The Issue The issue in this case is whether the Respondents, Kelly Endres and Ifrain Lima (Endres/Lima), are entitled to an Environmental Resource Permit (ERP) that would allow use of 0.535 acres of previously impacted wetlands for the construction of a single-family residence and associated structures, a 30' x 30' private dock with a 4' access walkway, and a 12' wide boat ramp (Project) at 160 Long Acres Lane, Oviedo, Florida (Property).
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties The Department is the administrative agency of the state statutorily charged with, among other things, protecting Florida's air and water resources. The Department administers and enforces certain provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated, thereunder, in the Florida Administrative Code. Under that authority, the Department determines whether to issue or deny applications for ERPs. Respondents Endres/Lima own the Property and are the applicants for the ERP at issue in this consolidated proceeding. Petitioner Meier is a neighboring property owner to the south of the Property. Petitioner Meier's property includes a single-family residence with accessory structures and is located on Long Lake. Petitioner Meier is concerned that the NOI provides inadequate environmental protections and that there will be flooding on adjacent properties from the Project. Petitioner Hacker is the neighboring property owner adjacent to the south of the Property. Petitioner Hacker's property includes a single-family residence with accessory structures and is located on Long Lake. He is concerned with the completeness of the application for the Project, the calculation of wetland impacts, that reasonable assurances were provided, and that the Department's NOI ignores willful negligence and allows disparate treatment of Respondents Endres/Lima. Petitioner Kochmann is a property owner with a single-family residence and accessory structures located on Long Lake. She is concerned that the NOI is based on a misleading application and provides no evidence that the Respondents Endres/Lima made reasonable efforts to eliminate and reduce impacts detrimental to the environment. History of the Project and Application On April 12, 2018, Respondents Endres/Lima applied for an ERP for proposed wetland impacts associated with a planned single-family home on the Property. This was the first ERP application for the Property. The Department sent a Request for Additional Information (RAI) on April 24, 2018, and a second RAI on November 2, 2018. Respondents Endres/Lima provided a Mitigation Service Area Rule Analysis for "As If In-Basin" for the Lake X Mitigation Bank for the St. Johns River Water Management District Basins to the Department via email on May 10, 2018. Respondents Endres/Lima submitted revised plans to the Department on September 19, and October 30, 2018. On January 7, 2019, the Department denied the ERP application. The Department and Respondents Endres/Lima, on July 18, 2019, entered into a Consent Order (CO). The Department found, and Respondents Endres/Lima admitted, that approximately 0.80 acres of jurisdictional wetlands were dredged and filled without a valid ERP from the Department; and was done with improperly installed erosion and sedimentation controls. On August 22, 2019, Respondents Endres/Lima submitted a second ERP application. The Department sent an RAI on September 20, 2019, to which Respondents Endres/Lima responded on December 19, 2019. In addition, Respondents Endres/Lima reserved 0.60 of forested Uniform Mitigation Assessment Method (UMAM) wetland credits from the Lake X Mitigation Bank and provided the Department with an updated site plan and Lake X Mitigation Bank credit reservation letter. The Department issued an NOI on February 7, 2020, which was timely published in the Sanford Herald on February 9, 2020. Respondents Endres/Lima provided timely proof of publication to the Department on February 13, 2020. Consent Order and Compliance A warning letter was issued to Respondents Endres/Lima on January 30, 2019, for the dredging and filling of approximately 0.80 acres of forested wetlands and improper installation of erosion and sedimentation control. The CO, executed on July 18, 2019, required Respondents Endres/Lima to cease any dredging, filling, or construction activities on the Property, submit an application for an Individual ERP within 30 days, and pay $5,599.00 in penalties and the Department's costs and expenses. After the issuance of an ERP, Respondents Endres/Lima were also required to implement the restoration actions outlined in the CO. Respondents’ Endres/Lima’s application, dated August 19, 2020, was submitted to the Department on August 22, 2020. Respondents Endres/Lima paid the CO's penalties and costs, and had multiple meetings with the Department to complete the requirements of the CO. Respondents Endres/Lima’s expert, Mr. Exner, testified that he began working on a restoration plan for the Property, which will be provided to the Department once an ERP is issued. Permitting Criteria The Department reviewed the complete application and determined that it satisfied the conditions for issuance under Florida Administrative Code Rule 62-330.301, and the applicable sections of the ERP Applicant's Handbook Volume I (AH Vol. I). The Department also considered the seven criteria in rule 62-330.302 and section 373.414(1)(a), and determined that implementing the Project would not be contrary to the public interest. Water Quantity, Flooding, Surface Water Storage and Conveyance Respondents’ Endres/Lima's civil engineering expert, Mr. Herbert, testified that according to the drainage design, the Property would have swales on either side of the proposed residence to slope water away from the residence. There would also be a conveyance swale on the north property boundary to convey water from the street area and front yard toward the restoration and wetland areas with ultimate discharge to Long Lake. He stated that the elevation of the road at the front of the Property would be at 47.4 feet, and the elevation at the terminus of the swale would be at 45 feet. This would allow a 2.4-foot vertical fall for the swales to convey water to the lake. The design would preserve pre-development surface water flow over the Property to Long Lake, which is the lowest elevation in the area, and will ensure that storm water does not flood adjacent properties. Mr. Herbert also testified that the Project design would maintain pre-development water storage capacity. The imported fill that is currently on the Property in the flood plain would be removed and reshaped so that the lake elevation would be maintained and water can flow correctly. Elimination or Reduction of Impacts and Mitigation Respondents Endres/Lima provided the Department with design modifications to reduce impacts associated with the Project. These included a 15-foot restoration buffer along the lake front's northern shoreline, an elevated access walkway five feet above the wetland restoration area to the proposed dock, limiting the width of the access walk to four feet, and limiting the boat ramp width to a single-lane. In June 2015, an informal wetlands determination was conducted for the Property. The informal determination concluded that the entirety of the Property were wetlands. However, this was an informal determination and was not binding. In October 2016, before the first permit application was submitted, Mr. Exner did a wetlands delineation flagging prior to the Property being cleared or disturbed. Mr. Exner testified that, in his opinion, the Property was not all wetlands because large pines near the road had no high water marks, adventitious growth around the bases, or evidence of pine borer beetles along with other indicators of upland habitat. This wetland delineation was part of the permit submittal, was shown on the plans, was accepted by the Department, and was used for the preparation of the UMAM scoring. Mr. Exner's wetland delineation line was used by the Department to help determine and map the wetland impacts identified in the CO. The direct impact area was assessed at 0.54 acres with a secondary impact area of 0.02 acres for a total impact of 0.56 acres, and a functional loss score of 0.364. Respondents Endres/Lima reserved 0.6 forested UMAM mitigation credits, almost double the amount of functional loss under the UMAM assessment, agreed to purchase 0.46 credits. The excess mitigation bank credits implement part of a plan that provides regional ecological value and greater long-term ecological value than the area of wetland adversely affected. Secondary and Cumulative Impacts The Project's UMAM analysis assessed 0.02 acres, or 870 square feet, of secondary impacts. These impacts would be fully offset by the mitigation proposed for the Project. Petitioners' expert, Mr. Mahnken, noted three areas where he thought the application was incomplete. The first was that the site plan did not call out the location of the secondary impacts. However, Part III: Plans of Section B of the application, does not require that the site plan show the location of the secondary impacts. The application requirements for "plans" requires only the boundaries and size of the wetlands on the Property and provide the acreages of the upland areas, wetland impact areas, and the remaining untouched area. Second, Mr. Mahnken questioned the calculation performed to determine the secondary impact acreage. However, Mr. Mahnken read the information incorrectly and stated that the secondary impact area was 0.002 acres, or 87 square feet, when the UMAM score sheet clearly showed that the secondary impact area is 0.02 acres, or 870 square feet. In addition, the Department's witness, Ms. Warr, testified that even if the Department were to use Mr. Mahnken's analysis, the result would have been the same, i.e., the requirement to purchase 0.46 mitigation credits. Thus, Petitioners failed to support their claim that the Project would have adverse secondary impacts. Third, Mr. Mahnken asserted that cumulative impacts were not adequately addressed. He testified that the assessment for the Property using spill over benefits, in his opinion, was not enough to fully offset the impacts of the Project. Mr. Mahnken acknowledged, however, that his opinion was open to debate, and that he had not conducted any rigorous hydrologic evaluation in reaching his opinion. Respondents Endres/Lima had submitted a report prepared by Breedlove, Dennis & Associates (BDA Report) with their application in order to demonstrate compliance with section 10.2.8, ERP AH Vol. I, regarding cumulative impacts. The BDA Report utilized peer-reviewed hydrologic data that was reviewed and approved by the South Florida Water Management District, and was accepted by the Department pursuant to section 373.4136(6)(c). This was consistent with the Property's location within the mitigation service area for the Lake X Mitigation Bank. The Project is located within the Econlockhatchee River drainage basin, which is a nested basin within the larger St. Johns River [Canaveral Marshes to Wekiva] drainage basin. The Lake X Mitigation Bank is located outside of the Econlockhatchee River drainage basin, but the Project is located within the Lake X Mitigation Bank service area. The BDA report determined that: In summary, the Lake X Mitigation Bank is a regionally significant mitigation bank site that has direct hydrological and ecological connections to the SJRWMD basins, to include the cumulative impacts basin in which the subject property is located (i.e., SJRWMD Basin 19). The size, biodiversity, and proximity of the mitigation bank site to the SJRWMD basins, and the regionally significant hydrological connection between the mitigation bank site and the contiguous SJRWMD mitigation basins, supports the use of this mitigation bank site “as if in basin” mitigation for the Lima/Endres Wetland Fill Project. Additionally, the evaluation of factors, to include connectivity of waters, hydrology, habitat range of affected species, and water quality, demonstrates the spillover benefits that the Lake X Mitigation Bank has on the St. Johns River (Canaveral Marshes to Wekiva) mitigation basin, which includes the Econlockhatchee River Nested basin, and demonstrated that the proposed mitigation will fully offset the impacts proposed as part of the Lima/Endres Wetland Fill Project “as if in-basin” mitigation. The Lake X Mitigation Bank will protect and maintain the headwaters of two regionally significant drainage basins [i.e., the Northern Everglades Kissimmee River Watershed and the Upper St. Johns River Watershed (to include the nested Econlockhatchee River basin)], and will provide resource protection to both river systems (SFWMD Technical Staff Report, November 29, 2016). Furthermore, the permanent protection and management of the Lake X Mitigation Bank will provide spillover benefits to the SJRWMD basins located within the permitted MSA. Mr. Mahnken stated that his review of the Project did not include a hydrologic study and only looked at basic flow patterns for Long Lake. By contrast, the BDA Report included an extensive hydrologic study, looked at all required factors in section 10.2.8(b), ERP AH, Vol. I, and determined that the Project would be fully offset with the proposed mitigation. Thus, Respondents Endres/Lima provided reasonable assurance that the Project will not cause unacceptable cumulative impacts. Water Quality Rule 62-330.302(1)(e) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely affect the quality of receiving waters such that the state water quality standards will be violated. The conditions of the ERP would require the use of best management practices including a floating turbidity curtain/barrier, soil stabilization with grass seed or sod, and a silt fence. Respondent Endres/Lima's experts, Mr. Herbert and Mr. Exner, testified that there is an existing turbidity barrier in the lake around the property and a silt fence around the east half of the Property. While these items are not required by the Department until construction of the Project, part of the silt fence and the turbidity barrier are already installed on the Property and will be required to be repaired and properly maintained in accordance with the conditions of the ERP and Site Plan SP-2. Mr. Herbert testified that the Property will be graded in a manner that will result in a gentle sloping of the lake bank in the littoral zone, which would allow revegetation of the lake bank. Outside of the restoration area and the undisturbed wetlands, the backyard would be covered with grass to prevent migration of sand and soil discharging into the lake. Mr. Exner testified that the grass swales proposed for the Project would provide a considerable amount of nutrient uptake and filtration of surface water on the Property. Also, in the restoration area next to the lake, the restoration plan includes a dense planting plan with native species that have good nutrient uptake capability. Impacts to Fish and Wildlife Rule 62-330.301(1)(d) requires that Respondents Endres/Lima provide reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Mr. Exner testified that, in his review of the Property, he did not identify any critical wildlife habitat. He visited the Property multiple times and he did not see any osprey nests, deer tracks, animal scat, gopher tortoises, or sand hill cranes. The Department's Ms. Warr testified that the Florida Fish and Wildlife Conservation Commission database was reviewed, and did not show any listed species in the area. Publication of Notice Petitioners argued that the notice published in the Sanford Herald on February 9, 2020, did not meet the requirements of section 373.413(4). Despite the notice having no effect on their ability to timely challenge the proposed ERP, Petitioners argued that the published notice was insufficient because the notice itself did not provide the name of the applicants or the address of the Project, only a link to the Department's permit file. Unlike the notice required in section 373.413(3), where a person has filed a written request for notification of any pending application affecting a particular designated area, section 373.413(4) does not specify the contents of the published notice. Section 373.413(4) does not require the published notice to include the name and address of the applicant; a brief description of the proposed activity, including any mitigation; the location of the proposed activity, including whether it is located within an Outstanding Florida Water or aquatic preserve; a map identifying the location of the proposed activity subject to the application; a depiction of the proposed activity subject to the application; or a name or number identifying the application and the office where the application can be inspected. In response to the published notice, the Department received approximately ten petitions challenging the NOI, including the petitions timely filed by Petitioners. Therefore, Petitioners were not harmed by any information alleged to have been left out of the published notice. Ultimate Findings Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands; will not cause adverse flooding to on-site or off-site property; and will not cause adverse impacts to existing surface water storage and conveyance capabilities. Respondents Endres/Lima provided reasonable assurance that the Project complied with elimination and reduction of impacts, and proposed more than adequate mitigation. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources; and unacceptable cumulative impacts to wetlands and other surface waters within the same drainage basin. Respondents Endres/Lima provided reasonable assurance that the Project will not cause adverse water quality impacts to receiving water bodies. Respondents Endres/Lima provided reasonable assurance that the Project will not adversely impact the value of functions provided to fish and wildlife, and listed species by wetlands, or other surface waters. Petitioners failed to prove lack of reasonable assurance by a preponderance of the competent substantial evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Respondents’ Endres/Lima's ERP application. DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. Jay Patrick Reynolds, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 (eServed) Neysa Borkert, Esquire Garganese, Weiss, D'Agresta and Salzman 111 North Orange Avenue Post Office Box 398 Orlando, Florida 32802 (eServed) Tracy L. Kochmann 249 Carolyn Drive Oviedo, Florida 32765 (eServed) Shelley M. Meier 208 Long Acres Lane Oviedo, Florida 32765 (eServed) Brian Hacker 170 Long Acres Lane Oviedo, Florida 32765 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact Based on the stipulations of the parties, on matters officially recognized, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, The Santa Fe Lake Dwellers Association, Inc. (SFLDA), is a Florida corporation, not-for-profit, which evolved from a voluntary association of area families contemporaneously with and in reaction to Intervenor's first activities on site. Its members are mostly riparian residents and owners although, it does have a number of members who reside in surrounding areas. SFLDA was formed to protect Lake Santa Fe. The purpose of the association is to protect natural resources and to inform those conducting activities around the lake to abide by rules, regulations, and procedures. The President of SFLDA, Harold Hill, expressed particular concern about protection of lifetime investments in property on the lake and property values. SFLDA has approximately 380 "family group" members, of whom approximately one-half live on Lake Santa Fe or on canals to the lake. Mr. Hill and other members of SFLDA use Lake Santa Fe waters for swimming, fishing, and recreation. Use of the waters of Lake Santa Fe and Little Lake Santa Fe is not restricted to property owners who abut the lake. There is public access to the lakes and they can be used by anyone who has a boat. Intervenor, Santa Fe Pass, Inc. (SFP), is a Florida corporation, which owns the property at issue. SFP acquired fee title to the land in its own name on April 28, 1978. Some or all of the present share holders in SFP purchased the land in the name of a trustee on January 9, 1976. The property at issue is a development property of approximately 110 acres located in Alachua County on a peninsula that almost separates Lake Santa Fe from Little Lake Santa Fe and is commonly known as the Santa Fe Pass. The Santa Fe Lakes are navigable and are classified as Outstanding Florida Waters under Chapter 17-4.304(4)(i), Florida Administrative Code, and are surrounded by Alachua, Clay, Bradford, and Putnam Counties. On November 13, 1978, a site visit was conducted on the subject property for purposes of establishing the dredge and fill jurisdictional limits of DER and the U.S. Army Corps of Engineers. Those present on the site inspection that day included Melvin H. Rector, the DER representative; another DER employee; Don Gowan, representative for the Corps of Engineers; William B. Watson, III, a co-owner; Boone Kuersteiner, an attorney for SFP; and Benjiman Breedlove, environmental consultant for SFP. At the November 13, 1978, site visit, DER made a determination of the extent of its dredge and fill jurisdiction under Section 403.817, Florida Statutes, in the area of the subject property. This determination was depicted and memorialized on an aerial photograph of the site and was signed by those present, including Mr. Rector on behalf of DER. Mr. Rector, the DER representative on site on November 13, 1978, used the following method to establish the location of the limit of DER's jurisdiction: Jurisdiction was based on the dominance of certain vegetative species listed in Rule 17-4, Florida Administrative Code, as it existed on that date. The listed species that were dominant in the jurisdictional area were a fringe of grass called maiden cane along the lake, and further landward, two forested species, pond cypress and swamp tupelo. Dominance was based on factors of whether listed species versus non-listed species covered a greater aerial extent in the canopy cover, made up more than 50 percent of the species by number, and had a greater biomass or weight. At that time DER had no authority to use soil types to establish jurisdiction. The line set by DER was based only on the vegetative index and not on the ordinary high water line. The filling which had occurred on the site prior to November 13, 1978, had no impact on where DER located its jurisdictional line, nor did it impair the ability of DER to determine where the line should be located. Any removal of canopy or subcanopy species landward of the line prior to that date also did not affect placement of the line. If no filling had occurred on Santa Fe Pass prior to November 13, 1978, DER's representative Rector would have located the jurisdictional line in the same place as he did on November 13, 1978. An abandoned powerline easement runs across the subject SFP property from the southwest area of the property to the northeast portion of the property, where it meets the lake. Prior to any filling by SFP or its immediate predecessor in interest, the easement area had been cleared of trees, and fill had been placed in some areas along the easement strip. At the time of the November 13, 1978, jurisdictional determination, the easement strip was dry and it was possible to drive a car down it to the lake. The easement strip was not paved, but had dirt and vegetation on its surface. Portions of the powerline easement strip were filled prior to January of 1975. There was no new fill on the powerline easement strip at the time of the November 13, 1978, jurisdictional determination. At that time, portions of the powerline easement strip contained old fill material covered by upland species of vegetation. On November 13, 1978, DER concluded that, based on vegetation in and adjacent to the powerline corridor on Santa Fe Pass, the corridor was entirely outside DER's jurisdiction. A low area or depression, also referred to as a pond, is located in the northeasterly portion of the subject SFP property, southwest of the portion of the powerline easement strip that extends into the lake. No fill was placed between the depressed area or pond and the lake prior to November 13, 1978. (Shortly after that date, fill was placed in that area.) There was no other physical alternation of the area near the depression or pond prior to the date of the jurisdictional determination. At the time of the jurisdictional determination, the depression or pond was separated from the lake by a natural low berm, the borders of which were vegetated and undisturbed. The depression or pond was not exchanging water with the lake at that time, although at other times there has been an occasional exchange of waters between the two. In addition, jurisdictional vegetative species were not dominant in the depression or pond area at the time of the jurisdictional determination. On November 13, 1978, DER did not assert jurisdiction over the low area or pond in the northeast section of the property because it was not connected to waters of the state and was separated from the lake by a low natural berm. DER's representative Rector inspected the jurisdictional line numerous times after November 13, 1978, including an inspection of the line as marked by the owner's consultant to make sure the line was accurate. Other DER representatives inspected the line in May of 1979 and also thought the line or the portions of the November 13, 1978, line they inspected were accurate. On June 11, 1979, DER representative David Scott wrote SFP that, after a recent DER inspection, there were no problems with the present DER jurisdictional line. Since the DER line was established on November 13, 1978, SFP has relied on its location to develop the project, to conduct filling activities landward of the location of the line, to create a site plan and plat, and to make sales representations to potential buyers. From the owner's standpoint, the purpose of establishing the line was to determine where it would and would not need DER dredge and fill permits to develop the land. Landowners use DER jurisdictional determinations for planning purposes. SFP has expended more than $100,000 for development reasons in good faith reliance on the line's location. In conjunction with 1984 revisions to Chapter 403, Florida Statutes, DER adopted Rule 17-4.022(8), Florida Administrative Code. This was a "grandfathering" rule provided for landowners who had had DER jurisdictional determinations done, so that they could continue planning with a previously fixed jurisdictional line. On January 8, 1985, SFP requested that DER validate the 1978 jurisdictional determination for the subject SFP property in accordance with Florida Administrative Code Rule 17-4.022(8). Attached to this request was the aerial photograph signed by DER employee Rector and others upon which the November 13, 1978, DER jurisdictional determination was graphically displayed. On July 9, 1985, DER issued a letter validating the November 13, 1978, jurisdictional determination under Rule 17- 4.022(8), Florida Administrative Code. Exhibit 1 to that letter was a validated version of the aerial photograph depicting the 1978 determination. The validated line is identical to the line established on November 13, 1978. DER staff followed normal procedures in validating the Santa Fe Pass line and, having done so, concluded that all validation criteria were met. On March 11, 1986, DER notified SFLDA by certified mail that on July 9, 1985, DER had validated its November 13, 1978, jurisdictional determination on the SFP property. SFLDA timely requested an administrative hearing on March 19, 1986. Although some SFLDA officers and members had conversations with DER personnel between July 9, 1985, and March 11, 1986, none of those conversations was sufficient to provide SFLDA with a clear point of entry into the process. In sum: The totality of the credible evidence supports the ultimate finding of fact that the DER jurisdictional line established on November 13, 1978, was accurately established and SFP is entitled to have that line validated.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue a Final Order validating the jurisdictional line as determined on November 13, 1978. DONE AND ENTERED this 27th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1047 The following are the-specific rulings on each of the proposed findings of fact proposed by each of the parties. By way of preface it should be noted that the evidence in this case consists of three days of testimony by numerous witnesses, some expert and some lay, with many different points of view. Some of the witnesses had an opportunity to view the subject property carefully on numerous occasions over a period of several years. Others only viewed it casually once or twice. Some gave the property a studied, scientific examination. Others gave it only a casual, curious glance. Some of the witnesses have an interest in what happens to the property. Others do not. Some witnesses were able to relate what they had observed with precision and detail. Others were somewhat vague, uncertain, and ambiguous. These many differences have resulted in a record which contains a great deal of conflicting factual testimony as well as a great deal of conflicting expert opinion testimony. The record also contains a great deal of what might best be described as "vague" testimony to which little weight has been given. In making the findings of fact in this Recommended Order and in making the specific rulings on the proposed findings which follow, I have given careful consideration to the testimony of all of the witnesses who presented testimony relevant to the issues in this case and have resolved the conflicts in the testimony by careful consideration of matters such as those summarized in the preceding paragraph, giving special consideration to each witness' opportunity to observe the property, the timing of his or her observation, the ability of the witness to perceive and understand what was being observed, and the ability of the witness to remember and recount what had been observed. In resolving the conflicts in the testimony I have also taken into consideration such matters as the extent to which the testimony was or was not consistent with other evidence, the extent to which it was or was not consistent with logic and common sense, and the extent to which the witness' interest (or lack of interest) might have colored his or her ability to objectively observe and recount the observation. Rulings on Petitioner's Proposed Findings Paragraphs 1,2, and 3: Accepted in substance, with the exception of the last sentence of Paragraph 3, which sentence is rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 4: Accepted. Paragraph 5: Rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 6: Accepted in substance, but with most of the details deleted as unnecessary and subordinate. Paragraph 7: Accepted in substance, for the most part, but with many unnecessary and subordinate details deleted. The sentence beginning on the ninth line of page 5 and the last sentence of this paragraph are rejected as irrelevant. Paragraph 8: This paragraph is rejected as subordinate and unnecessary. (While the witness Rector's current status as a private consultant to one of the parties is an underlying consideration in evaluating the credit to be given to his testimony [and has been considered in that regard), such status is nevertheless subordinate to the real issues in this case. The witness' education, experience, and demeanor while on the witness stand were also carefully considered, but if all of these matters were to become the subjects of findings of fact, the fact-finding process might never end and the significant facts might become forever lost in a morass of trivia.) Paragraph 9: Accepted in substance, but with many details deleted as unnecessary and subordinate. Paragraph 10: The first two sentences are rejected as irrelevant. The remainder of this paragraph is rejected as constituting unnecessary and subordinate details as well as being more in the nature of a summary of fragments of the testimony than a proposed finding of fact. Relevant findings about the "pond" are included in this Recommended Order. Paragraph 11: This paragraph is rejected as constituting a commentary upon a portion of the evidence or as constituting argument about the probative value of an item of evidence, rather than being a proposed finding of fact. To the extent this paragraph does contain material which could be regarded as proposed findings, they are subordinate and unnecessary details. Paragraph 12: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following Paragraph 12: Rejected as irrelevant and as constituting subordinate unnecessary details. Paragraph 13: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following paragraph 13: First sentence accepted in substance. The remainder of this paragraph is rejected as irrelevant or subordinate and unnecessary details. Paragraph 14: Rejected as constituting irrelevant, subordinate, unnecessary details about the hearing. Unnumbered paragraph immediately following Paragraph 14: The first two sentences of this paragraph and the last sentence of this paragraph are rejected as constituting irrelevant, subordinate, unnecessary details. Most of the remainder of the paragraph is accepted in substance with most details deleted as unnecessary and subordinate. Paragraph 15: Rejected as argument or editorial commentary rather than proposed findings of fact. First unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant and unnecessary details. Second unnumbered paragraph following Paragraph 15: The first sentence is rejected as constituting subordinate, unnecessary detail. The opinion incorporated into the second sentence is rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant in light of other credible evidence that the area had not been significantly disturbed at the time of the jurisdictional determination. The last sentence is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Third unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Fourth unnumbered paragraph following Paragraph 15: This paragraph is rejected in part as constituting irrelevant and subordinate details and in part as contrary to the greater weight of the evidence. Paragraph 16: The first two sentences of this paragraph are rejected as subordinate, unnecessary details. The remainder of the paragraph is accepted in substance, but with the deletion of many unnecessary details. Paragraph 17: The first seven sentences of this paragraph are rejected as subordinate and unnecessary. The eighth sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Furthermore, the witness' testimony relative to this opinion comes closer to being in the nature of "maybe" than being in the nature of, "probably." The ninth, tenth, and eleventh sentences are rejected because they constitute irrelevant subordinate details and because the testimony in this regard was not convincing to the extent it conflicts with the testimony of other witnesses. The last three sentences of this paragraph are rejected as being totally irrelevant to any issue in this case. Unnumbered paragraph following Paragraph 17: This paragraph is rejected in part because it consists largely of irrelevant or subordinate and unnecessary details, in part because the testimony upon which it is based was not persuasive, and finally, because much of it is contrary to the greater weight of the evidence. Paragraph 18: The paragraph is rejected as irrelevant and also as in part contrary to the greater weight of the evidence. Paragraph 19: This paragraph is rejected as irrelevant. Paragraph 20: The first sentence is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The second and third sentences are rejected as irrelevant or subordinate detail. The last sentence of this paragraph is rejected as irrelevant due to the time of the observations and in part not supported by competent substantial evidence. Paragraph 21: This paragraph is rejected as irrelevant. Paragraph 22: All but the penultimate sentence of this paragraph is rejected as irrelevant and subordinate details. The essence of the penultimate sentence has been included in the findings regarding the "pond." Paragraph 23: This paragraph is rejected. For the most part it consists of irrelevant or subordinate details. To the extent it is consistent with other testimony, it is cumulative. To the extent it is inconsistent with other testimony, it is contrary to the greater weight of the evidence and to a large extent not supported by competent substantial evidence. (It is worthy of note that much of the testimony to which this paragraph relates was substantially discredited on cross-examination.) Paragraph 24: This paragraph is rejected, primarily because it consists of irrelevant or subordinate details, but also because some of those details are not supported by persuasive competent substantial evidence. Paragraph 25: This paragraph (including all of its subparts) is rejected as constituting irrelevant and subordinate and unnecessary details. Paragraph 26: This paragraph is rejected as irrelevant. Paragraph 27: This paragraph is rejected. Many portions of the paragraph consist of irrelevant or subordinate details. The portions containing opinions are rejected as being contrary to the greater weight of the evidence and as not being wholly supported by competent substantial evidence. Rulings on Respondent's Proposed Findings With the exceptions specifically noted below, the substance of all of the findings of fact proposed by the Respondent have been accepted and incorporated into the findings of fact in this Recommended Order. Paragraphs 3, 4, and 7: These paragraphs are rejected as constituting subordinate and unnecessary details. Paragraph 6: The portion reading, ". . . except for a more landward relocation around the area identified as 'Gator Cove,' to include more area," is rejected as contrary to the greater weight of the evidence. Paragraph 8: The portion reading, ". . . except in the area described as Gator Cove," is rejected as contrary to the greater weight of the evidence. Rulings on Intervenor's Proposed Findings Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some unnecessary details deleted. Paragraph 3: Accepted in substance with the exception second sentence of this paragraph. The second sentence is rejected as being too narrow and incomplete a statement. The findings in this Recommended Order contain more complete findings regarding the "pond." Paragraph 4: This paragraph is rejected as constituting subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Accepted with the exception of the last sentence of this paragraph, which is rejected as irrelevant or as constituting unnecessary subordinate detail. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Accepted. Paragraph 13: Accepted. Paragraph 14: Accepted. Paragraph 15: Rejected as irrelevant or as constituting subordinate and unnecessary details. Paragraph 16: Accepted. Paragraph 17: Accepted in substance with some unnecessary details deleted. Paragraph 18: Rejected as constituting primarily subordinate and unnecessary details. this regard it should be noted that Mr. Tyler's opinion that a portion of the jurisdictional line is misplaced has been rejected as contrary to the greater weight of the evidence.) Paragraph 19: First sentence is accepted. The remainder, although essentially accurate, is rejected as cumulative. COPIES FURNISHED: Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Frank E. Matthews, Esquire Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Findings Of Fact At all times material, Edward G. Thompson was licensed as a real estate broker in the State of Florida, having been issued license number 0190143 in accordance with Chapter 475, Florida Statutes. (Respondent's answer, Petitioner's Exhibit #1) His place of business is Red Thompson Realty Inc., State Road 20, Post Office Box 260, Interlachen, Florida 32408. (Respondent's Answer) In July 1983, Phillip and Dorothy White from Jacksonville, Florida, contracted to purchase a lot on Mirror Lake in Putnam County for a vacation residence. Edward Thompson was the broker for the sale. He and his partner, James Meyer, owned the lot and property surrounding it and they were in the process of creating a subdivision on the lake. (tr-73, 93, Petitioner's Exhibit #4) The configuration of the White's lot, lot 3-A, Mirror Lake, is elongated and stretches from a roadway. Tapering down into the lake in a modified pie-slice shape. That is, there is less frontage on the water than along the roadway. (Petitioner's Exhibit #2, Respondent's Exhibits #3 and #4) On the day that Respondent showed the lot to the Whites, he and Mr. White paced the water frontage as close as they could get to the water, given the thick vegetation; the distance was approximately 84 feet. (tr-32, 52-53, 110) Back at the real estate office, Mr. Thompson gave the Whites a drawing of the lot prepared by Terry Short, a draftsman who did the initial design concept and layout of the subdivision. This drawing clearly indicates 84 feet of water frontage. (tr-32-33, 72-73, Petitioner's Exhibit #3) The White's relied on the fact that the property had this much frontage in deciding to purchase the lot. (tr-36,56,65) The sale to the Whites closed on August 1, 1983, at which time the White executed a Contract for Deed. (Petitioner's Exhibit #9, Respondent's Answer) Sometime in January 1985, when the Whites were clearing an area near the water, the adjacent lot owner came over to explain that they were on her property and showed them the survey markers. (tr-33, 48) The Whites hired a surveyor, Earl Wallace, who completed his survey on June 10, 1985. The Wallace survey of the White's lot shows 33 feet of water frontage at the ordinary high water line. (Petitioner's Exhibit #2) Sometime after the closing on the Whites property, the survey of the entire subdivision was completed. (tr-94) Mr. Thompson claims that it was mailed to Mr. White; Mr. White denies that he received it. (tr-33,82,113,119- 120) The survey obtained by the Whites and the subdivision survey are consistent in their depiction of the White's lot. Both indicate approximately 84 feet between the two survey markers that arc closest to the water front; they both show the water line a distance from those markers with less than 84 feet of lake frontage. (Petitioner's Exhibit #2, Respondent's Exhibits #1 and #3, Tr-24) The difference between the water frontage depicted on the drawing given to the Whites and the subsequent surveys is substantially due to a fluctuation in the Mirror Lake water level. When the adjacent lot owner bought her lot in early 1983, the concrete marker was in soggy ground, near the water. Now the water has receded considerably. (tr-104,105) The lakes in that area fluctuate widely in response to rain or drought. (tr-15,16,89,108) Because of its wedge shape, the water frontage of the White's lot increases or decreases with the level of the lake. Edward Thompson is not an engineer or surveyor and relied on Terry Short to draw an accurate depiction of the property. Short held himself out as an engineer and maintained an office in the same building as Thompson Realty. (tr-72,73) Mr. Thompson saw him designing other plats and houses and after paying him for his services, relied on his professionalism. (tr- 116, 117)
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Respondents qualify for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Respondents are guilty of the violations alleged in the Notice of Violation and Orders for Corrective Action issued by the Director of District Management for the Office of the DEP Northwest District on May 13, 2003.
Findings Of Fact Parties The Department of Environmental Protection (DEP) is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, Florida Statutes, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Respondent, Santa Rosa Three, Inc. (the Corporation), is the fee simple title holder of certain property in unincorporated Okaloosa County, Florida, located between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. The property includes the subject water body, Lake Blake. Santa Rosa II, Inc., is a corporate predecessor in interest to the Corporation. Respondent, Lee Maddan (Maddan), is a long-time resident of Okaloosa County. Maddan is the Petitioner in DOAH Case No. 03-1499. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name, and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially-created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's, the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued, a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the nearest surface waters of the State of Florida. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake resulted from collected rainfall, as well as underground water intrusion in the original borrow pit. At the present time, additional diverted stormwater runoff collects in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that former owner, Ron Blake, excavate the lake and make it ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots. Okaloosa County has installed at least seven pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976, utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake for use as part of its existing stormwater drainage system. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981) for "Blake Lake Modifications" which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984, DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all of the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001, letter, like the previous letter, was issued from DEP's Northwest District and signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the property and the lacustrine wetland. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001, letter, nor the subsequent October 24, 2001 letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time, Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County, an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's dredge and fill jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to an abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or only slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, for purposes of establishing DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria set in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State and in lacustrine wetland. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits, Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented the water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. Such discharged water from Lake Blake ultimately is conveyed through the Okaloosa County stormwater drainage system and released into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Respondents primarily rely on Rule 62-312.050(4), Florida Administrative Code, which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Respondents also cite Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Respondents cite statutory exemptions. The definition of "waters" which are regulated under Chapter 403, as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because of not only its "possible discharge" but because of its actual discharge on the surface waters of Cinco Bayou. Respondents also cite Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake at least since 1976 has been utilized as part of Okaloosa County's stormwater drainage system, which is located landward of Cinco Bayou, it was not designed or constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated or maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction.
The Issue The issues in this case are whether the Department of Environmental Protection (DEP) should modify the conditions of permits held by the Deep Lagoon Boat Club, Ltd., d/b/a Deep Lagoon Marina (Applicant), to allow Applicant to construct and operate a boat travel lift in a new location at the marina and to substitute a 60-foot wide flushing channel required by the prior permits with two-48 inches box culverts.
Findings Of Fact Applicant owns and operates Deep Lagoon Marina (the Marina). The Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. The Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. The Marina is on Deep Lagoon, a Class III surface water body less than one-half mile from the Caloosahatchee River. Deep Lagoon is a short, largely mangrove- lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns at least the uplands and claims ownership of the submerged bottoms of the canals. The parties have stipulated that ownership of the submerged bottoms of the canals is not being litigated or decided in this proceeding and that, subject to the issue's being decided adverse to the Applicant in other proceedings, sufficient ownership is presumed for purposes of this proceeding. From north to south, the Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Petitioner, Brenda Sheridan, resides at 842 Cal Cove Drive, Fort Myers, Florida, which is on the shores of the Caloosahatchee River at Deep Lagoon, just across the south canal from the Marina. Intervenor, Save the Manatee Club (STMC), is a non- profit Florida corporation with approximately 40,000 members. The organization's stated purpose includes protecting the manatee and its habitat through public awareness efforts, research support and advocacy, which activities benefit manatees, STMC, and its members. The Florida Legislature has recognized STMC's substantial interest in manatee protection by designating it a member of the manatee protection committee provided by the Florida Manatee Sanctuary Act at paragraph 370.12(2)(p), Florida Statutes, and by requiring the state to solicit recommendations from STMC regarding the use of Save the Manatee Trust Fund monies, at Section 370.12(5)(a), Florida Statutes. Numerous members of STMC reside within Lee County, where they observe, study, photograph, and actively attempt to protect manatees from collisions with watercraft. These efforts benefit manatees and provide STMC's members with educational and recreational benefits in the waters of Lee County that would be affected by the proposed activity. STMC has expended substantial resources in advocating increased legal protection of manatees in Lee County, including additional boat speed regulations on the Caloosahatchee River. STMC has also constributed funds for the rescue and rehabilitation of manatees exposed to red tide in Lee County waters. Injury, mortality, and loss of important habitat would produce significant, adverse impacts to the manatee, thereby diminishing the ability of STMC's members to observe, study, and enjoy manatees in waters that would be affected by the proposed activity and frustrating STMC's efforts to preserve and protect manatees in Lee County. Permit History On December 9, 1986,, Applicant's predecessor in title applied to DEP's predecessor agency, the Department of Environmental Regulation (DER), for a dredge and fill permit to rehabilitate the 61 existing wet slips at the Marina and add 113 new wet slips. Because Deep Lagoon violated Class III water quality standards, and there was concern for the West Indian manatee, a listed endangered species which uses the waters in and around Deep Lagoon, DER placed conditions on the permit and gave notice of intent to grant the permit, with conditions, on July 26, 1988. Petitioner and others challenged the issuance of the permit, and formal administrative proceedings were conducted, culminating in a final order on August 24, 1989, approving the permit, with additional conditions, and certifying under the federal Clean Water Act that state water quality standards were met because there would be a net improvement in water quality of the poorly-flushed canals. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 11 F.A.L.R. 4710 (DER 1989). Wetland Resource Permit 361279929, incorporating all of the conditions, was issued on September 22, 1989, for construction and operation of the project for five years (the 1989 Permit). Petitioner and the others appealed the final order. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the 1989 Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DER's certification of the activity as in compliance the federal Clean Water Act. Following proceedings on remand, DER entered Final Order on Remand on April 10, 1992, which revoked the earlier certification of compliance and, citing 33 United States Code Section 1341, as authority, waived certification as a precondition to federal permitting. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 14 F.A.L.R. 2187 (DER 1992). The 1989 Permit expired on September 22, 1994, but Environmental Resource Permit 362504599 was issued on October 9, 1995, essentially extending the 1989 Permit conditions for ten years, to October 9, 2005. Minor modifications were approved on November 17, 1995, March 26, 1997, and April 15, 1997. Environmental Resource Permit 362504599, with all conditions and subsequent modifications, is referred to as the 1995 Permit. Permit Conditions In general, the 1995 Permit authorizes the owner of the Marina: to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The 1995 Permit authorized activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposed several requirements designed "to ensure a net improvement in water quality." Among them, Specific Condition 5 stated in pertinent part: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addressed the phasing of occupancy of the wet slips. Specific Condition 8 provided in pertinent part: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. Specific Condition 11 added: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 required the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibited live-aboards at the marina. Specific Condition 15 added various manatee-protection provisions. Applicant's DOAH Case Nos. 98-3901 and 98-5409 Seeking to satisfy certain of the requirements of Specific Condition 5 of the 1995 Permit, Applicant filed with DEP, on December 10, 1997, an application for an Environmental Resource Permit (ERP) and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter described the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assured that Applicant's contractor would use turbidity curtains "around the dredging and spoil unloading operation" and advised that the contractor would unload the spoil "to the north peninsula upland area." The letter stated that the dredging would "be to the design depth/existing canal center line depth of -7 NGVD," which was established by the 1995 Permit, and would be "done in conjunction with the required dredging under [1995 Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divided the dredging into two areas. (For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals and then replace these materials with clean backfill material, as already authorized in the 1995 Permit.) For 4.84 acres, which ran through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. By letter dated March 13, 1998, DEP stated its determination that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement to obtain an ERP. The letter warned that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter added that DEP could revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provided a point of entry for persons whose substantial interests are affected by DEP's determination. Petitioner challenged the exempt status of the maintenance dredging, and STMC intervened in support of the challenge, which was referred to DOAH and given DOAH Case No. 98-3901. But Applicant's contractor proceeded during the pendency of the challenges and completed the maintenance dredging in the three canals. (Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the 1995 Permit.) On November 5, 1998, DEP gave notice of intent to issue the ERP for the surface water management system and certify compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code, Section 1341. Petitioner filed a challenge on December 8, 1998, and the matter was referred to DOAH, where it was given DOAH Case No. 98-5409. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the 1989 Permit, DEP again waived state water quality certification, consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. DOAH Case Nos. 98-3901 and 98-5409 were pending when Applicant sought the modifications to the conditions of the 1995 Permit which are the subject of this case (DOAH Case No. 99- 2234). DOAH Case Nos. 98-3901 and 98-5409 were consolidated and heard by Administrative Law Judge (ALJ) Robert E. Meale on February 11 and May 3-4, 1999. On November 24, 1999, ALJ Meale entered a Recommended Order recommending a final order revoking DEP's determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the ERP in DOAH Case No. 98- 5409. The recommendation to deny the ERP in DOAH Case No. 98- 5409 was based on findings and conclusions: (1) that Applicant had not provided reasonable assurances that the construction and operation of the proposed surface water management system would result in a "net improvement" in water quality; and (2) that the direct and secondary impacts of the construction and operation of the system would adversely affect the West Indian manatee. Water Quality As indicated in relating the permitting history of this site, water quality in the waters of the Marina has been poor. See Findings 10 and 12, supra. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one- day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. In this case, the parties stipulated that the waters of Deep Lagoon and the Marina are Class III marine waters that do not meet Florida water quality standards for dissolved oxygen, copper, and total coliform bacteria. They also stipulated that there were violations in 1987 for oil and greases (20 times standard), fecal coliform (too numerous to count), lead (20 times standard), cadmium (ten times standard), mercury (1,000 times standard), biological diversity, and tributytin (150 times standard) (although DEP and Applicant do not think the 1987 data are relevant). Data collected in 1987 showed average flushing time in the north canal to be 183 hours (tidal prism method), 90.5 hours (current velocity), and 50 hours (dye concentration reduction method). Data collected in 1987 showed average flushing time in the main basin to be 208 hours (tidal prism method), 48 hours (current velocity), and 154 hours (dye concentration reduction method). Manatees The parties stipulated that Lee County is a heavy use area for the West Indian Manatee and that manatees use the water south of Deep Lagoon and the Caloosahatchee River on a year-round basis. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. It is clear that manatees frequent Deep Lagoon near the mouth of the north canal. There are seagrass beds there to serve as a food source, and freshwater from the Iona Drainage District ditch discharges in that area. The evidence in this case includes testimony and numerous photographs of manatees not only in that vicinity but up to 200 feet into the north canal. While there are no seagrass beds in the north canal itself, freshwater from the Iona Drainage District ditch discharges into the north canal all along the length of mangrove fringe on the north shore of the canal. It is not clear how much further up the north canal manatees go, but they probably frequently continue further into the north canal since one primary attraction of the north canal for manatees at this time is its relative quiet and peacefulness. Manatees also make some use of the central and south canals of the Marina, but they seem to prefer the north canal for its peacefulness and for the fresh water supply from the Iona Drainage District ditch. The Florida Department of Transportation recently has constructed a retention pond for MacGregor Boulevard in the vicinity of the Marina which will discharge fresh water into the main basin of the central canal. This may make the central canal more attractive to manatees than it is at this time, notwithstanding the relatively high level of boating-related activity there. New Boat Travel Lift The Marina's existing boat travel lift is located in the main basin of the central canal. There also are the remnants of an older travel lift operation at the western end of the central peninsula extending into Deep Lagoon. Applicant proposes to construct and use a new boat travel lift at the eastern terminus of the north canal. The proposed location of the new travel lift will be closer to the approved location of a new service center building. A travel lift essentially consists of a heavy-duty, U-shaped frame which is built on wheels and motorized for mobility. Heavy-duty straps are suspended from the frame using pulley systems. The travel lift is driven out over water on specially-built tracks so the straps can be placed underneath large vessels (over 40 feet) and tightened using the pulleys to secure the vessels; the travel lift is then driven off the tracks, and the vessels are transported to a dry storage or repair location, where the vessels are lowered, and the straps are removed. The process essentially is reversed to return vessels to the water. The direct impact of construction of the new boat travel lift involves removal of some mangroves existing at the terminus of the north canal and sinking pilings to support the tracks extending into the water on which the travel lift operates. Applicant proposes to mitigate the mangrove impacts by filling areas on either side of the proposed travel lift to just above the mean-high waterline and planting the areas with mangroves. Not only will this be a net increase the amount of mangrove fringe, the decrease in water depth at the east end of the north canal also will improve flushing of the canal to some extent. Applicant also proposes to remove exotic plants all along the shoreline of the Marina's canals for the life of the Marina. It is the Marina's intent to use the travel lift only for vessels too large to be lifted by forklifts operated at the main basin of the central canal. The Marina is purchasing new, larger (37,000 pound) forklifts (compared to the 10,000 pound forklifts currently in use), which can lift vessels up to approximately 42 feet long. Use of the larger forklifts will reduce the use of the travel lift. At this time, there is no proposed specific condition to limit use to the travel lift to vessels too large to be lifted by the new forklifts. New Specific Condition 33 in the proposed permit modifications provides: "Launching of vessels from the dry storage facilities shall be prohibited in the north canal at the site." New Specific Condition 34 in the proposed permit modifications provides in part: "Launching and retrieval of vessels in the north canal shall be restricted to vessels stored/moored at the marina facility that require boat repair." New Specific Condition 34 also would require Applicant to maintain logs for the travel lift and boat repairs to allow DEP to verify compliance by comparing the two logs. There was some disagreement as to the intent of the quoted proposed new specific conditions. A DEP witness thought it meant that the Marina only could use the travel lift for repair of vessels permanently moored at the Marina, but the Marina's representative did not think the language would prohibit the repair of other vessels as well. Assuming that vessels not permanently moored at the Marina will be accepted for repairs, and that only vessels too large for the new forklifts will use the new travel lift, it can be anticipated that an average of 6-10 vessels a week will use the travel lift for retrieval from the water and discharge back to the water. To some extent, use of the travel lift is limited by the average time it takes to use the lift. But considering only those limitations, it is possible use the lift as many as 19 times in a day in an emergency--e.g., when a hurricane is approaching, and the Marina is trying to get as many boats out of the water as possible. On average, use of the travel lift also will be limited by market conditions and the capacity of the new service center to store and repair large vessels. More than half of the average use of 6-10 vessels a week probably will occur on Fridays (for repairs before peak weekend boating) and Mondays (for repairs after the weekend peak). At this time, there is no proposed specific condition to limit use of the new travel lift. But at final hearing, the Marina expressed its willingness to accept a limit of an average of ten vessels a week. (Counting retrieval from the water and discharge back to the water for each vessel, the agreed limit would be an average of 20 uses of the travel lift a week). The Marina was not willing to accept a daily limit. Secondary impacts from such a limited use of the proposed new travel lift on water quality and manatees are difficult to assess precisely. The travel lift itself uses some form of lubrication, but only the straps enter the water during operation. Historically, vessels have been pressure-washed and had their bilges and engines flushed while on the existing travel lift in the main basin of the central canal at the Marina, and wash-water from these operations has entered the main basin at that location. Wash-water from such operations at the proposed new travel lift location would enter the north canal, subject to the construction and operation of an adequate surface water management system, as required by Specific Condition 5.C. of the 1995 Permit. Cf. DOAH Case No. 98-5409, supra. It is possible that vessels in need of repair entering the north canal and proceeding to the proposed new travel lift location (whether under power or being towed) could leak oil or gasoline. Both contaminants would rise to the surface. Leaked gasoline and the more volatile components of oil could be expected to evaporate relatively quickly; the residue of oil contamination would be persistent. Such spills would affect water quality and could affect manatees drinking fresher water from the surface of the north canal. There was no evidence from which to predict or quantify such impacts. It would be possible for manatees to be injured by vessels using the proposed new travel lift. Although such vessels would be traveling at low speed (1-2 mile per hour), maneuvering such large vessels in close quarters like the north canal sometimes is accomplished by intermittent bursts of high engine and propeller speeds, both in forward and reverse gears. Such operations could cause a vessel to lurch in the direction of a manatee; if done in reverse gear, a manatee could be sucked into the speeding propellers. It also is possible for a manatee to be crushed against the bottom or against a structure of the Marina facility during such operations. Despite the possibility of injury to manatees from use of the new proposed travel lift, it is clear that most manatee injuries and deaths from boat collisions occur as a result of propeller injuries from boats being operated at high-speed. Manatees are known to frequent and safely use marinas where large vessels operate at low speed. The risk of danger to manatees from use of the proposed new travel lift can be characterized as being minimal if not speculative, especially in view of the manatee protections in Specific Condition 15 of the 1995 Permit. Initially, DEP misunderstood the nature of the proposed new travel lift, thinking it would greatly increase boat traffic in the north canal. When the minor impact of the project was explained, DEP's concerns were allayed. Greater risk of danger to manatees would occur from the addition of wet slips in the north canal, but those impacts are not secondary to the travel lift proposal; they are completely separate impacts that are governed by the pre-existing 1995 Permit. Petitioner and Intervenor were critical of the absence of a specific condition for the daily logs to be presented to DEP for inspection on a regular basis. See Finding 42, supra. They contended that absence of such a requirement would compromise compliance enforcement. But DEP inspection of the logs at times of its own choosing could be just as effective. The key to enforcement is having an enforceable specific condition limiting use of the travel lift. Petitioner and Intervenor also were critical of using a simple weekly average to limit use of the new travel lift. They correctly argue that the time over which the weekly average would be computed must be designated for such a use limitation to be enforceable. They also contend that there should be a daily limit. Assuming a weekly average limitation of ten, a daily limit of ten would not be unreasonable if it allowed leeway to exceed the daily limit in cases of emergencies such as approaching hurricanes. Replacing Flushing Channel with Culverts Applicant's proposal to replace the 60 foot by 4.5 foot-deep flushing channel with two 48-inch culverts is motivated by practical considerations. Applicant essentially wishes to avoid the expense of constructing the channel required under the 1995 Permit and having to bridge the channel to make use of the peninsula between the central and north canals. Part of the Marina's initial motivation for the channel was to expand operations and allow access to the north canal from the main basin. Part of the channel was to have been used by the Marina as a new forklift area with access to boat storage areas on both sides of the channel. In the 1989 Permit, it was stated that the channel was "to act as a sediment sump." It was not until the 1995 Permit that the channel was said to serve to "improve flushing." Most of the "net improvement" of water quality at the Marina was to come from proposed contamination dredging of the canals (and backfilling with clean sand), removal of contaminated soil from Marina uplands, installation of a redesigned boat-wash area, and installation of an adequate surface water management system. Most flushing benefits were anticipated to come from making the canals shallower by back-filling after dredging. Flushing from the channel was presented as "frosting" on the "net improvement cake." The hydrographic evidence was that the channel, in conjunction with back-filling the Marina's canals, would indeed increase flushing of the Marina's canals to some extent. Looking at the main basin only, the channel would improve flushing by up to 27 percent. But looking at the Marina's canals overall, the channel would only increase flushing by up to 0.6 percent. By comparison, the hydrographic evidence was that the proposed flushing culverts also would contribute to increased flushing but by a smaller amount. Looking at the main basin only, the proposed flushing culverts would improve flushing by up to 4 percent. Looking at the Marina's canals overall, the proposed flushing canal would only increase flushing by up to 0.2 percent. Petitioner and Intervenor question the reliability of Applicant's calculations of flushing times without more up-to- date data on the depths of the canals after contamination and maintenance dredging. But the evidence was that differences in the starting depths would not have a significant effect on the relative changes in flushing times from the channel versus the culverts; the differences would be approximately proportional regardless of the starting depths. In addition, the depths assumed in Applicant's calculations are based on the 1987 data and the requirements of the 1995 Permit. Compliance with the requirements of maintenance dredging and the 1995 Permit can be enforced, if necessary, in other proceedings. See, e.g., DOAH Case No. 98-3901, as to maintenance dredging. Applicant's calculations on flushing times do not account for the possibility of an additional benefit from the proposed flushing culverts. Applicant proposes to locate the culvert inverts at a depth of 6 feet. If a greater salinity gradient exists at that depth, the culverts would have a relative advantage over a 4.5 foot-deep channel in terms of flushing and the exchange of more oxygenated water between the north canal and the main basin. The existence of such a salinity gradient is suggested by data collected in 1997. But salinity gradients are not constant, and water samples were collected only during one 24- hour period in May 1997 and another 24-hour period in September 1997. In addition, no data has been collected after the maintenance and contamination dredging. The sampling in this case was too limited to give reasonable assurance that the proposed flushing culverts would have advantages over the required channel in promoting of flushing. Petitioner and Intervenor contend that changing the open channel to closed culverts would decrease the benefit of oxygen exchange in an open-channel system. It is true that, generally, more oxygen would be introduced in an open system. But the evidence was that none of the "net improvement" to water quality from the specific conditions to the 1995 Permit was anticipated to derive from increases in dissolved oxygen from oxygen exchange in the channel. Conversely, Applicant contended that the proposed culverts would decrease the chances of contamination from the uplands, as compared to an open channel. But there was no specific evidence to support or quantify this speculative benefit. In addition, required improvements in surface water management at the Marina would reduce any such benefits from the culverts. See, Specific Condition 5.B. and DOAH Case No. 98-5409. Approximately 60 feet of mangrove fringe would have to be removed from the north canal to accommodate a flushing channel. In contrast, only approximately 8 feet of mangrove fringe would have to be removed to accommodate the proposed culverts. But there was no evidence as to how removing less of the mangrove fringe would improve flushing or water quality. In addition, Specific Condition 12 of the 1995 Permit required replacement of the mangroves lost in the construction of the flushing channel. There was no evidence that installation of flushing culverts instead of the flushing channel required under the 1995 Permit would have any impact on manatees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: granting Applicant's proposed modifications to the 1995 Permit, with the following additional modifications: No use of the new travel lift for boats less than 40 foot in length except in emergencies, e.g., approaching hurricane. Limitation on use of travel lift to a 28- day rolling average of ten vessels a week, except in emergencies, e.g., approaching hurricane. Prohibition against pressure-washing and flushing bilges and engines of vessels on the new travel lift except in the boat wash area to be constructed and operated in accordance with Specific Condition 15 of the 1995 Permit. A requirement to report and promptly clean-up any spills of oil or gasoline in the north canal related to operation of the new travel lift. waiving certification as a precondition to federal permitting under 33 United States Code, Section 1341. DONE AND ENTERED this 21st day of January, 2000, 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 21st day of January, 2000. COPIES FURNISHED: T. Elaine Holmes, Esquire 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman, Esquire Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle, Esquire Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue In a Notice of Proposed Rulemaking published on September 5, 2003, the Department of Environmental Protection ("DEP" or the "Department") proposed amendments (the "Proposed Rule") to an existing rule, Florida Administrative Code Rule 62- 304.700. The Proposed Rule establishes a Total Maximum Daily Load ("TMDL") for Total Phosphorus ("TP") for a number of streams (referred to in this proceeding as the Nine Northern Tributaries) in the Lake Okeechobee Basin and addresses other related matters. The issue in this proceeding is whether the Proposed Rule is an invalid exercise of delegated legislative authority.
Findings Of Fact Lake Okeechobee Of the freshwater bodies located wholly within the forty-eight contiguous states in the continental United States, Lake Okeechobee (the "Lake") is the second largest. Given its size, it is not surprising that the Lake is a water source of great import to its region. It provides drinking water for lakeside cities and towns in South Florida and is a potential backup water supply for the urban communities of Florida's southeast coast. The Lake supplies irrigation water for the Everglades Agricultural Area ("EAA") and in times of drought, it serves as a critical supplement to the rain upon which the Everglades, an ombrotrophic system, is dependent. Home to one of the nation's prized bass and speckled perch fisheries, the Lake is also an "economically important commercial fishery." Petitioners' Ex. 12, p. 9. Most significantly to this proceeding (one involving the application of Florida's water resources and environmental control laws), Lake Okeechobee is a key component of Central and South Florida's Kissimmee-Okeechobee-Everglades ecosystem which extends from the chain of lakes at the headwaters of the Kissimmee River in the north to Florida Bay in the south. As such, it has had tremendous ecological value in the past. Despite significant detrimental changes in the Lake's hydrological regime and water quality since the early 1900s, the Lake continues to "provide[] habitat for a wide variety of wading birds, migratory waterfowl, and the federally-endangered Everglades Snail Kite." Id. The Lake suffers from major impacts due to hydrologic modifications. In the making since the days of the Great Depression, these include the construction of the Herbert Hoover Dike prior to World War II and the installation of a system of canals and levees built following congressional authorization just after the war in 1948. The latter was part of a comprehensive water resources project undertaken by the United States Army Corps of Engineers and known as the Central and Southern Florida Project for Flood Control (the "C&SF Project"). Whether producing water levels too high or too low, the changes in hydrology brought about by mankind over the past century have led to various impacts that have been significantly detrimental to the ecology of the Lake and the surrounding area. Aside from hydrologic modifications, there have been other factors that have led to significant impacts detrimental to the Lake and its ecology. Excessive nutrient loading is one of them. Nutrient loading has occurred because of the conversion of much of the land around the Lake to agriculture, cattle ranches and dairy farms. The conversion is described in the Lake Okeechobee Surface Water Improvement and Management (SWIM) Plan, Planning Document dated February 28, 2003, prepared by the Lake Okeechobee Division of the Northern District Restoration Department of the South Florida Water Management District (the "SWIM Planning Document"): To the north [of the Lake], dairy farms and beef cattle ranching became the major land uses, while to the south, sugarcane and vegetable farming increased rapidly. These land use changes resulted in a large increase in the rate of nutrient (nitrogen and phosphorus) inputs to the lake, and detrimental changes occurred in the lake's water quality. Id. at 10. The inputs of phosphorus and their impact is also described in the SWIM Planning Document. Pertinent to this proceeding, in particular, the document describes the phosphorus inputs north of the Lake and their impacts: Phosphorus inputs from the northern watershed increased dramatically, and can be traced primarily to the animal agricultural activities in that watershed. Loads (concentrations times flow) of total phosphorus to the open water region of the lake nearly tripled between the early 1970s and mid-1980s, and coincident with this trend, the concentration of phosphorus in the lake itself increased from below 40 to over 100 parts per billion (ppb). Blooms of blue-green algae became more common, with particularly large blooms covering more than 40 percent of the lake surface in the 1980s. Id. at 10-11. The Nine Northern Tributaries Among the rivers, streams, creeks, canals and sloughs that comprise the Lake Okeechobee Basin are nine tributaries to the north: Taylor Creek, Nubbin Slough, the S-135 Canal, Mosquito Creek, Otter Creek, Lettuce Creek, Henry Creek, Myrtle Slough, and Chandler Hammock Slough (the "Nine Northern Tributaries"). Located in sub-basins (the S-191, S-133, S-135, and S-154 Basins) within the Lake Okeechobee Basin, the Nine Northern Tributaries contribute between five and fifteen percent of the annual water flow into the Lake. All are plagued by nutrient pollution that consists mainly of excess nitrogen and phosphorus. The Nine Northern Tributaries were relatively unpolluted prior to agricultural development in the area. In the aftermath, the environments in their respective watersheds have been profoundly altered by pollution. The pollution has been especially dramatic with regard to phosphorus. For example, phosphorus levels in the area were lower than 60 parts per billion ("ppb") in 1953. In recent years, phosphorus levels for most basins in the Lake Okeechobee water levels have been double and triple 1953 levels. In some cases phosphorus levels have been at even greater multiples of 1953 levels. One of the higher examples is the Taylor Creek/Nubbin Slough Basin where the level of phosphorus for the period 1990-1994 was 602 ppb, an increase ten-fold over that forty years earlier. Between nitrogen and phosphorus (and all other pollutants, for that matter), phosphorus is the pollutant of primary concern in the Nine Northern Tributaries. Designated Uses In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act" (the "Pollution Control Act.") Ch. 67-436, Laws of Fla. The Pollution Control Act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this purpose. Chapter 403 established a policy to "conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The Pollution Control Act empowered the Department to "develop . . . a grouping of water into classes . . . in accordance with the present and future most beneficial uses," and to "establish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enumerating five classes of beneficial uses to be protected. The Rule enumerating the five classes can now be found at Florida Administrative Code Rule 62-302.400. Water bodies not specifically identified in the Rule are listed as Class III on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62- 302.400(1) and (12). The Nine Northern Tributaries are all Class III waters. See Department's Ex. 4. The import of a Class III designation was described at hearing by Mr. Mandrup-Poulsen: The designated uses is intended as a way to describe quickly and easily to those in the profession, and to the public, as to what the intent and the use of that water body ought to be. So that for Class [III], for example, . . . we would intend to protect those [so designated] to ensure that they have a healthy and well-balanced natural population of fish and wildlife (Tr. 195-196) "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28-5 (1968). Since then, the Department has updated the criteria and added a narrative nutrient criterion that applies to Class III waters: (48)(b) Nutrients - in no case shall nutrient concentration of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 62-302. The phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, however, has not been defined by rule. The nutrient criterion also requires that the nutrient level be "limited as needed to prevent violations of other standards contained in this chapter." Fla. Admin. Code R. 62- 302. Phosphorus in Florida and Imbalance of Flora and Fauna There is a wide range of natural nutrient conditions in the state of Florida especially with regard to phosphorus. Phosphorus is common in Florida soils. In fact, some Florida soil is so rich in phosphorus that it is the site of phosphate mines, where phosphorus is mined for use in fertilizers and for other purposes. The presence of such large amounts of phosphorus is due to a combination of factors. Limestone formations, the base of Florida rock, and shallow reef systems inundated by marine waters over millions of years led to a sedimentary deposit system laden with phosphorus in the land mass that is Florida. The sedimentary system is now composed of phosphatic sands and clays. Soils laden with phosphorus contribute phosphorus to adjacent water bodies as part of a natural process independent of human activities. The presence of so much phosphorus in Florida soils and its natural leaching into water bodies poses a problem for the scientist asked to determine when phosphorus has created an imbalance in natural flora and fauna especially when other factors contribute to imbalance. There is no question, however, that there is too much phosphorus in the Nine Northern Tributaries and Lake Okeechobee to maintain a balance of natural flora and fauna and that the presence of this phosphorus is largely the result of human activity and disturbance. The Florida legislature, moreover, has said so. See Finding of Fact 36. The question for the investigator in pursuit of a TMDL for TP, such as the Department in this proceeding, is how much phosphorus can these water bodies tolerate before imbalance is reached. Another way of looking at the problem with regard to the streams at issue in this proceeding is: at what concentration level does TP allow the streams to sustain a healthy population of aquatic flora and fauna so as to avoid phosphorus impairment? Phosphorus Impairment The Nine Northern Tributaries were included on the list of impaired surface waters adopted by the Department through Secretarial Order issued August 28, 2002. They are central to this proceeding because they are the subject of the Proposed Rule by virtue of their identification in the Proposed Rule as "[o]ther waterbodies in the Lake Okeechobee Basin" subject to a TMDL set at "an annual median TP [total phosphorus] concentration of 0.159 mg/L." See Notice of Proposed Rulemaking, September 5, 2003, OR-1, Department's Exhibit No. 5, p. 3. Like the Nine Northern Tributaries, Lake Okeechobee has also been determined to be impaired due to the presence of excessive phosphorus. It is not an exaggeration to deem the Lake profoundly polluted by phosphorus. Concentrations have risen from 40 ppb in the early 1970s to 145 ppb in 2000. The Lake receives phosphorus both from external (such as the Nine Northern Tributaries) and internal sources. A large percentage of the lake bottom that was formerly covered in sand is overlain by organic mud, estimated to contain over 30,000 metric tons of phosphorus. Mud sediment accumulation and phosphorus deposition have increased significantly in the last 50 years. Phosphorus in the water column in the Lake, therefore, has an external and an internal source as well: sediment and deposition on the lake bottom. Over time, elevated phosphorus loadings from external and internal sources have intensified the eutrophication of the Lake. Eutrophication is apparent to the eye by the presence of widespread algal blooms. The algal blooms, in turn, have caused die-off of macro-invertebrate communities due to toxic byproducts of algal decay. Dense blooms of algae, moreover, adversely affects the quality of drinking water. As part of the commencement of the restoration process in the hope of overcoming the eutrophic nature of the Lake, the Department has adopted a phosphorus TMDL of 140 metric tons for the Lake. Atmospheric deposition will account for 35 metric tons of phosphorus entering the lake externally every year. The TMDL for the Lake, therefore, requires that phosphorus from surface water loading not exceed a maximum of 105 metric tons per year (the difference between the Lake's TMDL of 140 metric tons and the 35 metric tons contributed by precipitation and other contributions from the atmosphere). This limitation on surface water loading applies to the Nine Northern Tributaries and other surface waters in the Lake Okeechobee Basin. Phosphorus Impairment in the Okeechobee Basin The Lake Okeechobee Basin is heavily impacted by phosphorus. Streams within the basin are likely to be impacted by phosphorus as opposed to streams that meet reference conditions, that is, that are under minimal impacts, as explained, below. If the Lake is ever to be restored it is critical that the phosphorus that is introduced from external sources (other than atmospheric deposition) be reduced. External Phosphorus Load Reduction Four "major issues" critical to the restoration of the Lake Okeechobee ecosystem have been identified by the SWIM Planning Document. This proceeding is concerned with one of them: "[e]xternal loads of phosphorus [that] must be substantially reduced." Petitioners' Ex. 12, p. 10. Two enactments of the Florida Legislature address or relate to phosphorus pollution in the Lake and the Nine Northern Tributaries: the most recent, passed in 1999, is the Florida Watershed Restoration Act1; the other, passed in 1987, codifies the Lake Okeechobee Protection Program.2 The Lake Okeechobee Protection Program Unique among watersheds in the State, Lake Okeechobee is specially protected by the Legislature through the Lake Okeechobee Protection Program (the "Protection Program"). Under the Protection Program, the Legislature's goal is to provide "a reasonable means of achieving and maintaining compliance with state water quality standards" in conjunction with Section 403.067, Florida Statutes. See § 373.4595(1)(g), Fla. Stat. The "findings and intent" section of Section 373.4595, Florida Statutes (the "Protection Statute") bearing the catchline, "Lake Okeechobee Protection Program," sets out both the import of Lake Okeechobee to the State as well as the hydrological and water quality impacts the Lake has suffered due to the use of land in its watershed and construction of the C&SF Project. Section (1)(c) announces, moreover, the Legislature's finding "that improvement to the hydrology and water quality of Lake Okeechobee is essential to the protection of the Everglades." The statute goes on to declare "it . . . imperative for the state, local governments and agricultural and environmental communities to commit to restoring and protecting Lake Okeechobee and downstream receiving waters," Section 373.4595 (1)(d), Florida Statutes, and to develop and implement immediately a "watershed-based approach to address these issues." Id. With regard to phosphorus, the Legislature, in the Protection Statute, "finds that phosphorus loads from the Lake's watershed have contributed to excessive phosphorus levels in the Lake and downstream receiving waters and that reduction in phosphorus levels will benefit the ecologies of the systems." § 373.4595 (1)(e), Fla. Stat. This finding is supported by Petitioners' Exhibit 43, a page from the Lake Okeechobee SWIM Plan, in which it is stated: "Phosphorus is of particular concern in this system because it is an essential element that contributes to eutrophication in Lake Okeechobee [citations omitted]. Phosphorus within the Lake's water column increased dramatically from 40 ppb in the early 1970s to 145 ppb in 2000 [reference omitted]." Toward reducing phosphorus levels, the Protection Statute references a technical publication,3 South Florida Water Management District's Publication 81-2. See § 373.4595(1)(f), Fla. Stat. The technical publication is also referred to in Petitioners' Ex. 43, which describes attempts at phosphorus load reduction to the Lake that took place from the early 1980s to the early 1990s: A phosphorus load reduction goal was developed to restore the ecological condition of Lake Okeechobee. This goal requires a 40 percent reduction in phosphorus loading to the lake based on the data collected from 1973 to 1979 (Federico et al., 1981). Tributary phosphorus limitations were based upon reaching an in- lake phosphorus concentration of 40 ppb by July 1992 as recommended by a modification of the Vollenweider (1976) nutrient loading model, described in SFWMD Technical Publication 81-2 (Federico et al., 1981). As controls within the basin surrounding Lake Okeechobee increased, a noticeable decline in the phosphorus load to the lake occurred from 1983 to 1993 [reference omitted].[4] Despite this load reduction, no reduction of phosphorus occurred within the lake [reference omitted]. This in part was attributed to the huge amount of phosphorus that has accumulated over decades in sediments within this shallow lake [reference omitted]. As the external loads have declined, internal loads from the sediments have become more significant, acting as a buffer to the system and preventing the phosphorus concentration in the water column from declining. Petitioners' Ex. 43 (emphasis added). Recent data demonstrate the phosphorus pollution problem in Lake Okeechobee. The five-year moving average of the long-term phosphorus load to Lake Okeechobee (that includes an atmospheric load of 35 metric tons per year) was 554 metric tons as of 2002. According to the January 1, 2004, Lake Okeechobee Protection Plan, this included the "smallest measured historical load (169 Mtons in 2000), due to the worst drought in recent history; and the largest measured load in the past decade (780 metric tons in 1998) that was a very wet year " Petitioners' Ex. 14, p. 4. The Protection Statute also references the Legislature's call in 1999 for "subsequent phases of phosphorus load reductions [to be] determined by the total maximum daily loads [TMDLs] established in accordance with s. 403.067": "Florida Watershed Restoration Act," (or the "TMDL Act"). The Florida Watershed Restoration Act Originally passed in 1999 as Chapter 99-223, Laws of Florida, the Florida Watershed Protection Act, in its present form5 (the "TMDL Act") declares "that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted], will promote improvements in water quality throughout the state through the coordinated control of point and non-point sources of pollution." § 403.067(1), Fla. Stat. The TMDL Act requires the Department to "submit periodically to the United States Environmental Protection Agency (the "USEPA") a list of surface waters for which total maximum daily load assessments will be conducted." § 403.067(2), Fla. Stat. The parties' descriptions of the requirements of the TMDL Act are in accord: In short, the [TMDL] Act requires the Department to formulate a prioritized list of "impaired waters' (i.e., that fail to meet water quality standards) to develop TMDLs for the listed impaired waters, and to allocate pollution load reductions so as to restore all impaired waters to water quality standards. §403.067, Fla. Stat. Petitioners' Proposed Final Order, pp. 9-10. Through the TMDL Act, the Legislature directed the Department to develop a methodology to identify waters of the state that were failing to meet the state's water quality standards due to pollutants. Using that methodology, the Department has been directed to assess the waters of the state and list as impaired those waters that fail to meet water quality standards because of a particular pollutant. Once those waters and causative pollutants have been identified, the Department is to establish a TMDL. Respondent's Proposed Final Order, pp. 11-12. TMDLs Defined as "the sum of the individual wasteload allocations for point sources and the load allocations for nonpoint source and natural background," the statutory definition of TMDLs in the chapter of the Florida Statutes that contains the TMDL Act continues, "[p]rior to determining individual wasteload allocations and load allocations, the maximum amount of a pollutant that a water body or water segment can assimilate from all sources without exceeding water quality standards must first be calculated." § 404.031(17), Fla. Stat. This definition was simplified at hearing by the Department's expert in the "development of total maximum daily load, DEP's Watershed Assessment Section Administrator Jan Mandrup-Poulsen. Mr. Mandrup-Poulsen testified that a TMDL, "is quite simply the amount of a pollutant that can be assimilated by a water body without causing the water body's designated use to be exceeded." (Tr. 194) As explained in a draft publication of the USEPA's Region 4 office, TMDL formulation is a process that: establishes the allowable loadings of pollutants or other quantifiable parameters for a waterbody based on the relationship between pollution sources and in-stream water quality conditions, so that states [such as Florida] can establish water quality based controls to reduce pollution from both point and non-point sources and restore and maintain the quality of their water resources [citation omitted]. Petitioners' Ex. 3, p. 2. Establishment of the amount of a pollutant that a water body can receive without exceeding water quality standards is not the end of the TMDL process for the Department. With the establishment of a TMDL, the Department is also required to "account for seasonal variations and include a margin of safety that takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." § 403.067(6)(a)2., Fla. Stat. This is what the Department has set about do for TP in the Lake Okeechobee Basin through its Proposed Rule. The Proposed Rule An Amendment to the Existing Rule The existing rule is Florida Administrative Code Rule 62-304.700 (the "Existing Rule"). The Existing Rule sets the TMDL for total phosphorus ("TP") in Lake Okeechobee at 140 metric tons. Atmospheric loading to Lake Okeechobee is considered to be 35 metric tons. That leaves 105 metric tons as the total amount of phosphorus that can flow into the Lake annually from surface sources such as the Nine Northern Tributaries. The 140-metric ton total phosphorus TMDL is to be met by the year 2015. Presently entitled "Total Maximum Daily Loads in the Southeast Florida District," the Proposed Rule will change the title of the Existing Rule to "Lake Okeechobee Basin TMDLs." In addition to a revision of the numbering scheme in the Existing Rule, the Proposed Rule adds the proposed TMDL (the "Proposed TMDL") for TP in the Nine Northern Tributaries expressed as a concentration level: 0.159 mg/L. ii. 0.159 mg/L In collaboration with the USEPA, the Department calculated the Proposed TMDL for TP in the Nine Northern Tributaries as "an annual median TP concentration of 0.159 mg/L." The Proposed Rule, § (2)(a). The Proposed Rule makes no allocation between point sources and non-point sources. The TMDL is allocated entirely to nonpoint sources because "there are currently no permitted point sources in the watershed." The Proposed Rule, § (2)(a)2. The Margin of Safety for the TMDL, required by the TMDL statute to be included in the TMDL's calculation,6 is declared to be "implicit." The following contains the textual amendments proposed by the Proposed Rule as they appear in the Proposed Rule's Notice of Proposed Rulemaking. They are underscored because they are new language added to the Existing Rule: Other Waterbodies in the Lake Okeechobee Basin Other waterbodies in the Lake Okeechobee Basin include Chandler Hammock Slough, Nubbin Slough, Mosquito Creek, Lettuce Creek, Henry Creek, S-135 Canal, Myrtle Slough, Taylor Creek, and Otter Creek. The Total Maximum Daily Load for these waterbodies is an annual median TP concentration of 0.159 mg/L, and is allocated as follows: the Wasteload Allocation for point sources is not applicable because there are currently no permitted point sources in the watershed. the Load Allocation for nonpoint sources is an annual median TP concentration of 0.159 mg/L, and the Margin of Safety is implicit. As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above. Notice of Proposed Rulemaking, published September 5, 2003, OR- 1, Tab 5, p. 3. The Challenge to the Proposed Rule On September 26, 2004, pursuant to Section 120.56, Florida Statutes, the Petitioners filed at DOAH their petition to invalidate the Proposed Rule. The petition was amended several times. The petition at issue in the proceeding is the Second Amended Petition to Invalidate Proposed Rules. It was filed June 24, 2004, just more than one month before final hearing commenced. By virtue of the filing of the petition by the three Petitioners challenging the Department's rules, there are four parties to this proceeding: Florida Wildlife Federation, Environmental Confederation of Southwest Florida, Inc., Save Our Creeks, Inc., and the Department. Identification of the Parties Florida Wildlife Federation Florida Wildlife Federation ("FWF"), one of the three Petitioners in this case, is a Florida not-for-profit corporation with its principal place of business in Tallahassee, Florida. It has approximately 14,000 members throughout the state. Its purpose is to promote the preservation, management, and improvement of Florida's fish, wildlife, soil, water and plant life. Lake Okeechobee is a particular focus of FWF as well as the adverse affects of past management practices in the Lake's watershed that threaten the continued existence of the Lake. On behalf of its members, FWF has participated and continues to participate in legal and administrative challenges to defend and otherwise support rules that protect Lake Okeechobee. The organization also brought the civil action that resulted in a Consent Decree that requires promulgation of a TMDL for TP in the Nine Northern Tributaries. A substantial number of FWF members reside near Lake Okeechobee. They use and enjoy the waters of the Lake and the waters of the Nine Northern Tributaries. They observe and enjoy wildlife that rely on these waters for habitat. If the Proposed Rule is not determined to be invalid, there will be continuing adverse impacts to the waters of Lake Okeechobee and the Nine Northern Tributaries.7 These impacts will substantially affect a substantial number of FWF's members in their ability to observe, study and enjoy the waters and wildlife of the Lake Okeechobee basin. Environmental Confederation of Southwest Florida, Inc. Environmental Confederation of Southwest Florida, Inc. ("ECOSWF"), the second of the three Petitioners, is a Florida not-for-profit corporation with its principal place of business in Sarasota, Florida. It has approximately 100 members. They are business entities, governmental agencies and other organizations, and individuals who live in South Florida. Organized for the purpose of conserving natural resources in Southwest Florida, ECOSWF has participated in numerous legal challenges with the aim of preserving Florida's waters. The members of ECOSWF use and enjoy the waters of Lake Okeechobee and the Nine Northern Tributaries. They also observe and enjoy the wildlife that depend upon the waters for habitat. If the proposed rules are not determined to be invalid, there will be continuing adverse impacts to the waters of the Nine Northern Tributaries and the Lake.8 These impacts will substantially affect a substantial number of ECOSWF's members in their ability to observe, study, and enjoy the waters and wildlife of the Nine Northern Tributaries and the Lake. Save Our Creeks, Inc. Save Our Creeks, Inc. ("SOC"), the third of the Petitioners, is a Florida not-for-profit corporation with its principal place of business in Moore Haven, Florida. It has about 100 members who reside primarily in South Florida. Organized to preserve Fisheating Creek and other South Florida water bodies for the use and enjoyment of the public and for their natural resource value, SOC has participated in legal actions with the aim of preserving the environmental integrity of South Florida's rivers, streams, and lakes. A substantial number of SOC's members use and enjoy the waters of Lake Okeechobee and its tributary waters of the Nine Northern Tributaries and also observe and enjoy the fish and wildlife depend upon these waters for habitat. Department of Environmental Protection The Department is the state agency authorized to adopt TMDLs through rulemaking under Chapter 403. See §§ 403.061 and 403.067, Fla. Stat. Standing The parties stipulated to facts related to the standing of Petitioners. See Exhibit 4 to the Pre-hearing Stipulation, paragraphs 5-7. The Elements of the Challenge or Petitions The Petitioners' challenges may be divided broadly into two categories. The first of these is that the derivation by the Department of the Proposed TMDL for TP in the Nine Northern Tributaries (0.159 mg/L.) was so flawed as to render the Proposed TMDL arbitrary and capricious ("Flawed Derivation"). The second is that the Proposed TMDL contravenes the provisions of the Lake Okeechobee Protection Program because it has been set prior to the allocation among sources in the water basin, a condition precedent to the establishment of the TMDL in the view of Petitioners, allowed by the TMDL Act ("The Lake Issue"). The first of these two categories of the challenge is further sub-divided into discreet elements as shown in the findings below. Before addressing the two main categories of Petitioners' challenge, however, there is a preliminary matter to be addressed: the Department's decision to reject water quality modeling results when water quality modeling is the only statutorily-recognized method for developing a TMDL. The Department's decision to forego water quality modeling and accept the method eventually followed for development of the Proposed TMDL must be understood in context. The context includes the TMDL Law, a lawsuit filed against the USEPA, and the various methods for establishing a TMDL. The Law, the Lawsuit and the Methods In Subsection (1) of the TMDL Act, the Legislature declares "that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act [citation omitted] will promote improvements in water quality throughout the state through the coordinated control of point and nonpoint sources of pollution." § 403.067(1), Fla. Stat. Before 1998, the Department had not extensively implemented the TMDL requirements of the Clean Water Act. As a result of a lawsuit against the USEPA, however, a consent decree was entered by USEPA and Earthjustice, the plaintiff in the lawsuit and organization that has some relationship with the Petitioners (the "Consent Decree"). Under the Consent Decree, USEPA agreed to require the Department to evaluate the Nine Northern Tributaries for TMDL development for nutrients by 2002. The USEPA followed through on its agreement under the decree and imposed the requirement for TMDL nutrient development by 2002 on the Department. In the same year that the Consent Decree was entered, 1999, the Florida Legislature passed the TMDL Act. Subsection (6) of the TMDL Act, bearing the catchline "CALCULATION AND ALLOCATION," imposes at its outset requirements on the Department before development of a TMDL for any water body or water segment determined to be impaired. The requirements include coordination with other groups to determine the data required, the methods of collection and analysis, and requirements for quality control: Prior to developing a total maximum daily load calculation for each water body or water body segment on the list specified in subsection (4), the department shall coordinate with applicable local governments, water management districts, the Department of Agriculture and Consumer Services, other appropriate state agencies, local soil and water conservation districts, environmental groups, regulated interests, and affected pollution sources to determine the information required, accepted methods of data collection and analysis, and quality control/quality assurance requirements. § 403.067(6)(a)1., Fla. Stat. The Department coordinated with groups that had data concerning the Nine Northern Tributaries. In the words of Mr. Mandrup-Poulsen, "[t]he Department considered all readily available data. The primary provider of data . . . is the South Florida Water Management District." (Tr. 204) The Department gave notice by publication on June 27, 2003, of three public workshops in Tallahassee, Perry, and Okeechobee, Florida, and public comment periods on "draft total maximum daily loads . . . for . . . the Northern Tributaries to Lake Okeechobee (nutrients and dissolved oxygen)." Department's Ex. 2. The notice set a period for acceptance of public comment on the draft TMDLs through July 31, 2003, and announced placement of the draft TMDLs on the Department's web site. The TMDL Act endorses only one principal method of analysis of TMDL data: water quality modeling.9 The TMDL Act, however, does not restrict the method of analysis to water quality modeling. In fact, there are at least three other methods that are valid, albeit not endorsed statutorily by the Florida Legislature. These methods are set out in a publication of the Office of Water and the Office of Science and Technology of the USEPA bearing a date of July 2000. The publication is entitled "Nutrient Criteria Technical Guidance Manual" (the "Guidance Manual.") Before involving itself with the three methods in the Guidance Manual or any other method not statutorily-recognized, DEP, as to be expected from the legislative endorsement, attempted to use water quality modeling. This attempt was not merely because of the statutory endorsement. Aside from being statutorily-recognized, water quality modeling was the method "routinely use[d by DEP] in developing maximum daily loads." (Tr. 197) Water quality modeling, moreover, is DEP's "standard operating procedure," id., and a method that the Department has used successfully on a number of occasions and one that, as of the date of final hearing, it continues to use. Water quality modeling requires a great deal of data. In pursuit of data collection and other activities required by water quality modeling, the Department pursued the development of TMDLs for TP in the Nine Northern Tributaries "for many months and at great expense both in personnel time and contractual time." Id. Nonetheless, on the basis of the water quality modeling results, the Department was "unable to come to a scientifically defensible conclusion." Id. Approaches to the Development of the TMDL According to Mr. Mandrup-Poulsen, in developing the TMDL for TP, the Department was not looking for a level of phosphorus that would or would not cause an imbalance in flora and fauna. Instead, the focus was "to ensure that [the Department] had evidence sufficient to support the fact that the concentrations in the TMDL were protective, conservative, and did allow for a healthy population of fish and wildlife." (Tr. 197) Presumably, this would be at a level below the concentration level at which imbalance would occur and, therefore, would comply with the narrative criterion. After the inability to reach a scientifically defensible conclusion on the basis of water quality modeling, the Department attempted alternative approaches. The first post-water quality modeling attempt was by way of an "Artificial Neural Network." (Tr. 198) The employment of a "Neural Network" required the Department to recognize certain realities. For example, the Class III criterion for dissolved oxygen ("DO") of 5.0 milligrams per liter mg/L, at present, is not achievable in the part of the watershed in which the Nine Northern Tributaries are located. Mr. Mandrup-Poulsen, the administrator of the Watershed Assessment section in the Bureau of Watershed Management within the Department's Division of Water Resource Management, therefore, set the DO criterion at a much lower level for purposes of the Neural Network approach. The criterion selected for DO was 1.5 mg/L. The selection of such a low numeric value for DO was criticized by the USEPA. In a document entitled "EPA Comments on FEDP's Nutrients and DO TMDL for the Northeast Tributaries to Lake Okeechobee [the Nine Northern Tributaries]," the EPA wrote, Please explain how the minimum DO requirement of 1.5 mg/l was selected. The DO water quality criterion for Class III fresh water in Florida is "Shall not be less than 5.0 mg/L. Normal daily and seasonal fluctuations above these levels shall be maintained." (See Section 62-302.530(31), F.A.C.) Pursuant to 40 CFR §130.7(c)(1), "TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical WQS..." If FDEP's intent is to change the DO water quality criterion for these water bodies from 5.0 mg/L to 1.5 mg/L, then a Site Specific Alternative Criterion (SSAC) must be developed through Florida normal administrative process or the State must explain how the target properly implements water quality standards. Otherwise, the stated goal of the TMDL must be to attain the 5.0 mg/L DO water quality criterion. Petitioners' Ex. 86D, para. 5 (emphasis added). The selection of 1.5 mg/L for DO was also criticized by the South Florida Water Management District as "arbitrary," see Petitioners' Ex. 86-E, page stamped 002178, and as without "acceptable justification . . . because it will not support a well-balanced community . . . of fish." Id. at pages stamped 002175 and 002176. The Department was not unaware that the DO level selected was far below the level necessary to sustain Class III water uses. Being so far below the Class III criterion referred-to by USEPA, the 1.5 mg/L., was not intended by DEP to be a replacement criterion. In Mr. Mandrup-Poulsen's view, it "was the floor . . . as low as [one should] go with this particular approach [the Neural Network approach.]" (Tr. 200) The Neural Network Approach yielded a value of 115 ppb for TP in the Nine Northern Tributaries, a lower numeric value, and hence more protective, than the Proposed TMDL of 159 ppb. Rulemaking was initiated to establish a TMDL of 115 ppb. A draft of the rule was presented at a public hearing on July 8, 2003. The value produced disagreement within DEP or as it was put in an internal DEP memorandum dated July 14, 2003, "among ourselves (DEP)." Petitioners' Ex. 96A, stamped 002063. Written evidence of the dissension is the following which appears in another memorandum internal to DEP, dated July 14, 2003, that is attached to the first July 14 memorandum: "c) It is highly unlikely that tributary concentrations of 0.115 mg/l will result in the Lake meeting its TMDL requirement, and as such will require the eventual lowering of these tributary TMDLs. Using a DO criteria of 2.0 or 2.5 mg/l might result in a tributary TP concentration more amenable to Lake restoration." Petitioners' Ex. 86-A, second page, stamped 002064, (emphasis added). The 0.115 mg/L concentration level produced by the Neural Network Approach also yielded the contradictory result that to improve the DO level necessary to sustain fish and other aquatic biota would require the addition of more phosphorus to the Nine Northern Tributaries.10 Such an outcome was neither scientifically supportable nor acceptable to the Department and so the Neural Network Approach was rejected and its concentration level abandoned. Proceedings to propose the 0.115 mg/L in rule, accordingly, were halted. Driven by USEPA-imposed requirements under the deadline set by the Consent Decree and with the results of the Neural Network Approach having proved unsatisfactory, the Department made a second attempt at water quality modeling. This attempt, just as the first, proved to be scientifically indefensible. The process was described in more detail by Mr. Mandrup-Poulsen at hearing: The Department had a comment period that extended for 30 days, and our modeling efforts were made known to both the public and to EPA. EPA was very much involved with the model development process. They were concerned because, again, they have a consent decree with Earthjustice that they were obligated to report to a judge whether they were generating the TMDLs per the consent decree and the time line in that consent decree. When the results were not satisfactory for either of those two approaches [water quality modeling and the Neural Network approach], we had advised EPA that we would continue to pursue the water quality modeling contract, and had hoped that we would be able to get improvements on that model. We provided as much data as we could, and we continued to provide our expertise to Dr. Bottcher and his staff [the water quality modelers] in hopes that we would get a better outcome. (Tr. 202) The continued resort to the water quality modeling method failed again to yield a better outcome. The Department alerted the USEPA that its models were not producing scientifically defensible results. With the Consent Decree deadline looming, the USEPA, therefore, encouraged the Department to take an approach referred to as the "Reference Stream Approach." In actuality, the USEPA's role was more than mere encouragement. Personnel from USEPA made the calculations that produced the Proposed TMDL on the basis of data submitted to USEPA by the Department. This data involved streams, most of which were initially identified by the Department, as described in more detail below. Mr. Mandrup-Poulsen's expression of this arrangement was that the Department "evaluated [the work of the USEPA] and then produced [the Proposed] TMDL in September of 2003." (Tr. 203) In other words, while the USEPA performed the calculations used to determine the 75th percentile, the Department evaluated that work, so as, in essence, to adopt the calculations of USEPA as its own in support of the Proposed TMDL derived by the 75th Percentile Method. The value ultimately derived for the Proposed TMDL, therefore, was the result of collaboration between USEPA and the Department or as the Department put it in one of its reports, "[f]or this TMDL [the Proposed TMDL], the Department worked with the Environmental Protection Agency (EPA) to determine a target TP concentration using a reference stream approach." Petitioners' Ex. 2, p. 4. Mr. Mandrup-Poulsen's concessionary opinion of the Proposed TMDL is that while it is not based on the highest quality model it is based on "the best science available at the time." (Tr. 203, (emphasis added)) He believes it provides the protection necessary "to begin the restoration process" id., for the Nine Northern Tributaries. (Id. (emphasis added)) He sees the Proposed TMDL as supported by three factors: (1) a guidance manual published by the USEPA; (2) support by USEPA's technical staff; and (3) "multiple layers of management review." Id. In its Proposed Recommended Order, the Department describes the Reference Stream Approach as follows: "The reference stream approach is one of the USEPA's recommended approaches for the development of nutrient criteria. The approach examines the phosphorus concentrations in healthy streams and designat[es] the 75th percentile of phosphorus concentrations in these reference streams as a target in the stream to be remediated." Respondent's Proposed Recommended Order, pp. 25-26. In fact, the USEPA's Reference Stream Approach is more complicated than the Department's position in this proceeding would lead one to believe. The Department's over-simplification of the Reference Stream Approach is plain from reading of the source extolled by the Department as support for the Proposed TMDL: the "Nutrient Criteria Technical Guidance Manual" for "Rivers and Streams" published in July of 2000 by the USEPA's Offices of Water and Science and Technology (the "Guidance Manual.") The Guidance Manual Chapter 7 of the Guidance Manual was admitted into evidence as Petitioners' Ex. 16. Entitled "Nutrient and Algal Criteria Development," the chapter "addresses the details of developing scientifically defensible criteria for nutrients and algae." Petitioners' Ex. 16, Page 93. Three approaches are provided by the Guidance Manual for use by states in deriving numeric criteria related to nutrients for streams in their eco-regions. These are described in the Guidance Manual as: "(1) the use of reference streams, (2) applying predictive relationships to select nutrient concentrations that will result in appropriate levels of algal biomass, and (3) developing criteria from thresholds established in the literature." Id. The Department did not attempt to derive a TMDL for TP in the Nine Northern Tributaries using either the second or the third approach offered by the Guidance Manual. The USEPA encouraged the first approach, the use of reference streams. The Department provided stream data to the USEPA and then USEPA calculated a phosphorus concentration level based on that data. (An extended discussion of the way this data was provided by the Department - a part of Petitioners' case - takes place below.) The USEPA, however, with the Department's concurrence or acquiescence, did not follow the complete methodology under the Reference Stream Approach. It followed only part of the methodology. Petitioners challenge the method used to derive the Proposed TMDL because it entailed only part of the entire, more involved, methodology. In their view, the Department's acceptance of a concentration level determined by USEPA's calculations under only part of a methodology renders the Proposed TMDL arbitrary. The Guidance Manual bears out Petitioners' assertion that the method used to derive the Proposed TMDL was, indeed, only a part of a more comprehensive methodology. The Guidance Manual's discussion of the Reference Stream Approach under the heading, "Using Reference Reaches to Establish Criteria," see Petitioners' Ex. 16, Page 94, takes up the better part of four pages of the publication, i.e., pages 94 through 97. As a preliminary matter, the use of reference streams Reference Stream Approach, "requires identification of reference reaches for each established stream class based on either best professional judgement (BPJ)or percentile selections of data plotted as frequency distributions." Id. The process of identifying reference streams "allows the investigator to arrange the streams within a class in order of nutrient condition (i.e., trophic state) from reference, to at risk, to impaired." Id. The Guidance Manual warns that when minimally- disturbed streams are rare in an ecoregion, "[c]riteria developed using reference reach approaches may require comparisons to similar systems in States or Tribes that share the ecoregion so that criteria can be validated." Id. Thus, the manual recognizes a difference between streams that exhibit reference conditions ("reference streams") and other streams that are too degraded or impaired to qualify as reference streams and, in methods using the latter types of streams, indicates the import of comparative review for purposes of validation. The difference between "reference" streams and streams that do not exhibit "reference conditions" is apparent from the definition of reference reaches or reference streams provided by the manual: "relatively undisturbed stream segments that can serve as examples of the natural biological integrity of a region." Id. Furthermore, the manual refers to reference streams elsewhere as "acknowledged to be in an approximately ideal state for a particular class of streams." Petitioners' Ex. 16, Page 95. Reference streams, therefore, do not include degraded streams or streams that are degraded even if they are the "least" impacted in an impacted region. This definition is crucial to the Petitioners' case. The reference streams chosen, as discussed below, did not meet the Guidance Manual's definition. Rather than being "relatively undisturbed stream segments" that serve as "examples of the natural biological integrity of a region," or that are "in an approximately ideal state," the reference streams chosen by the Department were "the least impacted streams for that stream class" within the area of the Nine Northern Tributaries, an area that has been greatly impacted. Use of Reference Reaches The Guidance Manual offers three methods of using reference reaches (the "Three Reference Streams Methods") to derive a numeric value for nutrients. They are: Characterize reference reaches for each stream class within a region using best professional judgement and use these reference conditions to develop criteria (the "BPJ Method"). Identify the 75th percentile of the frequency distribution of reference streams for a class of streams and use this percentile to develop the criteria ([reference omitted]) (the "75th Percentile Method"). Calculate the 5th to 25th percentile of the frequency distribution of the general population of a class of streams and use the selected percentile to develop the criteria ([reference omitted]) (the "25th Percentile Method"). Petitioners' Ex. 16, Page 94. The three methods are not three separate methodologies, however; the latter two, the "percentile" methods, are part of one methodology that is more comprehensive then either of the two percentile methods, alone. Under this comprehensive methodology, as a preliminary step, "a reference condition may be selected using either of two frequency distribution approaches." Petitioners' Ex. 16, Page 95. In the first of the two frequency distribution approaches, the 75th Percentile Method: a percentile is selected (EPA generally recommends the 75th percentile) from the distribution of primary variables of known reference systems (i.e., highest quality or least impacted streams for that stream class within a region). As discussed in Chapter 3, primary variables are TP, TN, chl a, and turbidity or TSS. It is reasonable to select a higher percentile (i.e., 75th percentile) as the reference condition, because reference streams are already acknowledged to be in an approximately ideal state for a particular class of streams [reference omitted]. Id. (emphasis added) The second of the two frequency distribution approaches, the 25th Percentile Reference Stream Method is also described in the Guidance Manual: [It] involves selecting a percentile of (1) all streams in the class (reference and non- reference) or (2) a random sample distribution of all streams within a particular class. Due to the random selection process, an upper percentile should be selected because the sample distribution is expected to contain some degraded systems. This option is most useful in regions where the number of legitimate "natural" reference water bodies is usually very small, such as highly developed land use areas (e.g., the agricultural lands of the Midwest and the urbanized east or west coasts.) The EPA recommendation in this case is usually the 5th to 25th percentile depending upon the number of "natural" reference stream available. If almost all reference streams are impaired to some extent, then the 5th percentile is recommended. Id. (emphasis added) (Although described as involving selection of a 5th to 25th percentile, for shorthand purposes, this second percentile method is referred-to in this order as the "25th Percentile Method Reference Stream Method.") There is a critical distinction between stream data used under the two percentile methods. Under the 75th Percentile Method, the streams are to exhibit reference conditions, that is, they are to be minimally impacted or in an approximately ideal state for their class. Data used for the 75th Percentile Method should not include data from streams that are impacted or degraded or the least-impacted for a region that is heavily impacted. The 25th Percentile Method, on the other hand, is expected to use data from streams that have been impacted since it uses data from the general population of streams in a region. This population would include impacted, degraded streams or, in a region that is heavily impacted, some of the least-impacted streams as well as more impacted streams. If the streams were generally impacted or impacted to a great extent, then the percentile chosen to derive a numeric value would not be the 25th percentile, but a lower percentile with a range that reaches as low as the fifth percentile if the general population is sufficiently impacted. Ultimately, the Guidance Manual points out, the 75th Percentile Method and the 25th Percentile Method are "only recommendations" because the "actual distribution of the observations should be the major determinant of the threshold point chosen." Id. An example is given in the Guidance Manual of when the 75th Percentile Method produces a concentration level of 20 ppb and the 25th Percentile Method produces a level of 25 ppb. "Because there is little distinction [in such a case], the Agency may select either 20 [ppb], 25 [ppb], or the intermediate 23 [ppb] . . . ." Id. Each state is cautioned, however, to "similarly calculate reference conditions initially using both approaches [the 75th Percentile Reference Stream Method and the 25th Percentile Reference Stream Method] to determine which method is most protective." Id. Once the calculations are made, the Guidance Manual is clear: "[t]he more conservative approach is recommended for subsequent reference condition calculations." Id. In other words, the State is to choose the lower value produced by the two methods when deriving a TMDL. Margin of Safety The margin of safety contained in the Proposed Rule (one that is implicit in the Proposed TMDL) is viewed favorably by DEP because it used the "75th Percentile Method" to establish the TMDL. Since the concentration of TP theoretically could be higher, that is at a level in excess of the 75th percentile derived from the method, the Department's view of the Proposed TMDL is that it is a conservative one. The Department's view depends, however, on the validity of using only the 75th Percentile Method to establish the Proposed TMDL and not deriving a value based on the 25th Percentile Method for purposes of comparison and selection of the more protective value. It also depends on the validity of the streams chosen as the reference streams for the purposes of data collection. In addressing the selection of reference streams by DEP for use in deriving the Proposed TMDL, it is useful to understand the background that preceded the selection of the reference streams as well as historical information about phosphorus in Florida waters. Historical Information Historical information plays a role in the analysis of appropriate nutrient levels in water bodies. Numbers for historical phosphorus levels inform the analysis or, as Dr. Boyer put it at hearing, gives the investigator "another piece of evidence as to what . . . that system had been before and what could be achieved now." (Tr. 93) Two pieces introduced into evidence by the Petitioners comprise the historical evidence in the record of this proceeding. One, not quite two decades old, is more recent, a 1986 USEPA publication for guidance to the states; the other is a report submitted to the Florida Geological Survey more than half a century ago. The report sums up the analysis of phosphorus data collected prior to many of the drastic changes in land use in the State that have contributed to so much of the problem decried by the Florida Legislature that the Proposed TMDL is intended to address. The report regarding phosphorus in Florida water bodies in the mid-20th Century was referred-to in the record as the "Odum Report." The Odum Report On January 9, 1953, Howard T. Odum of the Department of Biology at the University of Florida submitted a report (the "Odum Report") to the Florida Geological Survey. Entitled "Dissolved Phosphorus in Florida Waters," it appears as Part I in a 1953 Report of Investigations and Miscellaneous Studies published by the State through the State Board of Conservation and the Florida Geological Survey. Mean values of phosphorus in Florida streams are divided into two categories by the report: those in the Phosphate District where "streams are enormously laden with phosphorus" and those elsewhere under the category of "Other." See Petitioners' Ex. 20, p. 13. Data was collected from 18 streams in the Phosphate District and from 44 "other" streams. In the "Phosphate District," the mean value was 0.876 micrograms per liter or 876 ppb; in the "Other" streams the mean value is listed as 0.046 micrograms per liter or 46 ppb. Id. The Department considered the historical data of the Odum Report but gave it short shrift for several reasons: first, the data set is "very limited." (Tr. 206) Second, "collected back in the fifties, [it] might not have met the quality assurance that we would expect for data [today]." Id. Third, the data refers to "dissolved" phosphorus which is a fraction of total phosphorus and therefore a subset of the data needed to establish a TMDL for TP or "total" phosphorus. Most significantly, in the Department's view, the data does not assist in the Department's inquiry to "find values that are still protective of the designated use" (tr. 207) that is, a value that is higher than the historical value but one that will still support the designated use. ii. 1986 USEPA Document On May 1, 1986, the Office of Water Regulations and Standards for the USEPA published a guidance document entitled "Quality Criteria for Water 1986." See Petitioners' Ex. 19. It stated that "[t]o prevent the development of biological nuisances and to control accelerated or cultural eutrophication, total phosphates as phosphorus (P) should not exceed 50 [ppb] in any stream at the point where it enters any lake or reservoir, nor 25 [ppb] within the lake or reservoir." Id. As with other historical reporting, the 1986 Statement by the USEPA has been rejected by the Department. This time the rejection is on the ground that "it is very difficult to generalize. There is a very strong need to assess on a case-by-case basis the capacity of each water body as it enters into a different water body." (Tr. 210) Background Provided by Mr. Frydenborg Russell Frydenborg, the Department's expert in aquatic ecology (among other fields), was not involved in the selection of the Five Reference Streams. He was the main witness for the Department, however, in defense of their selection, largely on the basis of a post-proposal inquiry he conducted to confirm the validity of the Proposed TMDL. In addition to testifying about his after-the-fact justification, he provided background by way of testimony that included the Department's experience with reference streams and the Nine Northern Tributaries, in general. A Reference Stream Approach for establishing numeric criteria for nutrients had never been used prior to its use in this case. A reference site approach was used to set a phosphorus concentration level for the water bodies in the Everglades. It is an approach similar to the approach used for the Proposed TMDL.11 But a reference site approach and a reference stream approach are not precisely the same. Streams are "a whole different type of beast." (Tr. 241) For example, unlike a lake or a standing body of water, "stream biology is very dependent upon flow regime." (Tr. 246) Artificial channelization of a stream affects its habitability for biota. As explained by Mr. Frydenborg: [O]nce you channelize a stream and take out its bends, . . . you will eliminate vast quantities of habitat that the organisms can be able to colonize . . . [Y]ou'll destroy [habitat] when you channelize, and you destroy the hydrologic regime as well. [There will no longer be] microhabitats within the stream where you have different areas of different flow. [It will cause the organisms] to catastrophically drift. (Tr. 247) Bank stability is another factor important to stream evaluations. Erosion can cause sediment flow into a stream system and bring unwanted sand, silt, muck and organic debris that will cover the substrates and keep them from being suitable for macroinvertebrate colonization. The state of riparian buffer systems has an impact on stream ecological health particularly in cases of human encroachment. Likewise the riparian vegetation zone, particularly leaf-litter fall originating within the zone, has an impact on ecological stream health. The impact is detrimental when the zone is disturbed by human activities. Selection of the Reference Streams by DEP Data from five reference streams (the "Five Reference Streams") were used in deriving the Proposed TMDL by the 75th Percentile Method. The Five Reference Streams are Fish Slough, Cypress Slough, Fort Drum Creek, the Northwest Fork of the Loxahatchee River (the "NW Fork") and the North Fork of the Loxahatchee River (the "North Fork"). With the exception of Fish Slough, the reference streams were initially identified by an Environmental Manager in the Department: Julie Espy. Ms. Espy was not called by the Department to the witness stand to explain at hearing the identification of the reference streams. Her deposition was introduced into evidence, however, by Petitioners because the circumstances surrounding the identification of these four streams (the "Four Reference Streams") inform their claim that the process for the derivation of the Proposed TMDL was arbitrary and capricious. Ms. Espy was a logical person to have assisted in the selection of reference streams. Her duties includes the supervision of algal and freshwater macroinvertebrate taxonomy groups, the management of freshwater data and filed assessments and sampling of rivers, wetlands, lakes, canals, and streams. The data she manages, moreover, is collected for various programs that include TMDL programs. All in all, in her words, they include "Everglades, TMDL, small projects, like restoration projects [and] monitoring. Some of it is method development data." Petitioners' Ex. 90, p. 7. Ms. Espy was a logical choice to choose reference streams based on experience with programs and the types of data she managed. Yet, when asked to identify streams in the area in which the Nine Northern Tributaries are located, Ms. Espy was not informed of the purpose of the identification. The request was made by USEPA when Ms. Espy was contacted in mid-2003 by "David Melgaard from EPA." Id. at 10. Prior to the request by Mr. Melgaard, no one from the Department had requested or ordered that she participate in the development of the Proposed TMDL. When Mr. Melgaard asked about some "six or seven" (id. pp. 10-11) specific streams in the area of Lake Okeechobee, that included Fish Slough and Cypress Slough, he did not inform Ms. Espy why she had been contacted or the use to which the information would be put. Mr. Melgaard suggested that she search in Ecoregion 75(d). Canals were excluded because they "don't act the same as a stream echo system. With all the hydrological modification, the SCI metrics [for canals] . . . don't work the same [as for streams]." Id. at 11-12. The following colloquy took place in Ms. Espy's deposition when she was asked the basis of her recommendation for the Four Reference Streams: Q What were you looking at in making these recommendation? A I was using our GIS coverage. We have data layer that includes all of our biological stations, so that one thing I looked at, because it also had the ecoregion coverage, so I could see spatially the proximity of the sites and that type of thing. Q What else were you looking at? * * * A That's all I was looking at. He was just asking me for sites. Q You were not making an assessment about the appropriateness of the stream for any purpose? A No. Q You were strictly identifying streams that were in proximity -- A Biological samples -- where biological samples had occurred. I might add, that at the time that I requested this, he did not approach me with we are looking for streams for the Lake Okeechobee tributary TMDL. I was totally unaware of why he was asking for the information. I really didn't have any context to base that on. Q Have you ever visited any of these streams A I went -- Q I mean prior to the site visit that took place in April [of 2004]. A No. Q At the time you were making these suggestions to EPA had you ever visited any of these streams? A No. Id. at 13-15. On August 18, 2003, Ms. Espy sent an e-mail message to Mr. Melgaard. The message listed the Four Reference Streams. Ft. Drum Creek and Cypress Slough were listed as "closest to the Fish Slough site" (Petitioners' Ex. 90, Ex. 2.); the "NW Fork of the Loxahatchee River" and the "North Fork of the Loxahatchee River" were described as "further away, but . . . very good (biologically). They've been sampled numerous times but may be too large to compare to the others." Id. After informing Mr. Melgaard that they were in "ecoregion 75d," the message from Ms. Espy stated as she later confirmed at her deposition, "I haven't been to any of these sites." Id. Following the transmission of the message to EPA, Ms. Espy received an e-mail message from Mr. Melgaard. See Petitioners' Ex. 90, Ex. 3. It asked her to "ask the biologists from that area if comparing nutrient levels in the reference streams to those in the North Okeechobee Tribs is appropriate considering all the hydrological modifications in the Lake O [Lake Okeechobee] area." Id. Ms. Espy spoke to Mark Thompson, a biologist from the Department's southeast district office but Mr. Thompson "wasn't very familiar with any of the sites." Ms. Espy did not check with anyone else. She relayed the outcome of her inquiry to EPA but was not asked any further about the Four Reference Streams prior to the publication of the Proposed Rule in September 2003. In October of 2003, approximately 6 weeks after the publication of the Notice of Proposed Rulemaking with regard to the amendments to the Existing Rule that establish the Proposed TMDL, Dan Scheidt of Region 4 of the USEPA, sent an e-mail message (the "October 2003 E-Mail Message") to Ms. Espy: Julie- I am trying to follow up and close the loop on proposed stream TP reference sites for the S-191 basin. There are 5 reference sites proposed for S-191 basin TP: these four along with Fish Slough: [Code and No. IDs omitted] Ft. Drum Creek [" " " " " " " " ] Cypress Slough [" " " " " " " " ] NW Fork of the Loxahatchee River [" " " " " " " " ] North Fork of the Loxahatchee River For which of these sites does FDEP have bio data that confirms that these are in fact reference sites, ie., there is no impairment due to nutrients. Thanks Ex. 4 attached to Petitioners' Ex. 90. Not surprisingly, since the rule amendment containing the Proposed TMDL had been published more than a month earlier, Ms. Espy did not respond promptly to Mr. Scheidt. At the time of her identification of the Four Reference Streams for USEPA, Ms. Espy had not been involved in the selection of Fish Slough as the fifth reference stream. Nor did she have any familiarity with Fish Slough. Of the Four Reference Streams she identified for USEPA, Ms. Espy was familiar at the time she suggested them with only two: the NW Fork and the North Fork. Her familiarity was based on receipt of "samples from those two sites on a few occasions in the laboratory." (Petitioners' Ex. 90, p. 15). The basis of her familiarity was described in this way: "I was familiar with analyzing the samples, putting the data into the database and what those results were." Id. When the streams were recommended Ms. Espy had not examined their SCI scores nor the data that supported the scores. Ms. Espy had never looked at any bio assessment data with regard to the reference streams prior to December 16, 2003. In response to the USEPA October E-mail Message, however, Ms. Espy eventually provided Stream Condition Index ("SCI") scores. The entirety of the scores consisted of one score for Fish Slough, one score for Cypress Slough, six scores for Fort Drum Creek, 15 for the North Fork of the Loxahatchee and 16 for the Northwest Fork of the Loxahatchee. These scores were compiled from the statewide biological database. The scores were sent to USEPA in a November 2003 e- mail message. In her e-mail message, Ms. Espy wrote to Mr. Scheidt at USEPA: Attached find the macroinvertebrate data we have for these sites [the Four Reference Streams ]. These data are the Stream Condition Index scores for these sites. I would not say that because these sites have good SCI scores they have NO impairment for nutrients. These sites are just the best available for that area in the state. Ex. 4, 3rd page, attached to Petitioners' Ex. 90 (emphasis added). This message is consistent with the Department's position that the Five Reference Streams are "least impacted in the region," a status to be distinguished from the requirement that streams be minimally impacted or in a nearly ideal state to qualify as reference streams. Ms. Espy does not believe that the SCI scores confirm that there is no impairment due to nutrients to the Four Reference Streams because "[t]he SCI isn't necessarily a tool that is used just to point out or indicate nutrient impairment." (Petitioners' Ex. 90, p. 23). Mr. Frydenborg's After-the-Fact Efforts Mr. Frydenborg visited the Nine Northern Tributaries in order to collect data for purposes of supporting the Proposed TMDL after the Proposed Rule was published and challenged by Petitioners. The collection effort, as expected, revealed widespread hydrologic modification in the area of the Nine Northern Tributaries. The majority of the sites visited in the area had unacceptable, that is, "very low" (tr. 252) habitat scores. The habitat and the hydrology of the sites led Mr. Frydenborg to conclude that no matter what improvement was made to water quality with regard to TP, "you wouldn't get very good biological communities." Id. The only potential exception among the Nine Northern Tributaries is Mosquito Creek. Mosquito Creek Among the Nine Northern Tributaries, Mosquito Creek had the best habitat. Under a recalibrated Stream Condition Index ("the New SCI"), conducted by the Department, it scored a 102, just below the threshold level of 105 that is considered optimal. The scores for the other Nine Northern Tributaries ranged from 21 to 69. Mosquito Creek also enjoyed the best hydrologic score ("7") while the others all scored 9 or 10, indicating that the others enjoyed very few natural hydroperiods but rather suffered with impaired hydroperiods, "completely human-controlled." (Tr. 253) Mr. Frydenborg's assessment of Mosquito Creek does not square precisely with an earlier assessment conducted by the Department in 1999 and summarized in Petitioners' Ex. 25. Petitioners' Exhibit 25 is an Ecosummary of Mosquito Creek prepared by the Department's Southeast District's Assessment and Monitoring Program. Issued in September of 1999, it describes Mosquito Creek in much the same way as Mr. Frydenborg at hearing but with a few differences: Despite water quality problems, the creek has beautiful stretches with luxurious aquatic and riparian vegetation and an extensive and populous benthic invertebrate community, all thriving on the excessive nutrient load. Native vegetation such as maple, cypress, willow, and oak dominate the canopy while noxious and rank growths of exotics (water hyacinth, water lettuce, wild taro, and pepper trees) clog the water surface and understory. A diverse assemblage of aquatic insects, worms, and mollusks utilize the nutrient enriched water. Petitioners' Ex. 25, 1st page (emphasis added). The exhibit refers to the historical use of the watershed for dairy and beef cattle production. Although data was limited, the exhibit reflected the finding that "water quality in the creek appears to be improving." Id. This was attributed to best management practices and changes in land use away from dairy and beef cattle production. "Nevertheless," the document states, "water quality continues to be poor." Id. From 1992 to 1998, TP averaged 0.728 mg/l, or over seven times what an acceptable limit might be . . . ." Id. The document describes "Type II Error" that occurs with regard to environmental assessments: Contrary to its obvious water quality impairment (which includes very high phosphorus and nitrogen nutrient concentrations and chronically low dissolved oxygen), Mosquito Creek scored very highly (33 or "excellent") during a 1994 biological dipnet macroinvertebrate assessment using FDEP's SCI method. This misleading evaluation may have occurred due to the good habitat and flow present at the Mosquito Creek site, and illustrates the potential danger of employing "cookie-cutter" environmental assessment approaches. An incorrect assessment such as this is called a "Type II Error" wherein a polluted stream is deemed to be in "excellent" condition. * * * Failure to avoid "Type II Error" may result in a false public perception about the true condition of a polluted waterway. Petitioners' Ex. 25, 2nd page. The exhibit further warns of the effects of the excessive nutrient loading in the creek on Lake Okeechobee: Although Mosquito Creek is but a small tributary to Lake Okeechobee, many such sources combine to exacerbate the Lake's problems. Heavy loads of nutrients have resulted in massive algal blooms which can deplete dissolved oxygen levels and cause Id. fishkills. The type of algae that make up these blooms can include those which produce toxins. These Harmful Algal Blooms (HABs) can sicken, kill, and even be carcinogenic to a wide variety of organism. The exhibit, as far as its attribution of Type II error to the assessment of Mosquito Creek as "excellent" was dismissed by the Department at hearing. The exhibit was authored by a chemist who "has not passed the stream condition audit". It failed in Mr. Frydenborg's view to consider, moreover, that excessive nutrient loading may not cause poor biological health when there are other factors that would allow biological health despite excessive nutrients such as shading and the darkness of the water that would prevent the penetration of light. The exhibit pointed to other indicators of poor biological health, that in the opinion of the author of Petitioners' Exhibit 25 were overlooked: While the macroinvertebrate fauna collected from Mosquito Creek was diverse, it included many species tolerant to pollution that opportunistically exploited the conditions which pollution caused. Thus air-breathing taxa were common in Mosquito Creek (they can tolerate low dissolved oxygen). The exotic bivalve, Corbicula fluminea, was extremely abundant, but was under-reported by the dipnet method. This species thrives in areas receiving high nutrients, filtering abundant suspended organic materials that result from the over-growth of plants fertilized by runoff. Id. Whatever Mosquito Creek's status, the eight other tributaries among the Nine Northern Tributaries have major problems as all parties to this proceeding agree and as further described by Mr. Frydenborg at hearing. Problems Associated with the Nine Northern Tributaries A major problem for most of the Nine Northern Tributaries is that hydrologic modifications, such as ditching and draining, create a "spike in [the] hydrograph." Id. In rain events, they endure large influxes of water that cause turbulent flow and scouring to the stream system. The result is that the stream's ability to support benthic macroinvertebrate communities is severely reduced. At bottom, an improvement in TP concentrations for the Nine Northern Tributaries is not anticipated by the Department to lead to a normally-expected biological community because major improvements in stream habitat and hydrologic regime are also required. This expectation by the Department, however, is not supported by a Use Attainability Analysis. Use Attainability Analysis A "Use Attainability Analysis" was not done on the Nine Northern Tributaries to determine if they could attain Class III uses. A structured scientific assessment of the factors affecting the attainment of use, a Use Attainability Analysis has been adopted by the federal government. The Department conducted such an analysis of the Fenholloway River, polluted by a the point source of a pulp mill. But there was no evidence that the Department had conducted such an analysis on streams polluted by non-point sources as in the case of the Nine Northern Tributaries. Certainly, Mr. Frydenborg has never been involved in such an analysis. Without having conducted a Use Attainability Analysis, the Department nonetheless continues to anticipate that an improvement in TP concentrations in the Nine Northern Tributaries will not serve to attain Class III uses. DEP Reaction to the Rule Challenge The record does not reflect any response other than the SCI data provided by Ms. Espy to USEPA's request for "bio data that confirms that these are in fact reference sites, i.e., there is not impairment due to nutrients." When this Rule Challenge was filed at DOAH, however, Mr. Frydenborg was asked by Mr. Brooks to visit the sites of the Reference Streams and the Nine Northern Tributaries to "collect some additional data so that we had an objective evaluation . . . ." (Tr. 244) He visited the Nine Northern Tributaries and three of the Five Reference Streams in April of 2003. He was accompanied by Ms. Espy. They spent two days visiting all of the Nine Northern Tributaries but, according to Ms. Espy, we're only able to spend time at two of the reference streams and "drive-by . . . one other." (Petitioners' Ex. 90, p. 38). The reference streams not visited, according to Ms. Espy, were Fish Slough (this may be because Mr. Frydenborg knew from an earlier visit that it would not qualify as a reference stream in its present state, see Finding of Fact 165) and the Northwest Fork of the Loxahatchee. They drove by the North Fork of the Loxahatchee and actually spent time at Cypress Slough and Fort Drum Creek. Mr. Frydenborg, whether with Ms. Espy or not, did visit Fish Slough at some point. (It may be inferred from his testimony that he saw Fish Slough on the April 15-16, 2003 visit.) He was asked about it in the context of the April 15, 2003, trips taken by him and Ms. Espy: Q [C]an you describe what you saw when you visited the reference streams? A Well, when I went to Fish Slough, I immediately determined that it is not a reference site currently. It had a completely channelized system with [no] riparian zone. There were exotic plants in the water. I believe there was hydrilla. . . . I would not characterize the condition of Fish Slough as a reference community today. Gary Ritter [of the water management district] . . . was along with me. I said, "Gary, this is a bad reference site," and he said, "Well, there have been some changes in the basin around 1995," and I believe that the Department used pre-1995 data for that site because it currently would not qualify as a reference site. (Tr. 263-264) In apparent reliance on Mr. Ritter's statement and its interpretation of the statement, the Department used pre- 1995 data for Fish Slough in the calculations for the derivation of the Proposed TMDL. This is noted in the report issued by the Department through its Watershed Assessment Section on September 16, 2003. The report introduced into the record by Petitioners, describes its purpose as "[to] represent[] the efforts to develop a . . . TMDL for . . . TO for impaired waterbodies within the Lake Okeechobee Basin " Petitioners' Ex. 2, pg. 1. With regard to the present status of Fish Slough as not an appropriate reference stream the report states, It should be noted that the entire data record was not used for each station. For Fish Slough, which is within the Lake Okeechobee Watershed and which has a similar soil and topography there were phosphorus data back to 1986. However, land use changes and increased agricultural activity in the watershed since 1996 have led to the concern that Fish Slough may no longer be suitable as a reference site. For this reason, only the Fish Slough data for 1986- 1995 were used to determine the TP target. Using this shorter period of record, there were 490 TP samples for these five streams and the 75th percentile value for TP is 0.159 mg/L. Petitioners' Ex. 2, p. 4, emphasis added. The decision to accept Fish Slough as a reference stream prior to 1996 was made on the basis of Mr. Ritter's statement and the suggestion of Kim Shugar, who, like Mr. Ritter, has been involved in water quality restoration work in South Florida. Neither Mr. Ritter nor Ms. Shugar testified at hearing, however, as to the basis of their belief. Nor with one exception is there any evidence of record that Fish Slough was a reference stream prior to 1996. That exception is the following testimony of Mr. Frydenborg: Well, I did the habitat and the hydrologic index, and, interestingly, the LDI, the Landscape Development Intensity Index I believe was around 2.2 for Fish Slough, and that data that we have that's a complete data set for the State of Florida was like 1996 data. So I guess that is an independent way of confirming that at that point there was a relatively benign land use at Fish Slough ... See Respondent's Proposed Recommended Order, para. 91, p. 34. Otherwise, Mr. Frydenborg disclaimed any knowledge of whether Fish Slough would have qualified as a reference stream prior to 1996: "I really don't have the knowledge to be able to tell you what it [Fish Slough] was like before 1995 " (Tr. 267) Without doubt, however, it is "not an acceptable reference site today . . . ." Id. Infested with exotic plants such as hydrilla, Fish Slough, is a completely channelized system with no riparian zone. At Cypress Slough and Fort Drum Creek, Mr. Frydenborg and Ms. Espy "walked the system probably 200 or 300 meters down from the road crossing and then [conducted] a 100-meter stretch assessment within that." (Petitioners' Ex. 90, p. 39). The 100-meter stretch assessment was described at hearing by Mr. Frydenborg: You pull a tape measure out and you flag the site every ten meters so you can get an accurate map of the habitats, and then you do a series of evaluations. There's eight procedures that you go through for the habitat assessments. (Tr. 245) The procedures which measure "habitat parameters" (see Department Exs. 7 and 9) include an examination of substrate diversity and substrate availability. Substrate in Florida are "snags, leaf packs, root materials, aquatic vegetation" (id.) and may include limestone rock. The habitat parameters also include an examination of water velocity, habitat smothering (affects of sand or silt accumulation), the degree of artificial channelization, bank stability, riparian zone buffer, and riparian zone vegetation. The vegetation in a riparian zone is crucial to a stream's trophic system, particularly its leaf litter fall. The contribution by leaf-producing organisms in the riparian zone to stream habitat was stressed by Mr. Frydenborg at hearing: (Tr. 248) They shed their leaves periodically, and that's a very important source of habitat because organisms . . . live in those leaf packs, and [they are] also a source of organic matter that is naturally found in the systems . . . . [O]rganisms . . . called shredders . . . move in and cut . . . the leaf litter into smaller pieces and produce usable organic matter that then ... [serves] the whole community[.] [At] the base of the food web . . . the organisms . . . eat the native algae . . . the diatoms . . . the leaf litter[.] [For] aquatic macrophytes or aquatic plants in the system, [its] a source of organic production . . . used as food throughout . . . the trophic system[.] . . . [I]t is [the source of] energy [that] moves from one level to the next [within healthy stream habitat] . . . . In addition to the eight procedures for habitat assessment, Mr. Frydenborg also calculated a hydrologic modification score on a form he developed as an off-shoot of USEPA's Human Disturbance Gradient. The form had been used in the recalibration of the Old SCI that led to the New SCI. See Finding of Fact 171 below. The calculation revealed "widespread hydrologic modification in that northeastern tributary area" (tr. 251) the area of the Nine Northern Tributaries. Optimum habitat scores are in excess of 105. Eight of the Nine Northern Tributaries had scores below 69, "unacceptable habitat scores, very low." (Tr. 252) The exception with the highest score was Mosquito Creek. With regard to the Reference Streams, no SCI scores were calculated on the April, 2003 trip. No samples of the reference streams were taken because Mr. Frydenborg and Ms. Espy "didn't feel there would be sufficient time before the hearing was scheduled" (Petitioners' Ex. 90, p. 42) to analyze any such samples. Instead, Mr. Frydenborg and Ms. Espy, as they had done with regard to the Nine Northern Tributaries conducted "habitat assessment and hydrologic scoring" (tr. 261) for the two Reference Streams they visited: Fort Drum Creek and Cypress Slough. The scores for the two are found on Department Exhibit The exhibit consists of three documents for each of the Reference Streams: a "Stream/River Habitat Sketch Sheet," a "Physical/Chemical Characterization Field Sheet," and a "Stream/River Habitat Assessment Field Sheet." See Department Ex. 9. The latter sheet scores the stream on the eight habitat parameters that are included in the habitat assessment. Fort Drum Creek received a hydrologic score of five, "in [the] moderate range of disturbance . . . ." (Tr. 264) Its habitat score was "125." The Stream/River Habitat Assessment Field Sheet has four categories for each habitat parameter. They are "Optimal," "Suboptimal," "Marginal" and "Poor." The creek received optimal scores in four of them: habitat smothering, artificial channelization, riparian buffer zone width and riparian zone vegetation quality. It received suboptimal scores in three habitat parameters: substrate diversity, water velocity, and bank stability and a marginal score in substrate availability which indicates that the creek has only "6% to 15% productive habitat". Department's Ex. 9, p. 3. Cypress Slough received a slightly higher score of 127. Although it had only a marginal score of "8" in substrate availability indicating something less than 15% of productive habitat, Mr. Frydenborg described the segment of the slough in which the assessment was made as a "tropical paradise . . . [with] a beautiful riparian zone [and] nice habitats." (tr. 266) The description matches the maximum optimal scores Cypress Slough received for artificial channelization, bank stability, riparian buffer zone width and riparian zone vegetation quality. With regard to the three other habitat parameters, substrate diversity, water velocity and habitat smothering, the slough received suboptimal scores. Assessments were not taken at the Northwest and North Forks of the Loxahatchee because eight previous samplings had been taken that produced data for habitat assessment and hydrologic scoring had been done of them during the recalibration process of the SCI. In the end, the Department was satisfied with the Reference Streams used for purposes of data in calculating the 75th percentile of TP because of two reasons: (1) their high 1996 Stream Condition Index Scores and (2) their proximity to the Lake Okeechobee basin. In the Department's view, the Proposed TMDL should protect the Nine Northern Tributaries from imbalance "because that is what is represented in the reference site population data." (Tr. 270) That view was confirmed for the Department by three analyses that Mr. Frydenborg conducted after the Proposed TMDL was challenged by Petitioners. The first analysis used cases "where there was an SCI score of good, and in conjunction with [that], on that day, a total phosphorus of greater than 159 . . . ." (Tr. 134) Out of a total of 629 scores available, only 7 qualified in the analysis. Dr. Boyer, Petitioners' expert witness, explained that the analysis was scientifically invalid because it ignored the high variability of phosphorus data over time, ignored the existence of additional SCI scores (New SCI scores) for the same streams in which the streams received only "fair" or "poor" assessments, and ignored the existence of data showing that there was only one stream that had a phosphorus reading of over 159 ppb which also had a consistent New SCI scores of "good." As Dr. Boyer explained: [T]his site is Little Orange [Creek] . . . . [I]t also has TP values of 29 and 39 on different days. There is a lot of variability in the data. So to come to the conclusion that this site is good because on one day it had a high TO and it scored good is invalid . . . . (Tr. 137) The second analysis was a regression analysis, a statistical tool, that showed no relationship between total phosphorus and biological health of a system. The Department again used an approach that employed only the phosphorus level on the day the SCI score was taken and not all the data over a period of time. The approach is invalid. It inappropriately uses point data rather than all available data. The third analysis examined all "good" SCI scores in the Peninsular Region that had a phosphorus reading the same day and took the 75th percentile of the phosphorus data. It then examined all "good" and "fair" SCI scores in the same region that had a phosphorus reading the same day and took the 75th Percentile of the phosphorus data. These two produced 75th percentiles of 243 ppb and 230 ppb. Dr. Boyer criticized the third analysis because "the text category . . . were not what's used of the new method [the New SCI]." (Tr. 146) Under the new method "it dropped several goods into the fair categories and several fairs into the poor category." Id. The analysis also suffered from point phosphorus data rather than all data available for a stream as required under the USEPA's 75th Percentile Method. The limitation of the data set, moreover, because of the point data used rather than all data, produced a result with a large confidence level that fell anywhere between 31 ppb and 441 ppb, hardly a confirmation of the Proposed TMDL. If one categorizes the streams according to their New SCI rating (good, fair, poor and very poor), and takes a mean of the phosphorus data, an entirely different conclusion is reached about the relationship between TP and biological health. The mean phosphorus for good systems is 31 ppb, for fair 88 ppb, for poor 141 ppb and very poor is 193 ppb. Maximum phosphorus for a good system would be 78 ppb. One concludes from this analysis that there is a definite relationship between TP and the health of a biological system. As Dr. Boyer put it, "you're not going to find a . . . system . . . that's consistently good that has high phosphorus." (Tr. 145) The New SCI assesses ten metrics of macroinvertebrate community health. The ten metrics "represent a category of biological attributes so that you can get the best holistic data set [for] an accurate evaluation of the biological community." (Tr. 302) The New SCI also is based on a Human Disturbance Gradient ("HDG"). At the end of the calculation, a stream falls into one of four categories: good, fair, poor or very poor. The scores span a scale from 1 to 100 with 100 being the best. A score of 73 and above qualifies a stream as "good." Of "[t]he sites that got zero on the Human Disturbance Gradient . . ., no observable type of human disturbance . . ., only about 25 percent . . . exceeded . . . 73 . . . ." The remainder fell into the fair category, an indication that a rating of "fair" may not indicate impairment, according to Mr. Frydenborg. Petitioners' Ex. 98, a publication of DEP's bearing a revision date of February 1, 2004, however, indicates otherwise in its description of the SCI category "Fair:" "Significantly different from natural conditions; 20-30% loss of Ephemeroptera, Trichoptera and long-lived taxa; 40% loss of clinger and sensitive taxa; percentage of very tolerant individuals double." Petitioners' Ex. 98, p. 21 of 32, (emphasis added). In addition to testifying about the reference streams, Mr. Frydenborg explained why the Department did not calculate a TMDL under the 25th Percentile Method recommended by the USEPA. The Department regarded the recommendation of that method as a disservice by the USEPA. "Disservice by the USEPA?" As discussed above, the Guidance Manual published by the USEPA suggests that in addition to the "75th Percentile Reference Stream Approach" that the Department should have also applied the 25th Percentile Method and compared the results as part of a comprehensive and protective "frequency distribution" methodology. After comparing the results from the two methods, USEPA recommends selecting the lower result in order to ensure that a TMDL is protective. The 25th Percentile Method was conducted by the USEPA in its Ecoregion XII, described in a document published in December of 2000 by the USEPA's Office of Water as encompassing "the southeast corner of Georgia (excluding the immediate coastline) and a large segment of central and Gulf of Mexico coastal Florida." See Petitioners' Ex. 17, p. 7. This Ecoregion is primarily north of Ecoregion XIII, which is the Southern Florida Coastal Plain. Maps in the document show that Lake Okeechobee is in Ecoregion XIII, but the Nine Northern Tributaries are located in Ecoregion XII. Ecoregion XII contains a sub-ecoregion, sub-ecoregion 75. Testimony at hearing indicated that the Nine Northern Tributaries are at the southernmost end of Sub-ecoregion 75. Employing the 25th Percentile Method, the reference conditions for both "aggregate Ecoregion XII streams" and "level III ecoregion 75 streams" with regard to total phosphorus were 40 ppb or 0.040 mg/L. See Petitioners' Ex. 17, Table 2 and 3, at pp 13 and 14, respectively. Also see id. "Executive Summary," pp. vi and (tr. 92). The concentration level of 40 ppb (or 40 micrograms per liter) produced by USEPA for streams in the Nine Northern Tributaries ecoregion using the 25th Percentile Method was rejected by the Department for purposes of proposing a TMDL for TP in the Nine Northern Tributaries. Despite the USEPA recommendation in the Guidance Document, the Department does not have faith in the 25th Percentile Method for establishing a level at which imbalance occurs. It views USEPA as having done a "huge disservice . . . to the states when they promulgated [the Guidance Document that recommends employment of the 25th Percentile Method]." (Tr. 286) At hearing, Mr. Frydenborg described the Department's view of the flaw in the 25th Percentile Method for establishing imbalance. In his words, the 25th Percentile Method takes, "sites of completely unknown quality - - they could all be excellent quality biologically, no imbalances whatsoever, and by arbitrarily selecting the lower 25th percentile, [it] automatically [makes] any site above that impaired with no evidence to support that there is actually imbalances of biological communities . . . ." (Tr. 286) While theoretically, the 25th Percentile Method could use streams with "excellent" biological quality, that is, streams that were impacted at most minimally, the description of the method in the Guidance Manual makes clear that the precise opposite is the case; the method will typically use streams that are degraded. The potential for degraded streams to be used by the 25th Percentile Method is precisely why the USEPA methodology that employs the 25th Percentile Method recommends that an even lower percentile, down to the fifth percentile, be considered for obtaining a nutrient value for setting a numeric criteria. The method in which one would expect only streams of excellent biological quality to be used is the 75th Percentile Method. This is why the 75th Percentile Method, in contrast to the 25th Percentile Method, is described by the USEPA as "the preferred method to establish a reference condition." Id. at A discussion of the comparison of the two indicates that while the 75th Percentile Method is preferred, the hope is that the two methods will produce similar values for a reference condition: EPA's Technical Guidance Manual for Developing Nutrient Criteria for Rivers and Streams describes two ways of establishing a reference condition. One method is to choose the upper 25th percentile (75th percentile [the 75th Percentile Method]) of a reference population of streams. This is the preferred method to establish a reference condition. The 75th percentile was chosen by EPA since it is likely associated with minimally impacted conditions, will be protective of designated uses, and provides management flexibility. When reference streams are not identified, the second method is to determine the lower 25th percentile of the population of all streams within a region [the 25th Percentile Method]. The 25th percentile of the entire population was chosen by EPA to represent a surrogate for an actual reference population. Data analyses to date indicate the lower 25th percentile from an entire population roughly approximates the 75th percentile of the population for a reference population [citations to case studies in Minnesota and Tennessee omitted]. New York State has also presented evidence that the 25th percentile [method] and the 75th percentile [method] compare well based on user perceptions of water resources [citation omitted]. Id. This discussion also shows that values with a variance from 40 ppb (as produced by USEPA for the Ecoregion in which the Nine Northern Tributaries are located employing the 25th Percentile Method) and 159 ppb (produced by the Department in collaboration with USEPA in employing the 75th Percentile Method) are unexpected. It also explains why the USEPA in the Reference Stream Approach urges that when the values produced by the 75th Percentile Method and the 25th Percentile Method are at a sufficient variance that the lower, more protective, value be chosen for purposes of deriving a TMDL for a nutrient. A Numeric Value at Great Variance When a frequency distribution analysis produces a value that is at great variance with another frequency distribution analysis, it causes the scientific investigator to pause in progress toward the goal. Instead of attempting to proceed toward the ultimate goal of arriving at a numeric criterion, the next step for the investigator is to determine the cause for the variance between the analyses. This is particularly true when the analysis with the higher value is at odds as well with other data, such as historical data. The step for determining the basis of the discrepancy between values produced by various analyses was described by Dr. Boyer at hearing when asked, "What would you do if you found one [a value] that was totally different from the others?" (Tr. 94) Dr. Boyer answered that it would require the scientific investigator to re-examine the result, "either the data are bad or [the] analysis is wrong," id., or the investigator did not account for some factor. While a result at great variance with other results would not necessarily mean that the result was inaccurate, it is a "red flag," id., that requires re-examination. The high value in the Proposed TMDL is indeed a "red flag." It calls into question the streams chosen by the Department as reference streams for the 75th Percentile Method. The legitimacy of the reference status of the streams chosen by the Department was cast into further doubt by the testimony of Petitioners' witness whose fields of expertise include water quality analysis relating to nutrient loading: Jean Marie Boyer, Ph.D. Dr. Boyer's Testimony As referenced above, Fish Slough, at the time of hearing, would not have qualified as a reference stream because of impacts. Whether it was one or not prior to 1996, the end date for Fish Slough data used by the Department for derivation of the Proposed TMDL, is less than clear from the record. The Department relied on statements from water management district personnel. None of those personnel testified at the hearing in this proceeding. There was no other evidence in the proceeding, documentary or otherwise, to support Fish Slough's reference stream status prior to 1996 aside from Mr. Frydenborg's reference to a LDI reading that exceeded the range into which a reference stream would have fallen. It is Dr. Boyer's opinion, moreover, that none of the Five Reference Stream supporting the Proposed TMDL are legitimate reference streams, in part, because of the scores received on the Old SCI and the New SCI. In her opinion, Cypress Slough, furthermore, is more than minimally-impacted so that it does not qualify as a reference stream. Located in the proximity of several dairy farms from which it receives direct drainage, Cypress Slough is "impacted and it is disturbed." (Tr. 102) When the initial SCI report was prepared it was not on the "preferenced stream list." Id. It is listed as "fair" on the New SCI with a modification score of 6. Fort Drum Creek is "less disturbed than Fish Slough or Cypress Slough" id., but still Dr. Boyer "wouldn't consider [Fort Drum Creek] minimally impacted . . . ." Among six RSCI scores, Fort Drum Creek received 5 "fairs" and 1 "good." It was explained at hearing, that a rating of "fair" on the New SCI does not necessarily mean that the stream is more than "minimally impacted." On the Land Development Index, however, Fort Drum Creek scores a 2.9, a number that is higher than "zero to two [which is] considered a good number for the Landscape Development Index." (Tr. 103) The LDI, therefore, indicates that Fort Drum Creek does not qualify as a reference stream. The Northwest Fork of the Loxahatchee (the "Northwest Fork") appears to be in pretty good shape" to Dr. Boyer, except that "there is development upstream." Id. Under the New SCI, the Northwest Fork is shown to be "in very poor shape." (Tr. 104) This is because its "macroinvertebrate community isn't in very good shape." Id. The North Fork of the Loxahatchee (the "North Fork") is in a state park and does not have development upstream but under the New SCI "it hasn't done very well . . . ." Id. Dr. Boyer's opinion, at least so far as three of the streams (Fish Slough, Cypress Slough, and Fort Drum Creek) are concerned, is supported by evidence of record that pre-dated the Proposed Rule and this challenge. A report dated May 31, 1996, that relates the development of the SCI, described as "a primary indicator of ecosystem health and to identify impairment with respect to the reference (or natural) condition" (Petitioners' Ex. 29, Executive Summary, p. 2) was admitted into evidence as Petitioners' Ex. 29. The report in Chapter 3 entitled the "Selection and Geographic Distribution of Reference Sites," id., p. 5, states: Reference stream sites have been sampled by FDEP since summer 1992, using standardized biological methods and habitat evaluations at each site. Reference sites were chosen to represent the least impaired streams throughout Florida. * * * FDEP sample reference streams in all nine subecoregions from 1992 to 1994. * * * For inclusion in the reference stream database, sites had to be wadeable (first- to-third order), meet reference criteria of minimal disturbance, and have a drainage within the subecoregion. Id. at 5-7. (Emphasis added) Twelve reference sites are listed from Subecoregion 75d, the subecoregion in which the Nine Northern Tributaries and the Five Reference Streams are located. Of the twelve, only two are any of the Five Reference Streams: the NW Fork the North Fork of the Loxahatchee River. See id. at 7-9. Dr. Boyer's opinion is also supported, at least in part, by the updated SCI, re-calibrated in 2004 (the "New SCI") referred to in Petitioners' Ex. 46B as the "New SCI." (The 1996 SCI is referred to as the "Old SCI.") Cypress Slough, in a modified state hydrology-wise, rated only "Fair" under the New SCI whereas it had an excellent rating under the Old SCI. Fort Drum Creek, in contrast to its scores in the "excellent" range under the Old SCI, had five "fair" scores, ranging from 53.0 to 59.9 under the New RSCI and only one "good "score" under the New SCI. Under the Old SCI, the Northwest Fork of the Loxahatchee received 14 "excellent" scores and 3 "good" scores. Under the New SCI, it received 2 "very poor" scores, 8 "poor scores" and 7 "fair" scores. It received no "good" scores based on 17 ratings. See Petitioners' Ex. 46B. A similar result, although not as dramatic as in the case of the Northwest Fork, applied to the North Fork of the Loxahatchee. Whereas it had received 8 scores of "excellent," 5 scores of "good" and only one of "poor" under the Old SCI, under the New SCI, it had 7 scores of "poor," 6 scores of "fair" and only one of "good." See id. Mr. Frydenborg did not conduct stream habitat assessments on the two forks of the Loxahatchee that served as reference streams because "[w]e were running out of time that day," (tr. 266) and because he felt he had sufficient data otherwise. The assertion is odd when one considers that Mr. Frydenborg and Ms. Espy conducted habitat assessments of all of the Nine Northern Tributaries, declared impaired by the Department. Dispatched to conduct habitat assessments in the wake of the challenge to the Proposed Rule, it seems that Mr. Frydenborg would have chosen to spend time on the Five Reference Streams rather than the Nine Northern Tributaries if time were an issue. Elaboration on Frydenborg Opinion It is Mr. Frydenborg's opinion that the Proposed TMDL is a valid number from the perspective of protection of the resources for a number of reasons. In his view, there "might be a potential issue with phosphorus when it gets above . . . 250 micrograms per liter . . . ." (Tr. 269) Nonetheless, he has observed levels of above 250 micrograms where no imbalance of flora and fauna occurred because of flow characteristics and prevention of light penetration by shading associated with canopy or dark water caused by tannins leaching from leaf litter. One such example is Flat Creek next to Torreya State Park. It always receives an "excellent" on the SCI and its phosphorus levels average 244. Another reason Mr. Frydenborg believes the Proposed TMDL to be protective is that "nutrients are so complicated. We don't have a real clear cause-and-effect relationship between . . . nutrient concentration in a stream . . . [and] imbalance." (Tr. 269) Mr. Frydenborg summed up his thoughts on the contribution that reducing phosphorus in the Nine Northern Tributaries would make: Well, I guess the better way to think of it would be is, if you were somehow magically able to reduce phosphorus in those areas to make it an exceedingly low amount . . . it's my professional opinion, due to the other modifications in those sites, with the exception of Mosquito Creek, that you would not see any improvements in biological health because they're already significantly stressed for these other factors. I think that's the best way to look at it . . . I'm not saying we shouldn't try our best to reduce the phosphorus in those systems . . . but . . . if we're able to reduce that phosphorus, I wouldn't expect to see an actual beneficial environmental effect. (Tr. 281-282) Mr. Frydenborg stressed that the Proposed TMDL is adequate because "it's similar to the reference conditions in that particular area." (Tr. 282), (emphasis added). Mr. Frydenborg also responded on behalf of the Department to Dr. Boyer's assertion that the 75th Percentile Approach required the use of reference streams identified in the 96 Stream Condition Index located in Sub-ecoregion 75D: the eastern flatwoods region that is on the eastern side of the state. This sub-ecoregion was described as "up in Orlando all the way south of Jacksonville, south of Clay County anyway, ... but only on the eastern side of the state." (Tr. 291) The Nine Northern Tributaries are located in the "very southern extent" of Sub-ecoregion 75D. South of them is another sub-region associated with the Everglades where there is "a paucity of streams . . . maybe even no natural streams . . . south of Lake Okeechobee for the original Stream Condition Index." (Tr. 292) "Non-metric multidimensional scaling" (tr. 290), a statistical tool, was used to analyze how predictive the sub- regions were in showing the differences in populations of the aquatic communities. Because of the lack of differences among certain sub-ecoregions, the analysis led to an aggregation of them with the result that the State could be divided into three bio-regions: "the Panhandle, the peninsula, and the northeast." Id. This analysis shows that there is no basis for using a particular sub-ecoregion. With respect to the water basin in which the Nine Northern Tributaries are located, "leav[ing] that immediate geographic basin for TMDL purposes" (id.) would lead to an evaluation of peninsular sites, that is, an evaluation of one of the three bioregions into which the State divides rather than an evaluation of any one sub-ecoregion. An evaluation of peninsular sites, is similar what the Department did in developing the TMDL for TP in the Nine Northern Tributaries. It took "the sites that are unimpaired in the new [re-calibrated] SCI and looked at the phosphorus levels there." Id. There are differences between the northern end of Sub-ecoregion 75 and the southern end climatologically. The main reason to reject limiting candidate streams for use in the Reference Stream Approach to those in Sub-ecoregion 75, however, is that it is more appropriate to use an aggregate of "the entire sub-region," that is, the Peninsula Bio-region. The bio- region includes the southern end of Sub-ecoregion 75 but does not include the northern end of Sub-ecoregion 75. The phosphorus levels of the peninsula, according to Mr. Frydenborg, have a 75th percentile of 243 ppb. Using Peninsular Florida streams to calculate a 75th percentile of TP contrasted dramatically with Dr. Boyer's approach. According to Dr. Boyer, the three approaches she recommended produced concentration levels of around 57 ppb ("historical" levels), 40 ppb (the 25th percentile of all reference streams in ecoregion XII) and 73.5 ppb (the 75th percentile of reference streams she chose in subecoregion 75d.12) Dr. Boyer would be comfortable with a "73.5 part" TMDL for TP in the Nine Northern Tributaries because of "the data behind it." (Tr. 126) Between Mr. Frydenborg's defense of the Proposed TMDL and Dr. Boyer's defense of 73.5 ppb using reference streams, there is no question that Dr. Boyer's is superior. Her use of reference streams in the same ecoregion as the Nine Northern Tributaries makes sense because those reference streams were minimally impacted. Mr. Frydenborg's attack on Dr. Boyer's choice of reference streams for the 75th Percentile Method shows a fundamental misunderstanding of the concept of reference streams. Mr. Frydenborg and the Department have chosen to use as reference streams, streams that are not minimally impacted but rather that are the least impacted in Peninsular Florida, an area heavily impacted when it comes to excess phosphorus. The Guidance Manual demonstrates that the Department either does not understand the type of streams to be used in the 75th Percentile Method and the 25th Percentile Methods or, for some reason, has confused them. The 75th Percentile Method uses reference streams, that is, streams that are minimally impacted or approximately ideal in natural biology. In contrast, in its employment of the 75th Percentile Method, the Department chose streams that were least impacted in a heavily impacted region. The 25th Percentile Method, on the other hand, uses streams that are both in reference and non-reference condition. Data from degraded streams may be used to calculate a proposed value under the latter method. The more degraded the streams and the greater the number of degraded streams used to produce data for the 25th Percentile Method, the lower that actual percentile used to propose a TMDL. If the data is from a sufficient number of degraded streams then the fifth percentile should be used to produce a TP value. In contrast, Mr. Frydenborg rejected the 25th Percentile Method because it might have used data from only excellent streams - streams the Department should have used in calculating the 75th percentile to propose a TMDL for TP in the Nine Northern Tributaries. In point of fact, the 25th Percentile Method, not designed to be limited to streams of excellent condition, would almost assuredly not use data confined to production from streams of excellent condition. The Lake Issue In enacting the Protection Statute, the Legislature directed that the Protection Program should be implemented through a variety of programs, that is, unlike the TMDL Act, the Protection Program should not be solely regulatory: This program shall be watershed-based, shall provide for consideration of all potential phosphorus sources, and shall include research and monitoring, development and implementation of best management practices, refinement of existing regulations, and structural and nonstructural projects, including public works. § 373.4595(1)(j), Fla. Stat. The intent of the Legislature that the approach of the Protection Program be a multi-faceted one is reiterated specifically with regard to phosphorus. Under the Protection Statute's subsection (3), entitled "LAKE OKEECHOBEE PROTECTION PROGRAM," which details the specifications for the implementation of the Protection Program, there is a specification with regard to phosphorus reduction: The Lake Okeechobee Watershed Phosphorus Control Program is designed to be a multifaceted approach to reducing phosphorus loads by improving the management of phosphorus sources within the Lake Okeechobee watershed through continued implementation of existing regulations and best management practices, development and implementation of improved best management practices, improvement and restoration of the hydrologic function of natural and managed systems, and utilization of alternative technologies fro nutrient reduction. The coordinating agencies shall facilitate the application of federal programs that offer opportunities for water quality treatment, including preservation, restoration, or creation of wetlands on agricultural lands. § 373.4595(3)(c), Fla. Stat. The Legislature made its intent clear that phosphorus reduction in the Lake is dependent on federal projects as well as the TMDL Program: It is the intent of the Legislature that the Lake Okeechobee Protection Program be developed and implemented in coordination with and, to the greatest extent practicable, through the implementation of the Restudy project components and other federal programs in order to maximize opportunities for the most efficient and timely expenditures of public funds. § 373.4595(1)(k), Fla. Stat. (emphasis added) These federal efforts include projects conducted by the United States Army Corps of Engineers. The Department's understanding from its reading of the Protection Statute is that it rely as much as possible on projects conducted by the United States Army Corp of Engineers in its efforts to reduce the phosphorus load in and to Lake Okeechobee. The Department's plan to reduce phosphorus loads, therefore, calls for reductions in phosphorus loading through TMDLs placed on the Nine Northern Tributaries and other tributaries to the Lake as well as through federal projects. Lake Okeechobee TMDL As a result of the 1999 Consent Decree between USEPA and Earthjustice, the Department established a TMDL for Lake Okeechobee in August, 2001. The TMDL set an "in-lake" target restoration goal of 40 ppb total phosphorus for Lake Okeechobee based upon an examination of "pre-impact" phosphorus concentration data. The data was from studies that used "chlorophyll a" as an indicator of algal biomass which in turn acted as a surrogate for excessive nutrient concentration, and studies that examined the algal response to in-lake phosphorus concentrations. Upon comparing the results of these analyses, the Department determined that the total annual phosphorus load that would meet the 40 ppb restoration goal was 140 metric tons (the "Lake Okeechobee TMDL"). The Lake Okeechobee TMDL includes 35 metric tons from atmospheric deposition. Excluding the 35 metric tons of atmospheric deposition load of total phosphorus leaves 105 metric tons as the maximum load that is allowed from surface water inflows into the lake. The September 16, 2003, report of the Department admitted into evidence as Petitioners' Exhibit 2 recognizes that the Proposed TMDL cannot be inconsistent with the Lake Okeechobee TMDL. It also claims that the Proposed TMDL is consistent with the Lake Okeechobee TMDL because the Proposed TMDL will only allow 19.05 metric tons of TP to enter the Lake, well below the 105 metric tons allowed from surface water inflows under the Lake Okeechobee TMDL : This TMDL is specifically designed to protect the designated uses of the water bodies within the S-191 watershed [the watershed in which the Nine Northern Tributaries are located]. However, the load from these water bodies, as tributaries to Lake Okeechobee, must also be consistent with the TP TMDL for Lake Okeechobee in order to be adequately protective of the designated uses of the lake. Based on the Lake Okeechobee TMDL documentation, the total load for water discharged to the lake from all tributaries must not exceed 105 tonnes [metric tons] on an annual average basis. To determine whether the concentration-based TMDL for the tributaries is consistent with the lake TMDL, the Department calculated the load from the tributaries using a concentration of 0.159 mg/L and an average discharge of 97,154 acre feet (the average flow for 1995- 2000). Using these numbers, the allowable load is 19.05 tonnes, which well below the allowable load to the lake. Petitioners' Ex. 2, pp. 6-7 In keeping with the legislative intent and the observations of the Department, the Proposed Rule requires that the Proposed TMDL be consistent with the TMDL for TP for Lake Okeechobee: "As tributaries to Lake Okeechobee, the load from these other waterbodies in the Lake Okeechobee Basin must also be consistent with the TP TMDL for Lake Okeechobee, above." Proposed Rule, Section (2)(b). Under the TMDL Act, allocations of load may be between sources or basins so that the burden of reduction may fall on one source or basin more than on another: The allocations may establish the maximum amount of the water pollutant from a given source or category of sources that may be discharged or released into the water body or water body segment in combination with other discharges or releases. Allocations may also be made to individual basins and sources or as a whole to all basins and sources or categories of sources of inflow to the water body or water body segments. Allocations shall be designed to attain water quality standards . . . . § 403.067(6)(b), Fla. Stat. (emphasis added). In an August 2001 report entitled "Total Maximum Daily Load for Total Phosphorus Lake Okeechobee, Florida," prepared by the Department and submitted to the USEPA, it was reported that a restoration target of 40 ppb TP for the lake was suggested by certain studies. After discussion of the "different analysis methods" that "all encompass the 40 ppb concentration target," the report states that "if 40 ppb is met at the eight pelagic13 stations (which represent the mid-lake) we can expect total phosphorus concentrations of below 40 ppb in the near-shore during certain years." Petitioners' Ex. 13, p. 32 of 53. Petitioners interpret this to be the setting by the Department of a restoration target of "40 ppb in-lake." Petitioners' Proposed Recommended Order, p. 50. The Department conceded during hearing that "you do, in fact, need to achieve an average of 40 ppb [inflow concentration into the lake]." (Testimony of Mr. Brooks, tr. 358). The Department argued vigorously, however, that the Proposed TMDL at 159 ppb does not necessarily violate a target restoration for the lake of 40 ppb or an average inflow concentration of 40 ppb. This is because future treatment works, in the words of Mr. Brooks, "are going to, in fact, affect both concentration and volume delivered to the lake. Id. And depending upon where those go, those are going to have a very significant effect in terms of how you balance to achieve that overall 40." The issue is directly addressed by the Protection Statute. It requires the water management district in cooperation with other coordinating agencies and the United States Army Corps of Engineers to develop an implementation plan for Phase II of the Lake Okeechobee Construction Plan by January 1, 2004. See §.373.4595(3)(b)2., Fla. Stat. The implementation plan is required to: dentify Lake Okeechobee Construction Project facilities to be constructed to achieve a design objective of 40 parts per billion (ppb) for phosphorus measured as a long-term flow weighted average concentration, unless an allocation has been established pursuant to s. 403.067 for the Lake Okeechobee total maximum daily load. § 373.4595(3)(b)2.a., Fla. Stat. (emphasis added). Petitioners present evidence that the actual loading from the Nine Northern Tributaries would be 33.44 metric tons of TP per year because the Department's calculation failed to account for discharges from tributaries in certain sub-basins. Whether the annual load from the Nine Northern Tributaries is the higher number posited by Petitioners or the lower number of approximately 19 metric tons claimed by the Department, the load is substantially below the 105 allowed by the Existing Rule. Petitioners also claim that the Proposed TMDL, 159 ppb, almost four times the 40 ppb limit for average lake inflows, is invalid because it could not lawfully become effective until the Department has met its legal obligation to offset the Nine Northern Tributaries load with reductions from other sources so that the average load expressed as a concentration level meets the target of 40 ppb.
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Walker G. Miller, to construct an addition to his existing boat house of approximately 450 square feet, and an addition to his existing chain link fence, both of which are located on Lake Down, Florida. The Respondent, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioners, Milton and Gail Hess, and David Storey and others, have opposed the Department's intention to grant the permit.
Findings Of Fact The Petitioner in Case No. 80-1769, Milton Hess, is an adjacent landowner to the Applicant/Respondent, Walker G. Miller, with property located on Lake Down, near Windermere, in Orange County, Florida. The Petitioners in Case No. 80-1770, David Storey and others, are also landowners on Lake Down. Applicant's parcel is located on Down Point, which is a peninsular extending from the Lakes's southern shore. The project as contemplated by the Applicant is the construction of a 15 foot by 30 foot unenclosed addition on the north side of an existing dock/boathouse combination located on Lake Down. The 450 square foot addition is to be utilized as a storage room adjacent to the boathouse portion of his existing structure. The present structure has a total surface area of approximately 825 square feet. Additionally, by amendment to the application made on August 13, 1980, Applicant proposes to construct a chain link fence from the south property line to the dock facility. Lake Down is one of the waterbodies that constitutes the Butler Chain- of Lakes. The Lake is characterized by outstanding water quality and diversified biological resources. The Chain-of Lakes is widely recognized as the outstanding aquatic resource in the State, as far as water quality is concerned. Development on Lake Down is light, with widely scattered residential units separated by expanses of citrus groves. The construction of the addition will not significantly impact Lake Down or the Butler Chain-of Lakes, either on a long-term or short-term basis. The shading effect of the structure will result in a slight decline of rooted aguatic vegetation. However, such decline should be minimal. Further, reasonable assurances have been given that the proposed project would not result in any violations of State water quality criteria or standards. The existing dock structure now obstructs a portion of the view of the lake enjoyed by Petitioner Hess. However, by constructing the proposed addition on the north side of the existing boathouse, no further impediment of the view will occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be granted by the Department of Environmental Regulation to Walker G. Miller to construct an addition to his boathouse and a chain link Fence on Lake Down as more specifically described in his amended application. DONE and ENTERED this 2nd day of February, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1981. COPIES FURNISHED: David Storey Route 3, Box 929 Orlando, Florida 32811 Jack Ezzard and Kathryn Ezzard Route 3, Box 925 Orlando, Florida 32811 Tari Kazaros Route 3, Box 924 Orlando, Florida 32811 Mrs. H. D. Barrarly Post Office Box 203 Gotha, Florida 32734 Paula M. Harrison Post Office Box 203 Gotha, Florida 32734 Ava Careton Route 3, Box 926 Orlando, Florida 32811 Nikki Clagh Route 3, Box 928 Orlando, Florida 32811 Milton and Gail Hess 4413 Down Point Lane Windermere, Florida 32786 Walker G. Miller Post Office Box 348 Windermere, Florida 32786 B. J. Heller, Esquire 644 West Colonial Drive Orlando, Florida 32804 Richard D. Lee, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Do Hilton, Ocala Park and La Quinta have standing (substantial interest) in these proceedings? Has Ocala Park demonstrated reasonable assurance of compliance with the District's requirements for issuance of the remedial/retrofit stormwater management system permit? Did Hilton institute these proceedings for an improper purpose, and if so, may attorney's fees and costs be determined and/or awarded?
Findings Of Fact The Parties and the Allegation of Improper Purpose: The Ocala Park Centre Maintenance Association, Inc. exists for the purposes of providing common maintenance and common services for owners of certain properties located within the Park Centre subdivision pursuant to the Declaration of Covenants, Conditions and Restrictions to which those properties are subject. Park Centre is a platted commercial subdivision located near the intersection of Interstate 75 and S.R. 200 and is within the City of Ocala, Florida. The Association's board of directors is presently controlled by the developer of Park Centre. The developer is Ocala 202 Joint Venture, which in turn, is controlled by representatives of "Arvida." Since its formation in 1986, the Association has operated as a property owners' association. It has collected assessments from its members and has directed maintenance activities within Park Centre. The Association owns a leasehold interest in the master retention pond which is the subject of these proceedings. Under the lease, as amended, the Association is the current lessee and Alan E. Greenfield is Trustee of the current lessor. Due to the Association's rights and obligations as set forth in the Declaration of Covenants and the master retention pond lease, the Association was listed (abbreviated as Ocala Park Centre Main., Inc.) as the Applicant in the original permit application materials. The Association's legal name is correctly stated and disclosed by its Articles of Incorporation, a copy of which was included in the application materials submitted prior to the District's July 24, 1996 intent to issue permit. The Association funds the cost of its maintenance activities and the rent payable under the lease by assessing its members, of which Hilton is one. The Association has paid rent due under the lease to the lessor. Pursuant to the Declaration of Covenants, assessment and lease payments are apportioned among the members of the Association, based on the relative amount of square footage within their respective properties. (See also Findings of Fact 55-60) The master retention pond for which this permit was intended lies within the jurisdictional boundaries of the District. The District is a regulatory authority created by the legislature. It is charged with the responsibility for administering and enforcing permitting programs for the management of stormwater. The Association is accordingly subject to the District's regulatory authority. The Ocala/Silver Springs Hilton hotel occupies Lot 3 within Park Centre and constitutes a hotel-spa complex located immediately adjacent to the master retention pond parcel. The Hilton hotel's real property is owned by MJ Ocala Associates, Ltd., a Florida general partnership. The petition filed in this case was brought in the name of "Ocala/Silver Springs Hilton". "Ocala/Silver Springs Hilton" is apparently a trade name used by MJ Ocala Hotel Associates, Ltd. No evidence was presented that this trade name has been registered as a "fictitious name" under Florida law. Mr. William A. Myer, a principal with MJ Ocala Associates, Ltd. retained and directed counsel to oppose the permit the District proposed to grant to Ocala Park Maintenance Association, Inc. Since July 1996, Intervenor La Quinta Inns, Inc. has been under contract to purchase from Ocala 202 Joint Venture (the developer) a portion of Lot 2 of Park Centre which directly adjoins Hilton's property. La Quinta intends to construct a new hotel on the property that will compete in the marketplace with Hilton. Lot 2 is also subject to being serviced by the Ocala Park Maintenance Association's master stormwater retention pond that is the subject of this proceeding. Prior to the commencement of these proceedings, Hilton filed another petition challenging the issuance of a different permit by the District to La Quinta, for construction of a stormwater treatment facility on Lot 2. Those proceedings have been settled. However, the sale of Lot 2 from the developer to La Quinta cannot be closed, and La Quinta cannot proceed with construction of its new hotel on the property, until the permit which is the subject of these instant proceedings is finally approved and issued. Pursuant to the terms of the Declaration of Covenants, upon the sale of the last lot in Park Centre commercial subdivision, the developer will assign its revised rights, and the duties of maintenance of the subdivision, and thus the master retention pond which is the subject of the instant proceedings, will pass to the Association members, of whom one is Hilton. Thereafter, the developer will have no significant financial interest in the subdivision. The six month delay occasioned by this instant case has caused Ocala 202 Joint Venture an estimated $100,000 in mixed "attorney's fees, engineering fees, preparation for hearings, and lost interest on the income that would have been received on the purchase price." This is the only record evidence concerning obligation for, or amount of, attorney's fees and costs incurred by any entity. Ocala Park and La Quinta have asserted that Hilton has instituted these instant proceedings solely to prevent or to significantly delay the closing of the La Quinta transaction and the construction of La Quinta's new hotel on Lot 2 which would offer competition as a hotel to Hilton. Ocala Park Maintenance Association, Inc. has moved for attorney's fees and costs based upon this allegedly "improper purpose." Background, The Initial Permit Application Process, and Filing of the Petition in Opposition: In 1984, the District had required no permit application for the original construction of the master retention pond. At that time, it had been represented to the District that the master retention pond would serve a project of approximately twenty-four acres. Similarly, in July 1985, a Notice of Intent to Use (general permit available under Chapter 17-25, Florida Administrative Code) had been submitted to the Department of Environmental Protection. Thereafter, the master retention pond had been constructed. At all times material, the Park Centre developer, Ocala 202 Joint Venture, had the authority to exercise control over the Association by electing all of the members of its board of directors. As of May 19, 1989, the Association had become the lessee of the master retention pond. Pursuant to the terms of the lease and the Declaration of Covenants, the Association had (and currently has) the right and obligation to maintain the retention pond. (See also Finding of Fact 58). Sometime prior to the instant 1996 permit application, the Park Centre developer was notified by the City of Ocala that the master retention pond could be subject to a notice of violations and would have to be remediated. Following discussions of alternative methods of remediation, it was agreed with the City of Ocala that an exfiltration trench designed to discharge directly into the underlying limestone formation would be installed in the bottom of the existing master retention pond. This proposed remediation, or retrofit, of the existing master retention pond required a stormwater management permit pursuant to Chapter 40C-42 Florida Administrative Code from the District, and the application that is at issue herein followed. In May and October 1995, Hilton had experienced some flooding of its property. Hilton's then-manager feared Hilton's electrical room was in danger of flooding. At various times, Hilton complained to the Florida Department of Transportation and the City of Ocala about flooding. On June 18, 1996, "Ocala Park Centre Main., Inc." submitted an application to the District for a stormwater management permit authorizing the remediation of the existing "master retention pond" serving the commercial subdivision known as Parke Centre. Upon request from District staff, the Applicant submitted a different form application and additional information on July 8, 1996. On July 18, 1996, Joseph C. London, P.E., submitted to Hilton a general watershed study which had taken him about six weeks to complete. He determined that water overflow from the nearby Chili's Restaurant parcel was going via a storm sewer system into the master retention area; that the Black Eyed Pea Restaurant/Star Bar & Grill site also had an overflow system that went into a storm sewer system and thus went to the master retention pond area; that there was an interconnection between the Lowe's site and the water retention pond area; that water from another site occupied by Barnes & Noble, Pet Smart, and Ruby Tuesday's Restaurant also flowed into a smaller retention area in the northerly portion of Lot 2 a/k/a the Park Centre Commons' Pond a/k/a the Jacoby Pond and ultimately into the master retention pond area; that Lot 2 was currently unoccupied; that when the master retention pond area filled to an elevation of 71.3 feet, the water went through an inlet and pipe into a Department of Transportation retention pond directly south of the master retention pond area; and that the Hilton property was experiencing overflow as a result of this combination of contributing factors. As of July 18, 1996, Mr. London further advised Hilton that the Park Centre Commons' retention pond had overflowed its banks and that engineers were remediating it. In fact, that pond has been issued a notice of violations by the City of Ocala and the City has required that the Park Centre Commons' pond also be remediated. (See Findings of Fact 18 and 44-47). District staff concluded, in a July 23, 1996 Technical Staff Report, that the Applicant's submittals presented on June 18, 1996 and July 8, 1996 provided reasonable assurance of compliance with the District's objectives for stormwater management systems. At that time, staff had only reviewed the application materials in connection with the rules needed to insure technical compliance. Staff recommended issuing a standard permit with ERP Stormwater General Conditions 1-19; Special Conditions 8, 9, and 30; and no "Other Conditions." That permit was issued July 24, 1996. Ocala/Silver Springs Hilton timely filed its petition beginning these proceedings on August 9, 1996 to contest the District's issuance of the permit on July 24, 1996. The petition alleged that overflow from the existing master retention pond had, in the past, overflowed onto Hilton's property; that the Applicant had miscalculated the area of stormwater runoff; that the permit application contained defects, mistakes, and irregularities, or lacked complete information; that the District's permit contained procedural mistakes, defects, and irregularities; and that the proposed remediation was inadequate to solve existing problems or future problems that might result from further development in the area. The Applicant's materials submitted prior to the July 24, 1996 permit approval did not address the entire area reported upon by Mr. London to Hilton as contributing to Hilton's flooding problem, and they did not acknowledge the connecting feature between the Lowe's parcel and the water retention area. The Applicant's plans were not signed and sealed by a registered engineer, and the corporate and succession documents were otherwise flawed. Developments Between August 9, 1996 and January 27, 1997: The August 9, 1996 petition initiated the formal proceeding process with its inherent discovery and trial preparation. The Applicant's engineer considered the concerns expressed in Mr. London's letter and the petition and made additional calculations which were first available to the parties on November 13, 1996. The Applicant's Declaration of Covenants also was amended in November 1996. According to the District's spokesman and expert witness, additional materials were requested of the Applicant by the District "in an abundance of caution" and to prepare for formal hearing. Apparently, that request was for signed and sealed plans, corporate documentation conforming to District rules and a site plan with increased parameters and calculations addressing a ten year, 24 hour storm. A third package of materials in support of the instant permit application was submitted by the Applicant to the District on December 16, 1996. The Applicant's December 1996 submittal addressed many concerns raised in the petition. It added a Schedule C -- Notice of Receipt on the District's official form and added a quadrangle map and aerial photograph. The Schedule C -- Notice of Receipt was added to correct an oversight in the original application, and the quadrangle map and aerial photograph were voluntarily provided, although the District had never inquired as to the location of the project. The plans depicting the drainage area served by the master retention pond were modified to include a larger area than before, including the Chili's Restaurant site which had concerned Hilton's engineer. The plans and calculations previously submitted in June and July were resubmitted, this time with the Applicant's professional engineer's signature and seal. The Applicant's prior submittals had not been signed and sealed as required by rule. Additional calculations regarding the impact of neighboring stormwater management systems were included. The additional calculations demonstrated the minimal impact of the nearby Lowe's and Park Centre Commons' stormwater management systems on the master retention pond and showed that for the required mean annual, 24 hour storm event, there would be no discharge from the master retention pond, even taking overflow from the nearby Lowe's and Park Centre Commons' systems into account. The Applicant's December 1996 submittal also added a well location survey and included proposed amendments to the Association's operation and maintenance documents. The well inventory provided the District with an additional copy, since the inventory for the original application materials had been obtained from the District's files for a prior permit on neighboring property. This addressed karst formation and sinkhole concerns raised by Hilton. The Applicant's December 1996 submittal also addressed Hilton's corporate concerns. The proposed amendments to the Association's ownership and maintenance documents added the District's current suggested operation and maintenance language. The final documents establishing Ocala Park Maintenance Association, Inc. as the operations and maintenance entity were submitted to the District July 8, 1996, but that package had lacked several provisions which the District's rules now require. Specifically, the Applicant's December 1996 submittal contained required language providing for operation and maintenance in the event of dissolution of the Association, language authorizing the District to enforce the provisions related to the stormwater system or language requiring prior District approval to modify the declaration so as to affect the stormwater system. This is reasonable since the original documents had been executed and recorded at a time when the master retention pond was exempt from the District's permitting requirements. The technical and scientific design for the proposed trench work was not changed between the June 18, 1996 and December 16, 1996 submittals. However, the drainage calculations submitted by the Applicant in December 1996 cover the larger area considered then. The Applicant's December 1996 calculations were accurate with the exception that the elevation of discharge structure was assumed to be 71.8 feet rather than 71.3 feet. The District either missed this error or considered it a minor flaw, insignificant for purposes of its January 27, 1997 Technical Staff Report, described below. By a new Technical Staff Report issued on January 27, 1997, only two days before formal hearing, District staff advocated that two new "Other Conditions" be added to the permit, if issued. The District's new proposed "Other Conditions" read as follows: The proposed stormwater management system must be constructed and operated in accordance with plans received by the District on December 18, 1996. Within 45 days of permit issuance, the permittee shall submit to the District final operation and maintenance entity documents, filed or recorded as appropriate, and in the form reviewed by the District. Although the Applicant's December 16, 1996 plans were technically no different than earlier ones, they were now professionally signed and sealed. Its corporate documents were likewise conformed to District Rule Requirements. Therefore, it is found that the two new "Other Conditions" would not have been required by the District but for the initiation of this administrative proceeding by Hilton's petition herein and by Hilton's participation in this proceeding up through January 27, 1997. After January 27, 1997, the following situation continued to exist: The general site condition was limerock of varying levels subject to karst formations and sinkholes. The Applicant still relied on two soil borings and Hilton's engineer was used to submitting more. A minor flaw existed in the Applicant's modeling calculations (see Findings of Fact 32 and 42), and those calculations were based on the entire trench reaching limestone. The Park Centre Commons' pond had not been remediated, and the Applicant's calculations treated it as already functioning properly. Hilton continued to be concerned about operation and maintenance responsibility. Formal hearing on January 29-30, 1997 focused on these issues. Formal Hearing January 29-30, 1997: The Applicant's December 16, 1996 amendment to its application and the January 27, 1997 Technical Staff Report were admitted in evidence at formal hearing and were considered by the expert witnesses who testified. District staff continued to support the granting of the permit with the addition of only the two new "Other Conditions." The proposed trench will be 12 feet deep, 5 feet wide, and 178 feet in length. For maximum efficiency, the trench is designed to make contact for its entire length with the limestone formation underlying the master retention pond, but at formal hearing the Applicant showed that it is not necessary for the trench's entire length to contact limestone in order to function properly. Because the limerock in this area is not a flat, level surface, it remains possible that some portions of the trench, as designed, will not contact limestone. However, the Applicant proved that, even applying a very conservative safety factor of two, only 25 feet of the trench needs to actually be in direct contact with the limestone for the trench to function as intended. Moreover, even Hilton's engineer conceded that if sand, rather than clay, is encountered, the percolation factor will be better than if limerock is encountered as predicted. Sinkhole problems have been accounted-for and minimized. At the bottom of the exfiltration trench, a geogrid fabric will be installed. Above this, approximately nine feet of FDOT No. 57 stone will be installed and wrapped with filter fabric. Above this, a three foot layer of filter sand will be installed. Approximately eight inches of the sand will be mounded above the bottom of the retention pond. The trench will be lined on each side with a three foot concrete pad to facilitate maintenance. Moreover, during construction, the Association will employ a full-time geotechnical consultant to help ensure that the exfiltration trench is installed properly. The Association's present plan is to continue excavation until sufficient contact with the underlying limestone is achieved. At formal hearing, the Applicant established that there is a reasonable degree of engineering certainty that limestone will be encountered at a depth of approximately 12 feet, which is the depth contemplated by the remediation plans. Evidence to the contrary presented by Hilton is speculative, at best. All witnesses ultimately conceded that the only way to know with absolute certainty is to dig. The greater weight of the evidence is that Hilton's suggestion of more soil borings or an additional "Other Condition" mandating the presence on-site of an engineer or geotechnical consultant is not cost-efficient or necessary. The Applicant demonstrated that once the proposed remediation is completed, the master retention pond will retain, without any discharge, a mean annual, 24 hour storm event. During such an event, the level of water within the master retention pond will reach an elevation of 64.59 feet. The existing outfall structure in the master retention pond is located at elevation 71.3 feet. Therefore, there will be approximately seven feet of additional storage capacity within the master retention pond following a mean annual, 24 hour storm event. The issue of elevation at 71.3 versus 71.8 feet was litigated at formal hearing. Upon the evidence adduced at formal hearing, it is found that this minor flaw, in fact, did not substantially affect the Applicant's modeling data. Petitioner showed that there is another retention pond serving the Lowe's property in the same vicinity, and that it is connected by a pipe to the storm sewer system that drains into the master retention pond and that a portion of the stormwater from Lowe's parking lot bypasses Lowe's storm sewer system and enters the storm sewer system served by the master retention pond which is the subject of this proceeding. Petitioner showed that the Park Centre Commons' retention pond is currently subject to a notice of violations issued by the City of Ocala and is in the process of being remediated. The latest date demonstrated at formal hearing herein for completion of the Park Centre Commons' retention pond's remediation as represented to the City of Ocala, is March 31, 1997. In the past, when the Park Centre Commons' retention pond has overflowed its banks, stormwater has flowed into the street and into the storm sewer system served by the master retention pond which is the subject of the instant proceeding. (See Findings of Fact 18-19) However, the Applicant demonstrated that, assuming that the Lowe's and Park Centre Commons' retention ponds function in compliance with the District's rules and the requirements of the City of Ocala, but taking into account the impact of the elevation of the connecting pipe and the bypassing of stormwater within Lowe's parking lot into the master retention system, the master retention pond which is the subject of this proceeding, will, once remediated, retain stormwater from a mean annual, 24 hour storm without any discharge. Finally, the Applicant proved it had ultimately correctly calculated the size of the area to be served by the proposed retrofit of the master retention pond to be 14.85 acres. This 14.85 acres now includes the Hilton, Black Eyed Peas/Star, and Chili's Restaurant properties, the common areas within Ocala Park Centre subdivision and the undeveloped parcel covered by the La Quinta contract for sale. The Applicant does not, and does not need to, include the bulk of the Lowe's property, Park Centre Commons property or any of the State right-of-way for Interstate 75, because each of these properties is served by its own separate stormwater management system, over which the Applicant has no control and which it has no duty to accommodate. The District does not require that stormwater management systems be designed to accommodate neighboring stormwater management systems that do not comply with the District's rules. The District's position is that the Association, like all other permit Applicants, is entitled to assume that neighboring systems will comply with all applicable requirements and that the District and the City of Ocala each has enforcement procedures in place if the neighboring systems do not comply. That position is both reasonable and in accord with the applicable statute and rules. Ed Wilson, testifying on behalf of Hilton, described incidents of flooding at Hilton's property that occurred in 1995. He identified October 1995 photographs of flooding on a portion of the Hilton property located south of the hotel. However, by its response to Requests for Admissions served by La Quinta, Hilton had already admitted that overflow from the master water retention pond does not contribute to flooding on the south portion of its property. Ed Wilson also described prior incidents of flooding within the parking lot and tennis courts serving Hilton's hotel. A single photograph was produced showing several inches of water standing over a stormwater grate that is located in the vicinity of Hilton's tennis courts. Contribution to this problem by the master retention pond, if any, could only be improved by its remediation. (See Findings of Fact 53-54) William Meyer, testifying on behalf of Hilton, offered his purely personal opinion that the Applicant should be required to give reasonable assurance of storage capacity for more than a mean annual, 24 hour storm event. He conceded his personal opinion was not based on any statute, rule, or expert advice he had received. A mean annual, 24 hour storm event equates to 4.3 inches of rain over a 24 hour period. It is the only volume and recovery requirement contained in the applicable rules. The Applicant demonstrated its remediation will accommodate a mean annual 24 hour storm event or a ten year 24 hour storm event. Hilton presented no evidence that the remediated master retention pond will back up into Hilton's parking lot or tennis courts during a mean annual, 24 hour storm event or even a ten year 24 hour storm event. Hilton has neither made, nor has it caused to be made, any calculations of whether such a backup would occur during such storm events. Another "concern" of Hilton, as expressed by Mr. Myer at formal hearing, seems to be that once the Association is controlled by its members, rather by than the developer, the Association may be unable to properly operate and maintain the retention pond as modified by this proposed permit. This concern is two-fold: the technical operation-maintenance issue and a legal responsibility/financial capability issue. Mr. Meyer's technical concern is based upon the inadequacy of the pond as originally constructed and such flooding as has occurred to date under the developer's administration. At formal hearing, Hilton presented evidence of prior flooding events, but provided no evidence to support its claim that the proposed remediation will adversely affect flooding conditions on its property. In fact, through its expert witness, Mr. London, Hilton admitted that the Applicant's proposed remediation will, in fact, alleviate the potential for flooding on its property. (See Findings of Fact 39 and 48-51) Hilton presented no expert testimony or other evidence to support its stated concern that the proposed remediation of the master retention pond will not reduce the potential for flooding within Hilton's parking lot and tennis court. Quite to the contrary, Hilton's engineer, Joseph London, testified that he believes that if the technical plan remediation works successfully, the problem with overflow onto the Hilton's property will be cured. (See Findings of Fact 39 and 48-51) Hilton's legal responsibility/financial capability concern, as expressed by Mr. Myer at formal hearing, is based on the fact that Association Members, of which Hilton is one, have not been notified of Association meetings and permitted to vote on how to improve, remediate, or retrofit the master retention pond or any other maintenance function, while on the other hand, the Association holds Hilton responsible for approximately 63% of the expenses related to the lease of the retention pond and approximately 29% of the other Association expenses. William Meyer testified that since MJ Ocala Hotel Associates, Ltd.'s acquisition of the Hilton property on May 10, 1995, he has received minimal communication from the Association. Hilton did, however, have an arrangement with the Association whereby Hilton arranged and advanced the cost of maintenance of the landscaping in various common areas within Park Centre. (See Finding of Fact 3) Until September 1996, Hilton received monthly reimbursement payments from the Association for the maintenance services it arranged. In September 1996, despite a prior estoppel letter to the contrary, a dispute between Hilton and the Association arose with respect to the amounts of assessments owed by Hilton to the Association, and with regard to the amount of reimbursements owed by the Association to Hilton, going back to 1989. No litigation concerning this dispute has yet occurred. Petitioner showed that the Association's only official meetings of its members, consents or written actions in lieu of meetings were its organizational meeting, a 1990 meeting, and a 1992 meeting; that the Association's tax returns show no expenses from 1989 to 1995; that the Association has never had any assets and that the first proposed repair contract on the master retention pond was not let by the Association but by the developer. It is conceivable that there may be some technical violation of the Articles of Incorporation, Declaration of Covenants, Lease, or general corporate law pursuant to Chapter 617, Florida Statutes due to the Association's failure to give notice and hold Association meetings, but those issues have not yet resulted in litigation between these parties. Also, under the terms of the Declaration of Covenants and other enabling papers, Association members are not presently entitled to elect the board of directors, set budgets, or otherwise directly operate the Association. Therefore, and since the developer has exclusively operated the Association to date, there has been little practical reason to call meetings of the members. In any case, this instant forum is without jurisdiction to resolve those corporate and real property issues. At formal hearing, Hilton demonstrated that one of the Applicant's witnesses did not know at that moment in time from which corporate "pocket" the remediation project would be paid and that it is probable that the cost of remediation of the master retention pond ultimately will be passed on to the Association membership as provided for in the enabling documents. Hilton presented no affirmative evidence indicating that the Association will not be able to pay for and effectively operate and maintain the master retention pond after it is remediated. The Applicant's December 1996 submittals put the succession in proper form acceptable to the District. In fact, Hilton will have a significant percentage-based vote in the affairs of the Association following turnover of control from the developer because Hilton owns the largest parcel within Park Centre that is subject to the terms of the Declaration of Covenants. (See Finding of Fact 3). Ocala Park Maintenance Association, Inc. has demonstrated sufficient financial, legal, and administrative capability to provide for the long-term operation and maintenance of the remediated retrofit master retention pond. The undisputed evidence shows that the project meets the District's volume and recovery requirements for retention systems for the entire drainage area served, including the proposed La Quinta project which will involve some land fill. The master retention pond as repaired will not result in discharges into surface or ground water which would cause or contribute to violations of state water quality standards. The master retention pond as repaired will include all of the design features required by the District to assure adequate treatment of the stormwater before it enters Florida's aquifer, and to preclude the formation of solution pipe sinkholes in the stormwater system. Addendum: At formal hearing, Hilton argued that the proposed remediation does not satisfy its own arbitrary standard for flood prevention and generalized "concerns" that remediation could be accomplished in a better way. It advanced no better way except to suggest more soil borings to better "guesstimate" the depth of limerock in the location. However, by its proposed recommended order, Hilton apparently now concedes, post-formal hearing, that the permit application, as fully amended December 16, 1996 and proven-up at formal hearing, should be granted subject to the additional conditions recommended by the January 27, 1997 Technical Staff Report (see Findings of Fact 20 and 34) plus the following proposed additional "Other Conditions": Issuing the requested permit to the Applicant following completion of the repairs to the Park Centre Commons retention pond on Lot 2, and SJRWMD's receipt of signed and sealed as built plans showing that it has been properly cured and is working properly. The permit contain as an additional condition that a licensed engineer be on site present and observe the construction and within 30 days following the completion of construction supply the SJRWD with as- built plans showing that a minimum of 100 feet (25 feet minimum times two, as required by Rule 40C-42.026(3) F.A.C., times two, for reasonable assurance to Ocala Hilton) of the bottom of the filtration system is in proper contact with the subsurface limerock foundation and that no other problems were encountered during construction which will, in the professional opinion of the engineer, materially adversely affect the system functioning as planned in its design. The permit contain an additional condition that the Association notice and hold meetings of members and board of directors to approve the Sixth Amendment to Declaration of Covenants, Conditions, and Restrictions for Ocala Center Subdivision, and that it be properly enacted and recorded in the Public Records of Marion County, Florida, in order to meet the operation and maintenance entity requirements. Petitioner's first proposed additional condition misapprehends the nature of permitting individual projects, is contrary to District policy and permitting law generally, and is not supported by any statute or rule. (See Findings of Fact 44- 47 and Conclusion of Law 78). Petitioner's second proposed additional condition is in part provided for in the permit as recommended in the January 27, 1997 Technical Staff Report and in part is unnecessary. (see Findings of Fact 20, 34 and 39-42), misapprehends the nature of permitting individual projects, is contrary to the District policy and permitting law generally, and is not supported by any statute or rule. (See Findings of Fact 44-47). Petitioner's third proposed additional condition is in part provided for in the permit as recommended in the January 27, 1997 Technical Staff Report (see Findings of Fact 20 and 34) and otherwise seeks to make the District the "policeman" of corporate compliance. The latter is outside the District's function and authority.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that St. John's River Water Management District enter a final order, Granting the permit upon the terms set forth in the January 27, 1997 Technical Staff Report; and Denying attorney's fees and costs upon any "improper purpose" theory. RECOMMENDED this 24th day of April, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1997. COPIES FURNISHED: Lauren E. Merriam, III, Esquire BLANCHARD, MERRIAM, ADEL & KIRKLAND, P.A. Post Office Box 1869 Ocala, Florida 34478-1869 Jennifer B. Springfield, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Thomas M. Jenks, Esquire 200 West Forsyth Street, Suite 1400 Jacksonville, Florida 32202 Charles R. Forman, Esquire FORMAN, KREHL & MONTGOMERY, P.A. Post Office Box 159 Ocala, Florida 34478-0159 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 8th day of January, 2015.