approval would not be a determination on the provision of reasonable assurance but a determination as to the reliability of the water quality information, which is necessary to establish a baseline for assessing and monitoring the impact of the project. For that reason, the information is reasonable and necessary to protect the interest of the public and the environment. Petitioner's expert testified that the information could cost $2,000-$3,000 to produce (and more, if DEP rejects the information submitted, and more information is required). He also testified that water quality information already is available, including over 25 years worth of at least monthly information on all pertinent parameters except biological oxygen demand and fecal coliform, at a SFWMD monitoring station in the Rim Canal at Structure 127 (a lock and pump station at the Hoover Levee on Lake Okeechobee) approximately 8,000 feet away from Petitioner's canal. DEP did not prove that the SFWMD information would not serve the purpose of establishing baseline water quality for Petitioner's canal for all but the missing parameters. For that reason, only water quality information for the missing parameters is reasonable and necessary to protect the interest of the public and the environment in this case. DEP's proposed Specific Condition 8 requires that, if the water quality information required by Specific Condition 7 shows any violations of state ambient water quality standards, Petitioner must submit for DEP approval, within 180 days of permit issuance and before any construction, a plan to achieve net improvement for any parameters shown to be in violation, as required by Section 373.414, Florida Statutes. See also BOR § and 4.2.4.2. Normally, if applicable, this information would be expected in an application or RAI response. Petitioner's expert testified that this condition would require Petitioner to help "fix Buckhead Ridge" (unfairly) and that it would cost lots of money. But Petitioner did not dispute that the law requires a plan for a "net improvement," which does not necessarily require a complete "fix" of water quality violations, if any. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of a net improvement plan. See Finding 9, supra. But a specific condition that Petitioner implement a plan to achieve net water quality improvement in the event of any water quality violations would be reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 9 requires Petitioner to submit for DEP's approval, at least 60 days before construction, detailed information on how Petitioner intends to prevent sediments and contaminants from being released into jurisdictional waters. DEP asserts that this specific condition asks for a detailed description of how the applicant will comply with various subsections of BOR § 4.2.4.1 that address short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be constructed using adequate turbidity barriers; stabilize newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity; avoid propeller dredging and rutting from vehicular traffic; maintain construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands and other surface waters; and prevent any other discharges during construction that will cause water quality violations. DEP's proposed Specific Condition 10 requires Petitioner to submit, at least 60 days before construction, detailed information regarding Petitioner's plans for handling spoil from dredging, including "discharge details, locations retention plans, volumes, and data used to size the disposal cell(s)." It allows this information to be combined with the Specific Condition 2 submittal. It also requires spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP asserts that this specific condition (like Specific Condition 9) is necessary to comply with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition requiring spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP's proposed Specific Condition 11 requires Petitioner to submit "as-built" drawings to DEP's Punta Gorda office with 30 days after completion of construction, "as required by General Condition #6." Petitioner's expert testified that this condition was unreasonable only because it duplicates General Condition 6 and two statutes. But General Condition 6 actually does not require "as-built" drawings, see Finding 9, supra, and it is not clear what statutes Petitioner's expert was referring to. For these reasons, and because it provides a filing location, Specific Condition 11 is reasonable and reasonably necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 12 requires Petitioner to "maintain the permitted canal free of all rafted debris by removal and property upland disposal." DEP asserts that this specific condition is necessary to comply with BOR § by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). Rafted debris, which may be of an organic or inorganic nature, can accumulate at the end of canals due to wind, waves, boats, or other forces. Such organic rafted debris may rot and, by creating a high biological oxygen demand, rob the water of dissolved oxygen. Petitioner's only expressed opposition to this condition is that the conservation easement in Specific Condition 3 might prevent compliance. While it is unclear how the easement would prevent compliance, the issue is eliminated if no conservation easement is required. DEP's proposed Specific Condition 13 requires Petitioner to use turbidity screens during construction for compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The turbidity screen requirements detailed in this specific condition are typical best management practices that contractors use and are a standard condition placed in permits of this nature by DEP. Petitioner contends that turbidity screens are unnecessary given his intended construction method and that other conditions are sufficient to cover DEP's concerns. However, as indicated, the application does not commit to a method of construction. With the application in its current state, Specific Condition 13 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 14 requires Petitioner to "ensure that any discharge or release of pollutants during construction or alteration are not released into wetlands or other surface waters that will cause water quality standards to be violated." Again, this condition is intended to ensure compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While this specific condition seems general and perhaps duplicates other conditions (which was Petitioner's only point of contention), DEP added it in an attempt to make sure the possible and not uncommon release of pollutants from construction equipment was addressed. As such, the condition is appropriate. DEP's proposed Specific Condition 15 provides details on the use of turbidity screens. Petitioner's primary points of contention are that turbidity screens are not needed for his intended construction method and that other conditions are sufficient without this condition. As such, the relevant issues already have been addressed in connection with Specific Condition With the application in its current state, Specific Condition 15 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 16 requires Petitioner to used staked filter cloth to contain any turbid run- off and erosion from created slopes of the canal extension. This is the most common best management practice and is a standard condition for ERP permits dealing with side slopes that may affect water quality. Unstable slopes can result in chronic turbidity, which is detrimental to wildlife. Unstable slopes also can lead to upland runoff being deposited into the water along with debris and sediment. Such runoff can bring deleterious substances such as heavy metals and nutrient-loaded substances that might impact dissolved oxygen levels in the water. Petitioner's primary points of contention on Specific Condition 16 are that, like turbidity screens, staked filter cloth is not needed for Petitioner's intended construction method and that other conditions are sufficient without this condition. (Petitioner also questions why the condition gives Petitioner up to 72 hours from "attaining final grade" to stabilize side slopes, but the condition also requires side slope stabilization "as soon as possible," and the 72-hour outside limit seems reasonable.) As such, the relevant issues already have been addressed in connection with Specific Condition 13 and 15. With the application in its current state, Specific Condition 16 is appropriate subject to a demonstration by Petitioner that staked filter cloth is not needed if he uses the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 17, 18, 19, and 20: details required long-term water quality monitoring and reporting [#17]; establishes sampling intervals and requires Petitioner to submit a "plan to remediate" if monitoring shows water quality violations or "a trend toward future violations of water quality standards directly related to the permitted canal" [#18]; allows "additional water quality treatment methods" to be required if water quality monitoring shows it to be necessary [#19]; and allows water quality monitoring requirements to be modified (which "may include reduction in frequency and parameters . . . or the release of the monitoring process"), "based on long term trends indicate that the permitted canal is not a source to create water quality violations [#20]." These conditions are intended to ensure compliance with BOR § 4.2.4.2 by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The evidence was that these specific conditions are standard for ERP permits where a constructed system may lead to water quality violations in the long term. Contrary to Petitioner's contentions, conditions of this kind are not dependent on a post-construction finding of water quality standard violations (even though DEP defaulted on Petitioner's application). Besides contending that monitoring requirements in Specific Conditions 17 and 18 are unnecessary, Petitioner also contends that they are too extensive and not tailored to Petitioner's intended construction, but DEP proved their necessity, even assuming the construction method committed to in Petitioner's PRO. Petitioner complains that Specific Condition 19 is vague and that Petitioner's ERP does not provide for "water quality treatment." But the present absence of post-construction water quality treatment should not preclude the possible future imposition of some kind of water quality treatment if monitoring shows it to be necessary. For this kind of condition, the absence of detail regarding the kind of treatment to be imposed is natural since it would depend on future events. DEP's proposed Specific Condition 21 merely requires that Petitioner's project comply with State water quality standards in Florida Administrative Code Rules 62-302.500 and 62- 302.530. Petitioner contends that this is duplicative and unnecessary. But it certainly is not unreasonable to be specific in this regard. No Improper Purpose As part of his request for attorney's fees under Section 120.595, Florida Statutes, Petitioner necessarily contends that DEP participated in this proceeding "for an improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Even assuming that DEP should be considered a "nonprevailing adverse party," Petitioner's evidence did not prove that DEP's participation was for an "improper purpose." To the contrary, DEP "participated" initially because Petitioner filed an application. DEP's denial of Petitioner's application was not proven to be "for an improper purpose" but rather for the purpose of attempting to protect the environment. The propriety of the denial was litigated in Tuten I, which made no finding that the denial was "for an improper purpose" and which ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." The two-year delay between Tuten I and Tuten II was not fully explained, but Tuten II also made no finding that the denial, or the delay, or DEP's proposed ERP with conditions were "for an improper purpose" and again ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." While DEP's views on the nature of the hearing to be conducted for purposes of determining "reasonable mitigative conditions" was rejected, it was not proven that DEP argued its views "for an improper purpose" or that its participation, once its views were rejected, was "for an improper purpose," as defined by statute. To the contrary, the evidence was that DEP participated in this proceeding in an attempt to place conditions on Petitioner's permit which DEP thought were necessary to protect the environment, many (although not all) of which are accepted in this Recommended Order. As Petitioner accepts and points out, it remains necessary for Petitioner to construct and operate his project in a manner that does not violate environmental statutes and rules. But without any water quality information or monitoring, DEP's enforcement of those laws and rules will be hamstrung.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Petitioner a default ERP, to expire five years from issuance, to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing man-made canal, as applied for, subject to: DEP's proposed General Conditions 1-19; DEP's proposed Specific Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5, and 7-10, as modified by the Findings of Fact; and the construction method committed to in Petitioner's PRO (see Finding 14, supra. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006.
The Issue Whether Proposed Rule 62-302.540, as formally noticed for adoption by the Department of Environmental Protection on July 18, 2003, is an invalid exercise of delegated legislative authority?
Findings Of Fact The Everglades A vast expanse of solitude, the flow of whose waters is nearly imperceptible to the human eye; a matchless mosaic of shallow sawgrass marsh, wet prairies interspersed with tree islands, and aquatic sloughs; terra incognita prior to the arrival of the Native American predecessors and ancestors of today's Miccosukee Tribe; secluded terrain, yet a distinctive home to a broad diversity of wetland species including those that are threatened and endangered such as the wood stork, snail kite, bald eagle, Florida panther and American crocodile; exceptional habitat for extensive populations of wading birds; an ecosystem of utmost environmental importance highlighted by the commitment in recent years of prodigious federal, state, and regional resources devoted to, among other endeavors, ground- breaking scientific research and construction of mammoth projects for water management in furtherance of restoration and preservation; the principal and most significant subtropical freshwater peat wetland in North America: the tributes bestowed upon Marjory Stoneman Douglas' inimitable "River of Grass" are many. Among the accolades, one adjective stands out: "unique." Put simply, there is no ecosystem on earth like the Everglades. The Florida Legislature succinctly honored the immense watershed's one-of-a-kind nature in the opening paragraph of the 1994 Everglades Forever Act with the enactment of one sentence: "The system is unique in the world and one of Florida's greatest treasures." § 373.4592(1)(a), Fla. Stat. By this recognition of international prominence and incalculable import to the state of Florida, the Legislature reiterated that the Everglades are, indeed, irreplaceable. Oligotrophic and Phosphorus-limited The system that makes up the Everglades and its ecology was formed due to a number of factors described in the "Background" section of this Order, below. Among the most significant of the factors is that the system is oligotrophic: poor in one or the other (or a combination) of the nutrients necessary to sustain life. In the case of an ecologically healthy Everglades, the system is poor in the nutrient phosphorus. There is also a disproportionately low level of phosphorus in relation to the presence of other nutrients (nitrogen and potassium) so that the system is described as not only oligotrophic but "phosphorus limited," as well. Among the findings in the Everglades Forever Act, (the "EFA" or the "Act"), that refers to phosphorus is the following: The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. § 373.4592(1)(d), Fla. Stat. Section (4) of the Act, entitled "Everglades Program" contains a subsection devoted to "Evaluation of water quality standards." Its provisions include the direction to the Department and the District to complete research to "[n]umerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area[,]" § 373.4592(4)(e)1.a., Fla. Stat. The Class III narrative nutrient criterion (the "Narrative Criterion") is that "[i]n no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna." § 373.4592(4)(e)2., Fla. Stat. A criterion, furthermore, is set by the EFA at "10 parts per billion (ppb)," section 373.4592(e)2. (the "Default Criterion") if the Department does not by rule adopt a numeric phosphorus criterion for the Everglades Protection Area (the "EPA") by December 31, 2003. In response to the mandate of the EFA, the Department, in July of 2003, published its proposal for a rule that numerically interprets for phosphorus the Narrative Criterion (the "Proposed Rule.") The Proposed Rule Rule 62-302.540 is entitled "Water Quality Standards for Phosphorus Within the Everglades Protection Area." OR-1. As "specific authority" it lists Sections 373.043, 373.4592 and 403.061. For "law implemented" it lists Sections 373.016, 373.026, 373.4592, 403.021(11), 403.061, and 403.201, Florida Statutes. The Proposed Rule is the result of a decade-long process. The process involved "tens of millions of dollars worth of research . . . and . . . thousands of man-hours . . . worth of . . . data evaluations." (Tr. 1614) From the outset, the process for development of the Proposed Rule was transparent; all of the data and the analyses of the data continued to be made available to interested parties. Before the passage of the EFA, work had begun on an Everglades Nutrient Threshold Research Plan (the "Research Plan"). The Research Plan had been developed and adopted under the direction of the Department by a panel of scientists appointed by the Everglades Technical Oversight Committee (the "TOC"). The TOC, in turn, was the product of an agreement settling a suit by the federal government in federal court to require the state of Florida to enforce water quality standards in the Everglades (the "Settlement Agreement," discussed, below). In 1995, the Department created the Everglades Technical Advisory Committee (the "ETAC") to assist in the development of the phosphorus criterion and to ensure transparency. The ETAC consisted of representatives of the Everglades National Park (the "Park"), the Arthur R. Marshall Loxahatchee National Wildlife Refuge (the "Refuge" or "WCA-1"), the District, the Florida Game and Fresh Water Fish Commission, USEPA, the Army Corps of Engineers, the Miccosukee and Seminole Tribes, agricultural interests and environmental groups. In addition to the ETAC process, the Department coordinated a series of workshops and site visits involving research groups, external peer-reviewers, and interested parties starting with an initial workshop held by the District in February of 1995 and culminating in a 1998 Peer Review Report. From June 1996 through December 2001, the Department made 13 presentations to the Environmental Regulation Commission (The "ERC") detailing the Department's efforts to establish a numeric interpretation of the Narrative Criterion. These presentations culminated in the filing of a Notice of Proposed Rulemaking in December of 2001. The presentations were followed by a publicly noticed ERC rule approval hearing beginning in January of 2002. Continued over a series of 14 monthly ERC meetings (each a full day or two days), the hearing ended with ERC approval of Proposed Rule 62-302.540, Water Quality Standards for Phosphorus Within The Everglades, on July 8, 2003. Numerous stakeholders and special interests presented information to the ERC during the rule approval hearing process. These included the Tribe and Friends and the intervenors to this rule challenge proceeding. The record reflects that the process by which both the criterion was established and that led to the Proposed Rule was a long-term and deliberative public process with comment, input and criticism directed to the Department from a broad array of perspectives and interests. A Brief Summary In order to understand the contentions of the Tribe and Friends and the responses of the other parties, a discussion of the background that led to the Proposed Rule beginning with the formation of the Everglades and concluding with recent amendments to the EFA by the 2003 Florida Legislature is necessary. Following that discussion, the Proposed Rule will be described in more detail together with address of the issues. First, however, is the following brief summary of the Proposed Rule. The Proposed Rule contains nine sections. Section (1) articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area. It establishes, as the Proposed Rule's title reflects, water quality standards for phosphorus, that contain, as one element, the numeric interpretation of the Narrative Criterion. Section (2) bears a similarity with the Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, that contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Relevant to its initial finding, Section (2) sets forth the finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the [Everglades Protection Area] must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Section (3) of the Proposed Rule contains definitions. Among them is the definition of "Impacted Areas": "areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Section (4), of the Proposed Rule concerns two concepts: establishment of the phosphorus criterion, the "heart of the Proposed Rule" and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Section (5) of the Proposed Rule entitled "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" contains a complexity of subsections. Subsection (a) requires separate determinations in impacted and unimpacted areas in each of the four water bodies into which the EPA is divided: Water Conservation Area 1 ("WCA-1" or the "Refuge"), Water Conservation 2 ("WCA-2"), Water Conservation Area 3 ("WCA-3") and Everglades National Park (the "Park"). Subsection (b) governs achievement in the Park and the Refuge. Subsection (c) governs the achievement in WCA-2 and WCA-3. Subsection (d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the EPA and to prevent false positives. Subsection (e) governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions, both natural and man-induced, the Department believes not to be consistent with determining an accurate estimate of ambient water column total phosphorus. It excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Section (6) provides long-term compliance permit requirements for phosphorus discharges into the EPA. Section (7) sets forth moderating provisions designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA. There are two types of moderating provisions in the section. Subsection (a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (b) allows for discharges to be permitted that accomplish the purpose of "hydropattern restoration" under certain circumstances. Section (8), by reference, incorporates a single document: "Data Quality Screening Protocol, dated ." Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule is determined to be invalid under applicable laws or is disapproved by the U.S. Environmental Protection Agency (the "USEPA") under the Clean Water Act. Standing and/or Identification of the Parties The parties stipulated to the standing of the Tribe, Friends, New Hope and the Coop to initiate the proceedings in Case Nos. 03-2872RP, 03-2873RP, 03-2883RP, and 03-2884RP. The parties stipulated to the standing of U.S. Sugar to intervene in the consolidated proceeding with Intervenor- Respondent status. The parties stipulated to the standing of the South Florida Water Management District to intervene as a Respondent in the consolidated proceeding. The parties further stipulated to facts with regard to standing that identify the parties. These are contained in paragraphs 20, 21, and 27-43 under Tab 4 of the Pre-hearing Stipulation, at pages 65-71 of the stipulation. They are incorporated by reference. A summary of the identifications (repetitive of those incorporated by reference) follows. This summary in no way limits the facts incorporated by the reference to the Pre- hearing Stipulation. Miccosukee Tribe of Indians The Everglades has been the home of the Miccosukee Tribe for generations, and it is an integral part of their culture, subsistence, religion, historical identity and way of life. Members of the Tribe work, reside, and practice their culture and way of life in the Everglades Protection Area. The Tribe's land interests in the Everglades Protection Area include, without limitation, perpetual Indian rights; a perpetual lease from the state of Florida for the use and occupancy of substantial WCA-3A, which the state of Florida guarantees will be maintained in its natural state in perpetuity; aboriginal title of Tribal members to portions of the Everglades; and rights to traditional use and occupancy in Everglades National Park. Tribal members live in, use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. Friends of the Everglades Friends of the Everglades is a Florida based non- profit corporation founded in 1969 by Marjory Stoneman Douglas, a pioneer conservationist, recipient of the Presidential Medal of Freedom, and the author of the Everglades River of Grass. Mrs. Douglas formed this grassroots organization to educate the public about the importance of the Greater Kissimmee-Okeechobee- Everglades ecosystem, to protect the Everglades ecosystem from human activities that would impair its health and natural function, and to work for its restoration. Friends of the Everglades has approximately 3,500 members who use and value the Everglades for recreational and spiritual pursuits, including hiking, walking, bird watching, fishing and nature trips. Members of Friends use various sections of the Everglades Protection Area and want to protect and preserve these areas for themselves and future generations. The members of Friends of the Everglades use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. DEP The Department of Environmental Protection, is the state agency authorized, to adopt through the ERC water quality standards under Chapter 403. It is also directed by the Everglades Forever Act to adopt a numeric interpretation of the Narrative Criterion for the Everglades Protection Area. The DEP Secretary has rulemaking responsibility under Chapter 120, but must "submit any proposed rule containing standards to the [ERC] for approval, modification, or disapproval[.]" § 403.805, Fla. Stat. The ERC The Environmental Regulation Commission (the "ERC") is required to "exercise the standard-setting authority of the department under . . . section 373.4592(4)(d)4. and (e)." § 403.804, Fla. Stat. In exercising its authority, the ERC is directed to "consider scientific and technical validity, economic impacts, and relative risks and benefits to the public and the environment." Id. Sugar Cane Growers Cooperative of Florida The Cooperative is an agricultural marketing cooperative association formed and operating pursuant to Chapter 618, Florida Statutes. The Cooperative and its 54 member- farmers cultivate sugar cane and other crops in the Everglades Agricultural Area (EAA) in Palm Beach County, Florida. That cultivation involves the use and management of surface waters which are supplied to and ultimately released from their lands by way of the Central and Southern Florida Flood Control Project (the "C&SF Project") approved by the U.S. Congress over 50 years ago. South Florida Water Management District The District has been a party to the rulemaking that led to the Proposed Rule, actively participating in the presentation of testimony and written submissions. A significant portion of scientific data used to establish the phosphorus criterion in the Proposed Rule was predicated upon District staff research. In addition, the EFA mandates the District to obtain permits for all of its structures that discharge into the Everglades. In accordance with the EFA, the Phosphorus Rule sets the permitting requirements for the District's discharge structures. Accordingly, the Phosphorus Rule will impact the District's implementation of the Long-Term Plan and how it will operate its discharge structures. U.S. Sugar, New Hope and Okeelanta U.S. Sugar is a privately held agribusiness corporation with its principal offices in Clewiston, Florida. New Hope Sugar Company and Okeelanta Corporation are privately held agribusiness corporations with their principal offices in West Palm Beach, Florida. U.S. Sugar, New Hope, and Okeelanta all own farmland within the Everglades Agricultural Area (EAA). U.S. Sugar owns about 194,000 acres of farmland in Florida. Most of U.S. Sugar's, New Hope's and Okeelanta's farming operations occur in the EAA where they grow and processes sugar cane. The Challenges of the Tribe and Friends The Tribe and Friends described a unified position with regard to their separately-filed challenges that the Proposed Rule constitutes an invalid exercise in delegated legislative authority in the "position statement" section of the Pre-Hearing Stipulation filed by the parties: The [P]roposed Rule, first and foremost, fails to establish a numeric interpretation of the narrative nutrient criterion for phosphorus that would prevent an imbalance of the natural populations of aquatic flora and fauna in the Everglades Protection Area. The grounds upon which the Tribe and Friends are challenging the [P]roposed Rule . . . include, but are not limited to: distorted findings of fact; improper designation of impacted areas; improper use of a geometric mean to establish the criterion that will cause an imbalance of flora and fauna; improper merging of the numeric criterion with moderating and permitting provisions that will in fact negate the numeric criterion; improper measurement methodology that does not prevent imbalance or protect designated use; improper division of the Everglades Protection Area into impacted and unimpacted areas; allowance of an arbitrary and capricious method for analyzing data; allowance of hydropattern restoration with water above the criterion that will cause an imbalance of flora and fauna; adoption of the Long Term Plan as a moderating provision, which is really a license to pollute, and which will also result in an imbalance of flora and fauna; and an improper vesting of authority in the Department of Environmental Protection to change the Long Term Plan. Pre-Hearing Statement, pp. 7-8. Factual statements that are at issue in the view of the Tribe and Friends are listed in the Pre-Hearing Stipulation at pages 74 to 77. Distilled to its essence, the Tribe and Friends' claim that the Proposed Rule because of flaws, including the establishment of a numeric phosphorus criterion of for Class III waters in the EPA as "a long-term geometric mean of 10 ppb," Section (4) of the Proposed Rule, "does not prevent an imbalance to the natural population of aquatic flora and fauna." (Tr. 59) This essence is captured in two of the eight statements of ultimate facts in their petitions, (see paragraphs 19-26, pgs. 5-6 of the Petition in Case No. 03-2972RP): The proposed Rule will not in fact prevent an imbalance in the natural populations of aquatic flora and fauna in the Everglades Protection Area. The proposed Rule is not in fact a numeric interpretation of, or consistent with, the Class III narrative criterion for phosphorus which prohibits causing an imbalance in natural populations of aquatic flora and fauna. Id., at p. 5. The concerns of the Tribe and Friends were summed up in opening argument as falling under ten main points. For purposes of discussion, these ten categories may be titled as "1) Authority to establish a Water Quality Standard for Phosphorus and Merger of the Criterion with Achievability; Moderating Provisions and Permitting Provisions; 2) Inaccurate Findings; 3) Defensible Science and Consideration of Achievability and Economics; 4) The Impacted Areas Definition; The Phosphorus Criterion Does Not Protect Against Imbalance; Relationship of Criterion to the Park, Refuge, Unimpacted Areas, Impacted Areas; 7) Achievement Methodology; 8) Data Screening; 9) Creation of a Legislative Permit To Pollute Through the Year 2016; and, 10) Use of Moderating Provisions and the Long-Term Plan. (See Tr. 39-59) An understanding of the contentions of the Tribe and Friends and the responses of DEP, the ERC, the District, U.S. Sugar, New Hope and the Cooperative, requires a considerable amount of background, beginning with the historical Everglades. The Historical Everglades The Historical Everglades was part of one system that began at its northernmost with the chain of lakes at the headwaters of the Kissimmee River and extended downriver through Lake Okeechobee and southward across the interior of southern peninsular Florida to Florida Bay. Formed over a period of at least 5,000 years, the system reached a peak in the mid-19th Century. The system at that point in time (not long before the initiation of a series of man-made alterations that had profoundly negative environmental effects) is commonly referred to as the "1850 system." Most of the water that flowed in the Everglades over its millennia of formation was introduced through rainfall. The 1850 system, therefore, was ombrotrophic: one in which atmospheric deposition (rain) is the primary source of nutrients and water table recharge. The 1850 system contained a variety of habitats. A densely vegetated area immediately south of Lake Okeechobee (a zone of custard apple associated with abundant wildlife and immense bird rookeries) transitioned to elderberry, dense sawgrass, and then to less dense sawgrass. Cypress swamps stood on the western periphery, pine flatwoods on the eastern edge; ridge and slough areas dotted with tear-shaped tree islands aligned in the direction of southerly flow dominated the central region. At the southern end, freshwater entered the Shark River and Taylor sloughs and was carried by small rivers and through mangrove thickets at the southern tip of the Florida Peninsula to meet the salt waters of the sea. The presence of the tremendous numbers of birds and their rookeries in the area immediately south of Lake Okeechobee led to phosphorus concentrations in the soil in this "enriched custard apple zone" as high as 1,500 to 2,000 parts per million. The zone comprised slightly under 300,000 acres, about 10% of the approximately 3,000,000 acres in the historical freshwater Everglades. Lake Okeechobee Pulses A critical relationship existed between the lake and the areas of the historical Everglades further south. The enriched custard apple zone, the sawgrass marsh, the wet prairies and the aquatic sloughs received waters directly from Lake Okeechobee from time-to-time by means of gentle overflow. Sheet flows generated from the lake languidly pulsed southward in seemingly endless repetition interrupted only by drops in water levels that came with seasonal fluctuations. The flows were confined for the most part by ridge systems such as the Atlantic Coastal Ridge to the east and terrain that includes plateaus, the Immokalee Rise and Big Cypress Swamp at a higher elevation to the west. To a relatively slight extent, waters from the flows escaped eastward to the Atlantic or westward to the Gulf of Mexico. For the most part, the hydro-pulses, above the gently sloped peat and marl soils below, successively overran the southern interior of the peninsula that is South Florida to join the sloughs that carried them to the salt water of the seas connected to Florida Bay. Contributions to the System's Make-up On the inexorable journey southward, the slow-flowing waters were fed by the main source of Everglades flow: plentiful rain. The rains included the torrents from the inevitable tropical storms and hurricanes that were instrumental in creating the system as they blew across South Florida. Stressors such as fire, drought, and rare but occasional frosts, made additional contributions to the shaping of the ecosystem and its unique ecology. Aside from the rain-driven nature of the system, the lake-generated hydro-pulses and the seasonal fluctuations in water levels together with intermittent contributions by fire, drought, frost and torrential rain that shaped its ecology, there is another central premise concerning the formation and life of the Everglades. The system is poor when it comes to the nutrient with which this proceeding is concerned: phosphorus. Phosphorus in the Historical Everglades With the exception of localized areas associated with tree islands or because of fire or other natural occurrences such as an alligator hole, the phosphorus concentrations in the water column south of the enriched zone historically achieved homeostasis at or below an extremely low level: 10 parts per billion ("ppb"). The historic Everglades south of the enriched zone had concentrations of phosphorus in the water column that ranged from 5 to 8 ppb in slough habitats to a phosphorous level one or two ppb higher in the areas of dense sawgrass, that is, peaking at a level of 10 ppb homeostatically. An exception to these low levels of phosphorus in the historic Everglades south of the enriched zone is the tree island. Tree islands had higher levels attributed to the habitation of the islands by wildlife that translocated nutrients from the marsh to the islands. In the case of translocation by birds, translocation of phosphorus lowered the concentration of nutrients in the marsh fed on by the birds and increased it wherever birds congregated, especially in rookeries. Extremely low levels of phosphorus were an essential component of the health of the historical Everglades and its unique ecology. At the base of this phosphorus limited ecology, historically and today, is the periphyton community, described by Ronald Jones, Ph.D., and the Tribe and Friends' expert witness, as "the real key to the Everglades." (Tr. 2958) The Periphyton Base of the Everglades Ecosystem Today, periphyton accounts for 30% to 50% of the vegetative biomass of the Everglades and 70% to 80% of the daily productivity of the system. In a healthy Everglades ecology, periphyton are knitted together in formations referred to as periphyton sweaters or as "periphyton mats." A periphyton mat is composed of different microscopic life forms, predominately blue-green algae or cyanobacteria, followed by diatoms and green algae. The microbial organisms are held together by mucilage that they produce themselves. The majority of a periphyton mat (about 68%) is void of mucilage and the organisms, themselves. In the aquatic environment of the Everglades, therefore, this space is filled with water, which leaves 30% or so of the mat as organic material. Six percent of the organic material is composed of the cells of the microscopic cyanobacteria, diatoms and green algae. The remaining 94% of the organic material is mucilage, the substance that holds the cells together in a glue-like fashion. Mucilage is a direct result of the phosphorus-poor environment. It is essential to the survival of the periphyton cells because "in intimate contact with each other . . . they're able to make the most efficient use of the . . . resources" (Tr. 2982), particularly the most limited resource: phosphorus. When levels of phosphorus increase in the water column, periphyton mats fall apart. There is no longer a need for the cells to produce mucilage, an activity "expensive" (Tr. 2981) in carbon, as there is in a healthy Everglades ecology when limited phosphorus must be maximized by the periphyton communities. Today, periphyton mats continue to disintegrate at an alarming rate in the Remaining Everglades despite recent progress made in reducing the inflow of excessive amounts of phosphorus in discharges that comprise some of the water management practices of the District. Nonetheless, progress is being made toward a reversal of Everglades loss. In an October/November 2003 publication of the South Florida Water Management District, the District in an article entitled "Encouraging Signs for Everglades Recovery," reported that "[b]etween 1995 and 2003, the rate of cattail expansion in Water Conservation Area 2A . . . declined from 2,375 acres per year to 785 acres per year." Tribe/Friends Ex. 138. The District's publication explained why cattails, one indicator looked at by scientists "among multiple indicators to determine the condition of the Everglades," id., are a marker of poor ecological health in the Everglades: Cattails are a natural aquatic plant, typically found in wetland systems around the world, including the Everglades. In fact, it is an approved species for shoreline restoration projects in the state of Florida. Under historic conditions, the Everglades' low-nutrient levels kept the smattering of cattail plants in check. But cattail is an aggressive, opportunistic plant. Fueled by high phosphorus inflows from agricultural and urban areas, cattail began to bully its way into the Everglades landscape, out-muscling more desirable plants such as sawgrass and other vegetation which provide habitat for wildlife. Thickets of cattail form a dense mat, blocking sunlight and lowering dissolved oxygen levels needed by aquatic life below. They grow so close together that wading birds are unable to forage for food in the shallow marsh. Sustained deep water levels also give cattails a competitive advantage due to their ability to move oxygen from their leaves down to their roots. In the late 1980s and early 1990s, aerial vegetation mapping and field visits in a 104,000 acre portion of the Everglades known as Water Conservation Area 2A verified intense growth stands along major inflow points. This cattail explosion was visual documentation of changes in the Everglades habitat due to excess nutrients and became a rallying cry for water quality improvements. Id. While a slowing in the rate of cattail expansion is progress toward slowing the loss of the Everglades, an annual rate of 785 acres of cattail expansion is a serious threat to the Everglades that remain today. The Remaining Everglades The "remaining Everglades" is the roughly 50% or 1.6 million acres of the Everglades today left from the original 3,000,000 acres or so of the historical Everglades. The remaining Everglades is what remains of the system in the wake of the anthropogenic changes that began in the second half of the 19th Century. Anthropogenic Changes The initial man-made or "anthropogenic" changes to the Everglades began with the arrival of Hamilton Disston, a Philadelphia developer. The state deeded him land for the purpose of drainage or "re-claiming" of swampland. Under a contract entered in 1881 with the Board of Trustees for the Internal Improvement Fund as part of the first comprehensive drainage plan, Mr. Disston dug canals from Lake Okeechobee in directions both east and west. To the east, leading to the Atlantic Ocean, is the St. Lucie Canal. "[T]o the west is the Caloosahatchee--and its called a river, but it looks rather more like a canal if you . . . look at it today." (Tr. 1536) The effect of the two canals was to lower the level of Lake Okeechobee by several feet. Mr. Disston's efforts were followed by efforts by Governor Broward, directed by him personally, that implemented advice from the Army Corps of Engineers. The Corps had advised that converting the swampland adjacent to the lake into agricultural land would require flood control, irrigation systems and drainage. The Corps also had advised that reclamation of the narrow eastern edge of Everglades (now much of the developed Lower East Coast of Florida) would require a substantial levee on the coastal lands' western border and drainage ditches where small streams flowed from the Everglades to the Atlantic. As part of the activity recommended by the Corps, a set of four major canals was dug in a generally southeasterly direction: the West Palm Beach Canal, the Hillsboro, the North New River, and the Miami Canal. In the late 1920's, around 1926 and 1928, there were back-to-back hurricanes in South Florida. Damage was primarily south of the lake in the area now known as the Everglades Agricultural Area. The hurricanes "resulted in tremendous loss of life, and . . . widespread flooding in the area. In response, the Army Corps of Engineers built . . . Hoover Dike, . . . the dike that now [surrounds] the lake." (Tr. 1538) The dike renders the lake a contained, closely managed body of water. These developments altered the natural balance between water and soil in substantial parts of the historical Everglades. Drainage led to parched prairies, muckfires, the flooding of farms and communities, and salt water intrusion into the water supplies of the Lower East Coast of the state. HOUSE DOCUMENT No. 643, dated May 6, 1948 is a letter from the Secretary of the Army to the Congress. It transmitted, in turn, a letter from the Chief of Engineers, United States Army, submitting a comprehensive report to the Congress of the United States that pronounced concern about the Everglades. The document summarized, for example, the toll that water control changes had exacted on Everglades wildlife: Southern and Central Florida were originally one of the greatest natural habitats for fish, birds and game on the North American continent. The shores of Lake Okeechobee and the Everglades once afforded a refuge for thousands of water fowl and other birds which are now virtually extinct . . . In brief, it appears that large parts of the Everglades should be held and protected as conservation areas which would be ideal for preservation of wildlife. Coop. 9a, p. 36 (paragraph 48 of the Report of the District Engineer.) These facts added to the urgency of the need for conservation. But the concern led to further alteration disruptive to Everglades ecology. Authorized by Congress in 1948, the "Central and Southern Florida Project for Flood Control and other Purposes" (the "C&SF Project") implemented a comprehensive plan to reclaim wetlands for agricultural and urban development. The project's purposes included flood control, water supply for municipal, industrial and agricultural uses, prevention of saltwater intrusion, water supply for Everglades National Park, and protection of fish and wildlife resources. To take advantage of the fertile soils in the custard apple zone immediately south of the lake, the C&SF Project called for the creation of the Everglades Agricultural Area (the "EAA")4 to bring into agricultural production 500,000 acres. Other large portions of the Everglades have also been converted to agricultural use. The project was also intended to pump water south into interconnected water conservation areas in Palm Beach, Broward, and Dade Counties to facilitate the other purposes of the project. The C&SF Project includes 1,000 miles each of levees and canals, 150 water control structures, and 16 major pump stations. The extensive agricultural operations and considerable residential and commercial development that followed the initiation of the project are dependent on the maintenance of this highly controlled system of canals, levees and pumps, now operated by the South Florida Water Management District (the successor to the Central and Southern Flood Control District created by the state in response to the federal project.) The C&SF Project was largely complete by 1962 with the creation of works that facilitated man-made divisions of the historic Everglades located within the Everglades Protection Area (the "EPA"). The EPA The EPA is defined at Section 372.4592(2)(i). It consists of four divisions or water bodies whose segmentation has been facilitated by the C&SF Project works: three Water Conservation Areas and the Everglades National Park. Water Conservation Area 1 is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (it is referred-to in this order, therefore, interchangeably as the "Refuge," or WCA-1.) WCA-2 is further divisible into 2A and 2B and WCA-3 is further divisible into 3A and 3B. The fourth water body in the EPA is the Park. The Main Effects of the Anthropogenic Changes There are two main effects of the changes made by humans to the historical Everglades. The first is an issue of water quantity and flow. The hydrology of the system has been dramatically altered. What was once "broad, shallow sheet flow across the marsh," dictated by nature is now "a compartment- alized system with segmented flow" (Tr. 1539) managed to a highly significant degree by man. Hydropatterns have been altered in a number of ways that have resulted in major effects. The draining of the system has affected the water table. Water that had flowed through the peat, in addition to above the peat, keeping it wet, no longer does so in many parts of the Everglades. On the other hand, water impounded in the WCAs moved subsequently through canals and levees has made some areas, including relatively shallow areas, deeper. The custard apple zone has been drastically affected hydrologically; it no longer exists. Roughly in its place is the EAA. The EAA is 6 to 8 feet lower than the historic custard apple zone. In fact, the EAA is lower than the Everglades immediately to its south, precisely the opposite of the situation in the historical Everglades. Most of the soil is still present in the EAA, but because it has lost its hydric characteristic it is ten times denser than the soil found to the south. The soils density is another result of hydropattern disruption. The second effect is one of water quality. Drainage from the urban areas to the east and from the EAA have created water quality problems. Pesticides and herbicides have made their way into the Everglades. Both agricultural and urban land uses result in the release of excess nutrients, including phosphorus and nitrogen, from fertilizers. These excess nutrients are carried in stormwater runoff. They are also present in agricultural discharges. The runoff and discharges are ultimately pumped through water management district canals and facilities into the remaining Everglades. While pesticides, herbicides and nitrogen pose water quality problems, the preeminent water quality problem in the Everglades is phosphorus enrichment. For the 3 or 4 decades prior to the initiation of best management practices ("BMPs"), including those that employ stormwater treatment areas ("STAs") constructed in the last decade or so, the levels of phosphorus in the water column reaching the WCAs ranged from approximately 100 to 200 ppb. The introduction of excessive levels of phosphorus into the Everglades caused and continues to cause profound changes to its biology. Natural populations of aquatic flora and fauna adapted to the oligotrophic and phosphorus-limited system become displaced by species that thrive on the phosphorus rich waters pumped into the EPA and the phosphorus from these waters that settles out and makes its way into Everglades soil. In some areas of the EPA into which the Federal Project and the water management practices that have followed have pumped phosphorus-enriched water from the EAA, soil phosphorus concentration exceeds 500 parts per million. See areas designated in yellow on Coop Ex. 21 or in green on Coop Ex. 8E. These areas (defined by the Proposed Rule as "impacted"), for the most part, are on the periphery of the Refuge, WCA-2A (where the impacted areas extend deeply from the northeastern border into the interior of the conservation area), WCA-3A and WCA-3B. An exception occurs in the middle of WCA-3A along the Miami Canal which runs from Lake Okeechobee through the EAA and then across WCA-3 in a southeasterly direction. The impacted areas shown on Coop Ex. 8E comprise about 6% of the total 1.6 million or so acres of the freshwater portions of the Remaining Everglades. The conversion of a low nutrient or oligotrophic system to a high nutrient system is known as "eutrophication." One especially visible example of a nutrient-induced shift in biology is the displacement of sawgrass marshes with an invasive monoculture of pollutant-tolerant cattails. The oligotrophic nature of the system is the same today in areas of the Everglades that have not suffered the impacts of man. This determination is supported by the low nutrient content in Everglades peat and at interior marsh sites as determined by a recent study. Today, "a large body of evidence [citations omitted] indicates that . . . the primary limiting nutrient throughout the remaining Everglades" is phosphorus. DEP 23, Vol. 1, p. 4., but there is no gaseous form of phosphorus. The amount of phosphorus that comes directly from rain, therefore, is very low, "usually less than a part per billion." (Tr. 2765) Pollen, plant particles and dust tossed into the air in the normal course of events make up "dry fall." Dry fall contains phosphorus. Dry fall can drift into the waters of the Everglades but usually its components, including phosphorus, get deposited through rain on a localized scale. Dry fall, therefore, is another source of phosphorus in the Everglades. A major source of phosphorus in the Everglades today stems from discharges that are a part of a regime of water management practices conducted by the South Florida Water Management District. Discharges of water from urban and agricultural areas generally have contained phosphorus at levels significantly higher than occur naturally in the Everglades. Soils in the EAA and elsewhere subside through a process of inundation, drying out and oxidation. As soil oxidizes, concentrations of phosphorus are left behind. Rainfall produces stormwater runoff which carries with it the more concentrated phosphorus that eventually is pumped off of the agricultural fields and into the canals. In addition, fertilizers, plowing and burning in the EAA, all contribute to excess phosphorus entering the system. Critical Indicators of Impact and Imbalance On the basis of the testimony of Dr. Jones, impact and imbalance to aquatic flora and fauna caused by excessive phosphorus is determined by use of three critical indices: (1) water column concentrations; (2) soils; and (3) vegetation, with a particular emphasis on periphyton. Water column concentrations of phosphorus higher than background conditions contribute to higher soil concentrations by way of the phosphorus settling out of the water. So does compaction. As soils compact (as in the case of soils in the EAA) the soil gets heavier with more phosphorus per unit area. Compacted soils under water tend to leach phosphorus out in higher concentrations, a process referred to as "reflux." Since periphyton is composed of microscopic organisms, the initial impacts of phosphorus on periphyton are difficult to observe. Nonetheless change takes place in these microcosms in an early step of a chain of events described at hearing by Dr. Jones. The first step toward change in Everglades ecology due to the entry of excess phosphorus into the system occurs with an increase in total phosphorus in the water column by way of the introduction of phosphorus-laden discharges of water or reflux. The second step is a change in the microbial community, with the first indicator being decreased alkaline phosphotase production. The third and fourth steps, interchangeable depending on soil type, cross a threshold of visible change. The visible change takes place in the periphyton community (periphyton mats disintegrate); the other step is a total phosphorus increase detectable in the soils. The fifth step is an increase in the biomass because of increased growth. The increase in growth translates eventually into more litter and soil build up. The sixth step is the change in the composition of plant species that leads to an imbalance of flora and fauna. Imbalance in flora occurs in macrophytes ("plants we can see," Tr. 2940) with the loss of sawgrass. In the seventh step, cattails emerge. When cattails fill in wet prairies, an imbalance in fauna soon follows, the eighth step. Habitat is lost for wading birds and other organisms that had used the area resulting in a decrease of those organisms. This eight-step process culminates in visible destruction of Everglades ecology and ecology defined by low productivity, low biomass and low litter production. Most significantly, at the end of the process, the imbalance in Everglades aquatic flora and fauna is complete. Imbalance of Aquatic Flora and Fauna The Everglades Forever Act and the Proposed Rule do not contain a definition of "imbalance of aquatic flora and fauna." As demonstrated by Dr. Jones, the process of reaching the state of imbalance is a continuum. It begins with the introduction of excess phosphorus to the water column and is complete when wading birds and other fauna lose habitat because of the take-over and dominance of cattails. According to U.S. Sugar's witness, Donald M. Kent, Ph.D., an expert in wetlands ecology, imbalance in aquatic flora and fauna occurs when there is visible change in periphyton: "If periphyton just completely disappeared and didn't come back, or it changed from what we've considered a desirable natural species to something that was indicative of pollution, that would be imbalance." (Tr. 3934) These visible changes are also evident with regard to vascular plants, such as bladderwort that, as in the case of periphyton, is particularly sensitive to excess phosphorus. Visible changes to the periphyton community, such as disintegration of mats, and to bladderwort and other vegetation, coincide with changes in macroinvertebrates, such as insects, and fish. See Tr. 3947. In other words, once the continuum of impact has reached the point of visible change to periphyton and vascular vegetation, an imbalance in aquatic flora and fauna is relatively sure to occur soon. Dr. Kent's definition of "imbalance in the aquatic flora and fauna" is consistent with a definition of imbalance employed for the Park and the Refuge in the Settlement Agreement reached in litigation between the United States, the State of Florida and the South Florida Water Management District in the early part of the last decade. See findings, below. Phosphorus-laden waters discharged into the Everglades lead to another effect related to imbalance: phosphorus gradients that are man-made. Phosphorus Gradients Prior to localized phosphorus gradients produced by canal inflows with high phosphorus levels today, there was a historic phosphorus gradient in the Everglades. It existed before the man-made changes that cut Lake Okeechobee off from the rest of the 1850 system. The historic phosphorus gradient was manifest in the high levels of phosphorus that existed in the custard apple zone immediately south of Lake Okeechobee in comparison to the phosphorus levels south of this enriched zone. Today there are localized phosphorus gradients. They occur relatively close to the points of discharge of waters managed by the District where the waters flow into the EPA. Generally, the closer to a point of discharge the greater the concentration of phosphorus in the water column and the greater the soil concentration of phosphorus. As the flow of the phosphorus-laden waters continues downstream the concentrations in the water column and the soils tend to decrease. Florida and the United States Adopt Water Quality Laws Florida Water Quality Laws In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act." Ch. 67-436, Laws of Fla. This act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this purpose. Chapter 403 established a policy to "conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The act empowered the Department to "develop . . . a grouping of waters into classes . . . in accordance with the present and future most beneficial uses," and to "establish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enumerating five classes of beneficial uses to be protected. Coop Ex. 9, App. 4, at 1. The Rule enumerating the five classes can now be found at Florida Administrative Code Rule 62-302.400. Water bodies not specifically identified in the Rule are listed as Class III on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62.302.400(1) and (12). Surface waters in the WCAs and the freshwater portion of the Park are Class III waters. (See also Tr. 1568) "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28-5 (1968). See Coop Ex. 9, App. 4, at 1. The original water quality criteria were not required to be met uniformly throughout a given water body; rather, they were applied after an opportunity for mixture with the receiving water had been afforded. Fla. Admin. Code R. 28.5.05(1)(1968). See Coop Ex. 9, App. 4, at 5. Relief from Department rules was also allowed in certain circumstances. § 403.201, Fla. Stat. In 1978, effective March 1, 1979, the Department updated the water quality criteria for the different water use classes, and added a narrative nutrient criterion that applies to Class III waters, outside mixing zones: (20) Nutrients - in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 17-3.121 (1979). See Coop Ex. 9, App. 7, at 41 and 43. This is the same nutrient criterion language now found at Florida Administrative Code Rules 62-302.530 and 62- 302.530(48). The 1979 rules did not define the phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, nor has the phrase been subsequently defined by rule. The 1979 rules also added a new use category for waters of special recreational or ecological significance, known as "Outstanding Florida Waters" (OFWs), which included the Park and the Refuge. Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979). See Coop Ex. 9, App. 7 at 13-14. These waters are now included in the listing of OFWs at Florida Administrative Code Rule 62-302.700(9)(a) and (b). Under Florida Administrative Code Rule 62-302.700(1), "No degradation of water quality, other than that allowed in Subsections 62-4.242(2) and (3), is to be permitted" in OFWs. Pertinent to the issue in this proceeding, these OFW rules have remained in substantially the same form as they did in 1979. Florida Administrative Code Rule 62-4.242(2) is entitled "Standards Applying to Outstanding Florida Waters." Subsection (2)(a) of the rule prohibits permits from being issued "for any proposed activity or discharge within an [OFW], or which significantly degrades" an OFW, unless the permit applicant can affirmatively demonstrate that the proposed discharge is "clearly in the public interest" and that "existing ambient water quality . . . will not be lowered." Subsection (2)(c) of the rule defines "existing ambient water quality" as "the better quality of either (1) that which could reasonably be expected to have existed for the baseline year of an [OFW] designation or (2) that which existed during the year prior to the date of the permit application." Since the Park and Refuge were designated as OFWs when the OFW rules were adopted in 1979, the "baseline year" for the Park and Refuge was 1978-79, some 15 years after construction of the C&SF Project had segregated the Everglades in the units of the EPA and had begun its operations that redistributed natural water flows. The permitting rules further specify, at Rule 62- 4.242(2)(c), the following: The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if: The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and There is no alternative to the proposed activity, including the alternative of not Id. undertaking any change, except at an unreasonably higher cost. The 1979 revisions added a second policy to limit further degradation of Florida surface waters, at Florida Administrative Code Rule 17-3.041(3)(a) and (b)(1979). See Coop Ex. 9, App. 7 at 13-14. Known as the "antidegradation policy," the policy applies to both OFW and non-OFW waters and can now be found at Florida Administrative Code Rule 62-302.300, with implementing permitting requirements at Florida Administrative Code Rule 62-242. In addition to establishing permitting criteria for discharges to OFWs, as noted above, the Rule also allows for discharges to other waters (which would include WCA 2 and WCA 3) that cause water quality degradation "if necessary or desirable under federal standards and under circumstances that are clearly in the public interest[.]" See Fla. Admin. Code R. 62-4.242(1)(listing various factors for determining what constitutes "clearly in the public interest"). The rules also articulate policies "to limit the introduction of man-induced nutrients," especially to low nutrient waters, to prohibit new violations of water quality standards, and to limit degradation below designated uses. Fla. Admin. Code R. 62-302.300(13)-(18). See also Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979); SCGC Ex. 9, App. 7 at 2. In its 1979 rewrite of the state's water quality standards, the Environmental Regulation Commission (the "ERC") recognized that Florida's water body use classifications and the associated water quality criteria might not be appropriate for part or all of a given water body. Therefore, in the same rule that contained the antidegradation policy, the ERC approved a special set of provisions as a substantive part of Florida's water quality standards. It was understood that "the implementation policies and procedures [of these new rules] . . . will govern the manner in which the proposed water quality standards are applied." Written Statement of the Facts and Circumstances Justifying the Proposed Amendments, p. 2, filed with the Secretary of State on August 18, 1978. Coop Ex. 9, App. 10. Known as "moderating provisions," these special "implementation policies and procedures" remain an integral part of Florida's "water quality standards." The ERC's 1979 rationale for "moderating provisions" continues today in substantially the same language as a key feature of DEP rules: 1. 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 2. The mixing zone, [and] site specific alternative criteria . . . 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, [and] natural background . . . . . . . [T]he 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 17-4 and 17-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the states 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. Fla. Admin. Code R. 62.300.200(10). See also Fla. Admin. Code R. 62-4.249 (providing for ERC review "at the earliest opportunity" if a moderating provision is invalidated). Moderating provisions, as are "water quality criteria," are constituents of "water quality standards" as shown in Florida Administrative Code Rule 62-302.200 (29) and (30), which currently defines the terms as follows: "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing the 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 contained in this Rule and in F.A.C. Rule 62-4, adopted pursuant to Chapter 403, F.S. Thus, a water quality standard is not necessarily a simple number. For over a quarter of a century a water quality standard has been a system of regulation, with four separate components that include classified uses, water quality criteria, an antidegradation policy, and moderating provisions. One final aspect of state water quality standards is pertinent to these proceedings. The term "net improvement," which appeared first in the original EFA at Section 373.4592(4)(e)3., was introduced into Florida law in 1984 as part of the Warren K. Henderson Wetlands Protection Act, Ch. 84- 79, Laws of Fla., and was originally codified at Section 403.918(2)(b), as part of the Act's dredge and fill permitting criteria. In 1993, when it established the environmental resources permitting program in Chapter 93-213, Laws of Florida, the Legislature transferred "net improvement" to Section 373.414(1)(b)3. The language has remained essentially the same: If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. ii. The Federal Clean Water Act The Federal Water Pollution Control Act of 1972 (now known as the "Clean Water Act" or "CWA") established a comprehensive federal water pollution program to further its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's water." 33 U.S.C. § 1251(1)(2002). It declared a national goal, "wherever attainable," to achieve "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Id. The CWA assigned to the States the primary role in establishing water quality standards. Id. § 1313. See also Chevron USA, Inc. v. Hammond, 726 F.2d 483, 489 (9th Cir. 1984). The United States Environmental Protection Agency (the "USEPA" to distinguish it from this order's reference to the Everglades Protection Area as the "EPA") has the duty to then review State water quality standards for approval under the CWA. 33 U.S.C. § 1313. Like Florida's system, USEPA regulations explain that a "water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria to protect the uses." 40 C.F.R. § 131.2. In a manner similar to Florida's rules, federal water quality laws also clearly distinguish between "water quality criteria" and "water quality standards": The word "criterion" should not be used interchangeably with, or as a synonym for, the word "standard." The word "criterion" represents a constituent concentration or level associated with a degree of environmental effect upon which scientific judgment may be based. As it is currently associated with the water environment it has come to mean a designated concentration of a constituent that when not exceeded, will protect an organism, an organism community, or a prescribed water use or quality with an adequate degree of safety. A criterion, in some cases, may be a narrative statement instead of a constituent concentration. On the other hand, a standard connotes a legal entity for a particular reach of waterway or for an effluent. A water quality standard may use a water quality criterion as a basis for regulation or enforcement, but the standard may differ from a criterion because of prevailing local natural conditions, such as naturally occurring organic acids, or because of the importance of a particular waterway, economic considerations, or the degree of safety to a particular ecosystem that may be desired. (Citations omitted.) National Resources Defense Council, Inc. v. USEPA, 770 F. Supp. 1093, 1100 (E.D. Va. 1991)(quoting from USEPA guidance), aff'd, 16 F.3d 1395 (4th Cir. 1993). The CWA requires states to periodically review and update their water quality standards. Such revisions must be submitted to USEPA for review to ensure that they contain designated uses of the waters and water quality criteria for those waters needed to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act. 33 U.S.C. § 1313(c)(2)(A). The practicality of water quality controls is also relevant under the CWA. Recognizing that use attainability (or criterion achievement) can be precluded under certain conditions, USEPA regulations provide that States (or Indian Tribes) "may, at their discretion, include in their standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances." 40 C.F.R. § 131.13. See SCGC Ex. 9, App. 10. USEPA regulations specify six independent situations where states may justify the grant of relief via rule or permit for specific discharges or entire water bodies (or portions thereof). 40 C.F.R. § 131.10(g). States and Tribes are given such regulatory flexibility when any of the following factors is present: Naturally occurring pollutant concentrations prevent the attainment of the use; or Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more damage to correct than to leave in place; or Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in attainment of the use; or Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic like protection uses; or Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. Id. In essence, these USEPA rules have found circumstances where the inclusion of moderating provisions in state and tribal water quality standards is appropriate. Background Levels of Phosphorus Today Background levels of phosphorus in the four water bodies in the EPA vary. Everglades National Park, the least-impacted and most pristine section of the EPA, has an historic background level of phosphorus that varied between 5 to 8 eight ppb. Today, background levels have the same range during the wet season (the summer months to late fall). In the dry season, phosphorus levels can be anywhere from 8 to 13, with some instances of very high numbers in isolated pools where fish congregate when the system has dried down (in February and late winter) and water levels decrease. Everglades National Park is an Outstanding Florida Water (OFW). Fla. Admin. Code R. 62.302.700(1)(9). That designation offers special protection that is consistent with the existing ambient water quality at the period of designation. Background levels in the Park are consistently lower than background levels in the water conservation areas. Background concentration levels of phosphorus in the water column are not uniform in the Refuge, Water Conservation Area-1. The perimeter canal has significant impacts from nutrients. In contrast, the interior of WCA-1 is pristine and contains uniform levels of phosphorus. The interior part of WCA 1 has a background level of phosphorus in the water column of between 5 and 9 ppb. WCA-1 is perched. The perched effect has been exacerbated by the drainage and canals placed around the Refuge. The Refuge is an OFW. That designation offers special protection consistent with the existing ambient water quality at the period of designation (1978, 1979). Historic levels of phosphorus in WCA-2, divisible into WCA 2A and WCA 2B, probably existed in the range of 5 to 8 ppb. Although today the background levels in some areas are still in this range, there are other indicators of impact. Measurements of the enzyme alkaline phosphatase can be made that indicate change not susceptible to visible detection. Bacteria produce this enzyme when there is an absence of phosphorus. In an oligotrophic situation, the bacteria produce a great deal of this enzyme, which allows them to cycle phosphorus more efficiently. Where the levels of the enzyme are depressed, it indicates higher levels of phosphorus. Conversely, where the levels of alkaline phosphatase are high, the more oligotrophic the system. Another way to determine impact is to measure the phosphorus levels in the tissue concentrations of the periphyton itself. In WCA 2A, the periphyton has slightly higher phosphorus tissue concentrations than elsewhere in the Everglades. Much of WCA-2A suffers from excess phosphorus at some level based on levels of alkaline phosphatase and examination of the periphyton community. Water Conservation Area 3 can be divided into three distinct hydrological areas: WCA-3A North, WCA-3A South, and WCA-3B. WCA-3A is northwest of the L-67 canal; WCA-3B is south east of the canal. WCA-3A can be divided into WCA-3A North and WCA-3A South, because Alligator Alley, a roadway, separates the two and constricts water flow. There are different background levels of phosphorus in WCA-3A North and South. Areas in WCA-3A show impacts along the canals and inflow points. WCA-3A North has a slightly higher phosphorus concentration than WCA-3A South. There are also nutrient impacts along the Miami Canal. Background levels of phosphorus in WCA-3A, north of Tamiami Trail, are around 7 to 8 ppb. Most areas of WCA-3A South are pristine, as shown by the presence of intact periphyton mats. Exceptions exist along the canals and along Tamiami Trail, as indicated by cattails and altered native species. The vegetation in WCA-3B is mostly eleocharis, periphyton and utricularia (bladderwort). All three of these vegetative species are indicative of healthy Everglades ecology. While the periphyton mat is the key to Everglades health, the presence of utricularia offers a different indication of the health of the ecosystem. It is "a carnivorous plant . . . characteristic of . . . oligotrophic environments because . . . [utricularia] have to get their nutrients by . . . eating other organisms [rather than from the water or soil]." (Tr. 2836) The current background levels of phosphorus in the water column in WCA-3 are from 5 to 8 ppb. The Federal Lawsuit and the Settlement Agreement In 1988, the United States sued the South Florida Water Management District (the "District") and the Department of Environmental Regulation ("DER"), the predecessor to the Department of Environmental Protection. Among the allegations in the complaint, the federal government alleged that the District's pumping of phosphorus-rich water into the Everglades National Park and Loxahatchee Wildlife Refuge resulted in violations of State water quality standards. See generally United States v. South Fla. Water Management District, 847 Supp 1567 (S.D. Fla. 1992). The federal government further alleged that DER and the District had failed to take appropriate regulatory action to prevent water quality violations within the Park and the Refuge. As the litigation proceeded, the Florida Legislature in 1991 passed the Marjory Stoneman Douglas Everglades Protection Act, codified as Section 373.4592 (re-named as the Everglades Forever Act in 1994) to address concerns raised by the federal government. In July of the year in which the Act passed, the federal and state parties settled the litigation initiated three years earlier. The "Settlement Agreement" set forth a commitment of the parties to restore and maintain water quality in the Park and the Refuge. Among other matters, the Settlement Agreement envisions a remedial plan in which the District agreed (a) to adopt a regulatory program that requires EAA interests to implement on-farm best management practices ("BMPs") to reduce phosphorus in stormwater running off their lands and (b) to construct over 35,000 acres of publicly owned STAs within the EAA to further reduce phosphorus in waters prior to discharge into the Everglades. The Settlement Agreement set forth a definition of "Imbalance in natural populations of aquatic flora and fauna" in paragraph 1., the "Definitions" section of the agreement: "Imbalance in natural populations of aquatic flora and fauna" and "imbalance of flora and fauna" shall have the meaning in Florida Administrative Code Rule 17-302.560: "Class III Waters - Recreation, Propagation and Maintenance of Healthy, Well-Balanced Population of Fish and Wildlife. (19) Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna." Imbalance includes situations when nutrient additions result in violation of other standards contained in Chapter 17-302 as defined in Rule 17.302.510(3)(j). In the case of the Park and Refuge, imbalance specifically shall include nutrient additions that result in, but are not limited to, replacement of native periphyton algal species by more pollution-tolerant algal species, loss of the native periphyton community or, in advanced stages of nutrient pollution, native sawgrass and wet prairie communities giving way to dense cattail stand or other nutrient-altered ecosystems, which impair or destroy the ability of the ecosystem to serve as habitat and forage for higher trophic levels characteristic of the Everglades. Numerical interpretation of imbalance shall specifically include an array of indices to measure sensitivity of the ecosystem to small changes in nutrients, such as nutrient cycling processes and the basic components of the Everglades ecosystem, including periphyton and other sensitive indicators of nutrient enrichment. Tribe/Friends 164, (Exhibit B), p. 3, 4 (emphasis supplied). The specific inclusion in the definition of "imbalance" in the Settlement Agreement of "replacement of periphyton algal species by more pollution-tolerant algal species [and] loss of the native periphyton community . . . " applies to the Park and the Refuge. The definition of "imbalance" to include periphyton disruption and loss does not apply to WCA-2 or WCA-3. The Settlement Agreement also drew a distinction between "interim concentration limits" set for the Park and "interim concentration levels" set for the Refuge on both an interim and long-term basis: "Interim concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 1997 October 1, 2003, as determined in Appendix A. "Interim concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 1997 February 1, 1999, as determined by Appendix B. "Long-term concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 2002 December 31, 2006, as determined by Appendix A. "Long-term concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 2002 December 31, 2006 as determined by Appendix B. Id., p. 4. Since the use of "geometric mean" in the Proposed Rule has been placed at issue by the Tribe and Friends, it is notable that the Settlement Agreement employs a geometric mean to measure concentration levels of the Refuge as a water body at interior marsh stations. In contrast, a geometric mean is not employed by the Settlement Agreement in the measurement of concentration limits in the Park since by the agreement's definition "limits" (unlike "levels") are not applicable to ambient water quality but are applicable rather to discharges. Appendix A of the Settlement Agreement establishes the interim and long-term discharge limits for waters entering the Park at designated locations: Phosphorus limits apply to flow-weighted - mean concentrations computed on an annual Water Year basis, with data reported and calculated on a monthly basis. To account for hydrologic variations in Shark River Slough, the limits vary with the previous 12-month's total flow in each basin. The long term limit for Taylor Slough and the Coastal Basin is fixed and does not vary with the flow. The limits represent the 10% rejection level of the observed flow- weighted-mean concentration at a given total annual flow, adjusted to a baseline time period of March 1, 1978 to March 1, 1979 for Shark River Slough (OFW baseline). The baseline time period for the Taylor Slough and Coastal Basins is Water Year 1984. Compliance with these limits is expected to provide a long term average flow-weighted mean inflow concentration of approximately 8 ppb for the Shark River Slough Basin and 6 ppb for the Taylor Slough and Coastal Basins. Approximate values are as follows: Dry Year Wet Year (117 Kac-ft/yr) (1061 Kac-ft/yr) Shark River Slough - Interim Limits Flow-Weighted Mean < 14 ppb < 9 ppb Shark River Slough - Long Term Limits Flow-Weighted Mean < 13 ppb <8ppb Taylor Slough & Coastal Basins - Long Term Limit is 11 ppb. Tribe/Friends 164, Appendix A, at A-2 to A-3. Appendix B to the Settlement Agreement establishes interim and long-term levels for waters within the Refuge at designated locations. The interim marsh concentration levels are based upon a 14 station geometric mean of between 8 and 22 ppb, based upon water stage levels, and the long-term levels range from 7 to 17 ppb, adjusted to a baseline time period of June 1978 to June 1979. This baseline starts and ends three months after the baseline used for OFWs. Compliance with the long-term Park "limits" is to be determined based on the flow-weighted means of monitoring data collected at specified structures discharging into the Park. Compliance with the long-term Refuge "levels" is to be determined based on the geometric means of monitoring data collected at a network of 14 specified stations located in the interior marsh of the Refuge. The long-term limits for the Park are necessary to satisfy the OFW Rules. In the case of the Refuge, the levels were derived to depict the existing ambient water quality that existed as of the 1978 time frame that corresponds to the OFW baseline. Appendix B further provides that the "Class III standard" applies if a Technical Oversight Committee (the "TOC" established in the Agreement) determines that it is lower than the 14-station geometric mean. Appendix B states "[t]he current control program, consisting of on-line STAs and BMPs . . . is designed to achieve a long-term average annual flow-weighted concentration of 50 ppb for each discharge to the Refuge and WCAs from the EAA." Tribe/Friends 164 at B-2. If the interim, or lower of the long- term Refuge levels or Class III criteria are not met with the current control program, the state is directed by agreement to "require additional components to be added . . . to meet a maximum annual discharge limitation of 50 ppb for discharges into the Refuge from the EAA." Id. More intensive management of the STAs alone will not suffice to satisfy the requirement for additional components. A range of such components includes more intensive management, but also includes increased STAs acreage, a stronger regulatory program or a combination of the three. If the lower of the Class III or long-term levels is not met by December 31, 2006, and the 50 ppb maximum annual discharge limit is being met at all inflow structures into the Refuge from the EAA, the TOC is required to "recommend a lower maximum annual discharge limits for the structures to be enforced by the [state]." Id. at B-4. The Definitions section of the Settlement Agreement states that "'Class III water quality standards' shall have the meaning set forth in Florida Administrative Code Chapter 17- 302." Tribe/Friends 164, p. 2. With regard to research and monitoring, the Settlement Agreement provided, in part, Several aspects necessary to achieve compliance with this Agreement must be defined by additional research. The research objectives are to: Numerically interpret the narrative Class III nutrient water quality criteria (i.e., the nutrient levels which cause an imbalance of flora and fauna in the units of the EPA); and Assess current and continuing responses of the EPA to nutrient input levels resulting from the efforts to achieve interim and long-term concentration limits and levels. Tribe/Friends 164, pp. 15-16. In its 1992 consent decree approving the Settlement Agreement, the federal district court emphasized that "the agreement is not self-executing, but rather is subject to Florida's [Administrative Procedure Act]." South Fla. Water Management Dist., 847 F. Supp. at 1570. The federal and state parties agreed to propose the substantive requirements of the agreement for finalization in the state administrative process, including the Park limits and Refuge levels (and the numeric interpretation of the Class III criterion). Id. at 1572. "The Agreement does not predetermine the outcome of any state proceedings required under Chapter 120 of the Florida Statutes . . . . The Agreement requires the District and DER to fulfill their obligations under existing state law." Id. The Everglades Forever Act In 1994, after a renewal of litigation as a result of attempted implementation of the requirements of the Settlement Agreement and the Marjory Stoneman Douglas Everglades Protection Act, the Florida Legislature enacted the Everglades Forever Act (the "EFA"). Findings and Intent The EFA sets forth extensive "Findings and Intent" in its opening paragraphs. Among those are the following: (a) The Legislature finds that the Everglades ecological system not only contributes to South Florida's water supply, flood control, and recreation but serves as the habitat for diverse species of wildlife and plant life. The system is unique in the world and one of Florida's greatest treasures. The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution and timing of flows, and, therefore, must be restored and protected. * * * . . . The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. . . . the Everglades ecosystem must be restored both in terms of water quality and quantity. § 373.4592(1), Fla. Stat. (Emphasis supplied) The Everglades Program and the Everglades Construction Project The EFA codified and expanded the phosphorus reduction program of the Settlement Agreement by adoption of the Everglades Program. See § 373.4592(2)(h), (4)(a) and (4)(f), Fla. Stat. The Everglades Program includes: (a) implementation of "best management practices," defined in section 373.4592(2)(b), (or "BMPs") and the Everglades Construction Project ("ECP") defined in Section 373.4592(2)(g); and (b) a comprehensive program and projects to improve and restore water supply and hydroperiod. § 373.4592 (4)(a),(b), and (f), Fla. Stat. The ECP "represents the largest environmental cleanup and restoration program of this type ever undertaken." § 373.4592(1)(h), Fla. Stat. The ECP was targeted to achieve a 50 ppb, flow-weighted mean discharge concentration. The Everglades Agricultural Privilege Tax The EFA funded the ECP, in part, by creating an Everglades Agricultural Privilege Tax assessed annually: for the privilege of conducting an agricultural trade or business on: All real property located within the EAA that is classified as agricultural . . .; and, [certain leaseholds or other interests in real property.] § 373.4592(6), Fla. Stat. Direction to DEP and Rule-making The EFA directed DEP and the District to undertake research to numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area and to evaluate water quality standards applicable to the EPA and EAA canals. The precise language of the direction is: Evaluation of water quality standards.-- The department and the district shall employ all means practicable to complete by December 31, 1998, any additional research necessary to: Numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area; and, Evaluate existing water quality standards applicable to the Everglades Protection Area and EAA canals. § 373.4592(4), Fla. Stat. This direction led DEP to conduct rulemaking in conjunction with the ERC to establish a "phosphorus criterion" for the EPA that interpreted the Act's narrative criterion. The Narrative Criterion Limited to Everglades phosphorus, the Narrative Criterion in the EFA replicates to an extent the "narrative nutrient criterion" in Florida Administrative Code Rule 62- 302.530(49)(b): In no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The Narrative Criterion of the Act is quite similar; both it and the "narrative nutrient criterion" in the Proposed Rule prescribe that in no case shall there be alterations allowed so as to cause imbalance in natural populations of aquatic flora and fauna. As stated earlier neither the EFA nor DEP rules define the terms "imbalance" or "natural populations of aquatic flora and fauna." The EFA directs, however, that the criterion "shall not be lower than the natural conditions of the [EPA]" and that it "shall take into account spatial and temporal variability." § 373.4592(4)(e)2., Fla. Stat. The difference between the two criteria - one in the existing rule governing all nutrients, the other in the EFA and carried forward in the Proposed Rule - is one of limitation; the term "nutrient concentrations" in the existing rule is replaced with "such phosphorus criterion" in the Act and the term "body of water" is replaced with "waters in the Everglade Protection Area": In no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. § 373.4592(4)(e)2, Fla. Stat. The Narrative Criterion is central to this case and the dispute between the Miccosukee Tribe and the Friends of the Everglades on one side and the rest of the parties to this Proposed Rule Challenge on the other. The case of the Tribe and Friends draws much of its force from the clarity and power of the Legislature's choice of the Narrative Criterion's first three words, "[i]n no case." This proscription, absolute on its face, is the introduction to the Narrative Criterion's mandate that the phosphorus criterion not allow waters in the EPA to alter the natural balance of flora and fauna. The power and clarity of the Narrative Criterion is at the base of the criticism of the Proposed Rule by the Tribe's witness Colonel Terry L. Rice, (US Army ret.). The Testimony of Colonel Rice The Tribe opened its case by calling Terry L. Rice, Ph.D., a retired colonel in the U.S. Army and a former Commander of the Army Corps of Engineers District headquartered in Jacksonville. The Corps District once under the command of Colonel Rice is composed of Florida, Puerto Rico and the Virgin Islands. Colonel Rice's Ph.D. is in Water Resources Engineering--Hydraulics and Hydrology. He is a registered professional engineer in Florida and several other states. He has numerous other credentials, including an M.S. from the University of Illinois, and a B.S. from the United States Military Academy at West Point. He has been a Senior Service College Fellow at the Walsh School of Foreign Service at Georgetown University, and is both an Honor Graduate of the Command and General Staff College at Fort Leavenworth and a Graduate of the Department of State's Foreign Service Institute. Colonel Rice's many credentials, his high-level training and the depth of his experience nationally and internationally are strikingly impressive. They serve as his qualifications for the fields of expertise in which he was accepted in this case (hydrology, water resources engineering and regulatory and permitting issues as related to Everglades restoration) and, moreover, bolster his credibility as a witness. Of particular relevance to this case is that from August of 1994 to October of 1997, Colonel Rice while a District Commander for the Corps was responsible for projects and planning to enhance flood control, navigation, shore protection and environmental restoration in the Corps District that contains the state of Florida. During this period of his distinguished military career, the Corps was directed to develop the Comprehensive Everglades Restoration Plan ("CERP"). For Colonel Rice this meant that "Everglades restoration was his top priority." Tribe 169. He arrived in Jacksonville at the Corps' District headquarters in 1994, three months after the EFA was passed, a moment described by Colonel Rice as "the crucible of . . . this . . . coming together." (Tr. 72) Colonel Rice's responsibility was to steer the development of CERP. Among the projects he was involved in were: the modified water deliveries project coming out of the 1989 act, a major restoration project, still not done; the C-111 restoration; the Kissimmee Restoration, which I'm happy to say, is moving along very well. Something I think we're all proud of; and the Everglades Restoration Project. (Tr. 72-3) This required that Colonel Rice permit under the Clean Water Act construction of the STAs so the water management district would be allowed to fill the Everglades in which they would be constructed. In the midst of Colonel Rice's being in charge of CERP, the Governor of Florida established the Governor's Commission for Sustainable South Florida to oversee CERP from the state's perspective. At roughly the same time, the Secretary of the United States Department of Interior established the South Florida Ecosystem Task Force to oversee CERP at the federal level. Colonel Rice served the Assistant Secretary of the Army for Civil Works as his representative on the federal task force and served on the Governor's Commission as well. The work of these two groups, much of it under the guidance of Colonel Rice and the Corps, culminated in a consensus on CERP. Colonel Rice's leadership in the formulation of CERP has been a tremendous accomplishment reflected in its recognition in all three branches of the federal government. He has received a letter of commendation from the White House for his work on Everglades Restoration. He has testified before Congress about it and a report on his efforts has been read into the Congressional Record. On several occasions, Colonel Rice has testified before Judge Hoeveler in the litigation over the Everglades initiated in 1989. His testimony has been in regard to issues related to water quantity, water quality, use of a geometric mean, interpretation of the Settlement Agreement, the STAs and the 404 program under the Clean Water Act. Colonel Rice's opinion is that the Proposed Rule does not protect the Everglades. He believes that the various components of the Proposed Rule when taken together "overwhelm the resource." (Tr. 153) Objection was made to Colonel Rice's opinion on the basis that it was beyond the scope of his expertise. The objection was overruled. It was concluded that while not a wetlands ecologist, Colonel Rice was qualified nonetheless to render his opinions in light of all of his qualifications, particularly the depth of his experience in Everglades issues. Colonel Rice criticized the Proposed Rule on a number of different grounds. Among them is that by employing a geometric mean for the phosphorus criterion, the rule "skews data low" (Tr. 155), in such a way as to allow phosphorus discharge that will not protect the Everglades. He also faulted achievement methodologies employed by the Proposed Rule and data exclusion. Furthermore, he criticized its allowance of discharging phosphorus water into areas that were not impacted by phosphorus if a net environmental benefit accrued by virtue of hydropattern restoration. Within each set of Colonel Rice's criticisms, there were a number of different faults he found with the Proposed Rule. He criticized some of the data exclusion provisions in subsection (e) of Section (5), "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" of the Proposed Rule. For example, he testified that words "flood" and "drought" in the subsection are not defined. The lack of definition, in his view, confers unbridled discretion on DEP to exclude data. Since water levels are the subject of water management practices by the District, moreover, Colonel Rice fears that floods and drought in the Everglades could be manmade, thus allowing manmade manipulation of data exclusion. Furthermore, he questioned the subsection's exclusion of data related to "authorized restoration activities," one of the "temporary" human activities listed in paragraph (5)(e)4., of the Proposed Rule. He assumed that the term related to all of the projects under CERP and stated that while CERP will cause permanent impacts, there will be periods of construction and stabilization with regard to CERP projects that will cause impacts temporarily. Colonel Rice also questioned the exclusion of data under paragraph (5)(e)5., of the Proposed Rule that related to samples taken when hydrologic conditions were outside the range that occurred during the time period used to set the numeric criterion (the "period of record") on the basis of the Proposed Rule's lack of a definition of the period of record. The evidence demonstrates, as discussed below, that the period of record for establishing the numeric phosphorus criterion is 1978-2001.5 Colonel Rice questioned the allowance of hydropattern restoration using phosphorus-rich waters to achieve what might appear to provide immediate improvement on the basis of the concept of "resilience." Overly dried areas suffer impacts from the lack of hydration. "But when you add water back, [the impacted area] comes back to life fairly rapidly." (Tr. 163) That is, areas that suffer impacts for lack of water retain short-term resiliency. In contrast, phosphorus does not leave once it permeates the soil. "So when it comes to the standpoint of resilience, it only becomes prudent to make sure you've got clean water before you rehydrate." Id. Rehydration beforehand, with phosphorus-rich waters, results in "losing something you're not going to gain back in a reasonable amount of time." (Tr. 163) In other words, pollution of the water column in the Everglades with phosphorus and deposits of the phosphorus into the soil renders the area formerly unimpacted by phosphorus but impacted by disruption of hydropatterns or lack of water much less resilient and much less capable of achieving recovery in a reasonable amount of time. One of Colonel Rice's criticisms related to a moving front of degradation visible in its last stage by the advancement of cattails, the "tombstones on the grave of the Everglades." (Tr. 333) Indeed, it was proven that phosphorus enrichment in the EPA is causing a moving front. Colonel Rice offered a solution. Instead of measuring ambient water quality, that is, the quality of the water body as a whole, Colonel Rice suggested that a phosphorus criterion should be established at the points of discharge, that is, "in the water as it flows into the Everglades." (Tr. 335) He further suggested that the criterion should be a concentration of 10 ppb. There is little question from this record that Colonel Rice is correct that if the water flowing into the Everglades had a phosphorus concentration of 10 ppb, the phosphorus in the inflows of water would not cause an imbalance of the natural populations of aquatic flora and fauna. Despite the fact that Colonel Rice is not a wetlands ecologist, his opinions, given his outstanding qualifications, and his integral involvement with the Everglades as a District Commander in the Army Corps of Engineers, the entity that has had such a huge hand in the Everglades over the years and which now has such a central role in the restoration and preservation of the Everglades, are weighty ones. Colonel Rice's opinion that the Proposed Rule is not protective of the resource is the equivalent of stating that it allows the discharge of phosphorus that will create an imbalance of the natural flora and fauna, contrary to the Narrative Criterion. The ultimate issue in this case, however, is not limited to just whether the Proposed Rule interprets the Narrative Criterion appropriately. The ultimate issue in this case, is whether the Proposed Rule is an invalid exercise of delegated legislative authority, a determination that depends on an understanding of the all of the legislation that is at issue. Indeed, it depends on an understanding of the EFA as a whole. Beyond the Narrative Criterion, there are several aspects of the EFA that must be taken into account before the determination that this case requires is made. Those aspects, in other provisions of the EFA, include amendments enacted in 2003 immediately prior to the publication of the Proposed Rule. For example, Colonel Rice testified that "net improvement" in the Everglades would mean when cattails start to recede. The term "net improvement" in the EFA quite plainly refers to an improvement in water quality. Water quality could improve in an impacted area but not enough to cause cattails to recede. Thus, Colonel Rice's definition of "net improvement" is at odds with the EFA's use of the term. In short, there are provisions aside from the Narrative Criterion in the EFA that directly or indirectly authorize aspects of the Proposed Rule with which Colonel Rice finds fault. Other Provisions of the EFA The EFA requires the Department to establish discharge limits in permits using the "relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area." § 373.4592(4)(e)3., Fla. Stat. The Department is charged with determining ambient water quality based on the phosphorus discharges just as it does in the application of water quality standards generally in bodies of water in Florida other than the EPA. These limits must be set at a level "necessary to prevent an imbalance in the natural populations of aquatic flora and fauna" and "to provide a net improvement in the areas already impacted." Id. Again, the EFA charges the Department with the approach the Department has used for many years in its application of water quality standards. Compliance with the rule is to be based on a long- term geometric mean of phosphorus concentration levels at representative sampling stations "to assure" that the EPA "is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted." Id. Furthermore, Id. Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of the receiving waters in the [EPA . . .]. For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively, of the settlement agreement dated July 26, 1991, entered in case No. 88-1886-Civ-Hoeveler, United States District Court for the Southern District of Florida, that recognizes and provides for incorporation of relevant research. The EFA was amended by two session laws passed in 2003. The amendments were described at hearing by Frank Nearhoof, DEP's Administrator of Water Quality Standards and Special Projects Program. The program is responsible for a broad range of technical and regulatory activities under the EFA, CERP Regulatory Act and the Lake Okeechobee Protection Act. Mr. Nearhoof was accepted as an expert in Everglades ecosystem; the Everglades Forever Act; water quality data evaluation, including the statistical evaluation of data; and the establishment and implementation of water quality standards. The amendments were also described by Gary Goforth, Ph.D., Consulting Engineer with the Water Resources Management Group in the District. The 1994 EFA implemented BMPs and STAs to reduce phosphorus concentrations in the water column to 50 ppb. It also called for research to permanently establish a phosphorus criterion that would, in all likelihood, establish a number lower than 50 ppb. By 2003, enough was known as the result of experience with BMPs, the STAs and research "to implement a second phase of technology." (Tr. 1566) The EFA as amended in 2003 called for the implementation of this second phase and made four basic changes described by Mr. Nearhoof at hearing: long term plan [was put in place], which basically builds on the initial Everglades Construction Project, and adds certain modifications to the various STAs to enhance their treatment effectiveness. It . . . provided funding . . . of 450 million dollars . . . to build those enhanced features. . . . [I]n recognition that we're . . . setting a low criterion . . . , and that our technology [isn't] quite [sufficient] yet, it . . . put in place a relief mechanism to deal with that technological limitation ... -- the net improvement moderating provision. . . . And it also added another moderating provision for rehydration . . . of unimpacted areas . . . in the sense that they're unimpacted by phosphorus, [although] hydrologically impacted. And that's the provision that's been discussed that . . . under certain circumstances could allow [rehydration] even though the water may be less than perfect at that point in time. (Tr. 1566-1568) The EFA as amended in 2003 also requires the District to implement "without delay" and to periodically revise the Long-Term Plan, which is defined as "the district's 'Everglades Protection Area Tributary Basins Conceptual Plan for Achieving Long-Term Water Quality Goals Final Report' dated March 2003, as modified herein." § 373.4592(2)(j), Fla. Stat. The Long-Term Plan contemplates three enhancements to the state's current phosphorus control program and a demonstration project for an approach claimed to be effective with regard to phosphorus reduction. First, the District will install a series of interior levees and water control structures in the STAs that will increase their ability to move water uniformly through the treatment areas, thereby increasing phosphorus uptake. Second, portions of the existing cattail populations in the STAs will be converted to submerged aquatic vegetation (SAV). (Research has shown that combined cattail and SAV operations perform better than cattail alone.) Third, the District will refine the operations of the STAs in order to better balance hydraulic load and nutrient for each of the treatment cells between which the water is moved. Fourth, the District will conduct a large-scale demonstration project to explore the viability of periphyton-based stormwater treatment areas ("PSTA"), a technology claimed to allow further reduction in phosphorus levels. The demonstration project was described by Gary Goforth, Ph.D., at hearing: [W]e will be building a . . . demonstration project in STA-3/4. It will be [in] . . . one of the downstream cells of STA-3/4. * * * The total area devoted to the demonstration[] [is] 400 acres. There's a 200-acre upstream portion that'll be entirely SAV. And then downstream . . . there'd be roughly a 100-acre PSTA cell, and then a 100-acre SAV cell side-by-side. (Tr. 3800-3801) The results of the PSTA cell phosphorus reduction will be compared to the results of the SAV cell to determine if PSTA is a superior technology, as claimed, for phosphorus reduction by means of stormwater treatment areas. The Long-Term Plan also contemplates coordination with the $8.1 billion Comprehensive Everglades Restoration Plan ("CERP"). CERP is a conceptual plan intended to modify and replumb the C&SF Project to rectify water resource problems caused by the Project. It addresses water quality, water quantity, timing of water deliveries and the distribution of water flows. With a 50-year planning horizon (until 2050), CERP calls for full implementation by the year 2036. There are several CERP projects that will require direct coordination. For example, CERP includes a project that will divert water from the C-11 basin (which presently pumps water into the Everglades from the S-9 pump station), south and away from WCA-3, in order to eliminate the basin as a source of phosphorus. The project will render obsolete an STA that had been planned for western Broward County. The District, therefore, is implementing source controls in the interim so as to obviate redundant costs. Computer modeling of the Plan's pre-2006 strategies predicts phosphorus levels in discharges from the STAs at a geometric mean of 10 to 14 ppb. In the event the phosphorus criterion is not achieved by January 2007, however, the Long- Term Plan sets forth additional control measures to be evaluated and implemented if necessary. In addition to the provisions relative to the Long- Term Plan, the EFA as amended in 2003 allows a Department rule adopting a phosphorus criterion to include "moderating provisions," not to extend beyond December 2016 without further legislative authorization: The Department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to the impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with the anti- degradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592(4)(e)2., Fla. Stat. EFA Requirement for Research and Monitoring The EFA also required establishment of an extensive research and monitoring program to serve as the scientific foundation for the phosphorus criterion rulemaking and related efforts. § 373.4592(4)(d), Fla. Stat. As part of that program, the EFA required the District to conduct annual workshops and to file annual peer-reviewed status reports on the research and monitoring efforts with the Governor and the Legislature. § 373.4952(4)(d)5., Fla. Stat. Besides the EFA, the reports address a number of different requirements in law. In fact, they contain "over 40 different legal mandates and permit reports . . . under one cover" (Tr. 3429) and so are referred to as the Everglades Consolidated Reports. See, e.g., District 16, the 2003 Everglades Consolidated Report. Post-EFA Events In the wake of the enactment of the EFA and the acceptance of the Settlement Agreement a number of events occurred relevant to these proceedings. The EFA phosphorus criterion research program and external peer-review process were implemented and documented. See 2003 Everglades Consolidated Report, Executive Summary, DEP Ex. 24. The USEPA issued technical guidance on state water quality standards and also on how Florida should go about establishing the numeric interpretation for the narrative nutrient criterion for the Everglades. Modifications to conform the Settlement Agreement to the EFA were proposed by the settling parties in 1995. They were approved by the federal court in 2001. See DEP Ex. 13. The primary changes included increases of the number and sizes of the STAs and an extension from July 1, 2002 until December 31, 2006, of the deadline for meeting the long-term limits for the Park and for meeting the lower of the Class III standard or long-term levels for the Refuge. In August of 1994, the USEPA updated its Water Quality Standards Handbook ("USEPA WQS Handbook"). See Coop Ex. 9, substitute App. 13 (filed January 15, 2004). The USEPA WQS Handbook makes clear that state relief procedures that are a part of their water quality standards "must be consistent with the requirements of 40 CFR 131." Id. at pp. 5-12. See 40 CFR § 131.13 ("States may, at their discretion, include in their State standards, policies generally affecting their application and implementation.") USEPA will continue to approve state- granted relief if, among other things, "the State demonstrates that meeting the standard is unattainable based upon one or more of the grounds outlined in 40 CFR 131.10(g) for removing a designated use." See Coop Ex. 9, substitute App. 13 (filed January 15, 2004) at pp. 5-12. In 1997, while the state's research and phosphorus reduction programs were underway, the Tribe adopted water quality standards for "all Tribal Reservation Surface Waters." ("Tribe Standards"). Miccosukee Tribe of Indians, Water Quality Standards, Dec. 19, 1997. See US Sugar Ex. 11. Tribe Standards allow for moderating provisions in the form of variances or mixing zones (id. at 24-27), where the discharger demonstrates, among other things, "that meeting the standard is currently unattainable based on one or more of the grounds outlined in 40 CFR § 131.10(g) from removing a designated use." Id. at 24, 30. Development of the Proposed Rule The EFA Mandate re: a Numeric Phosphorus Criterion In addition to the Department's rulemaking authority set out in Section 403.061(7), allowing the Department to implement Chapter 403 as a whole, Chapter 373 includes an analogous provision. Section 373.043 states that the Department has the authority "to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter," referring to Chapter 373 which includes the EFA. Lest there be any confusion on the point, the EFA mandate to adopt a numeric interpretation of the Narrative Criterion is set out under Section 373.4592(4)(e), entitled, "Evaluation of water quality standards." In keeping with the nature of the phosphorus criterion as an element of a water quality standard, moreover, the Proposed Rule is entitled, "Water Quality Standards for Phosphorus Within the Everglades Protection Area." Development of the Criterion The development of the phosphorus criterion is well documented. See DEP Ex. 24, Chapter 5; DEP Ex. 23, Everglades Phosphorus Criterion Technical Support Document, Parts I-III. A number of different groups provided research, some of which preceded the EFA, that contributed to its development. The District had been conducting research for some time, "some of their publications go back into the 70's." (Tr. 1582) Duke University Wetlands Center conducted research in the Everglades, some of which was intended to be useful for Department rulemaking with regard to phosphorus. Florida International University also conducted research useful to the Department. In the meantime, the Settlement Agreement was entered and approved by the federal court. The agreement called for a Technical Oversight Committee (the "TOC"). See Definition R., p. 6, of the Settlement Agreement in DEP Ex. 13. Paragraph 18 of the Settlement Agreement required that each of five persons, the Superintendent of the Park, the Manager of the Refuge, the Secretary of the Department, the Executive Director of the District and the District Engineer, Jacksonville District, U.S. Army Corps of Engineers, appoint one technical representative to the TOC. Among the purposes of the TOC was to "plan, review and recommend all research, monitoring, and compliance, conducted pursuant to the terms of this agreement . . . ." DEP Ex. 13, paragraph 18, p. 26, of the Amended Settlement Agreement attached to the Omnibus Order. The TOC also "was set up to assure that technical issues were going to be addressed in an open, deliberative forum." (Tr. 3425) TOC nominated four participants to develop a threshold research plan under the direction of Dr. Landon Ross, the Department's chief biologist at the time. Two of the four working under Dr. Ross' direction were federal nominees, Dr. David Lean and Dr. William Walker; two were state nominees, Dr. Robert Wetzel and Dr. Kenneth Reckhow. Convened under the direction of Dr. Ross, the four produced a formal technical document: the Everglades Nutrient Threshold Research Plan (the "Research Plan", sometimes referred to as "Lean, et al.," because the name of Dr. Lean is listed first on the formal document). Not only was the Research Plan developed with federal and state input, but its results were reported annually in the Everglades Consolidated Report. They were, moreover, subject to and approved by an annual peer review conducted as part of the document's preparation. The methods of the process, the reporting of its results and the ensuing peer review led witnesses at hearing, including Dr. Garth Redfield, Chief Environmental Scientist for the District, to conclude that the criterion and its achievement methodology were protective of the Everglades aquatic flora and fauna, and were developed in accordance with accepted scientific practices. One of the Tribe and Friends' criticism of the methodology for deriving the phosphorus criterion, presented through David Parkhurst, Ph.D., is that it ignores mass balance, a concept which assists in the measurement of the net amount of phosphorus left in a water body after the calculation of the flow of phosphorus into and out of the water body. Indeed, an initial question was whether the research should address the mass of phosphorus entering the Everglades. In conjunction with an Everglades Technical Advisory Committee ("ETAC"), "all of the scientists that were actively working in the area," (Tr. 1591) were convened. A peer-review group of three outside scientists were impaneled to review the question as well. While it was determined that the system responds to both mass and concentration, the consensus was that it was both easier and better to conduct research on the basis of the concentration levels of phosphorus in the waters of the Everglades. One reason that it was decided not to conduct research on load is that in order to determine load, "you'd have to know the flow." (Tr. 1595) Flow is easily calculated as it comes through structures, that is, at the point of discharge. It is not easily calculated in the marsh where flow is so slow. "[Flow] isn't a calculable number in the middle of [Everglades] marsh typically." (Tr. 1597) Moreover, because of the Legislature's policy choice to regulate phosphorus in a water quality standard for ambient water quality rather than at the point of discharge, it makes more sense to approach the problem from a concentration level perspective. The calculation of load is also complicated by the necessity to know both the "flow in" and "flow out." This calculation is further complicated by seepage, "surface water that's going into the ground . . . ." (Tr. 1598), precipitation, dry fall, and the effect of evaporation. At bottom, regardless of whether concentration levels or load was examined, the purpose of the Research Plan was to determine a threshold at which a departure from natural flora and fauna occurred such that there was imbalance. It was determined that the research toward a threshold at which imbalance occurs should focus on concentration levels in the ambient water. The Three-prongs of the Research Plan The Research Plan recommended a three-prong approach consisting of (1) field transect monitoring along existing man- made nutrient gradients; (2) dosing experiments; and (3) laboratory experiments. Research performed by the South Florida Water Management District included all three approaches suggested by the panel under the Research Plan. Additional research efforts included those of the Duke University Wetland Center, Florida International University, and the USEPA's Regional Environmental Monitoring and Assessment Program (REMAP). Throughout the process of developing the Proposed Rule, the Department solicited feedback from interested parties through the TOC and an ETAC, convened by the Department specifically for that purpose. While valuable to understanding imbalance, the mesocosm and laboratory studies were not used directly to derive a numeric phosphorus criterion. As explained in the 2003 Everglades Consolidated Report (the "2003 Report"): While the District's mesocosm and laboratory studies provide much information about how and why the biological changes occur, they were not designed nor intended to be used to derive a numeric criterion. (District Ex. 16, p. 5-6) That left the transect monitoring as the main approach that had been recommended by the Research Plan. It is described in the 2003 Report: [DEP's] efforts to derive a numeric P [Phosphorus] criterion relied primarily on data collected by the District along a series of transects traversing existing phosphorus gradients in each portion of the EPA (WCA-2, the Refuge, WCA-3 and ENP [the Park]). [DEP] relied heavily on the gradient transect studies during the derivation of the P criterion due to their distinct advantages over experimental studies. Because some areas within the EPA have received elevated levels of phosphorus- rich runoff for as long as 40 years, [DEP] had an excellent opportunity to study what had happened to the natural biological communities in the marsh as a result of long-term P enrichment. Id. Whatever the outcome of the threshold research with regard to a numeric concentration level expressed as a geometric mean or as some other measure of central tendency that constituted a threshold of imbalance, DEP did not use a numeric expression of a threshold to derive the numeric phosphorus criterion. In adopting its ultimate approach, DEP's hypothesis was not a threshold hypothesis. (See Tr. 3288) Rather than asking the question at what long-term geometric mean level of phosphorus concentration does imbalance occur, DEP asked the question at what long-term geometric mean of phosphorus concentration is balance maintained. In other words, the approach was not a "threshold approach." (See Tr. 3288) Instead of using a threshold point at which imbalance occurs as a beginning point in setting the numeric criterion (see the discussion of confidence intervals, below), DEP set out find the central tendency of water column concentrations of phosphorus in which "reference conditions" were maintained. Reference conditions are conditions in which there is no imbalance. This approach, which "switches" (id.) a threshold hypothesis had ramifications, as explained below, for whether DEP should move downward in value from the geometric mean revealed by the data in deriving the criterion (the direction militated by a threshold approach if there was to be any movement away from the data's geometric mean) or upward in value (the direction taken by DEP since the approach determined a geometric mean at which there was no imbalance.) The site of the reference conditions, also as explained more fully below, was in the same general area (identified by DEP as "minimally impacted") in which gradient transect threshold research was conducted. Unlike the transects which crossed from unimpacted soils into impacted soils, however, the reference sites were in unimpacted soils only. Ultimately, analysis of the data collected from specific "reference sites" in a "minimally impacted" area of WCA-2 was used to establish the numeric phosphorus criterion. This methodology for establishment of the numeric phosphorus criterion is referred to by DEP as the "reference site" approach. Reference Site Approach The 2003 Report describes the "reference site" approach, its scientific acceptance and the basis for its use: [DEP] employed a "reference site" approach during the evaluation and analysis of the District gradient transect data. The use of reference sites to evaluate biological integrity, establish restoration goals and develop water quality criteria has become standard practice [citations omitted] since the USEPA issued an explicit definition of "biological integrity" in 1982 that incorporated the concept of reference sites [citation omitted]. [DEP] used the reference site approach during the development of a numeric P [phosphorus] criterion for the EPA based on maintaining balanced populations of natural flora and fauna (reference conditions) because of its widespread acceptance, the existence of long-term manmade P gradients in the EPA, and the type of biological response characteristic of P enrichment. Id. Figure 5-1 on page 5-8 of the 2003 Report (admitted into evidence as an excerpt from the report, DEP 24A) is a sediment contour map. The sediment contours provide phosphorus concentrations in milligrams per kilogram in the upper 10 centimeters of sediment. The map shows the locations of transect monitoring sites established across a phosphorus gradient in WCA-2A. The gradient extends from the source of phosphorus enrichment (points where phosphorus-rich waters are discharged, also termed as "canal inflows") into an area in which imbalance caused by phosphorus enrichment was not visible, described in the 2003 Report as "not impacted." District Ex. 16, p. 5-6. Some of the contours are designated with numeric values of milligrams per kilogram. They range from a high of 1600 mg/kg to a low of 400 mg/kg. There are two transects on the WCA-2A site, an "E" transect and an "F" transect. The E transect shows five transect stations labeled E1 through E5 and a sixth station labeled E0, at the point of the canal inflow. Similar labeling occurs with regard to the F transect with six stations. The higher the station number the farther away it is from the point of discharge so that E5 and F5 are the transect stations that are the farthest from the source of the phosphorus and E0 and F0 (the "0" being a zero) are the stations at the point of discharge or inflow. There are also three other stations on the map identified as U1, U2 and U3. Stations U1, U2 and U3 are farther away from the canal inflows than are E5 and F5. Based on preliminary data analyses and field observations, Stations U1, U2 and U3 were designated as initial "reference" sites, that is, sites that exhibit reference conditions, conditions in which balanced populations of natural flora and fauna are maintained. Consistent with the aim of the Research Plan to establish a phosphorus threshold, the purpose of collecting and analyzing data at the transect stations was to determine where along the transects imbalance had occurred, that is to establish a tipping point or a threshold of imbalance. Multiple measures of the periphyton, macroinvertebrate and macrophyte communities in WCA-2A, along with measure of ecosystem function, were examined. These included the loss of the more sensitive assemblages of organisms such as calcareous periphyton mat, the dominance of more nutrient tolerant organisms, the loss of open water habitat critical to fish and birds, and depressed dissolved oxygen levels. Analyses of the data consisted of multiple statistical tests (including cluster and change point analyses). This allowed DEP to use a weight-of-evidence approach that factored all the analyses into the determination of where along the transects an imbalance occurred. For WCA-2A, the statistically significant changes in the structure and function of the various biological communities generally occurred on the E transect at a point between E4 and E5 and on the F transect at a point between F4 and F5. As one would expect, the farther away from the canal inflow of the phosphorus-rich waters, that is, the farther along the gradient from the point of inflow, the less the impact6 generally. The change generally occurred between 7 and 8 km downstream of the inflows, a point between E4 and E5 on the E transect and between F4 and F5 on the F transect. The 2003 Report makes it clear that the ultimate purpose of the analyses was not to determine a threshold of imbalance from which a numeric phosphorus criterion would be derived but to determine which stations, if any, on the transects were in waters that would support a balance of flora and fauna: The purpose of these analyses was not to derive a phosphorus threshold, but to delineate the sites impacted by P [phosphorus] enrichment from those that are biologically similar to the initial reference sites and could thus be used to derive a long-term P criterion. Id. at 5-7. To re-phrase, "[t]he results of the analyses were used to determine which sites along the gradient are minimally impacted by [phosphorus] enrichment and could therefore be incorporated into a set of reference sites." Id. The ultimate aim, then, was not to determine a threshold value but to determine which of the transect stations could be joined with U1, U2 and U3 to form a set of reference sites. Based on the analyses of the transect data, it was determined that Stations E5 and F5 were not only stations below the gradient where the threshold of imbalance occurred and stations where balance was maintained but that they were biologically similar to the initial references sites, U1, U2 and U3. A single group of reference sites were then formed consisting of these five stations: E5, F5, U1, U2 and U3. After the set of reference sites was established, ambient phosphorus regimes at the sites were used to statistically derive a numeric phosphorus criterion. The Department analyzed the annual median and geometric mean total phosphorus concentrations for the reference sites. Reviewing data from WCA-2A and WCA-1, the Department calculated arithmetic and geometric means and statistical confidence intervals looking at a number of reference periods and locations: 1978 to 2001 and 1994 to 2001 in WCA-2; 1996 to 2001 in WCA-1. The Tribe and Friends attack the reference site approach used by the Department on a number of bases. With few exceptions (criticisms by way of Dr. Jones' testimony, such as that comparison with data collected before 1995 should not be used because data collection was better after 1995 or that use of data from reference sites in WCA-2, an area that does not represent the least impacted portion of the EPA, should not have been used), the attack is based on cross-examination of witnesses who testified in favor of the reference site approach. One such example concerns the Tribe and Friends' assertion that the phosphorus criterion was not selected on the basis of dosing studies, the most common method, as the state concedes, see Tr. 1901, for scientifically determining the threshold effect of a "toxin." Id. With regard to whether dosing studies are the method of choice for determining the threshold effect of all substances, however, Mr. Nearhoof was not sure. With regard to nutrients, such as phosphorus, his answer was that dosing studies, while an acceptable way of evaluating threshold effects, were not necessarily the method of choice: [T]he State of Florida . . . in this exercise [the reference site approach for determining the phosphorus criterion] is way ahead of the nation or the world, for that matter in having done what we've done. I don't think anybody else around has replicated anything remotely like this. So I don't know that there is a common way for that. (Tr. 1901) The results of dosing studies conducted by Dr. Jones (about which Dr. Jones was not allowed to testify because of the Tribe's refusal to disclose documents and data in discovery) had been recently received by DEP but there had not been time to review them in detail. Furthermore, dosing studies were conducted by Duke University, were "corroborative" (Tr. 1904) of the results of the reference site approach used to set the phosphorus criterion. The Tribe also stresses that only five stations in WCA-2, an impacted body of water, were used to establish a criterion that applies to all of the Everglades. The preponderance of the evidence is that five stations were adequate for establishing a set for sites that exhibited reference conditions, particularly given the relationship of two of the stations (E5 and F5) to the transect monitoring studies and the evidence that they were at sites that exhibited reference conditions close to phosphorus gradients and the moving front of advancing cattails. A weighing of the testimony on cross-examination, the use of documents, and the minimal direct examination used to attack the reference site approach against the direct and re- direct testimony of witnesses in support of the approach, leads to the conclusion that, by a preponderance of the evidence, the reference site approach is rational. It is, moreover, scientifically appropriate, reasonable and supported by logic or necessary facts. The Tribe and Friends' attack on the reference site approach fails. The reference site approach yielded data and analysis that was but one step toward establishment of the phosphorus criterion. There were a number of other steps. In the next of the preliminary steps, central tendencies of annualized data that related to stations in either the Refuge or WCA-2A were determined and expressed as geometric means, arithmetic means or both. (For example, see DEP/ERC 17, which provides a summary expressed in both a geometric and an arithmetic mean for WCA-2A for the years 1978-2000, with the exclusion of data for the years 1984, 1985 and 1992 when too little data was collected). A summary of total phosphorus concentrations measured at the five reference sites in WCA-2A appears in Table 5-1 of the 2003 Report in several sets: for individual years from 1978 to 2001; as a summary of the years 1994-2001 and as a summary of the years 1978-2001. A summary of total phosphorus concentrations measured at five stations in the Refuge from 1996 to 2001 appears in Table 5-2 of the 2003 Report. Other steps followed in the derivation of the numeric criterion. These appear in Table 5-3 of the 2003 Report. See the findings related to Table 5-3, including the application of a confidence interval, the selection of the upper limit in the interval, together with a rounding of that limit up to 10, discussed below. These will be explained in the discussion below that relates to Section (4) of the Proposed Rule. Other steps followed as well in the development of the Proposed Rule. Development of the Proposed Rule On July 20, 2001, the Department published a Notice of Rule Development in the Florida Administrative Weekly. The notice announced rule development to establish a numeric phosphorus criterion for the Everglades Protection Area, via the amendment of Rule 62-303.530 (Table: Surface Water Quality Criteria) and creation of Rule 62.302.540 (Water Quality Standards for Phosphorus Within the Everglades Protection Area). Pre-Hearing Stipulation, Ex. 4, No. 4. The parties stipulated to a series of publications of notices and continuances of hearings before the ERC that led to ERC approval of a proposed rule during the July 8, 2003, meeting. Id. at 5-7. During the interim, the ERC held numerous public meetings to consider testimony and other evidence in support of DEP's rule as proposed at that point. ERC considered evidence in support of Lower Cost Regulatory Alternatives submitted by other entities, including the Cooperative, that proposed adoption of a higher numeric phosphorus criterion in impacted areas than in unimpacted areas. On July 18, 2003, the Department published a Notice of Change on the Department's Official Internet Noticing Site, pursuant to Section 120.551, which included the rule as approved by the ERC and announced the availability of a Statement of Estimated Regulatory Costs ("SERC"). Id. at 9. On July 25, 2003, the Department published a second Notice of Change on the Department Official Internet Noticing Site, pursuant to Section 120.551. The notice corrected a scrivener's error in the Notice of Change as published on July 18, 2003. Id. at 10. Issues Related to the Proposed Rule Section (1) Purpose and Scope Section (1) of the Proposed Rule articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area but establishes, as the title reflects, water quality standards for phosphorus within the EPA. There is no disputed issue of fact or law as to Section (1) of the Proposed Rule. Section (2) Findings The Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Section (2) of the Proposed Rule is similar. It sets forth findings relevant to the initial finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the EPA must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Petitioners assert the factual inaccuracy of the sentence in Subsection (2)(b) that "Stormwater Treatment Areas (STAs) have reduced phosphorus concentrations to less that the goal of 50 ppb established in the Everglades Forever Act." The assertion is based on Table 4A-1 of the draft 2004 Everglades Consolidated Report. See Tribe/Friends Ex. 120, p. 2. The Table is a Summary of Stormwater Treatment Area (STA) hydrology and total phosphorus (TP) removal for Water Year 2003. For "Flow-weighted mean Outflow TP (ppb)" the table shows values for STA-1W, STA-2, STA-5 and STA-6 of 53, 17, 136 and 26 respectively; for All STAs, the table lists a value of 54. Two of the STAs for Water Year 2003, therefore, were in excess of 50 ppb and STA-5, in particular, was 172% above 50. There is, therefore, a basis for the Tribe/Friends' assertion. In support, their witness, Colonel Rice, after review of the table, concluded that "the most recent information published . . . [shows] that the finding is . . . not really being met." (Tr. 177) Mr. Nearhoof conceded that in the most "recent period," that is, as the Water Year 2003 data is reflected in Table 4A-1 of the Draft 2004 Consolidated Everglades Report, the total phosphorus levels have "crept back up a bit . . . ." (Tr. 2048) Considering the entire time the STAs have been operational (since 1994 for some and 1999 for the others), however, the range of total phosphorus flow-weighted mean outflow "has been generally down [to] . . . 20 to 30 part[s] per billion . . . ." Id. The long-term average of total phosphorus "flow-weighted mean outflow," therefore, has been below 50 parts per billion. Mr. Nearhoof's testimony is confirmed by the statement in the summary of "Chapter 4A: STA Performance and Compliance" of the Draft 2004 Everglades Consolidated Report that: "As of the end of Water Year 2003, the four operational STAs combined have reduced total phosphorus concentrations to about 40 parts per billion (ppb)." Tribe/Friends Ex. 120, p. 1. Petitioners also took issue with a portion of Subsection (2)(g) of the Proposed Rule: "[a]chievement of water quality standards for water quality projects required under the Everglades Forever Act can be most effectively and efficiently attained when integrated with CERP projects." The contested sentence in Subsection (2)(g) is similar to Section 373.4592(3)(c): It is the intent of the Legislature that implementation of the Long-Term Plan shall be integrated and consistent with the implementation of the projects and activities in the congressionally authorized components of the CERP so that unnecessary and duplicative costs will be avoided. Nothing in this section shall modify any existing cost share or responsibility provided for projects listed in s. 528 of the Water Resources Development Act of 1996 (110 Stat. 3769) or provided for projects listed in s. 601 of the Water Resources Development Act of 2000 (114 Stat. 2572). The Legislature does not intend for the provisions of this section to diminish commitments made by the State of Florida to restore and maintain water quality in the Everglades Protection Area, including the federal lands in the settlement agreement referenced in paragraph (4)(e). The "Long Term Plan" details the South Florida Water Management District's overall approach to achieving water quality goals in the Everglades Protection Area. DEP Ex. 25. See also § 373.4592(2)(j), Fla. Stat. Dr. Gary Goforth, the Chief Consulting Engineer for the Water Management District's Water Resources Management Group, detailed the importance of integrating water quality enhancement with CERP projects to avoid unnecessary and redundant costs with the following example: [T]he C-11 West basin . . . discharges water to the Everglades from . . . the Weston Area [near] Fort Lauderdale . . . That . . . basin has several CERP projects associated with it . . . that will reduce significantly the amount of water that eventually goes into the Everglades. So if we're to design and build a project that treats all of the water that presently goes through S-9, within just a very few years, that project would be unnecessary since the CERP project is going to be diverting virtually all of that water away from the S-9 pump station. (Tr. 3807) Dr. Goforth went on to explain that the practical impact of lack of coordination would be spending several hundred million dollars unnecessarily. Once CERP is implemented, moreover, there would be impoundments to assist in meeting water supply needs and diversion of the rest of the water southward. Ultimately, there is nothing about the Findings section as challenged in this proceeding that would support a determination of invalidity. Section (3) Definitions The Tribe and Friends challenge the definition of "impacted areas" in Subsection (3)(d) of the Proposed Rule. "'Impacted Areas' shall mean areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Soils are reservoirs of recent history, "so they do give . . . a longer term picture of what's going on in the system." (Tr. 3517) Dr. Jones believes soil "to be a very good indicator if used properly." (Tr. 3099) He has published papers with soil concentrations as a basis for demonstration of impacts to the Everglades. Nonetheless, he does not believe the Proposed Rule uses soil properly to determine impact because of the use of a single level of 500 mg/kg phosphorus concentration as a measure of impact, no matter what the soil type. Colonel Rice joined Dr. Jones in the criticism of the use of a single concentration level in soils because of soil type variability in the Everglades. North of the Tamiami Trail, that is north of the Park, the soil in the Everglades is predominantly peat. South of the Trail, it is a mixture of peat and marl and then becomes calcitic. For each of the soil types, Dr. Jones and Colonel Rice believe a different level of phosphorus is required to determine impact. The soil south of the Trail, moreover, may be more marl than peat or more peat than marl. Depending upon whether the mixture is more peat or marl, Dr. Jones would ascribe different concentration levels of phosphorus in the soil to determine whether there had been impact. Furthermore, there are other indicators, in the opinion of Dr. Jones and Colonel Rice, that should be considered to determine impact: phosphorus in the water column, dissolved oxygen levels, and changes in flora and fauna, particularly in the periphyton communities. Dr. Garth Redfield, on behalf of the District and disclaiming any depth of expertise in soils, conceded that in addition to soil the use of appropriate indicators other than soil would provide more information and so "could" (Tr. 3599) yield better accuracy. But his opinion as a scientist and expert in Everglades ecology is that the definition is reasonable since it was the product of careful deliberation at public workshops by experts from DEP, the District and other groups. Among those experts was Mr. Nearhoof. Mr. Nearhoof did not address directly the opinions of Dr. Jones and Colonel Rice that soil alone should not be used to determine impact. He did testify, however, that soil phosphorus tends to be a more stable and consistent parameter than surface water total phosphorus (one of the other indicators advanced by Dr. Jones) because soil integrates the effect of variability. Soil isopleths are consistent and stable and better able to define an impacted area than water column concentrations, which vary to a greater extent. The Department points out in its proposed order, moreover, that Section (5) of the Proposed Rule, which sets forth the method for determining the achievement of the numeric phosphorus criterion in areas of the EPA deemed impacted, states in its last sentence: Notwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and the annual geometric mean is less than or equal to 15 ppb. While this statement does not meet directly the criticism of Dr. Jones and Colonel Rice, it demonstrates that soils are not always the sole determinative parameter as to whether an area is impacted. Ambient water quality dictates that an area that would be classified as impacted based on a soils analysis be classified as unimpacted if ambient water quality data under the Proposed Rule so dictates. Finally, to the extent that impacted areas have a relationship with imbalance of aquatic flora and fauna, DEP 24A (Figure 5-1 in the 2003 Everglades Consolidated Report) and the discussion, above, concerning the reference site approach demonstrate that the threshold of visible imbalance in the location of the gradient transect monitoring sites in WCA-2 occurs where concentrations of phosphorus in the upper 10 cm of soil are somewhere between 400 mg/kg and a level above 600 mg/kg. The F5 station is located between contour lines marked 400 and 600. The E5 station is close to a spot that is below 400 mg/kg. It may be concluded that it is at a spot that is below 500 mg/kg. The F4 station is in an area that is between a 600 mg/kg contour and an 800 mg/kg. So is the E4 station. The points of imbalance determined by the transect studies in WCA-2, therefore, lends support to the definition of an impacted area as one whose phosphorus soil concentrations in the upper 10 cm exceed 500 mg/kg., that is, at a spot that is between the E5 and E4 stations (somewhere between 400 mg/kg and above 600 mg/kg) on the E transect and between the F5 and F4 stations (somewhere between a 400 to 600 mg/kg value and a value above 600 mg/kg) on the F transect. A weighing of the evidence leads to the conclusion that the Department by a preponderance of the evidence has proven that the definition is valid. Section (4) Phosphorus Criterion Section (4), of the Proposed Rule, concerns two concepts: establishment of the phosphorus criterion and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Establishment Establishment of the criterion is at the "heart" of the Proposed Rule. It is a numeric interpretation of the Narrative Criterion and, if adopted timely, avoids the statutory imposition of the Default Criterion. The numeric criterion of the Proposed Rule differs in specificity from the Default Criterion in the statute. The Default Criterion is silent as to whether the criterion shall be an "arithmetic" or "geometric" mean or some other statistical or non-statistical measure of concentration of a water body based on multiple sampling events such as "mode," "median," or "harmonic mean." Unlike the Default Criterion in the statute, the Proposed Rule specifies that the phosphorus criterion "shall be a long-term geometric mean of 10 ppb " The Department, supported by the other parties opposed to Petitioners, justifies the use of a "geometric mean" in the Proposed Rule's establishment of the criterion on a number of bases. For one, subsection (4)(e) of the EFA, "Evaluation of water quality standards," the very subsection of the EFA that mandates adoption of a "Phosphorus Criterion Rule," also mandates that compliance with the criterion be based upon a long-term geometric mean of concentration levels: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving waters in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. § 373.4592(4)(e)3, Fla. Stat. (Emphasis supplied) For another, a long-term geometric mean of concentration levels is a conventional way of determining numeric criteria, elements in water quality standards that govern ambient water quality, as well as compliance with the standards. If the Tribe and Friends' opponents are correct, that the statutory language with regard to "long-term geometric means" and "water quality standards" defeat a determination that the Proposed Rule constitutes an invalid exercise of delegated legislative authority on the basis of its use of long-term geometric mean in establishment of the criterion, then there is no need to find facts with regard to the criticism. Even if the other parties are correct, however, there is relevance to the criticism because it relates to Colonel Rice's opinion that a number of factors in the Proposed Rule allow a greater amount of phosphorus to enter the Everglades (use of a long-term geometric mean being only one of them) that when taken alone or together contravene the statute's Narrative Criterion. Statutory language aside, the Department and the other parties vigorously responded to the criticism at hearing by offering justification for the use of a long-term geometric mean. Findings of fact are also made with regard to the response. Criticism of the Use of a Geometric Mean In statistics textbooks when the word "mean" without a descriptor is used, it refers to the arithmetic mean. "Arithmetic mean" is also a term used interchangeably with "average" as in the average of a number of different values. An arithmetic mean accurately describes the average concentration levels of substances in a number of samples of water whose concentration levels vary. A geometric mean accurately describes the central tendency of concentration levels in samples of water whose data set exhibits a log normal distribution. A mean is one of several methods of expressing a measure of "central tendency," a central value around which less frequently observed high and low values fluctuate. (Other methods of expression of central tendency of a data set include modes and medians. Means, moreover, are not limited to geometric and arithmetic means, there is also a harmonic mean that is an expression of central tendency.) Because "central tendency" may be expressed by several methods, Dr. Ian McKeague, DEP's expert statistician, referred to it as a term that is not well-defined and that has a flexible meaning. (See Tr. 652) "[Central tendency] . . . in a vague sense . . . represent[s] . . . the center of a . . . collection of measurements or a distribution." Id. Which method of expression is most appropriate depends on characteristics of the data set or measurements it describes. For data sets that are log-normally distributed, the more statistically appropriate and preferred expression of central tendency is a geometric mean. "Arithmetic means" are determined by adding a series of values (or data points) and dividing the sum by the number of values (or data points). Using three numbers, an arithmetic mean would be arrived at by this formula: a + b + c = d; d/3 = the arithmetic mean In the formula, three values (a, b, and c) are added to reach a sum (d). The sum is then divided by the number of values (3) to calculate the arithmetic mean of the three values. To use numbers, by way of example: 1 + 4 + 16 = 21; 21/3 = 7. The arithmetic mean of the three numbers, "1, 4 and 16" is "7." A "geometric mean" is "the antilog of the mean logarithm of a set of numbers, or equivalently, the nth root of the product of n numbers." Tribe/Friends Ex. 46. The formula for calculating a geometric mean of three numbers is: x (b) x (c) = d; the cube or 3rd ? (in this example, the 3rd root is taken because it employs three values) of d = the geometric mean. The value "a" is multiplied by the value "b" which is multiplied by the value "c." The product of the three is "d." The cube root or "3rd root" is taken of d because there are three values in the data set. The cube root of "d" is the geometric mean. To use the same numbers as used in the example of an arithmetic mean, above: 1 x 4 x 16 = 64; the cube root or 3? of 64 = 4. For all practical purposes, the geometric mean of a data set is always lower than the arithmetic mean of the same data set. (Geometric means and arithmetic means will be the same when the data points are equal, an event that in the real world of water sampling almost never occurs. See Tr. 244.) In the examples used above, for instance, the geometric mean of the data points with values of 1, 4 and 16 is "4," a number lower than "7," the geometric mean for the same data points. A geometric mean of samples of concentration levels of a substance in water may bear little resemblance to physical reality. (Dr. Parkhurst, at page 449 of the transcript, testified that the geometric mean "has no physical meaning whatsoever." It is accepted that a geometric mean may have no physical meaning in some cases. But the testimony that it never has physical meaning is rejected as an overstatement in light of other testimony of record.) This point was made by Colonel Rice with an example similar to an example employed by Dr. Parkhurst in his paper admitted into evidence as Tribe/Friends 46: Arithmetic Versus Geometric Means for Environmental Concentration Data, Parkhurst, Environmental Science and Technology/News, Feb. 1, 1998, p. 92A. Colonel Rice referred to two jars of equal volumes of water, one of which contained one arsenic unit and the other of which contained 100 arsenic units.7 The arsenic concentration of the first bottle is one unit per bottle; the concentration of the second is 100 units per bottle. Pouring the two bottles together into a container double the size of the jars would yield a concentration of 50.5 units per the bottle volume. This concentration would be the same as the arithmetic mean of the two original bottles: 1 + 100 = 101. The sum of the two data points (101) divided by the number of data points (2) equals 50.5. In Colonel Rice's example, the geometric mean would be 10, a number far lower than the actual concentration expressed by the arithmetic mean of 50.5. The geometric mean would be calculated by multiplying the values of the two data points: 1 x 100 to equal 100. The square root or 2? (taken because there are two data points) of 100 equals 10. The example is cited because it so clearly illustrates several characteristics of geometric means versus arithmetic means. The example is problematic, however, when applied to the methodology used to derive the numeric phosphorus criterion and the achievement methodologies in the Proposed Rule. Neither the derivation nor the achievement methodologies are the result of taking two containers or "buckets" as they were referred to by a critic of Colonel Rice's testimony, and pouring them together. The derivation and the achievement methodologies involve taking many samples at number of stations over time. A comparison of the examples of Colonel Rice and Dr. Parkhurst shows another property of comparison between arithmetic mean and geometric mean. The greater the variability among data points in the data set used to calculate the arithmetic and geometric means, the greater the difference between the two. One reason that the geometric mean of a set of data points of concentration levels of substances in water may bear little resemblance to the actual concentration level of water is that the geometric mean discounts large values. It does so, moreover, without knowing the cause of the high value and without a conscious choice to exclude it for a justifiable reason. For example, a high value could be due to a high discharge of phosphorus that could cause degradation. On the other hand, a station from which a sample is taken could have become contaminated by a nearby alligator hole, a localized event that would justify exclusion of the sample's data because it has little, if anything, to do with phosphorus discharge into the EPA. Another problem with the use of a geometric mean is that it can reverse the appropriate way in which a set of data is to be regarded if there is much greater variability in one set than in another. An example was testified to by Dr. Parkhurst and appears at page 50 of the Tribe/Friends proposed recommended order. Assume that the values represent parts per billion of phosphorus in samples of Everglades water: Data Set A Data Set B 2, 20 10, 11 Total Value=22 Total Value = 21 Arithmetic Mean = 11 Arithmetic Mean = 10.5 2 + 20 = 22; 22/2 = 11 10 + 11 = 21; 21/2 = 10.5 Geometric Mean = 6.32 Geometric Mean = 10.49 2 x 20 = 40; 2?40 = 6.32 10 x 11 = 110; 2?40 = 10.49 In Data Set A, the concentration, as reflected by the arithmetic mean, is higher than in Data Set B: 11 ppb versus 10.5 ppb. Yet, the geometric mean of Data Set A (6.32) is lower than the geometric mean of Data Set B (10.49). The reversal is due to the higher variability in Data Set A (a difference of 20 between 2 and 22) than in Data Set B (a difference of only 1 between 10 and 11). Support for Use of a Geometric Mean The true long-term concentration of a chemical constituent within a water body cannot ever be known precisely. Part of the problem is the enormous variability in ecological systems. As Dr. Coleman explained, "there is enormous variability in ecological systems, whether they're marine, arctic, freshwater, terrestrial, any system. And a high degree of variability means that there's an enormous amount of uncertainty." (Tr. 1012) The true long-term concentration of a chemical constituent of a water body, therefore, must be estimated from a set of samples. Frequency distribution, a characteristic of data, can be plotted by preparing a graph with values of the parameter on the horizontal or x-axis and the observed frequencies of these values on the vertical or y-axis. As plotted, the data points in a data set may exhibit a normal distribution on the graph: the distribution of data points starts out low, rises to a central but rounded peak, and then returns to smaller values. Plotted on a graph, the result is a bell-shaped curve. Data points showing concentration of chemical constituents in water, and environmental data in general, often exhibit log-normal distribution rather than normal distributions. A log-normal distribution differs from a normal distribution in that instead of resulting in a bell-shaped curve, it results in a right-skewed or long-tailed distribution: the right end of what would have been a bell curve (where higher values are represented) is pulled to the right. A log-normal distribution may have an extremely long tail skewed to the right of the graph when there are infrequent but very high valued data points. In the case of phosphorus concentrations in a water sample, a long-tail would be created by rare but high level of concentrations in samples. When Department staff plotted the data used to establish the numeric phosphorus criterion, the data set demonstrated characteristics more closely approximating a log- normal distribution than a normal distribution. The data set only "approximated" a log-normal distribution because "an actual log-normal distribution is a . . . hypothetical construct." (Tr. 1633) When it comes to plotting data from sampling events "there is no perfect log normal distribution." Id. But the data collected by DEP "clearly, and very demonstratively, are . . . log-normally distributed [as opposed to normally distributed]." (Tr. 1634) Certain statistical parameters are appropriate for use with log-normally distributed data. One of them is the geometric mean. As Dr. Ian McKeague, the Ralph A. Bradley Professor of Statistics as Florida State University, testified in answer to the question "[w]hen might a geometric mean be used in statistics?" (Tr. 645): Especially when you're dealing with distributions that are called long-tailed. For example, log-normal, where there's . . . an area with central tendency, and then there's a long tail, as you see in a log normal -- typically -- very often found . . . in environmental data. Id. There is no statistical reason one would ever use an arithmetic mean as a measure of central tendency, given data demonstrating a log-normal distribution. While a geometric mean discounts high values, an arithmetic mean, on the other hand, may be too influenced by high values if the aim is to find central tendency. A high value, especially if data points are few, will raise the arithmetic mean substantially. In particular, in the case of data that exhibits a log-normal distribution, the arithmetic mean might be significantly removed from point of central tendency if there were some data point that was unusually high in relation to the remainder of the data. It was statistically appropriate, therefore, that a geometric mean be used in establishment of the phosphorus criterion. Furthermore, as testified to by Dr. McKeague, it would be statistically inappropriate to mix parameters in a single endeavor such as for protecting the Everglades from imbalance by derivation of a criterion and assessing compliance. In other words, it would not be appropriate to use an arithmetic mean to derive the criterion and then a geometric mean, as required by the EFA, to assess compliance. These opinions of Dr. McKeague were supported by Dr. Sielken. Natural systems such as the Everglades are subject to significant spatial and temporal variation. When taking water samples across a network of monitoring stations, water column total phosphorus concentrations will most certainly vary spatially from station to station or temporally from sampling event to sampling event at the same station. Seasonal changes, localized disturbances and extreme climatic-related events like fire, flood or hurricane increase variability. Phosphorus concentrations measure in samples of water taken from the Everglades, therefore, may range from relatively small to relatively large. Still they tend toward a central value characteristic of phosphorus concentration in most of the Everglades most of the time, a determination of which is the aim of water quality standards concerned with ambient water quality. Application of the geometric mean to a data set demonstrating a log-normal distribution results in a more accurate estimate of the true central tendency of the population of measures and therefore a more accurate estimate of the concentration of water column total phosphorus in the areas sampled over most of the time. The Tribe and Friends suggest that an arithmetic mean should be used for establishment of the phosphorus criterion. Since compliance with the criterion by use of a geometric mean is mandated by the EFA, however, using an arithmetic mean for establishment of the criterion would amount to a mixture of statistical parameters. Mixing statistical parameters is "not . . . natural . . . statistically. It's not appropriate . . . one tells . . . little about the other." (Tr. 668) An arithmetic mean, moreover, has its own problem that accompanies its virtue of taking into account all values including rare but very high ones. If a high value is due, for example, to airboat traffic near the sampling site that has stirred up the sediment and caused a high reading due to reflux and the sample has escaped screening, it is justifiable to exclude it because of limitations on data collection.8 (See findings, below). An arithmetic mean would not exclude this high value when it should be excluded. The Numeric Value In addition to the decision to describe the phosphorus criterion in terms of a long-term geometric mean, DEP also had to establish a numeric value. There were several steps in the process of deriving a numeric value that followed the selection of the references sites. Means, both arithmetic and geometric, of reference conditions at individual reference sites and at all reference sites taken together are reflected in DEP/ERC Ex. 17 and several other exhibits that contained Table 5-3 of the 2003 Everglades Consolidated Report. The 2003 Everglades Consolidated Report was admitted into evidence in its entirety as District Ex. 16. (It bears an exhibit label marked "WMD 16.") Table 5-3 on page 5-14 of the report is entitled, "Comparison of results of phosphorus criterion derivation for WCA-2A and WCA-1 using several methods and data sets." The Table was also admitted into evidence as an excerpt from the 2003 Everglades Consolidated Report both as Tribe and Friends Ex. 119-B and as DEP Ex. 24B. Conclusions were drawn from the Evaluation of WCA-2A and Refuge Data as reflected in the 2003 Everglades Consolidated Report. These conclusions appear at page 5-13 and page 5-14 of the 2003 Everglades Consolidated Report. In these conclusions appears the following sentence: "Based on EFA requirements, the annual geometric mean TP [total phosphorus] concentrations are used to characterize the P [phosphorus] regime in the minimally impacted areas of the Refuge and WCA-2A." WMD Ex. 16, p. 5-13 (emphasis supplied). Table 5-3 contains a column entitled "1978-2001 Reference site data minus three years with less than four measurements." (It was appropriate to delete the data from the three years referenced because there was not enough of it.) It has essentially three columns. The first bears the heading "Central Tendency of Annual Geometric Means" and is divided into "Measure" and "Value." The second bears the heading "95% Confidence Interval (Mean with the sign for 'plus or minus')." The third bears the heading "Upper Limit." In the column referred to in paragraph 5., above, adjacent to "Mean" (as opposed to "median") is shown a Central Tendency of Annual Geometric Means Value of 8.51. This number, 8.51, is the geometric mean of reference conditions, a description of central tendency in all of the reference sites at which there was no visible imbalance. The Department chose 8.51 as a starting point from which to derive the numeric phosphorus criterion. The Department then employed another statistical tool in the derivation of the criterion: a confidence interval. After determination of the interval, DEP chose the upper limit in the interval and then rounded that number to 10, as explained below. Determining long-term geometric means of reference conditions that exhibit balance, rather than seeking a threshold of imbalance (which, in essence, "switches" the hypothesis, tr. 3288) had an impact on the derivation of the numeric criterion. The approach allowed DEP to raise the numeric value from the long-term geometric mean revealed by the data rather than to lower it as would have been the usual process had the geometric mean been associated with a threshold of imbalance. Confidence Intervals and Limits Even with relatively large data sets used to derive a value, the analysis of the data and the calculations used to determine the value rarely, if ever, results, in certainty that the value produced by the data is absolutely correct. To provide a level of confidence about the parameter sought to be derived, DEP resorted to a confidence interval. A mathematical characteristic derived from a data set, the confidence interval is an expression of the probability that the true value (in the case of the Proposed Rule, the "true" value reflecting reference conditions or balanced populations of flora and fauna) is within a statistical range or interval. A confidence interval, therefore, is a statistical tool that provides probabilities of confidence that the parameter sought is captured within the range of values within the interval. Confidence intervals are expressed in terms of percentage. The percentage values may vary. For example, in setting toxin thresholds a confidence interval of 75% is sometimes used. (The evidence indicated that percentages of confidence between 90 and 99% are most common.) With regard to derivation of the phosphorus criterion, a 95% confidence interval was applied. It was scientifically sound to apply a 95% confidence interval. Such a broad interval is commonly applied in exercises of the type undertaken that led to the Proposed Rule. The 95% interval as reflected in Table 5-3 and DEP/ERC Ex. 17 was 8.51 plus or minus 1.03 or an interval that spanned from its lowest value to its highest value a total of 2.06 units. There is a 95% probability that the true value of the geometric mean of phosphorus levels under reference site conditions, therefore, will fall between 7.48 and 9.54 ppb, that is, in a range 1.03 above and below the annual geometric mean of 8.51. At the same time, there is a 2.5% confidence level that the true value is above the interval and a 2.5% confidence level that the true value is below the interval or a total confidence level of 5% that the true value is outside the interval. The lowest number in a confidence interval is referred to as the "lower confidence limit" or the "lower limit"; the highest number in the interval as the "upper confidence limit" or "upper limit." Using the geometric mean of 8.51, the lower confidence limit of the 95% confidence interval is 7.48 (8.51 minus 1.03). The upper confidence limit is 9.54, or as shown on the table, 9.55 (due to a rounding error, perhaps, or decimals beyond the 9.54 not expressed on the chart exhibiting the data analysis.) The upper limit will be referred to, therefore, as 9.55 as reflected on the table. In its process of deriving the numeric phosphorus criterion, the Department selected the highest number or the upper confidence limit within the 95% confidence interval revealed by its data: 9.55. The Department chose the upper confidence limit on the basis that the substance tested for is a nutrient and on the basis that the 8.51 number derived from the data reflected reference conditions of balance rather than a threshold of imbalance. Had the substance been a toxin, DEP, in all likelihood, would have determined a threshold of response inimical to human health and then selected the lower limit because when it comes to toxins, any error that might be made should favor human health. Dr. Parkhurst criticized the selection by DEP of the upper confidence limit. He explained that protection of the resource would be accomplished more likely by selecting the geometric mean (8.51) than the upper limit or even more surely by selecting the lower limit (7.48). Selection of the upper confidence limit, in his words, "is protecting the polluter essentially." (Tr. 501) During his testimony, Dr. Parkhurst was asked if an upper limit was used to set the criterion in the Proposed Rule. He answered in the affirmative "on the basis of three pieces of information" (tr. 501): In my deposition, I talked about a recent article in a journal of the American Statistical -- Statistical Association called Chance. It's a paper by two authors, the last names are Q-i-a-n and L-a-v-i-n-e. That paper says in it that the DEP set its criterion of 10 by finding a best estimate of central tendency of the geometric mean to be 8.5, and then they used the upper limit of that, which was 10, to set the criterion. That's one piece of information. The second piece of information is that several of the depositions that I've read by DEP, and other people, said that they had used confidence intervals in this way. And thirdly, Table 5-3 of the 2003 Consolidated Everglades Report shows that that's being done. (Tr. 501-502) Dr. Parkhurst was then asked questions about Table 5-3. After being shown Table 5-3 at hearing, the following question and answer occurred during Dr. Parkhurst's testimony: Q. Now, what does this table tell you about the upper confidence limit? A. What it tells me is totally consistent with what Qian and Lavine said, mainly that the central tendency of the annual geometric mean, which is another way of saying, in some sense, the best estimate of what the geometric mean would be at these threshold spots, was 8.51. (Tr. 503) Objections to this testimony on the basis of its being beyond the witnesses' expertise were overruled. (Tr. 504- 506) No objection to Dr. Parkhurst's testimony about Table 5-3 was made contemporaneous with the testimony, but during cross- examination, the District moved to strike the testimony about Table 5-3 on the basis of surprise. (Tr. 555) The motion was granted. But it was also made clear that Dr. Parkhurst's testimony about the confidence interval independent of reference to Table 5-3 was not stricken. See Tr. 574. That testimony, based on the two sources other than Table 5-3, concluded that after applying a confidence interval to a geometric mean of 8.5, an upper limit was chosen to reach the criterion's number of 10. (See Tr. 501) During DEP's case Table 5-3 was introduced into evidence as DEP Ex. 24B and discussed. A table that contained the precise information in Table 5-3 that was discussed by Dr. Parkhurst was also introduced into evidence by DEP and admitted, DEP/ERC Ex. 17. It contains more information than Table 5-3 in that it "is a cross comparison of the . . . use of the arithmetic mean versus the use of geometric mean for the derivation of the criterion." DEP/ERC Ex. 17 reveals that the "Mean + 95% Confidence Interval" for "All Reference Sites" expressed as a geometric mean is 9.55; as an arithmetic mean, it is 12.50. Like Table 5-3, DEP/ERC Ex. 17 shows a geometric mean for all reference sites as being 8.51, and the addition of a 95% confidence interval of 1.03 above the 8.51 to arrive at an upper limit of 9.55. Selection of the upper limit in the 95% confidence interval did not conclude DEP's process in producing the ultimate number for the criterion. DEP rounded the 9.55 up so that the process finally yielded a numeric phosphorus criterion as a geometric mean of 10. The rounding up was also criticized by Dr. Parkhurst: [I]nstead of using their best estimate of what the geometric mean would be at these reference sites, [DEP has] used a value that's a whole unit higher than that. . . . [I]n fact, they've . . . rounded . . . up to 10. . . . [W]hat's happened is [DEP] changed the best estimate of 8.5 to a geometric mean of 10. (Tr. 504) . . . By using that value, [DEP is] underregulating and overprotecting [the discharger of phosphorus.] As found above, the threshold approach would not have supported the selection of the highest number in the 95% confidence interval that surrounded the geometric mean revealed by the data. But as DEP made clear, the numeric criterion was not derived on the basis of a threshold approach. It was derived from a reference site approach. The Department sought a value from reference site conditions, conditions at which imbalance was sure not to occur. Had a threshold of imbalance been the parameter sought in the calculations, "you'd be concerned with the lower confidence [limit]." Id. Selection of the highest number in the 95% confidence interval (9.55) that surrounds the geometric mean (8.51) and then rounding that number up to 10 achieves another purpose besides deriving a numeric value which is a component of an interval within which balance is sure to occur. It also helps to ensure that a value in excess of 10 ppb reflects a true exceedence of the criterion and not just expected variability around the long-term geometric mean. See Respondent's Proposed Order, p. 40. In other words, the selection of the upper limit in the confidence interval and the rounding of that number to 10 helps to avoid false positives. (See Tr. 1711-1714) U.S. Sugar, New Hope, and the Coop directly confront Dr. Parkhurst's suggestion that the upper limit in the 95% confidence level should have been replaced by the geometric mean revealed by the data or the lower limit in the 95% confidence interval: Setting the criterion at the population geometric mean would result in at least a 50% chance that the actual long-term geometric mean of unimpacted sites would be above the criterion. [Citations omitted.] Setting it at the lower confidence limit would be even more improper. That would result in a 95 percent chance that the unimpacted reference sites would be above the criterion over the long-term, with no actual change having occurred at the sites that the Department identified as unimpacted. (Proposed Final Order submitted by U.S. Sugar, New Hope and the Coop, p. 90) This argument again raises avoidance of false positives as a justification for selecting the upper limit of the 95% confidence level and then rounding that number to 10. The argument is correct as far as it goes but there is another half to the story: the effect on false negatives. The record does not reveal whether DEP determined a precise geometric mean of the threshold of imbalance. But it may be inferred that it is a long-term geometric mean with a value above 8.51. It is clear from the record, therefore, that setting the numeric criterion at the geometric mean of 8.51, rather than at 9.55, the upper limit of a 95% confidence interval, would result in a greater avoidance of false negatives. Setting the numeric criterion at the lower limit of the confidence interval provides even more assurance that false negatives (reports of no imbalance in sites that do not have balanced populations of flora and fauna) do not occur. An understanding of the full picture proves Dr. Parkhurst's point. It is desirable, of course, to avoid false positives. There is a caution in the EFA, moreover, that the criterion "shall not be lower than the natural conditions of the Everglades Protection Area," paragraph (4)(e)2. of the EFA, a warning not to set the numeric criterion too low. But there is no caution in the EFA that a percentage of false positives are to be avoided within some acceptable range of costs. In contrast to the lack of language in the EFA concerning the avoidance of false positives stands the Narrative Criterion. The goal of the Narrative Criterion, after all, is to ensure that phosphorus-rich waters discharged into the EPA do not cause an imbalance in flora and fauna. It favors, therefore, the avoidance of false negatives over the avoidance of false positives. Avoidance of false positives is not a basis for establishment of the numeric phosphorus criterion. Furthermore, moving away from the geometric mean established by the data in a direction that provides less certainty that false negatives will be avoided threatens contravention of the Narrative Criterion. There are bases other than avoidance of false positives in the record, however, for why a geometric mean of 10 does not contravene the Narrative Criterion. Other Bases Mr. Nearhoof offered the first basis. In addition to the geometric mean of 8.51 that led to an upper limit of 9.55, there are seven other upper limits expressed as either a mean or a median for four different data sets on Table 5-3 of the 2003 Everglades Consolidated Report. Three of the data sets are for Water Conservation Area 2A: "1994-2001 References site data"; "1978-2001 Reference site data [that includes data from the period for Station U3]"; and "1978- 2001 References site data minus three years with less than four measurements." The fourth data set is for Water Conservation Area 1: "1996-2001 Reference site data." See DEP Ex. 24A. In addition to the upper limit of 9.55 already discussed for the 1978-2001 Reference site data that excludes data for three years, upper limits of 95% confidence intervals around central tendencies expressed as means and medians for each of these data sets are 8.69, 8.77, 10.57, 9.42, 9.25, 10.08, and 10.00. The overall average result reflected on the table, of the upper limits is 9.54. Including the 9.55 value used by DEP in the derivation of the criterion, two of the values on the chart are above 10, one is exactly 10, three are between 9 and 10 and two are below 9. Mr. Nearhoof offered DEP's evaluation of all of these values: . . . [W]hen you do all of those calculations, that number essentially bounces all around 10. . . . [T]hat's exactly why we concluded that 10 was the number. And I think we clearly documented that on all of our technical documents. We could probably collect data for another decade and calculate this several different ways, and it's going to continue to bounce around 10. We, therefore, chose the simple means . . . of adopting the 10. (Tr. 1667) These upper confidence levels, however, as detailed by Dr. Parkhurst, suffer from the same problem as the one selected: their use reduces the risk of false positives but increases the chance of false negatives. The better basis offered by Mr. Nearhoof is that other studies were corroborative that a long-term geometric mean of 10 would be protective. For example, the lower confidence levels of studies that sought to establish thresholds, such as a study conducted by the Duke University Wetland Center, yielded a number around 10. (See Tr. 1671 and 1903) The Coop and New Hope offered testimony from Sujoy Roy, Ph.D., and Robert Sielken, Ph.D., that the long-term geometric mean of 10 was a highly conservative number and that a threshold of imbalance was likely to be at a much higher number. On the basis of an independent analysis of DEP's water quality and biological data, Dr. Roy recommended that a 30 ppb standard be adopted for impacted areas and an annual geometric mean of 16 ppb for unimpacted areas be adopted, the lower end of what he believed to be the threshold of imbalance. In his view, these levels would have been adequate to sustain fish and wildlife in the Everglades. (Tr. 1235) Conspicuous by its absence from his testimony is a reference to protection of flora, in general, and periphyton mats, in particular. Aside from the lack of mention of the effect on flora and periphyton, Dr. Roy's opinion that a long-term geometric mean of 10 ppb is a highly conservative value is rejected because his numbers are too much at variance with other evidence of record. Dr. Sielken testified before the ERC in the hope of convincing it and DEP that the numeric criterion, expressed as a geometric mean, should be at a number higher than 10, which in turn would raise the numbers in the Four Part Test. His calculations, based on a different analysis than that employed by DEP, led him to the opinion that the numeric phosphorus criterion in the Proposed Rule is too conservative and will lead to an excessive number of false positives. Dr. Sielken's calculations utilized a "prediction" interval instead of the confidence interval used by DEP. His calculations lead to the conclusion that, from a reference site approach, a geometric mean of 13 would be a more appropriate number than 10. Again, such a number would reduce false positives but any reduction in false positives by bumping the number up carries with it an increase in false negatives. The more the number is raised from the geometric mean DEP calculated, the greater the threat of contravention of the Narrative Criterion. Donald M. Kent, Ph.D., was accepted as an expert in wetlands science and wetlands ecology. Dr. Kent cited an example in which periphyton disappeared in WCA-2A but then reappeared. (See Tr. 3932) The example contradicts any implication to be taken from the chain of events described by Dr. Jones, that imbalance in flora and fauna inevitably occurs once the step is reached where periphyton mats disintegrate. Nonetheless, Dr. Kent's opinion is that imbalance in flora and fauna occurs when periphyton completely disappears and change is visible among vascular plants. He explained at hearing: . . . I found that periphyton and bladderwort were particularly sensitive, and seemed to be the first -- first change that was evident . . . in the field when the phosphorus levels got too high Another reason is that . . . macroinvertebrates . . . insects and so forth, and . . . fish, those changes seem to be coincident with . . . major changes in vegetation. (Tr. 3947) There is no need to "look[] at whether the number of insects is changed, or the number of fishes . . . ." (Tr. 3948) Once change is observed in bladderwort or permanent change in periphyton, imbalance in flora and fauna will follow. Dr. Kent's opinion is that there is a range at which periphyton and bladderwort become imbalanced because of phosphorus in the water column. A summary of data provided by DEP, the District and Duke University demonstrated that "naturally occurring periphyton was imbalanced at anywhere from 14 to 27 parts per billion." (Tr. 3951). That the number "14" is the low end of a range at which imbalance of periphyton occurs is revealed by his testimony and U.S. Sugar Ex. 4A. Dr. Kent, moreover concluded that "15 [is] a nice safe place" (tr. 3959) for the numeric phosphorus criterion. Dr. Kent's work validates DEP's determination that balance will be maintained if there is compliance with a long-term geometric mean of 10. Dr. Kent concluded that compliance with the numeric phosphorus criterion would not allow waters in the EPA to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. While DEP did not give a number at which imbalance would occur, the reference sites were in areas that were minimally impacted and close to impacted areas. Thus, DEP's number at which balance is maintained must be relatively close to a number at which imbalance occurs. Unlike Dr. Roy, Dr. Kent's numbers for imbalance are relatively consistent with DEP's conclusion based on maintenance of balance. Dr. Kent was not the only wetlands ecologist to testify that the Proposed Rule's establishment of the numeric phosphorus criterion as a long-term geometric mean of 10 will not cause imbalance. Other witnesses accepted as experts in wetlands ecology or Everglades ecology who offered the same ultimate opinion were Dr. Redfield and Environmental Administrator Frydenborg. Furthermore, Mr. Nearhoof, experienced in Everglades issues, offered the same opinion. In contrast, no wetlands ecologist testified that the Proposed Rule will cause an imbalance. The only wetlands ecologist offered by the Tribe and Friends was Dr. Jones. He was precluded from testifying about any criticism of the Proposed Rule on the basis of the pre-hearing ruling discussed in the Preliminary Statement of this order because of the Tribe's refusals with regard to discovery. After DEP, the District, U.S. Sugar, New Hope and the Coop had rested their cases-in-chief, the Tribe and Friends re- called Colonel Rice. The questions asked of Colonel Rice concerned DEP Ex. 19 which consisted of charts related to total annual inflows, annual average stage and total annual rainfall in WCA-2 and WCA- His testimony did not relate to any of Mr. Nearhoof's testimony or Dr. Kent's testimony as other bases for why a long- term geometric mean of 10 was appropriate for the Proposed Rule's numeric phosphorus criterion. Choosing to rely on the evidence presented in the opening phase of the hearing when the Tribe was required to go forward, the Tribe and Friends did not present any further evidence in response to the opinions offered by Dr. Kent, Dr. Redfield, Mr. Frydenborg and Mr. Nearhoof with regard to the numeric phosphorus criterion. In the final analysis, Colonel Rice's opinion that the Proposed Rule's numeric phosphorus criterion will lead to imbalance, must be weighed in the context of the entire record and against the opinions of three wetlands or Everglades ecologists and Mr. Nearhoof, an expert with a depth of experience in Everglades issues. As weighty as Colonel Rice's opinion may be, it is outweighed by the opinions of others. Achievement The Proposed Rule requires that achievement of the phosphorus criterion take into account deviations above the long-term geometric mean of 10 ppb if attributable to any of three categories of events: (1) the full range of spatial and temporal variability; (2) statistical variability inherent in sampling and testing procedures; or (3) higher natural background conditions. Achievement is to be determined by the methods in Subsection (5) of the Proposed Rule. Section (5) Methods for Determining Achievement of the Criterion in the Everglades Protection Area The Proposed Rule sets forth the methods for achievement for both impacted and unimpacted areas. Water Bodies The methods used depend on the "water bodies." The Proposed Rule lists the four "water bodies" into which the EPA is divided: Water Conservation Area 1 (the Refuge), Water Conservation 2, Water Conservation Area 3, and Everglades National Park. Subsection (5)(b) governs achievement in the Park and the Refuge. Subsection (5)(c) governs the achievement in WCA-2 and WCA-3. Achievement in the Park and the Refuge Subsection 5(b) tracks closely the language of Section 373.4592(4)(e)3: For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively of the [Settlement Agreement], that recognizes and provides for incorporation of relevant research. The Proposed Rule adds a caveat. Should the Settlement Agreement be rescinded or terminated, achievement of the criterion is to be assessed as in the remaining portions of the Everglades. For the Refuge, paragraph (5)(b)1., of the Proposed Rule states that: The Department shall review data from the interior marsh stations established pursuant to Appendix B of the Settlement Agreement and will determine that the criterion is achieved if the Department concludes that average phosphorus concentrations at interior marsh stations will not result in a violation of the total phosphorus concentration levels established for the interior marsh stations using the methods set forth in Appendix B. In addressing discharges into the Refuge, the paragraph applies the concept of "technology based effluent limitations" or "TBELs." Phosphorus concentrations within the inflows to the Refuge that are above the average for the interior marsh stations will not be considered a violation of the numeric criterion--even if they exceed the average phosphorus concentrations for the interior marsh stations--so long as they meet the TBEL established for the discharge. In Section 373.4592(3)(b) of the EFA, the Legislature concluded that the Long-Term Plan provides the best available phosphorus reduction technology ("BAPRT"). The TBEL provision of the paragraph recognizes the possibility that discharges into the Refuge may exceed the numeric criterion even when complying with a TBEL derived from applying the BAPRT. While discharges exceeding the criterion but satisfying a TBEL may not be considered violations, the TBEL provision does not eliminate the requirement to assess achievement applying Appendix B of the Settlement Agreement as set out in the first provision of the paragraph. In fact, as explained by Everglades TOC Chair Garth Redfield, the Settlement Agreement calls for long-term phosphorus limits of 7 ppb (measured as a geometric mean), below the proposed numeric criterion of 10 ppb applicable elsewhere in the EFA. Assessing achievement of the numeric phosphorus criterion in the Park, as directed by the EFA, is based upon the limits established in Appendix A to the Settlement Agreement. Because of the influence of specific discharge structures, assessment is related to flow in the Park with long-term phosphorus levels set at 8 ppb as a flow-weighted mean. Achievement in WCA-2 and WCA-3: The "Four Part Test" For those parts of the EPA not falling within the Park or Refuge (WCA-2 and WCA-3), Section 373.4592(4)(e)3., states in pertinent part: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving water in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. (Compliance with the Proposed Rule cannot be determined, obviously, until the stations are set and they are not yet set.) The achievement methodology for "unimpacted areas" is contained in paragraph (5)(c)1., of the Proposed Rule; for "impacted areas" in paragraph (5)(c)2. There are two differences between the methodologies for unimpacted areas and impacted areas. First, "[a]chievement of the criterion in unimpacted areas in each WCA shall be determined based upon data from stations that are evenly distributed and located in freshwater open water sloughs similar to the areas from which data were obtained to derive the phosphorus criterion." Paragraph (5)(c)1., of the Proposed Rule. There is no requirement that the stations in impacted areas be in sloughs similar to the areas from which data were obtained to derive the criterion. Second, with regard to impacted areas, "[i]f . . . limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (7) [of the Proposed Rule] . . . are met." Subparagraph (5)(c)2., of the Proposed Rule. No clause providing such an escape from compliance with achievement of the criterion is applicable to unimpacted areas. Discussed earlier in this order with reference to the definition of "impacted area" based on soils, there is one more clause that is not part of the "Four Part Test" applicable to both unimpacted areas and impacted areas. It is the final sentence in the paragraph (5)(c) of the Proposed Rule: "[n]otwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and annual geometric mean is less than or equal to 15 ppb." The remainder of the Proposed Rule's section on the achievement methodologies in WCA-2 and WCA-3 contain the Four Part Test applicable in both unimpacted and impacted areas. Each of the four parts of the test must be met for there to be achievement of the criterion except that: Consistent with subsection (4) above, exceedences of the above provisions shall not be considered deviations from the criterion if they are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Paragraphs (5)(c)1., and 2., of the Proposed Rule. The first part of the test is the primary achievement test. It converts the "long term" geometric mean mandated by the statute for achievement of the criterion to a "five year" geometric mean: "[both impacted and unimpacted areas] of the water body will have achieved the criterion if the five year geometric mean is less than or equal to 10 ppb." See paragraphs (5)(c)1., and 2., of the Proposed Rule. To protect against imbalance, since a "long term" geometric mean of "five years" is employed in the first part of the Four Part Test, three additional provisions (Parts 2, 3 and 4 of the Test) must be met. The second, third, and fourth parts of the Four Part Test, therefore, are backstops to ensure achievement of the narrative criterion and to protect the resource. Part 2 of the Four Part Test or "the three of five" test, see DEP Proposed Order, p. 44, is that "the annual geometric mean averaged across all stations is less than or equal to 10 ppb for three of five years[.]" Subparagraphs (5)(c)1., a., and 2.,a., of the Proposed Rule. Part 3 of the Four Part Test or "the one-year 11" test, id., is that "the annual geometric mean averaged across all stations is less than or equal to 11 ppb[.]" Subparagraphs (5)(c)1.,b., and 2., b., of the Proposed Rule. Part 4 of the Four Part Test or "the one-year 15 test," is that "the annual geometric mean at all individual stations is less than or equal to 15 ppb. Individual station analyses are representative of only that station." Colonel Rice criticized the Four Part Test based on its discounting of high values by use of a geometric mean as the measure of central tendency and the manner in which the test takes into account spatial and temporal variability. He offered an example of 99 stations in pristine areas and one in an area with concentration readings of 200 ppb in which degradation was occurring. The example was hypothetical, since it is not known "where they're going to be finally . . . ." (Tr. 251) The degradation "would be masked as far as this compliance methodology goes." Id. Whatever validity Colonel Rice's criticism has with regard to protection of the resource ultimately, the Four Part Test follows the statute. It employs a "long-term" geometric mean, as mandated by the EFA, in its primary step, the first part of the test, when it calls for achievement "if the five year geometric mean is less than or equal to 10 ppb." Subsections (5)(c)1., and 2., of the Proposed Rule. It accounts, moreover, in Part (3) of the test, the "one-year 11" provision, for spatial variability as required by the EFA, when it calls for an annual geometric mean "across all stations," subparagraphs (5)(c)1., b. and 2.,b., of the Proposed Rule. And, in Part (2) of the test, the "three of five" provision, it accounts for temporal variability as required by the EFA when it calls for a geometric mean at a level "for three of five years." Subparagraphs(5)(c)1.,a., and 2.,a., of the Proposed Rule. Adjustment of Achievement Methods Subsection (5)(d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the Everglades and to prevent false positives. Data Screening Subsection (5)(e) of the Proposed Rule governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions not consistent with determining an accurate estimate of ambient water column total phosphorus. Data excluded under subsection (5)(e) are not discarded under the Data Quality Screening Protocol referred to in paragraph (5)(e)2. "[I]t's extremely important [that what is done] with any data set is clearly documented " (Tr. 2220) The purpose of such documentation is transparency "so that all interested parties can determine what [DEP] is doing and why . . . ." Id. To that end, the Data Screening Protocol, which is incorporated by reference in Section (8) of the Proposed Rule requires that "[t]he [Department/District] shall note for the record any data that are excluded and provide any details concerning the reasons for excluding those data." (Tr. 2220) It is proper to exclude data when a sample is not representative of the ambient total phosphorus concentrations in the EPA because of variability both within the Everglades system, itself, and variability outside the system that is associated with the methods of data collection and measurement. An explanation was offered at hearing by Russell Frydenborg, a DEP Natural Science Manager. Mr. Frydenborg has considerable relevant experience with the State over many years that, among many aspects, involves the assurance of scientific quality. Mr. Frydenborg explained that in addition to the natural variability in the Everglades environment caused by rainfall, biological and seasonal changes and the like, there is also variability associated with measurement due to error. For example, tap water has significantly higher levels of phosphorus than does the natural background water of the Everglades. It is not unusual for tap water to have a range between 40 and 80 micrograms of phosphorus per liter (40 to 80 ppb). Tap water used to rinse measurement gear will leave a residue of phosphorus. The contamination of equipment such as bottles by phosphorus residue left after rinsing will produce artificially high levels of phosphorus in samples. Data obtained by means of contaminated equipment must be excluded. Subsection (5)(e) excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Paragraphs (5)(e)1., and 2., address measurement error. Paragraph (5)(e)1., requires the exclusion of data that fails to comply with the Chapter 62-160, the Department's Quality Assurance Rule (the "QA Rule.") The purpose of the QA Rule is to assure that data used by the Department are appropriate and reliable, and collected and analyzed by scientifically sound procedures. The QA Rule encompasses a comprehensive quality assurance program that addresses quality control in the field and the laboratory. Paragraph (5)(e)2., excludes data if it fails to meet the Department's "Data Quality Screening Protocol," developed as part of the criterion development process to address quality assurance concerns of particular importance when sampling phosphorus in the water column. For example, the protocol requires that water samples not be taken from sites less than 10 centimeters in depth. See DEP Ex. 21. Attempting to sample in such shallow waters (less than four inches) may disturb nutrient rich floc that would contaminate the sample and result in artificially high total phosphorus concentration. Paragraph(5)(e)3 excludes data "collected from sites affected by extreme events . . . until normal conditions are restored . . . ." Examples of such events are listed: "fire, flood, drought or hurricanes . . . ." While all "extreme events" are not listed, all that are listed are events associated primarily with the Everglades system itself, that is, they are events associated with natural phenomena that contributed to the formation of the Everglades and the maintenance of its phosphorus-limited status. (It is possible, however unlikely, that drought or flood today could be caused by water management practices. Changes in water levels caused by water management practices, moreover, are covered by paragraph (5)(e)5.) Fire, flood, drought and hurricanes are extreme natural conditions. It is known that they will occur in the future but it is difficult to predict precisely when. It is possible to design a sampling regime that would capture spatial and temporal variability caused by these natural events. As a practical matter, however, the Department and District are limited physically and fiscally as to the number of quality samples that can be properly taken in any one year. It is the Department's position, therefore, that the effects of such natural phenomena, all influences that contributed to the formation and continue to contribute to the health of the Everglades, must be screened from consideration. The Department is comfortable with the screening because the data that is not screened is from water samples that have integrated the effects of extreme events so that, in the end, data related to the long-term impact of the events is not screened, only data related to the short-term impact of the events. Felecia Coleman, Ph.D., is a member of the Best Available Science Committee of the National Research Council, an arm of the National Academy of Sciences. She was accepted at hearing as an expert in principles of scientific method. Scientific disciplines have their own methodologies that vary. The underlying principles of the scientific method are the same, however, for all the disciplines. It is not good scientific method, in Dr. Coleman's opinion, to exclude data related to fire, flood, drought and hurricanes from calculations to determine achievement of the criterion in the Everglades. While they are events that are extreme in the Everglades, they are also events that are normal in the Everglades and produce significant effects on the Everglades' ecological system. To exclude them, then in Dr. Coleman's opinion, fails to take into account spatial and temporal variability in the system due to these events that occur in all parts of the Everglades from time-to-time. The Department argues just the opposite. To reach the objectives of sampling strategies intended to assure the collection of "representative" samples within a routine natural variability or hydrologic cycle, extreme event data must be excluded. Representative conditions, moreover, reflect the integration of the effects of extreme events over time, thereby taking into effect the temporal variability of the system. The concept of "representation" takes into account the practical consideration in support of the screening of extreme events: the Department cannot obtain sufficient data to account for variability caused by untold combinations and permutations of extreme events. Failing to screen the variability or "noise" caused by such events, moreover, would result in excessively high estimates of total phosphorus concentrations. To include data taken when the water was under the short-term influence of the extreme event would skew the data high because not enough samples could be taken when the waters sampled were not under the short-term influence of the extreme event to off-set the impact of the event in a fair way so as to produce results that were representative. Paragraph (5)(e)4., requires the exclusion from assessment calculations of data affected by localized disturbances whether natural or caused by humans. As in the case of extreme events, the Proposed Rule lists some of these disturbances: airboat traffic, authorized restoration activities, alligator holes and bird rookeries. The former two are human activities; the latter two, natural. In common, all are "localized" rather than tending to be system-wide like the listed extreme events. Future physical disturbances from airboat traffic and alligators will suspend sediment and flocculent organic material that contains phosphorus from discharges that occurred prior to the Proposed Rule. A spike in the total phosphorus concentration for a sample taken at the disturbed location may contribute to an indication that the criterion has not been achieved. The same is true of samples heavily influenced by organic waste, a concentrated source of phosphorus, produced in bird rookeries. Temporary restoration activities may suspend nutrient-laden floc and sediment as well causing artificially high phosphorus concentrations not reflective of typical ambient conditions. Samples taken in the wake of these localized activities are not representative. Just as in the case of extreme event data, if a sampling regime of sufficient magnitude to properly take into account for such short-term and random variability were theoretically possible so as to produce results representative of typical conditions, neither the Department nor the District has the resources to implement such a program. Without a sufficient number of samples, data influenced short-term by localized activity will skew the data too high. And, in the end, samples taken that are not influenced short-term by the localized activities will have integrated the effects of the activities over the long-term. Paragraph (5)(e)5. of the Proposed Rule requires the exclusion of data from assessment calculations from years when hydrologic conditions are outside the range that occurred during the period used to set the phosphorus criterion. Examples of such conditions are given in the Proposed Rule: rainfall amount, water levels and water deliveries. The period used to set the criterion is not defined, but conditions during the development of the criterion reflected a broad range of conditions such that this provision would rarely by employed. In the unlikely event an extreme in water quantity covered by paragraph (5)(e)5. occurred, data collected under such conditions would not reflect normal ambient conditions. Section (6) Long-Term Compliance Permit Requirements for Phosphorus Discharges into the EPA Permits for discharges into the EPA are addressed in Subsection 373.4592(4): The department shall use the best available information to define relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area. The department or the district shall use these relationships to establish discharge limits in permits for discharges into the EAA canals and the Everglades Protection Area necessary to prevent an imbalance in the natural populations of aquatic flora or fauna in the Everglades Protection Area, and to provide a net improvement in the areas already impacted. During the implementation of the initial phase of the Long-Term Plan, permits issued by the department shall be based on BAPRT and shall include technology-based effluent limitations consistent with the Long-Term Plan. § 373.4596(4)(e)3., Fla. Stat. See also, § 373.4592(10), Fla. Stat. Section (6) of the Proposed Rule, entitled "Long-Term Compliance Requirements for Phosphorus Discharges into the EPA," sets forth an initial requirement in subsection (6)(a), that an applicant for a permit to discharge into the EPA provide reasonable assurance that the discharge will comply with state water quality standards as set forth in the section. Subsection (6)(b) sets forth three conditions, under any of which, discharges will be deemed to be in compliance. The first is that phosphorus levels in the discharges will be at or below the criterion. This condition is independent of ambient water quality. It refers to phosphorus levels of the discharged water at the point of discharge. If such a level meets the criterion, the level in the ambient water body (provided it was lower than the level in the discharge prior to discharge) will remain lower than the level in the discharged water. The second is that discharges will not cause or contribute to exceedences of the criterion in the receiving waters, the determination of which will take into account the phosphorus in the water column that is due to reflux. The "cause or contribute" analysis is not unique to the permitting of discharges to the EPA but a longstanding concept routinely applied in the Department's permitting of wastewater discharges. If a discharge contains a pollutant in concentrations in excess of the ambient criterion, but the discharge of the pollutant is accommodated by the system such that no exceedence of the criterion occurs in ambient waters, then the discharge has not caused or contributed to a violation of the criterion or that standard of which the criterion may be a part. If an exceedence occurs, but it is not the result of the phosphorus in the discharge but rather caused by reflux--the biogeochemical release of phosphorus into the water column from the sediment stirred by the discharge--the discharge would also be said not to have "caused or contributed to" the exceedence of the criterion. Phosphorus discharges may also exceed the phosphorus criterion, under paragraph (6)(c)3, if they comply with moderating provisions set forth in Section (7) of the Proposed Rule. Moderating provisions are a type of relief mechanism whereby the permit applicant is not held to strict compliance with the applicable standard or criterion if a variety of alternative conditions are met. Under subsection (6)(d), discharges into the Park and Refuge must not result in a violation of the concentration limits and levels established for the Park and Refuge in Appendices A and B, respectively, of the Settlement Agreement as determined through the methodology set forth in Section (5). Closely tracking statutory language, subsection (6)(d) of the Proposed Rule states that discharge limits from permits allowing discharges into the EPA shall be based upon TBELs established under BAPRT and shall not require water quality based limitations ("WQBELs") through the year 2016. Section (7) Moderating Provisions Subsection (7)(a) sets forth a moderating provision for impacted areas within the EPA. Moderating provisions are designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA and are specifically allowed by the EFA as the result of legislative amendment enacted in 2003: . . . The department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with antidegradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592((4)(e)2., Fla. Stat. There are two types of moderating provisions in the section. Subsection (7)(a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (7)(b) allows for discharges to be permitted that accomplish for purposes of "hydropattern restoration" under certain circumstances. To be permitted under (7)(a), the applicant must meet two criteria. First, the permittee must demonstrate that BAPRT will be implemented that includes a continued research and monitoring program designed to reduce outflow concentrations of phosphorus. Paragraph (7)(a)1 of the Proposed Rule. Second, the applicant must demonstrate that the discharge will be into an impacted area. The subsection states that the "Long-Term Plan" shall constitute BAPRT consistent with the Legislature's declaration in Section 373.4592(3)(b): The Legislature finds that the Long-Term Plan provides the best available phosphorus reduction technology based upon a combination of the BMPs and STAs described in the Plan provided that the Plan shall seek to achieve the phosphorus criterion in the Everglades Protection Area. Consistent with the Legislative finding, the subsection states, "[t]he planning goal of the Long-Term Plan is to achieve compliance with the criterion . . . ." Paragraph (7)(a)3., of the Proposed Rule. As part of the permit review process, moreover, the Department will review the Process Development and Engineering component of the long-term plan and determine if changes are needed to comply with the Proposed Rule, including the numeric criterion. Any changes the Department deems necessary "shall be incorporated through an adaptive management approach." Id. Under subsection (7)(b), discharges that cause relevant ambient concentrations in excess of the criterion may be allowed for hydropattern restoration in unimpacted areas if three conditions are met. First, the permittee must implement BAPRT under sub-paragraph (7)(a)1.a. Second, the environmental benefits of hydropattern restoration must clearly outweigh potential adverse effects in the event phosphorus levels in the discharge exceed the criterion. Third, the discharge must comply with the Department's long-standing antidegradation requirements. Section (7)(c) declares that the Proposed Rule's moderating provisions do not pre-empt other moderating provisions. Section (8) Document Incorporated by Reference A single document is referenced for incorporation into the Proposed Rule: "Data Quality Screening Protocol, dated ." Section (8) of the Proposed Rule. Although the Proposed Rule does not identify the Data Quality Screening Protocol by date, a protocol was adopted by the ERC. It was made available to the public electronically via the Department's website "by PDF file on the site dated March 21, 2003." (Tr. 3358) The protocol adopted by the ERC and made available to the public is the protocol about which testimony was taken at hearing. The date was left blank with the intention of filling it in with the effective date of the Proposed Rule once that date becomes known. Section (9) Contingencies Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule: (a) is determined to be invalid under applicable laws; or (b) is disapproved by the U.S. Environmental Protection Agency under the Clean Water Act . . . ." Section (9) of the Proposed Rule.
The Issue The issue in this matter is whether Respondent, Polk County Board of Commissioners (Polk County or County) has provided Respondent, Southwest Florida Water Management District (SWFWMD), with reasonable assurances that the activities Polk County proposed to conduct pursuant to Standard General Environmental Resource Permit (ERP) No. 4419803.000 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, and 40D-40.302, Florida Administrative Code. (All rule citations are to the current Florida Administrative Code.)
Findings Of Fact Events Preceding Submittal of ERP Application The Eagle-Millsite-Hancock drainage system dates back to at least the 1920's, and has been altered and modified over time, especially as a result of phosphate mining activities which occurred on OFP property in the 1950's-1960's. The system is on private property and is not owned and was not constructed by the County. Prior to 1996, the Eagle-Millsite-Hancock drainage system was in extremely poor repair and not well- maintained. The Eagle-Millsite-Hancock drainage system originates at Eagle Lake, which is an approximately 641-acre natural lake, and discharges through a ditch drainage system to Lake Millsite, which is an approximately 130-acre natural lake. Lake Millsite drains through a series of ditches, wetlands, and ponds and flows through OFP property through a series of reclaimed phosphate pits, ditches and wetlands and ultimately flows into Lake Hancock, which is an approximately 4500-acre lake that forms part of the headwaters for the Peace River. The drainage route is approximately 0.5 to 1 mile in overall length. The Eagle-Millsite-Hancock drainage system is one of eight regional systems in the County for which the County and SWFWMD have agreed to share certain funding responsibilities pursuant to a 1996 letter agreement. To implement improvements to these drainage systems, Polk County would be required to comply with all permitting requirements of SWFWMD. During the winter of 1997-1998, Polk County experienced extremely heavy rainfall, over 39 inches, as a result of El Nino weather conditions. This unprecedented rainfall was preceded by high rainfalls during the 1995-1996 rainy season which saturated surface waters and groundwater levels. During 1998, Polk County declared a state of emergency and was declared a federal disaster area qualifying for FEMA assistance. Along the Lake Eagle and Millsite Lake drainage areas, septic tanks were malfunctioning, wells were inundated and roads were underwater. The County received many flooding complaints from citizens in the area. As a result of flooding conditions, emergency measures were taken by the County. The County obtained SWFWMD authorization to undertake ditch cleaning or vegetative control for several drainage ditch systems in the County, including the Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit was required or obtained for this ditch cleaning and vegetative control. During its efforts to alleviate flooding and undertake emergency ditch maintenance along the Eagle-Millsite-Hancock drainage route, the County discovered a driveway culvert near Spirit Lake Road which was crushed and impeding flow. The evidence was unclear and contradictory as to the size of the culvert. Petitioner's evidence suggested that it consisted of a 24-inch pipe while evidence presented by the County and by SWFWMD suggested that it was a 56-inch by 36-inch arched pipe culvert. It is found that the latter evidence was more persuasive. On February 25, 1998, the County removed the crushed arched pipe culvert at Spirit Lake Road and replaced it with two 48-inch diameter pipes to allow water to flow through the system. The replacement of this structure did not constitute ditch maintenance, and it required a SWFWMD ERP. However, no ERP was obtained at that time (although SWFWMD was notified prior to the activity). (One of the eight specific construction items to be authorized under the subject ERP is the replacement of this culvert.) Old Florida Plantation, Ltd. (OFP) property also experienced flooding during February 1998. OFP's property is situated along the eastern shore of Lake Hancock, and the Eagle- Millsite-Hancock drainage system historically has flowed across the property before entering Lake Hancock. In the 1950's and 1960's, the property was mined for phosphate. The mining process destroyed the natural vegetation and drastically altered the soils and topography, resulting in the formation of areas of unnaturally high elevations and unnaturally deep pits that filled with water. OFP purchased the property from U.S. Steel in 1991. The next year OFP initiated reclamation of the property, which proceeded through approximately 1998. In 1996, OFP applied to the County for approval of a development of regional impact (DRI). OFP blamed the flooding on its property in 1998 on the County's activities upstream, claiming that the property had never flooded before. But upon investigation, the County discovered a 48-inch diameter pipe on OFP property which, while part of OFP's permitted drainage system, had been blocked (actually, never unopened) due to OFP's concerns that opening the pipe would wash away wetlands plants recently planted as part of OFP's wetland restoration efforts. With OFP and SWFWMD approval, the County opened this pipe in a controlled manner to allow flowage without damaging the new wetlands plants. Following the opening of this blocked pipe, OFP property upstream experienced a gradual drop in flood water levels. When the water level on OFP's property stabilized, it was five feet lower and no longer flooded. Nonetheless, OFP continues to maintain not only that the County's activities upstream caused flooding on OFP property but also that they changed historic flow conditions. This contention is rejected as not being supported by the evidence. Not only did flooding cease after the 48-inch pipe on OFP's property was opened, subsequent modeling of water flows also demonstrated that the County's replacement of the crushed box culvert at the driveway on Spirit Lake Road as described in Finding 8, supra, did not increase flood stages by the time the water flows into the OFP site and did not cause flooding on OFP property in 1998. (To the contrary, OFP actions to block flows onto its property may have contributed to flooding upstream.) On October 6, 1998, the County entered into a contract with BCI Engineers and Scientists to initiate a study on the Eagle-Millsite-Hancock drainage system, identify options for alleviating flooding along the system and prepare an application for an ERP to authorize needed improvements to the system. Prior to the County's submittal of an ERP application, SWFWMD issued a conceptual ERP to OFP for its proposed wet detention surface water management system to support its proposed DRI on the OFP property. OFP's conceptual permit incorporated the Eagle-Millsite-Hancock drainage system and accommodated off-site flowage into the system. Before submitting an ERP application to SWFWMD, the County had communications with representatives of OFP concerning an easement for the flow of the drainage system through OFP property. In March 1999, the County reached an understanding with OFP's engineering consultant whereby OFP would provide the County with an easement across OFP lands to allow water to flow through to Lake Hancock. In turn, the County would: construct and pay for a control structure and pipe east of OFP to provide adequate flowage without adversely affecting either upstream or downstream surface waters; construct and upgrade any pipes and structures needed to convey water across OFP property to Lake Hancock; and provide all modeling data for OFP's review. The ERP Application Following completion of the engineering study, the County submitted ERP Application No. 4419803.000 for a Standard General ERP to construct improvements to the Eagle-Millsite- Hancock drainage system on August 18, 1999. Eight specific construction activities are proposed under the County's project, at various points along the Eagle- Millsite-Hancock drainage system as follows: 1) Add riprap along channel bottom; 2) Modify culvert by replacing 56-inch by 36- inch arch pipe by two 48-inch pipes (after-the-fact, done in 1998, as described in Finding 8, supra); 3) Add riprap along channel bottom; 4) Add box, modify culvert by replacing existing pipe with two 48-inch pipes, add riprap along channel bottom; 5) add riprap along channel bottom; 6) Add weir, modify culvert by replacing existing 24-inch pipe with two 48-inch pipes, add riprap along channel bottom; 7) Add box and modify culvert by replacing existing 24-inch pipe with two 48-inch pipes; 8) Modify existing weir. Under the County's application, construction activities Nos. 6, 7, and 8 would occur on OFP property. In addition, it was proposed that surface water would flow across OFP's property (generally, following existing on-site drainage patterns), and it was indicated that flood elevations would rise in some locations on OFP's property as a result of the improvements proposed in the County's application. (Most if not all of the rise in water level would be contained within the relatively steep banks of the lakes on OFP's property--the reclaimed phosphate mine pits.) In its application, the County stated that it was in the process of obtaining easements for project area. As part of the ERP application review process, SWFWMD staff requested, by letter dated September 17, 1999, that the County clarify the location of the necessary rights-of-way and drainage easements for the drainage improvements and provide authorization from OFP as property owner accepting the peak stage increases anticipated in certain OFP lakes as a result of the County's proposed project activities. On September 28, 1999, OFP obtained a DRI development order (DO) from the County. In pertinent part, the DRI DO required that OFP not adversely affect historical flow of surface water entering the property from off-site sources. Historical flow was to be determined in a study commissioned by the County and SWFWMD. The DO appeared to provide that the study was to be reviewed by OFP and the County and approved by SWFWMD. Based on the study, a control structure and pipe was to be constructed, operated and maintained by the County at the upstream side of the property that would limit the quantity of off-site historical flow, unless otherwise approved by OFP. OFP was to provide the County with a drainage easement for this control structure and pipe, as well as a flowage easement from this structure, through OFP property, to an outfall into Lake Hancock. The DO specified that the flowage easement was to be for quantitative purposes only and not to provide water quality treatment for off-site flows. The DO required OFP to grant a defined, temporary easement prior to first plat approval. In its November 11, 1999, response to SWFWMD's request for additional information, the County indicated it would obtain drainage easements and that it was seeking written acknowledgment from OFP accepting the proposed increases in lake stages. During the ERP application review process, the County continued efforts to obtain flowage easements or control over the proposed project area and OFP's acknowledgment and acceptance of the increase in lake stages. At OFP's invitation, the County drafted a proposed cross-flow easement. But before a binding agreement could be executed, a dispute arose between OFP and the County concerning other aspects of OFP's development plans, and OFP refused to enter into an agreement on the cross- flow easement unless all other development issues were resolved as well. On August 4, 2000, in response to SWFWMD's request that the County provide documentation of drainage easements and/or OFP's acceptance of the increased lake stages on OFP property, the County submitted a proposed and un-executed Perpetual Flowage and Inundation Easement and an Acknowledgment to be signed by OFP accepting the increased lake stages. On August 7, 2000, the OFP property was annexed by the City of Bartow (the City). On October 16, 2000, the City enacted Ordinance No. 1933-A approving OFP's DRI application. The City's DO contained essentially the same provision on Off- Site Flow contained in the County's DO. See Finding 18, supra. However, the City's DO specified that the historical flow study was required to be reviewed and approved by OFP (as well as by the County and by SWFWMD). OFP has not given formal approval to historical flow studies done to date. On October 6, 2000, SWFWMD issued a Notice of Final Agency Action approving Polk County ERP No. 4419803.000. Permit Specific Condition No. 7 provides that "all construction is prohibited within the permitted project area until the Permittee acquires legal ownership or legal control of the project area as delineated in the permitted construction drawings." As a result of this permit condition, the County cannot undertake construction as authorized under the Permit until any needed easement or legal control is obtained. Precise Easement Route Approximately two months before final hearing, a dispute arose as to the precise cross-flow easement route proposed by the County. OFP had understood that the County's proposed route was based on a detailed survey. But closer scrutiny of the County's proposed route indicated that it cut corners of existing lakes on OFP's property, crossed residential lots proposed by OFP, and veered north into uplands (also proposed for residential use) in the western portion of the route before looping south and then north again to the outfall at Lake Hancock. Information subsequently revealed in the course of discovery suggested that the County's proposed route may have been based on pre-reclamation topography of OFP's property. After OFP recognized the implications of the cross- flow easement route being proposed by the County, OFP provided the County with several different alternative easement routes through the OFP property. While agreement as to the precise route has not yet been reached, the precise route of the easement is not significant to the County, as long as water can flow across OFP property to Lake Hancock and so long as the County does not have to re-locate existing ditches. Such adjustments in the location of the proposed flowage easement would not affect SWFWMD staff's recommendation for permit issuance, as long as it covered the defined project areas. In addition, OFP's current site plan is a preliminary, conceptual plan subject to change before it is finalized. Regardless what cross-flow easement route is chosen, it will be temporary and subject to modification when OFP's development plan is finalized. If the County is unable to not negotiate a flowage easement across OFP property, it could obtain whatever easement is required through use of the County's eminent domain powers. The County's acquisition of an easement to accommodate a flowage route and anticipated increased stage on OFP property gives reasonable assurance that any stage increases will not cause adverse impacts to OFP property and gives reasonable assurance that the County will have sufficient legal control to construct and maintain the improvements. Project Area The County applied for a Standard General Permit and specified a total project area of 0.95 acre. This acreage reflects the area required for actual construction and alteration of control structures and drainage ditches in the preexisting Eagle-Millsite-Hancock system. It does not reflect the entire acreage drained by that system (approximately 1,800 to 2,000 acres). It also does not reflect the area of the cross-flow easement, which the County has yet to obtain. When determining project size for purposes of determining the type of permit applicable to a project, SWFWMD staff considers maximum project area to be limited to the acreage owned or controlled by the applicant. In addition, since this is a retrofit project for improvement of an existing drainage system not now owned or controlled by the County, SWFWMD staff only measured the area required for actual construction and alteration of control structures and drainage ditches. Future easements necessary for future maintenance of the system were not included. When OFP applied for its conceptual ERP for its proposed DRI, the project area was considered to be the acreage owned by OFP. The rest of the basin draining through OFP's property to Lake Hancock (again, approximately 1,800 to 2,000 acres) was not considered to be part of the project area. Water Quantity Impacts The County's project will retrofit certain components of the same drainage system which OFP will utilize for surface water management and treatment pursuant to its conceptual ERP. Modeling presented in the County's application demonstrates that there will be some rises and some lowering of some of the lake levels on OFP's property during certain rain events. Anticipated rises are lower than the top of banks authorized in OFP's conceptual permit; hence the system will continue to function properly. While there are some differences in the County's permit application and OFP's conceptual permit application concerning modeling estimates of flow rates through OFP property, the differences are minor and are attributed to differences in modeling inputs. The County used more detailed modeling information. Any such differences are not significant. Differences in flow rates provided in the County's proposed permit and in OFP's conceptual permit do not render the permits as incompatible. If the County's permit were issued, any modeling undertaken in connection with a subsequent application by OFP for a construction permit would have to be updated to include the County's improvements to the system. This outcome is not a basis for denial of the County's permit. While the rate at which water will flow through the system will increase, no change in volume of water ultimately flowing through the drainage system is anticipated as a result of the County's proposed improvements. The increased lake stages which are anticipated to occur on OFP property as a result of the County's project will not cause adverse water quantity impacts to the receiving waters of Lake Hancock or adjacent lands. The project will not cause adverse flooding to on-site or off-site property. The project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, Florida Statutes. Water Quality Impacts No adverse impacts to water quality on OFP property are anticipated from the County's proposed drainage improvements. The project will not add any pollutant loading source to the drainage system and is not expected to cause any algae blooms or fish kills in OFP waters or cause any additional nutrient loading into OFP's surface water management systems. As reclaimed phosphate mine pits, the lakes on OFP's property are high in phosphates. Meanwhile, water quality in upstream in Millsite Lake and Eagle Lake is very good. Off-site flow of higher quality water flushing the OFP lakes will improve the water quality on the OFP site. The County's project will have no adverse impact on the quality of water in the downstream receiving of Lake Hancock (which currently has poor water quality due in large part to past phosphate mining). Upstream of OFP, the project will not cause any adverse water quality impacts and is anticipated to result in positive impacts by lessening the duration of any flooding event and thereby lessening septic tank inundation from flooding. This will have a beneficial impact on public health, safety, and welfare. Thus, there is a public benefit to be gained in having the County undertake the proposed drainage and flood control improvements now, rather than waiting for OFP to finalize its plat and construct its development project. The County's proposed improvements do not require any formal water quality treatment system. The improvements are to a conveyance system and no impervious surfaces or other facilities generating pollutant loading will be added. Upstream of OFP, the Eagle-Millsite-Hancock drainage system flows through natural lakes and wetlands systems that provide natural water quality treatment of the existing drainage basin. OFP expressed concern that the County's improvements to drainage through these areas (including the ditch maintenance already performed in 1998) will increase flow and reduce residence time, thereby reducing natural water quality treatment. But ditch maintenance does not require an ERP, and the County gave reasonable assurances that reduction in natural water quality treatment will not be significant, especially in view of the good quality of the water flowing through the system out of Eagle Lake and Millsite Lake. As a result, it is found that the County's proposed project will not adversely affect the quality of receiving waters such that any applicable quality standards will be violated. Indeed, OFP's expert consultant conceded in testimony at final hearing that OFP has no reason to be concerned about the quality of water at present. Rather, OFP's real concern is about water quality in the future. Essentially, OFP is asking SWFWMD to require the County to guarantee OFP that future development in the area will not lead to any water quality problems. Requiring such a guarantee as a condition to issuance of an ERP would go far beyond SWFWMD requirements and is never required of any applicant. Besides being speculative on the evidence in this case, future development in the area will be required to meet applicable SWFWMD water quality requirements. SWFWMD permitting required for such future development would be the proper forum for OFP to protect itself against possible future reduction in water quality (as well as possible future increase in water quantity). Environmental Impacts The drainage ditches to be improved by the County's project were originally constructed before 1984. These upland cut ditches were not constructed for the purpose of diverting natural stream flow, and are not known to provide significant habitat for any threatened or endangered species. The County provided reasonable assurance that the proposed project will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions. The functions of the wetlands and surface waters to be affected by the proposed project include conveyance, some water quality treatment, and possibly some wildlife movement or migration functions between the wetlands served by the ditches. Wetland impacts from the project consists of .63 acre of permanent impacts and .21 acre of temporary impacts, for a total of .84 acre of impact. The permanent impacts consist of the replacement of pipes with new structures in the ditches and the addition of rip rap in areas to prevent sedimentation and erosion. The proposed project's anticipated increase in the rate of flow is expected to lessen the duration of any flooding event at the upper end of the drainage system, and at the downstream end is expected to create a subsequent rise in some of the lakes and storage areas on the OFP property during certain rain events. The anticipated rise in some of the reclaimed lakes on OFP property is not anticipated to have any adverse impact on the functions that those surface waters provide to fish, wildlife or any threatened or endangered species. The reclaimed lakes subject to rise in water levels for certain rain events are steep-sided and do not have much littoral zone, and little, if any, loss of habitat will result. The County's application provides reasonable assurance that the anticipated stage increase in affected wetlands or surface waters will not adversely affect the functions provided by those wetlands or surface waters. The County provided reasonable assurance that the proposed project will not violate water quality standards in areas where water quality standards apply, in either the short- term or the long-term. Long-term effects were addressed in Finding 43-51, supra. Short-term water quality impacts anticipated during the construction of the proposed improvements will be addressed through the use of erosion and sediment controls. The proposed project also will not create any adverse secondary impacts to water resources. The project will not cause any adverse impacts to the bird rookery located to the north on OFP property. The project will not cause any adverse impacts to the bass in OFP's lakes, a concern expressed by OFP relatively recently. To the contrary, since the project will improve water quality in OFP's lakes, the impact on OFP's bass is expected to be positive. OFP raised the issue of a bald eagle nesting site located on its property. The evidence was that a pair of bald eagles has built a nest atop a Tampa Electric Company (TECO) power pole on the property in October of each year since 1996. Each year the pair (which is thought to be the same pair) has used a different TECO power pole. Most of the nests, including the one built in October 2000, have been on poles well south of any construction proposed under the County's ERP and clearly outside of the primary and secondary eagle management zones designated by the U.S. Fish and Wildlife Service. But one year, a nest was built on a pole farther north and possibly within the secondary eagle management zone. OFP presented testimony that U.S. Fish and Wildlife would require OFP to apply for an "incidental take" in order to build homes within the primary eagle protection zones around any of the four poles on which eagles have built nests since 1996; timing of construction of homes within the secondary protection zones may be affected. Even accepting OFP's testimony, there was no evidence as to how U.S. Fish and Wildlife would view construction of the County's proposed drainage improvements on OFP property within those zones. In addition, the evidence was that, in order to accomplish its DRI plans to build homes in the vicinity of the TECO power poles that have served as eagle nests in recent years, without having to apply for an "incidental take," OFP plans to place eagle poles (more suitable for eagle nests than power poles, which actually endanger the eagles) in another part of its property which is much more suitable habitat in order to encourage the eagles to build their nest there. The new location would put the County's proposed construction activity far outside the primary and secondary eagle management zones. Other Permitting Requirements The County's proposed project is capable, based on generally accepted scientific engineering and scientific principles, of being effectively performed and of functioning as proposed. The County has the financial, legal, and administrative capability of ensuring that the activity proposed to be undertaken can be done in accordance with the terms and conditions of the permit. No evidence was presented by Petitioner that the Project will cause adverse impacts to any work of the District established under Section 373.086, Florida Statutes. No evidence was presented by Petitioner that the project will not comply with any applicable special basin or geographic area criteria established under Chapter 40D-3, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Standard General Environmental Resource Permit No. 4419803.000. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2001. COPIES FURNISHED: Linda L. McKinley, Esquire Polk County Attorney's Office Post Office Box 9005, Drawer AT01 Bartow, Florida 33831-9005 Gregory R. Deal, Esquire 1525 South Florida Avenue, Suite 2 Lakeland, Florida 33803 Margaret M. Lytle, Esquire Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact By application dated August 28, 1984, Petitioner sought a permit from Respondent to deepen an existing ditch on his property from a current depth of one and a half feet to a proposed depth of three feet. The ditch is eight feet wide and eight hundred and fifty feet long and extends through a wetlands area to Lake Tohopekaliga which has been classified as a Class III waterbody. Petitioner intends to dredge approximately 377 cubic yards of material waterward of the ordinary high water elevation in order to make the existing storm drainage ditch navigable. This application was received by Respondent on September 11, 1984, and was accepted as complete on November 6, 1984. On January 9, 1985, an on-site inspection was concluded by Barbara Bess supervisor of dredge and fill permitting in Respondent's Orlando district office, who thereafter prepared an appraisal report dated January 23, 1985. As expressed in her report, Bess' primary concern with this application was the potential loss of fish and wildlife habitat which would result from the loss of grasses and macro-invertebrates resulting from the proposed project. Lake Tohopekaliga is a very popular and productive sportfishing lake, and the cumulative effect of such dredging activity, if it occurred around the lake would have a severely negative impact on the lake's food chain. This would in turn have adverse consequences for sportfishing and the water quality of the lake. Since similar drainage ditches do exist around the entire lake, there is a reasonable likelihood of similar projects occurring if this one is approved. Petitioner proposes that his dredging take place during a draw-down of Lake Tohopekaliga which has already been planned, and contends that the negative impact of the proposed deepening will be minimized since the ditch will be substantially dry during the draw-down. Petitioner's contention, however, is not supported by the evidence. Testimony from Barbara Bess, who was accepted as an expert on water quality standards and the biological impact of construction projects on water quality, and testimony from Ed Moyer, fisheries biologist with the Game and Fresh Water Fish Commission, established that Petitioner's ditch may not be completely dry during the draw-down, and that the proposed deepening will increase boat traffic due to the ditch's navigability, thereby reducing vegetation and harming the food chain in the immediate area of the ditch. The cumulative effect of similar projects occurring, even during the draw-down, will be negative for sportfishing and the water quality of the lake. Respondent issued its Intent to Deny on January 25,1985, in response to which Petitioner timely sought a hearing. The parties were allowed to submit proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's permit application. DONE and ENTERED this 23rd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN 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 May, 1985. COPIES FURNISHED: Ross Gwin 1731 Juniper Circle St. Cloud, Florida 32769 Ron Cray 1731 Juniper Circle St. Cloud, Florida 32769 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to section 373.175, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. In the event a water shortage, is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions, as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
Findings Of Fact Petitioner owns a rectangular plot approximately 300 feet (north to south) by 1,300 feet (east to west). The property is within the City of Longwood and is zoned light industrial. The land is undeveloped except for a laminated cabinet factory and warehouse owned by Petitioner. The proposed development includes construction of a paved right-of-way sixty feet wide through the center of the parcel. Entry and exit would be from the east with a cul de sac on the west end. The property would be divided into twenty lots, each facing this street. Petitioner contemplates sale of these lots to light industrial users. A tributary of Soldiers Creek which flows into Lake Jessup and ultimately the St. John's River, separates the eastern one third of the property from the remainder of the parcel. This stream is typically one to three feet deep, with very slow movement. Water in the stream bed becomes virtually stagnant during the dry season. The on-site survey conducted by Respondent's environmental specialist established that the ordinary or mean height water line follows the 52 foot contour, creating a stream bed about 400 feet wide across Petitioner's property. The development proposal calls for filling most of this area, retaining a stream channel one hundred feet wide. Petitioner intends to install four 38" x 60" oval culvert pipes at the stream crossing of the proposed roadway. To control runoff from rain showers, Petitioner plans to construct swells on each side of the roadway and drainage troughs and catch basins are intended to retain runoff pollution. However, during peak rainfall periods, these devices will not prevent direct discharge into the watercourse. Petitioner has not conducted any tests to determine the impact of his proposed project on water quality other than percolation tests associated with the use of septic tanks. The stream is heavily forested with mature hardwood trees. The undergrowth includes buttonbush, royal fern, primrose willow and water tupelo. Clumps of pickerel weed are scattered throughout the stream. The stream bottom consists of one to two feet of leaf litter and accumulated organic muck over firm sand. Respondent's dip net sampling produced numerous least killifish, which are indicative of good water quality. Forested streams and bayheads such as this are natural storage and treatment areas for upland runoff, and tend to reduce the peak runoff discharge to lakes and rivers from rainfall. This, in turn, reduces sedimentation rates and the resultant siltation of downstream waterbodies. The proposed project would eliminate approximately one acre of stream bottom and continuous submerged transitional zone lands. Urban runoff can contain significant amounts of pollutants including nutrients, heavy metals, dissolved solids, organic wastes, and fecal bacteria. In industrial situations, such as that proposed here, concentrations of oils, greases, heavy metals, toxic chemicals, and phenolic compounds from tire wear, paving and use of other petroleum products are anticipated. The discharge of these contaminants would be harmful to the plant and animal life in Soldiers Creek and the subject tributary. The proposed project would not only reduce existing vegetation which serves as a sediment trap and natural nutrient filter, but would create an impervious (paved) surface which would accelerate runoff and would, itself, be a source of pollution. Water quality would be further reduced by the introduction of fill material and the canalization of the stream, which would increase its rate of flow. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding under Section 120.57(1), Florida Statutes. The parties stipulated to Respondent's permitting authority over the proposed fill project. Specifically, Respondent has permitting jurisdiction below the 52 foot contour line which defines the stream bed. See Sections 17-4.02(17), 17-4.02(19) and 17-4.28, F.A.C. Subsections 17-4.28(1) and 17-4.28(3) F.A.C., require Petitioner to establish reasonable assurance that the short term and long term effects of the filling activity will not result in violation of the water quality criteria, standard, requirement and provisions of Chapter 17-3, F.A.C. Petitioner's stream, Soldiers Creek and Lake Jessup are surface waters within the Class III designation of Section 17-3.081, F.A.C. Sections 17-3.061 and 17-3.121, F.A.C., provide the applicable water quality standards and criteria which Petitioner must provide reasonable assurance of meeting. The standards and criteria limit the amount of various chemicals, nutrients, oils and greases which may be introduced as a result of the proposed activity. The evidence adduced herein established that the proposed project would promote substantial changes in these surface waters, degrading their existing quality. These changes would occur through the introduction of oils, greases and other undesirable chemicals and compounds. Further, Petitioner has conducted no specific testing which would establish reasonable assurance that the water quality standards would be met. Petitioner contends that denial of the permit would amount to inverse condemnation or unconstitutional taking of his property without just compensation. Such a determination is beyond scope of this administrative proceeding.
Recommendation From the foregoing, it is RECOMMENDED that the State of Florida Department of Environmental Regulation enter a final order denying the petition of Jack Cruickshank for a fill permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of February, 1981. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1981. COPIES FURNISHED: Charles G. Stephens, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William W. Carpenter, Esquire 830 East Highway 434 Longwood, Florida 32750
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
