The Issue The issue is whether to approve the Department of Transportation's (DOT's) application for a 50-year Sovereign Submerged Lands Public Easement (easement) to replace an existing bridge over a channel that connects Little Lake Worth (Lake) and Lake Worth Lagoon (Lagoon) in Palm Beach County (County), Florida.
Findings Of Fact Background On February 24, 2010, DOT filed with the District applications for an ERP and a 50-year easement on approximately 0.54 acres of submerged lands. The purpose of these filings was to obtain regulatory and proprietary authority to replace the existing Little Lake Worth Bridge (bridge) due to structural deficiencies noted during inspections performed in 2006. Because of "serious deterioration of the concrete slab and reinforcing steel," the bridge is under weight restrictions until construction is completed. See DOT Exhibit 5. An easement is required for road and bridge crossings and rights-of-way which are located on or over submerged lands. See Fla. Admin. Code R. 18-21.005(1)(e)2. Because DOT did not have an easement for the existing bridge, it was required to obtain one for the replacement work. See Fla. Admin. Code R. 40E-400.215(5). Under an operating agreement with the Department of Environmental Protection (DEP), the District has the responsibility of processing applications to use submerged lands for roadway projects. See Fla. Admin. Code R. 62-113.100. First constructed in 1965, the existing bridge has three spans, is 60 feet long, has two lanes (one in each direction), and crosses a channel (or canal) that connects the Lagoon to the south and the Lake to the north. The bridge is located in an unincorporated part of the County east of the City of Palm Beach Gardens and north of the Village of North Palm Beach. Highway A1A (also known as Jack Nicklaus Drive) is the roadway that crosses the bridge. Although the ERP application was challenged by Petitioners, their Petition was dismissed as being legally insufficient, and a Final Order approving the application was issued by the District on June 9, 2010. See Joint Ex. 1 and Respondents' Joint Ex. 1. No appeal of that action was taken. Petitioners did not contest the application for an easement at the District level. The District staff initially determined that it could process the application for an easement under the authority of rule 18-21.0051(2). However, on July 28, 2010, the District sent a memorandum to DEP's Office of Cabinet Affairs requesting a determination on whether the project was one of heightened public concern. See Respondents' Joint Ex. 2. After further review by the DEP's Deputy Secretary of Land and Recreation, the project was determined to be one of heightened public concern because of considerable public interest; therefore, the decision to issue an easement was made by the Board, rather than the District. See Fla. Admin. Code R. 18-21.0051(4). On November 9, 2010, the Governor and Cabinet, sitting in their capacity as the Board, conducted a public hearing on the application for an easement. Notice of the meeting was provided to persons expressing an interest in the matter. Prior to the meeting, the District and Board staffs submitted a favorable recommendation on the application, together with supporting backup information, including a report from the FFWCC concerning impacts on manatees and a seagrass study conducted by an outside consulting firm. See Respondents' Joint Ex. 3, 6, and 7. At the meeting, a District representative, Anita R. Bain, described the purpose of the application, how the issues raised by Petitioners were addressed, and the bases for the staff's recommendation that the application be approved. See Joint Ex. 3, pp. 96-101. The DOT Assistant Secretary for Engineering and Operations also described the new bridge's design and technical aspects. Id. at pp. 102-106. The Board then heard oral comments from both proponents and opponents of the project. Id. at pp. 106-154. Petitioners and their counsel were among the speakers. No speaker was under oath or subject to cross-examination. At the conclusion of the brief hearing, the Board voted 3-1 to approve the easement. The decision is memorialized in a Notice of Board Action dated November 15, 2010. See Respondents' Joint Ex. 4. Consistent with long- standing practice, a written point of entry to contest, or notice of right to appeal, the decision was not given to any person. Throughout this proceeding, the Board and DOT have contended that the Board's decision on November 9, 2010, is proprietary in nature and not subject to a chapter 120 hearing. They assert that Petitioners' only administrative remedy, if any, and now expired, is an appeal of the Board's decision to the district court of appeal under section 120.68. Petitioners contend, however, that they are entitled to an administrative hearing to contest the decision. That issue is the subject of a pending motion to dismiss filed by the Board. However, Petitioners have obtained the remedy they were seeking from day one-- a chapter 120 hearing -- and they were afforded an opportunity to litigate all issues raised in their Amended Petition. All due process concerns have been satisfied and the issue is now moot.1 Except in one respect, Petitioners do not contest any aspect of the easement or the project and its related impacts; they only object to DOT increasing the navigational clearance of the bridge from 8.5 feet to 12.0 feet above Mean High Water (MHW). In short, the main objection driving this case is a fear that a greater number of boats, mainly larger vessels, will access the channel and Lake if the vertical clearance is raised, and disturb the peace and tranquility that has existed over the last 30 years. The Parties Mr. Thomas' property, which he purchased in 1972, is located on the east side of the channel that connects the Lake and Lagoon. The residence faces to the northwest and is around 200 feet north of the bridge and a short distance south of the entrance into the Lake. See Board Ex. 13. Mr. Thomas is not an upland owner adjacent to the project site. He has a dock, a 19 and 1/2-foot boat, and a seawall built around 25 years ago. Over the years, he has lost around two to two and one-half feet of sand on the side of the seawall facing the water due to erosion caused by wave action. He also has a small, but slowly increasing, gap between his dock and the seawall. Mr. Thomas does not fish, but he enjoys watching fish and wildlife in the area, water-skiing with his family on the Lake, and swimming in the channel. He noted that around 75 percent of boaters traversing the channel observe reasonable speed limits, but the other 25 percent operate their vessels at speeds up to 50 miles per hour. Mr. Thomas fears an increase in the clearance will result in more boat traffic (attributable in part to Lake residents who have a dock but no boat and would now purchase one), and larger boats for some Lake residents who now own smaller vessels. He asserts that this will result in more wave impact on his seawall, adversely affect the natural resources in the area, and impact his rights of fishing, swimming, water skiing, and view in the channel and Lake. Around 30 years ago, John A. Tory (now deceased) purchased waterfront property in Lost Tree Village, a residential development that surrounds part of the Lake. The residence lies around one-half the way up the eastern shore of the Lake. Thus, the property is not directly adjacent to the project. The property has a dock and concrete seawall, which has been repaired periodically due to erosion. Mr. Tory did not own a boat. His widow, who is not a party and jointly owned the home with her late husband, still occupies the residence during the winter months. John H. Tory, the son of John A. Tory, stated that he is involved in the case as a representative of his father's estate, rather than on his own behalf as a property owner on the Lake. He owns waterfront property in Lost Tree Village located on a small lagoon immediately north of the main body of water comprising the Lake, or around 2,000 feet north of the bridge. During the winter months, Mr. Tory has observed manatees in the small lagoon, but not the Lake. Mr. Tory acknowledged that the new bridge will not affect ingress or egress to his late father's home. However, he fears that if the bridge clearance is raised to 12 feet, it will result in more boat traffic on the Lake, larger boats, and the presence of live-aboards, who now anchor in the Lagoon. He asserts that these conditions will disturb the peace and tranquility on the Lake, cause the fish and wildlife to leave, and impact the safety of his children and grandchildren who occasionally swim in the Lake. The DOT is a state agency having the responsibility to build roads and bridges throughout the State. It applied for the easement that is the subject of this case. There is no dispute that DOT has sufficient upland interest necessary to obtain an easement. The Board is vested with title to all sovereignty submerged lands, including the submerged real property in the channel. The Project The new bridge will be 90 feet in length with a vertical clearance of 12 feet above MHW. It will be constructed in the footprint of the existing structure. The replacement bridge will continue to be two lanes and has a design service life of 75 years. The new bridge will expand the vehicle lane widths from 10 to 12 feet, expand the road shoulder from six to eight feet, and expand the sidewalks from four to six and one- half feet in width. Both the horizontal and vertical navigational clearances will be increased. It is undisputed that by increasing the horizontal clearance, navigational safety will be improved. Also, by increasing the vertical clearance, a boater's focus will be redirected from the low clearance to the water, the proximity of the pilings, approaching vessels, and other potential hazards. In conformance with DOT design requirements, the vertical navigational clearance will be raised from 8.5 feet to 12 feet above MHW. The DOT's Plans Preparation Manual and Structures Design Guidelines both provide that for concrete superstructures over highly corrosive waters due to chloride content, the minimum vertical clearance should be 12 feet above MHW. See DOT Ex. 7 and 8. This amount of clearance is necessary to ensure bridge longevity in aggressive saltwater marine environments. Therefore, a 12-foot clearance is appropriate. Also, the new height is calculated to give the bridge a 75-year lifespan; in contrast, a bridge with an eight- foot clearance would have a shorter lifespan. Except for bridges with unique limiting conditions, all bridges in the County are now being constructed at the 12-foot height. All work will be performed without the necessity for large cranes or barges to pile-drive from the water. Essentially all work will be done from the land adjacent to the bridge. However, small vessels will be needed to put construction workers on the water while the crane is being operated from land. A $3.3 million design-build contract was executed by DOT and The Murphy Construction Company in May 2009, and the contractor is awaiting the outcome of this proceeding before commencing work. Given the size and scope of work, the project is considered a "minor" bridge project. DOT is required to implement Standard Manatee Conditions for In-Water Work during construction of the bridge. Pursuant to these conditions, DOT is required to train personnel who will be at the job site to identify manatees and log when they are seen in the area. Signage will be placed at the bridge construction site and on any equipment in the water warning about hazards to manatees. If a manatee is found in the vicinity, work must cease to allow the manatee to safely traverse the construction zone and not be trapped in the turbidity curtains. Best management practices for environmental impacts will be required during construction. No dredging or excavation of the channel is planned, and blasting will not be allowed during construction. Although there are 0.12 acres of mangroves within the boundaries of the submerged lands, the project was redesigned to completely avoid direct mangrove impacts. Except for one four-square-meter patch of seagrass (Turtle grass) located a little more than 200 feet southeast of the project site, no seagrasses are located in or adjacent to the project site. The new 12-foot height will accommodate a 100-year storm surge event at this location. The Lake and Lagoon The Lagoon stretches some 20 miles from the bridge southward to a point just north of the City of Boynton Beach. It averages around one-half mile in width. The Intracoastal Waterway (ICW) generally runs in a north-south direction through the middle of the Lagoon before turning to the northwest into Lake Worth Creek, around a mile south of the bridge. The Lagoon is divided into three segments: north, central, and south. The north segment is more commonly known as the North Lake Worth Lagoon. The Lake Worth Inlet, located around five miles south of the bridge, provides an outlet from the North Lake Worth Lagoon to the deeper waters in the Atlantic Ocean. The Riviera Beach Power Plant is located on the western side of the Lagoon just south of the Lake Worth Inlet and is a warm-water refuge area for manatees during the winter months. Peanut Island, a County-owned recreational site, lies in the ICW just north of the power plant. The northern boundary of the John D. MacArthur Beach State Park (State Park) is less than a mile south of the project area on the eastern side of the Lagoon. There are extensive seagrass beds in the Lagoon mainly along the shoreline around the State Park and Peanut Island. One survey conducted in 1990 indicated there are 2,100 acres of seagrass in the Lagoon. See Petitioners' Ex. 15. The same study concluded that around 69 percent of all seagrasses in the County are located in the northern segment of the Lagoon. Id. The Lake is designated as a Class III water body, is around 50 acres in size, and measures no more than a half-mile in length (running north to south) and a few hundred feet wide. Although the Lake is open to the public, boat access is only through the channel since there are no boat ramps on the Lake. Several residential developments, including Lost Tree Village and Hidden Key, are located north of the bridge and surround the Lake. The Lake has no natural shorelines since seawalls have been constructed around the entire water body. Aerial photographs reflect that many of the residences facing the Lake or channel have docks, but not every dock owner has a boat. Navigation under the bridge is somewhat tricky because the water current goes in one direction while the bridge points in another direction. Also, due to the accumulation of sand just south of the bridge, the channel is shallow which requires that an operator heading north "make sort of an S-turn to take the deepest water possible to go through." By widening the bridge pilings and raising the navigational clearance, as DOT proposes to do, the tidal flow will slow down and all boats will be able to enter and depart the Lake in a safer manner. Currently, except for one cigarette-style boat in the 30-foot range, the boats on the Lake are small boats (under 30 feet in length) with outboard motors. T-top boats (those with a stationery roof) with no radar or outriggers on top could "possibly" get under the bridge, but those with sonar cannot. Also, "most" boats with large outboards that have a draft of around 18 inches can now access the Lake. At high tide, smaller vessels with in-board motors that draw three and one-half to four feet could "probably" get under the bridge, but once inside the Lake, they would be "trapped" at low tide. If the navigational clearance is raised, Petitioners' boating expert, Captain Albritton, opined that the greatest impact will not come from the general public, but from residents on the Lake who have no boat but may now buy one, or residents who will buy larger vessels. However, he could not quantify this number. He further opined that boaters who do not live on the Lake would have no reason to go there because it has no attraction. He also opined that larger boats operated by non- residents in the Lagoon will continue to either exit the Lagoon to deeper waters through the Lake Worth Inlet or continue on the ICW, which turns off to the northwest around a mile south of the bridge. If several boats operate simultaneously on the Lake, significant wave action is created because the Lake is surrounded by a seawall with no beach or shoreline to absorb or reduce the wave impact. Due to the wave action and the Lake's small size, it is highly unlikely that more than four boats could ever use the Lake at the same time. Even then, Mr. Thomas described conditions as "pretty crowded" with "choppy" water and not a pleasant experience for boaters. Likewise, Captain Albritton agreed that with only a few vessels on the Lake, the water becomes "very rough," and "safety" considerations prevent or discourage other vessels from accessing or using the Lake. Captain Albritton also agreed that it would only be speculation to assume that there would be more boating in the area after the project is completed. Mainly during the winter months, a large number of vessels anchor in the North Lake Worth Lagoon. At least 95 percent, if not more, are sailboats with a fixed keel that prevents them from navigating beneath the bridge even with a 12-foot clearance. Also, the water depth in the Lake is greater than the North Lake Worth Lagoon, and boaters prefer mooring in shallower waters. Admittedly, a few houseboats powered by outboard motors occasionally frequent North Lake Worth Lagoon, and if they tilt their motors up, it might be possible for them to navigate under the bridge with a 12-foot clearance. However, houseboats typically have a flybridge (an upper deck where the ship is steered and the captain stands) above the roof of the house and would not be able to navigate under the bridge even with a heightened clearance. There is no evidence that a houseboat or other live-aboard has ever entered the Lake. The Lake is included in the John D. MacArthur Beach State Park Greenline Overlay (Greenline Overlay), which is part of the Future Land Use Element (FLUE) of the County's Plan. The resources within the Lake are part of the Greenline Overlay, the purpose of which is to protect conservation areas, prevent degradation of water quality, control exotic species, and protect critical habitat for manatees and threatened and endangered species. See Petitioners' Ex. 10, FLUE Obj. 5.3, p. 94. Petitioners' Objections Only direct adverse impacts within the project site must be considered by the Board before approving the easement. This is because potential secondary and cumulative impacts associated with the project were already considered by the District in the regulatory process, when the ERP was issued. Direct impacts are those that may occur within 200 feet north and south of the centerline of the bridge. A 400-foot area is appropriate as the project is considered "minor" and simply replaces an existing structure. Because of public interest in the project, however, the Board (with advice from the District, DOT, other agencies, and outside consultants) again considered the secondary, cumulative, and even speculative impacts of the project. Having determined that there were no adverse impacts of any nature, the Board concluded that the easement should be granted. Petitioners agree that neither the construction work nor the bridge itself will cause any direct impacts within the project site. However, they contend that the secondary impacts of the project will be "significant." Secondary impacts are those that occur outside the footprint of the project, but which are closely linked and causally related to the activity. Petitioners did not present any credible evidence that cumulative adverse impacts are associated with the project. Petitioners argue the project will cause secondary impacts on seagrasses, manatees, seawalls (through erosion caused by wave-action), and recreational uses such as swimming, boating, nature viewing, canoeing, and fishing. They further argue that DOT has failed to take any steps to eliminate or reduce these impacts, which could be accomplished by keeping the navigational clearance at the same height. They also contend that the project will unreasonably infringe upon their riparian rights, and that the project is inconsistent with the local comprehensive plan and State Lands Management Plan.2 Finally, they assert that the project is contrary to the public interest. These allegations implicate the following provisions in rule 18- 21.004: (1)(a) and (b);(2)(a), (b), (d), and (i); and (3)(a) and (c).3 The parties have stipulated that all other requirements for an easement have been satisfied. The allegations are based primarily, if not wholly, on the premise that a higher vertical clearance on the bridge will allow larger vessels to access the Lake and channel and increase boat traffic in the area. Impact on Seagrasses Petitioners first contend that seagrasses will be secondarily impacted by the project. Seagrasses are completely submerged grass-like plants that occur in shallow (i.e., no more than six feet of water depth) marine and estuarine waters due to light penetration. There are seven species in the State; the rarest species is Johnson's seagrass (Halophilia johnsonii), a threatened species found mainly around inlets that begin south of the Sebastian Inlet in Brevard County and continue to the northern parts of Biscayne Bay in Dade County. Unlike some seagrass species, Johnson's seagrass actually increases in areas with a higher wave energy climate. Although there may be some isolated patches of seagrasses just beyond the 200-foot area southeast of the bridge, the first significant coverage of seagrass occurs along the shallow, eastern shoreline of the North Lake Worth Lagoon, in and around the State Park and Munyon Island, an island just southeast of the State Park; both are around one-half mile south of the proposed activity. Some of these species are Johnson's seagrass. Petitioners' expert agreed that during his site inspection, he found no seagrasses until he approached the State Park. Other significant coverage is located in and around Peanut Island, which lies around five miles south of the bridge. There are no seagrasses in the Lake. The seagrass beds along the shoreline in the North Lake Worth Lagoon are "relatively stable" and wax or wane depending mainly on the water-quality conditions in the system. During heavy rainfall events, the water in adjacent canals is released and can adversely affect the water quality. Although there are no canals discharging waters into North Lake Worth Lagoon north of where the ICW deviates into Lake Worth Creek, there are numerous impervious areas near the bridge (associated with other developments) that discharge stormwater into the Lagoon south of the project site. Also, there is a canal that delivers water from upland regions into the Lagoon just south of Munyon Island. Besides heavy rain, boats operating at higher speeds can create suspended sediments and cloudy water conditions that adversely affect the seagrass. However, these impacts have occurred for years, they will continue even if the bridge clearance is not raised, and they are wholly dependent on one's operation of the watercraft. There is no competent evidence, and only speculation, that raising the navigational clearance on the bridge will lead to a greater number of boats in the Lagoon and/or cause boats to operate recklessly in or near the seagrass beds. In fact, the evidence shows that a majority of the boat traffic operates in the ICW and deeper waters of the Lagoon, and not in the shallow waters along the shoreline. DOT has given reasonable assurance that the project will not cause secondary adverse impacts to seagrasses in the Lagoon. Impact on Manatees Petitioners also contend that there will be secondary adverse impacts on manatees, again due to increased boat traffic in the area. They point out that the overall mortality rate for manatees in the County has increased nearly every year since 1974; that 39 percent of all mortalities in the County are attributed to watercraft strikes; that the North Lake Worth Lagoon provides important habitat (seagrasses) for manatees; and that manatee abundance and watercraft-related strikes are highest in that area. Based upon an analysis conducted by the FFWCC, the more persuasive evidence on this issue supports a finding that the bridge, with a heightened clearance, will not significantly increase risks to manatees. See Respondents' Joint Ex. 6. A similar conclusion was reached by the United States Fish and Wildlife Service. See Respondents' Joint Ex. 17. Even if larger boats can access the channel, the probability of a boat striking a manatee will not change. It is true that manatees sometimes travel into the Lake during the winter months. However, no reported watercraft- related strikes have occurred, and only one manatee carcass (a dependent calf) has ever been found in the Lake, and that was a perinatal death unrelated to boat activity. Aerial surveys of manatees reflect that the greatest amount of manatee presence and activity is far from the project site. See Respondents' Joint Ex. 12. This is also confirmed by the fact that the primary manatee gathering area in the County is around the Riviera Beach Power Plant, which lies five miles south of the bridge. Even the County's Manatee Protection Plan has designated the northern area of the Lagoon as a preferred area for marinas and docks because of the lower incidence of manatees in that area. Finally, the evidence shows that the majority of manatees traveling north through the Lagoon turn into Lake Worth Creek one mile south of the bridge and continue northward in the ICW, rather than into the channel or Lake. Reasonable assurances have been given that the project will not result in significant secondary adverse impacts on manatees. Erosion of Seawalls Mr. Thomas points out that wave action from existing boat traffic has been contributing to erosion of his seawall for many years. He argues that if the bridge height is raised, there will be increased boat traffic, which will cause further damage to existing seawalls on the Lake and channel. Wave action is caused not only by the operation of boats entering or departing the Lake, but also by water skiers and jet skiers on the Lake itself. These activities will continue, even if the clearance is not raised. This is because non-resident skiers can easily access the Lake with the existing 8.5-foot clearance, while residents on the Lake have access from their docks. The only real limitation on these activities is the Lake's size and unsafe conditions that occur when more than one or two boats are present, and not the bridge's vertical clearance. Whether boaters will observe no-wake speeds or operate at a higher speed in the channel and Lake is open to debate. As noted earlier, there is no competent evidence, but only speculation, to support Petitioners' claim that the behavior of boaters will change, or that boats will be operated more recklessly, simply because the clearance is raised. The evidence supports a finding that the project will not have a significant impact on seawalls due to increased traffic or other related usage in the Lake and channel. Riparian Rights The riparian boundary lines of Mr. Thomas and Mr. Tory are depicted on Board Exhibits 13 and 14, respectively, and are not in dispute. Petitioners contend that increased boat traffic will unreasonably infringe upon their riparian rights of view, fishing, boating, canoeing, and swimming. They also assert that with a higher clearance, the Lake will "be very popular for live-aboards, especially in the winter months, because of its secluded nature and easy access to amenities," and this will also impact their riparian rights. They do not contend that the project will affect their right of ingress or egress or their right to wharf out (build a dock) from their upland property. Rule 18-21.004(3)(c) provides that "[a]ll structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners." (Emphasis added). Traditional riparian rights are generally considered to be ingress, egress, the ability to wharf out, and view. See § 253.141(1), Fla. Stat.; Fla. Admin. Code R. 18-21.004(3)(a). In determining whether this rule is satisfied, the Board only considers adjacent upland riparian owners who are directly adjacent to and abut the bridge and whether the proposed activities will block their ingress/egress or unreasonably restrict their rights in any other way. In this case, adjacent upland owners are not affected. Although neither Petitioner is an "adjacent upland riparian owner" within the meaning of the rule, because of the interest shown by some nearby residents, the Board also considered potential impacts on property owners in the channel and Lake, including Petitioners, to determine whether their riparian rights were unreasonably affected. In doing so, it followed the long-established principle that riparian rights are not exclusionary rights, and the public has a concurrent right with a riparian owner to fish and swim in waters owned by the State, and a right to navigate. See, e.g., The Ferry Pass Inspectors' and Shippers' Ass'n v. Whites River Inspectors' and Shippers' Ass'n, 57 Fla. 399, 48 So. 643, 645 (Fla. 1909). The more persuasive evidence shows that the activities are designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland owners or other nearby property owners on the Lake and channel. Petitioners failed to establish that the proposed activity (or the use of the waters by members of the public) will prevent them from accessing navigable waters from their property or wharfing out. Likewise, they presented insufficient evidence to establish that the activities will adversely affect their view. A similar contention that their "recreational" rights of fishing, boating, swimming, and nature viewing will be secondarily impacted has been rejected. See Fla. Admin. Code R. 18-21.004(2)(a). A concern that once the project is completed, live- aboards (i.e., vessels used solely as a residence and not for navigation) will move from the Lagoon to the Lake and unreasonably infringe upon Petitioners' riparian rights is without merit. As noted above, virtually all of the live- aboards in the North Lake Worth Lagoon are sailboats, which cannot access the Lake even if the clearance is raised. Finally, the County has enacted an ordinance that prohibits live-aboards in the Lake and Loxahatchee River. See Respondents' Joint Ex. 18. Law enforcement agencies are charged with the responsibility of enforcing that ordinance. Comprehensive Plan and State Plan Although there is no specific requirement in chapter 18-21 to do so, pursuant to section 339.135 the proposed "work program" was reviewed for consistency with the County's Plan by the Department of Community Affairs (DCA), now designated as a division in the new Department of Economic Opportunity. Unless a project is inconsistent with a plan requirement, the DCA does not provide written comments. In other words, no response is an indication that the project is consistent with all local plan requirements. After reviewing the project, the DCA did not respond. Therefore, the project was deemed to be consistent with the County Plan. This information was submitted to the Board prior to its decision. See Joint Ex. 2. Rule 18-21.004(1)(i) requires that the State Plan "shall be considered and utilized in developing recommendations for all activities on submerged lands." Petitioners contend that the new bridge will violate the following policies in the State Plan: that submerged grasses be protected; and that natural conditions be maintained to allow the propagation of fish and wildlife. However, the protection of submerged grasses and natural resources was considered by the District before submitting a recommendation to the Board. To the extent this rule may apply, if at all, to the pending application, its requirements have been met. Petitioners also contend that the project is inconsistent with FLUE objective 5.3, which requires the County to maintain the Greenline Overlay in order to protect natural resources in the area. They argue that the proposed activity is inconsistent with the requirement that the greenline buffer be protected from potentially incompatible future land uses; critical habitat for wildlife, including threatened and endangered species; and manatees. See Petitioners' Ex. 10, FLUE obj. 5.3, p. 94. Petitioners cite no authority for their contention that consistency with local comprehensive plans is a requirement for approving an application to use submerged lands. Assuming arguendo that it is, the easement is not inconsistent with the above objective, as the replacement of an existing structure is not an incompatible future land use, and it will not impact seagrasses or manatees. Public Interest Rule 18-21.004(1)(a) provides that "all activities on sovereignty lands must not be contrary to the public interest." Rule 18-21.003(51) defines "public interest" as "demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." The same rule requires that in determining public interest, the Board "shall consider the ultimate project and purpose to be served by said use . . . of lands or materials." Although Petitioners agree that the project is for a public purpose, they contend that DOT failed to demonstrate that the project creates a net public benefit, and therefore it does not meet the public interest test. However, the so-called "net public benefit" standard relied upon by Petitioners appears to be derived from rule 18-21.004(4)(b)2.e., which applies to the use of submerged lands for private residential multi-family docks, and not public easements. In any event, the project has a number of positive attributes that militate against finding that it is contrary to the public interest. Until the project is completed, the bridge is structurally deficient and it presents a serious safety concern to the public. Although the bridge height will be increased, with the slopes being provided over a greater distance, the view of oncoming traffic across the bridge is better and safety will be improved for motorists. Increasing the bridge height will also improve navigation for boaters entering or departing the Lake. DOT is using a preferential engineering design, which will increase the lifespan of the bridge to 75 years. The new design will provide for a slower velocity of water flow through the channel, which means an easier and safer route for boaters traversing the channel. Currently, almost all vessels (except a few small ones transported on trailers) operated by the Palm Beach County Sheriff's Office and the FFWCC are unable to access the Lake in the event of an emergency due to emergency lights, antenna, and sonar equipment mounted on the roofs of their vessels. This prevents them from responding to incidents that may occur on the Lake, including serious crimes, accidents, fires on board vessels, manatee rescues, and other related enforcement matters. Representatives of both agencies indicated that with a 12-foot clearance, their vessels will be able to access the Lake. Petitioners argue, however, that in the event of an emergency they would call a security officer for Lost Tree Village. But public comment by a security officer for that development indicated that security personnel only patrol three to five hours per day, they are not sworn law enforcement officers, they do not have arrest authority, and they could not undertake rescues if more than two persons were injured. Collectively, these considerations support a finding that the proposed activities on sovereignty submerged lands are not contrary to the public interest. Mitigation and Avoidance Rule 18-21.004(2)(b) provides in part that if the activities will result in "significant adverse impacts to sovereignty lands and associated resources," the application should not be approved "unless there is no reasonable alternative and adequate mitigation is proposed." See also Fla. Admin. Code R. 18-21.004(7). Petitioners argue that in order to avoid significant adverse impacts, a reasonable alternative is to add a nonstructural horizontal member to the bridge in order to retain the existing clearance of 8.5 feet. There are no significant direct, secondary, or cumulative adverse impacts to the submerged lands or natural resources associated with the bridge or its construction. Therefore, the Board is not required to consider design modifications. Moreover, no bridges have ever been constructed in the manner suggested by Petitioners, and no design criteria currently exist for the implementation of such a nonstructural element on a bridge. A permanent member would cause the same concerns as having a lower bridge because it would be susceptible to the aggressive water environment that could impact the life of the Bridge. If a non-permanent member were attached to the Bridge, it would require periodic maintenance and evaluation. Either type of control would present engineering liability concerns, as well as a hazard to approaching boaters who might not be able to discern that the clearance is 8.5 feet when the bridge itself is 12.0 feet above MHW. DOT does not have any design guidelines, standards, or specifications for warnings, signage, or advanced notification to boaters regarding navigation restrictions. In short, such a restriction would be contrary to the public interest because of maintenance, safety, and liability issues that may arise. The elimination and reduction of impacts is not required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund issue a final order approving DOT's application for a 50-year easement to use Sovereign Submerged Lands to replace the Little Lake Worth Bridge in Palm Beach County. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 9th day of August, 2011.
Findings Of Fact The Parties. The Petitioners, Joseph and Lena Smith, Eugene and Anna Colwell, and Jerry and Brenda Harris, are littoral owners and operators of sports fishing facilities on Orange Lake, a freshwater body of approximately 7,000 acres of open water and 15,000 acres of associated wetlands, whose southern margin constitutes the boundary between Alachua and Marion Counties in north central Florida. Respondent, the St. Johns River Water Management District (hereinafter referred to as the "District"), is a special taxing district created by Chapter 373, Florida Statutes, charged with the statutory responsibility for the management of water and related land resources; the promotion of conservation, development, and proper utilization of surface and ground water; and the preservation of natural resources, fish and wildlife, pursuant to Chapter 373, Florida Statutes. Intervenor, the Sierra Club, Inc. (hereinafter referred to as "Sierra"), is a not-for-profit California corporation registered to do business within the State of Florida. Sierra is an international corporation whose purpose is to explore, enjoy and protect the natural resources of the earth. Intervenor, Florida Defenders of the Environment, Inc. (hereinafter referred to as "Florida Defenders"), is a not-for-profit Florida corporation whose purpose is to preserve and restore Florida's natural resources. Intervenor, the Florida Department of Environmental Protection (hereinafter referred to as "DEP"), is an agency of the State of Florida charged with the responsibility of controlling and prohibiting pollution of the air and water of the State of Florida. See Chapter 403, Florida Statutes. DEP is also charged with responsibility for management of the Paynes Prairie State Preserve. Section 373.026, Florida Statutes. Intervenor, the Attorney General of the State of Florida (hereinafter referred to as the "Attorney General"), sits as a Trustee of the sovereignty submerged lands of the State and as one of the legal owners of the State's property including the Paynes Prairie State Preserve. The Challenged Rules. The District issued an order on November 7, 1993, authorizing the publication of a notice of intent to amend Chapter 40C-2, Florida Administrative Code, by adopting proposed Rule 40C-2.302, Florida Administrative Code, and amending Rule 40C-2.051(6), Florida Administrative Code (hereinafter jointly referred to as the "Challenged Rules"). Proposed Rule 40C-2.302, Florida Administrative Code (hereinafter individually referred to as the "Reservation Rule"), provides: 40C-2.302 Reservation of Water From Use. The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. The specific authority for the Reservation Rule is Sections 373.044, 373.113, 373.171, 373.216 and 373.219, Florida Statutes. The law implemented by the Reservation Rule is Sections 373.219 and 373.223, Florida Statutes. The proposed amendment to Rule 40C-2.051, Florida Administrative Code (hereinafter individually referred to as the "Exemption Rule"), provides, in pertinent part: 40C-5.2.051 Exemptions. No permit shall be required under the provisions of this rule for the following water uses: through (5) No change (6) Water, whether withdrawn or diverted, when used for purposes of protection of fish and wildlife or the public health and safety when and where the Governing Board has, by regulation, reserved said water from use by permit applicant pursuant to Subsection 373.223(3), F.S. The specific authority for the Exemption Rule is Sections 373.044, 373.113 and 373.171, Florida Statutes. The law implemented by the Exemption Rule is Sections 373.103, 373.171, 373.216, 373.219, 403.501 et seq. and 288.501 et seq., Florida Statutes. Orange Creek Basin. Orange Creek Basin is the name given to the hydrological features of approximately 400 square miles of Alachua, Putnam and Marion Counties, Florida. Orange Creek Basin is a major sub-basin of the Lower Ocklawaha River Basin. Surface water in the Orange Creek Basin flows generally in a north to south direction. Orange Creek Basin is made up of several sub-basins, including Newnans Lake, Paynes Prairie, Orange Lake and Lochloosa Lake sub-basins. Surface water within the approximately 100 square miles of Newnans Lake sub-basin drains into Newnans Lake. When sufficiently high, water in Newnans Lake discharges over a weir structure from the southern end of the lake into Prairie Creek. The weir structure at the southern end of Newnans Lake may be adjusted to control the amount of water flowing into Prairie Creek. The weir was installed in 1966. It was adjusted by the Florida Game and Freshwater Fish Commission in 1976. Water flows south into Prairie Creek, the south and southwest through Prairie Creek to two man-made structures. The first is a gated culvert structure consisting of 3 Culverts (the "Camps Canal Culverts"), through which some of the Prairie Creek water enters Paynes Prairie. The second man-made feature is a levee and a canal named Camps Canal. The levee diverts water in Prairie Creek, which does not flow into Paynes Prairie by gravity, through Camps Canal to the south to the River Styx, which flows into Orange Lake. If the elevation of surface water in Prairie Creek exceeds 58.91 feet National Geodetic Vertical Datum (hereinafter referred to as "NGVD"), a portion of the volume of Prairie Creek will flow, by gravity, into Paynes Prairie through the Camps Canal Culverts. The Paynes Prairie sub-basin covers an area of approximately 49 square miles. Surface water in this sub-basin drains into a natural geological feature known as Alachua Sink. Surface water in the approximately 56 square mile Orange Lake sub- basin flows into Orange Lake. Surface water flows out of Orange Lake through Orange Creek. Outflow is controlled by Orange Lake Dam. The Orange Lake Dam has a fixed crest elevation of 58 feet NGVD. Water levels in Orange Lake must exceed 58 feet NGVD before there is surface water outflow from Orange Lake. Surface water within the approximately 75 square mile Lochloosa Lake sub-basin drains into Lochloosa Lake. Lochloosa Lake has two outlets: Lochloosa Slough in the east and Cross Creek in the south. Cross Creek connects Lochloosa Lake to Orange Lake. Paynes Prairie State Preserve. Prior to the construction of the weir at the outlet from Newnans Lake to Prairie Creek, all surface water from Newnans Lake flowed from Newnans Lake to Prairie Creek unimpeded. Prior to 1927 all surface water in Prairie Creek flowed south into an area known as Paynes Prairie. Paynes Prairie is located in Alachua County. All water in Prairie Creek entered Paynes Prairie and flowed across Paynes Prairie to Alachua Sink. Alachua Sink is a natural geological feature located in the north- central portion of Paynes Prairie. At Alachua Sink surface water enters the Florida aquifer. In 1927 a levee was constructed around the eastern boundary of Paynes Prairie, and Camps Canal was excavated in order to divert water from Paynes Prairie. Due to the levee, water in Prairie Creek was diverted into Camps Canal beginning in approximately 1927. The water flowed into the River Styx and then into Orange Lake. Canals and levees were also constructed within Paynes Prairie to convey surface water in Paynes Prairie into Alachua Sink and Camps Canal. The modifications to Paynes Prairie made in 1927 were intended to drain Paynes Prairie so that the land could be utilized for agricultural purposes, including the raising of cattle. Paynes Prairie continued to be used primarily for the raising of cattle between 1927 and early 1970. In 1970, the State of Florida began acquiring parts of Paynes Prairie. Property acquired by the State was used to create the Paynes Prairie State Preserve (hereinafter referred to as the "Preserve"). Land is still being acquired by the State. The Preserve currently consists of approximately 20,600 acres. Approximately 18,000 acres of the Preserve were acquired within the first 4 years after acquisitions by the State began. Approximately 12,000 acres are considered wetlands. Two major highways, U.S. Highway 441 and Interstate 75 run north-south across the middle and western portion of Paynes Prairie. U.S. 441 was constructed in 1927 and I-75 was constructed in 1964. In 1975 the State of Florida's Department of Natural Resources (which is now DEP) breached the levee at Camps Canal in order to restore part of the water flow from Prairie Creek to the Preserve. In 1979 flashboard riser Culverts were placed in the breach in the Camps Canal levee. In 1988 the Camps Canal Culverts were constructed. The Preserve, a unique land feature, was designated a National Natural Landmark in 1974 by the United States Department of the Interior. No consumptive use permit concerning water that flows into Paynes Prairie or the Preserve has been issued by the District. No consumptive use permits have been issued by the District for surface water withdrawals from Newnans Lake, Prairie Creek or Orange Creek. The Current General Hydrologic Condition of the Preserve. The Preserve is one of the largest continuous wetland systems in Florida and the Southeastern United States. The Preserve and Paynes Prairie constitute one of the largest wetland areas formed by the collapse of a sinkhole, Alachua Sink. Since 1975, at least some water has flowed into the Preserve from Prairie Creek through the Camps Canal Culverts and its predecessors. The "inverts" of the Prairie Creek-Camps Canal Culverts are above the creek-canal bottom. This means that if water in Prairie Creek does not reach a certain level, no water will flow through the Camps Canal Culverts into the Preserve. Under these conditions, all water in Prairie Creek will flow through Camps Canal and eventually to Orange Lake. The amount of water flowing through the Camps Canal Culverts is also limited to a maximum amount due to the size of the Culverts. The exact amount of water that may flow through the Camps Canal Culverts into the Preserve depends on the amount of water in Prairie Creek coming from Newnans Lake and the capacity of the Culverts to move the water. Water flowing into the Preserve through the Camps Canal Culverts constitutes approximately 50 percent of the surface water entering the Preserve. After water flows into the Preserve through the Camps Canal Culverts it flows in a broad, shallow path, referred to as "sheetflow," over the eastern portion of the Preserve. The sheetflow from Camps Canal Culverts creates approximately 550 to 600 acres of shallow marsh community. The water eventually flows into an area known as Alachua Lake in the central portion of the Preserve. Water discharging from Alachua Lake flows through a water control structure consisting of four gated Culverts, known as the Main Structure, into Alachua Sink. Water also enters the Preserve from the north through a tributary known as Sweetwater Branch. Water flows through Sweetwater Branch into Alachua Sink. Sweetwater Branch is channelized over its entire length, preventing water from reaching into the Preserve or Alachua Lake. The District's Purpose in Adopting, and the District's Interpretation of, the Challenged Rules. The District's intent in adopting the Challenge Rules was to reserve water which the District had concluded is required for the protection of fish and wildlife in Paynes Prairie. The District is attempting to carry out its intent by providing in the Reservation Rule that whatever amount of water that may flow through the Camps Canal Culverts by gravity into the Preserve may not be used for other purposes. The District is further attempting to carry out its intent by providing in the Exemption Rule that any amount of water that has been reserved by the District because it is required for the protection of fish and wildlife pursuant to Section 373.223(3), Florida Statutes, exempt from the consumptive use permit process. The Reservation Rule is not intended to reserve a specific quantity of water for the Preserve. Rather, the Reservation Rule reserves only that amount of water that flows through the Camps Canal Culverts by force of gravity. The intent is to allow the natural existing hydrologic regime of the Preserve to continue. The quantity of the water reserved by the Reservation Rule is identified, in part, as follows: The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added]. The last sentence of the Reservation Rule goes on to prove: This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal. This portion of the Reservation Rule was not included by the District to establish a minimum and/or maximum quantity of water that is being reserved for the protection of fish and wildlife in the Preserve. This portion of the Reservation Rule represents a very condensed summary of the historical hydrologic data relied upon by the District in deciding to reserve water for the Preserve's fish and wildlife. The Exemption Rule was intended to make clear that any time the District reserves water which it determines is required to protect fish and wildlife or the public safety, that no consumptive use permit is necessary. The District's Determination that Water is Necessary for the Protection of Fish and Wildlife in Paynes Prairie. In reaching its decision that the quantity of water flowing through the Camps Canal Culverts by force of gravity into the Preserve is required for the protection of the fish and wildlife of the Preserve, the District relied upon a study of the Orange Creek Basin which District staff had begun in the 1980s. There were three objectives for the Orange Creek Basin study: (a) the first objective of the study was to develop a predictive hydrologic model that could be used to predict water levels throughout the basin and the water courses that connect the various major lakes and prairie systems; (b) the second objective of the Orange Creek Basin study was to develop environmental and hydrologic criteria that could be used to evaluate the environmental impacts of different water management alternatives in the basin; and (c) the third objective was to look at alternatives for management of water within the District. Substantial evidence concerning the manner in which the Orange Creek Basin study was conducted, the results of the study and the rationale for the District's conclusion that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was presented during the final hearing of this case by the District. The evidence presented by the District to support a finding that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was not rebutted by competent subs by the Petitioners. The only witness called by the Petitioners was an expert in hydrology. The Petitioners' expert only suggested that he had questions about the District's hydrologic study. He was unable, however, to testify that the hydrologic study relied on by the District was unreasonable or inaccurate. The Petitioners also offered no evidence to counter the testimony of the District's expert on the environment of Paynes Prairie. The testimony of the District's expert proved that, even without the results of the hydrologic study conducted by the District, the evidence concerning the Preserve's environment supports a finding that the water reserved by the Reservation Rule is required for the protection of fish and wildlife. Generally, the evidence proved that, if the water being reserved is not continued to allow to flow naturally into the Preserve, the range of water fluctuations and the resulting natural impact of the environment of the Preserve will not be achieved. There exists in the Preserve currently, a range of plant communities and fish and wildlife. The nature of those communities, fish and wildlife depends on the amount of water in the communities. The communities range from those existing in upland areas, which have the lowest levels of water, down to deep marshes, where water levels are the greatest. In between are emergent marsh (also called "shallow marsh"), cypress swamps, mixed scrub-shrub wetland, wet prairie, old field, hudric forest, mesic forest and xeric community. The various types of communities are in a state of fluctuation depending on the levels of water flowing into the Preserve. The evidence presented by the District, and was uncontroverted by the Petitioners, proved that these fluctuations are environmentally desirable; that natural fluctuations of water levels in the Preserve are required for the protection of fish and wildlife. It is for this reason, therefore, that the District decided to reserve the amount of water flowing by gravity through the Camps Canal Culverts, and not some specified volume. The Rationale for the District's Finding that Water is Required for the Protection of Fish and Wildlife. Although the District and some of the Intervenors have proposed several findings of fact that support the ultimate finding of fact that the water reserved by the Reservation Rule is required to protect fish and wildlife. Those findings of fact are subordinate to the ultimate relevant fact in this case. Therefore, rather than rewrite all of those subordinate facts, the District's subordinate findings of fact (which cover those subordinate findings suggested by the Intervenors) will be quoted and adopted in this Final Order. The findings of fact of the District quoted and adopted herein which relate to the hydrologic portion of the District's study are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 44 through 74: Surface water hydrologic models are a tool used by water resource professionals to enable them to simulate or calculate certain characteristics of a hydrologic system from data that relates to or is collected from within that system. T. 65, 66, 90, 91, 779. In this basin, the staff of the District developed a surface water model in order to calculate anticipated water levels and discharge volumes at various points throughout the basin expected to be associated with several alternative water management strategies. T. 90, 91, SJ Ex 1 p 27. The specific model used by the District is the Streamflow Synthesis and Reservoir Regulation (SSARR) mathematical model, developed by the U.S. Army Corps of Engineers. This particular model is generally accepted and used in the field of hydrology for the purposes for which it was used here by the District staff. T. 90, 91, SJ Ex 1 p 27. The model combines two types of data, the first of which are "fixed basin parameters" such as drainage area, soil moisture run-off relationships, and storage capacity of the water bodies in the basin. Fixed basin parameters do not change over time. T. 98, 99, SJ Ex 1 pp 32-37. The second type of data used by the model is "time series" data such as rainfall, evaporation, lake elevations and discharges at several points throughout the basin. Time series data does change over time. T. 98, 99, SJ Ex 1 pp 38-40. Rainfall data for the basin is the most important input element for the model because rainfall drives the system from a hydrologic perspective. T. 95. Rainfall data from 5 recording stations scattered over the basin were utilized, with one station located at the University of Florida in Gainesville yielding data for more than 50 years, although only data for the 50 year period from 1942-1991 was used in the model. T. 96, 97, SJ Ex 1 pp 38, 39, 62, 175. The other 4 rainfall recording stations used in the model have recorded rainfall for periods ranging from 11 years to 37 years. SJ Ex 1 p 39. In a basin the size of the Orange Creek Basin, day to day rainfall amounts may vary from one recording station to another, however, on an annualized basis, rainfall amounts are relatively consistent between the rainfall recording stations utilized in the District's model. T. 97, 98, 184, 727. Both the number and location of rainfall recording stations used for the model are adequate to characterize rainfall for the basin. T. 97, 98, 184. Fifty years of hydrologic data were utilized by the District in the model, because corresponding records existed for rainfall, lake levels, and discharge for this period of time. In addition, a 50 year period is more likely to exhibit a full range of hydrologic conditions, such as droughts and floods, than a shorter increment of time would. T. 104. The model utilizes both the fixed basin parameters and the time series data to calculate an associated lake level for any of the lakes in the basin or a discharge measurement at one of several points in the basin for any particular day during the 50 year period represented by the hydrologic data on which the model is based. T. 98-100. The model was initially run to calculate several hydrologic values with existing conditions in place. Existing conditions, for purposes of comparison with other alternatives, assumes the Newnans Lake weir to be in place, the gates to the Camps Canal Culverts to be in an open position and the gates to the main structure Culverts in the Preserve to be in an open position. T. 99, SJ Ex 1 p 83. For all scenarios examined, the model assumes existing land uses to be in place, in all years simulated, in order to allow consistent comparisons of hydrologic conditions over the 50 years for which data was available. T. 134, 135. In the "existing conditions" scenario the model calculates the volume of water discharging from Newnans Lake southward into Prairie Creek for each day during the 50 year period from 1942-1991. T. 100. Discharge measurements were made by District staff at the downstream end of the Camps Canal Culverts from which a rating curve was developed for the structure. T. 101, 102, SJ Ex 1 pp 33, 36. A rating curve is a means by which the flow capacity of a water control structure such as a culvert may be calculated. T. 101, 102. Using the rating curve developed by District staff for the Camps Canal Culverts, the model, having calculated the volume of water moving from Newnans Lake into Prairie Creek, can then calculate the volume of water passing through the Culverts at the Camps Canal Culverts into the Preserve versus the volume moving on southward through Camps Canal to Orange Lake for each day or year during the 50 year period from 1942-1991. T. 101, 102, SJ Ex 1 p 84, Appendix Table E-45. Having calculated the annual volume of surface water entering the Preserve and the annual volume moving into and through Camps Canal to Orange Lake for each of the 50 years between 1942- 1991, District staff then divided the 50 year totals for each by 50 to arrive at a yearly average volume of water going to the Preserve versus a yearly average volume going through Camps Canal to Orange Lake, under existing conditions. T. 101-104, SJ Ex 1 p 84, Appendix Table E-45. Based on the volumes calculated for the 50 year period between 1942-1991, on average, 45 percent of Prairie Creek flow enters Preserve through the Camps Canal Culverts under existing conditions. This equates to 35 cubic feet per second (cfs), or 23 million gallons per day (mgd). T. 103, 605, 606, SJ Ex 1 p 84, Appendix Table E-45. Also based on the volumes calculated for the 50 year period between 1942-1991, on average, 55 percent of Prairie Creek flow goes into Camps Canal and moves on southward to the River Styx and then to Orange Lake under existing conditions. T. 103, SJ Ex 1 Appendix Table E-45. Making a calculation of flow based on 50 years of historic hydrologic data does not guarantee that the next 50 years will be identical to the period during which the calculation was developed, however, it is reasonable to assume that the next 50 years will be statistically similar to the previous 50 years and that hydrologic conditions, on average, will be the same. T. 104, 143. Both the general methodology and the specific model used by the District to quantify the average volume of flow entering the Preserve under existing conditions, which also represents the volume of flow which the rule would reserve for fish and wildlife which use the Preserve, are based on logic and accepted scientific principles. T. 90, 91, 97, 102, 128, 729. The rule in issue does not reserve a specific amount of water for the protection of fish and wildlife using the Preserve, rather, it reserves the amount which will flow by gravity through the existing Camps Canal Culverts with the gates in an open position, which will in essence, maintain the existing volume of flow into the Preserve. T. 604, 605, 624. Thirty-five cfs does not necessarily represent the specific volume of water that will flow into Preserve on a given day, rather, the specific volume would be dependent on hydrologic conditions on that given day. T. 105, 106. Nevertheless, 45 percent of flow, or 35 cfs, or 23 mgd, represents a reasonably accurate calculation, based on the data available, of the average volume of Prairie Creek flow which will enter the Preserve by gravity pursuant to the Reservation Rule. T. 101- 104, 638, SJ Ex 1. With the existing conditions hydrologic regime which the Reservation Rule would continue in place, the model calculates that the mean elevation of Orange Lake would be 57.26 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). If no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the model calculates the mean elevation of Orange Lake to be 57.51 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). Thus, the mean elevation of Orange Lake rises by only 0.25 feet when all of the Prairie Creek flow is diverted to Orange Lake. SJ Ex 8. The impact of a 0.25 feet change in the mean elevation of Orange Lake from a hydrologic perspective is small given the 11 feet fluctuation in elevations that has occurred naturally over time in the lake. T. 125. By contrast, if no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the mean elevation of water levels within the Preserve, as calculated by the model, would decline by 0.65 feet. SJ Ex 7. Eliminating all Prairie Creek flow from the Preserve would decrease the amount of wetted acreage in the central portion of the prairie by up to 2400 acres. T. 203, SJ Ex 1 p 131, SJ Ex 6. In addition, the acreage wetted in the eastern lobe of the Preserve by the sheetflow of Prairie Creek water as it moves from the Camps Canal Culverts to Alachua Lake would also be eliminated. T. 116, SJ Ex 1 p 131. The findings of fact of the District quoted and adopted herein which relate to the environment of, and the alternative course of action considered for, the Preserve are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 79 through 127: The eastern and western lobes of the Preserve are approximately the same elevation and have similar gradients; however, the plant communities within the eastern lobe differ from the plant communities in the western lobe. The plant community within the eastern lobe is predominantly a shallow marsh community while the plant community within the western lobe varies from wet prairie to old field. T. 262, 263; SJ Exs 3, 10B, 10H. For the western lobe of the Preserve, consisting of the area west of U.S. Highway 441, rainfall is the only source of water except when extremely high water levels occur in Alachua Lake. T. 263, 272. When extremely high water levels occur on Alachua Lake water can backflow through the culverts under U.S. Highway 441 and Interstate Highway 75 and inundate the western lobe. T. 272. The eastern lobe of the Preserve is dependent upon sheetflow from Prairie Creek for its source of water. T. 263. Prior to the construction of Cones Levee the sheetflow from Prairie Creek inundated approximately 1,200 acres of the eastern lobe. Today, however, sheetflow inundates directly 600 acres and indirectly another 600 acres in the eastern lobe. T. 264, 265; SJ Ex 10B. Without the Prairie Creek sheetflow, the biological character of the eastern lobe would change to resemble the more terrestrial nature of the western lobe. T. 263, 272, 518. The fish and wildlife inhabiting the Preserve are totally dependent upon its surface water hydrology. T. 276. Of the 21 species of plants living within the Preserve that are listed by the federal government or the State of Florida as endangered, threatened or species of special concern, four species are wetland species. T. 268, 358, 359, 360. Twenty species of animals living on the Preserve are listed by the federal government or the State of Florida as endangered, threatened or species of special concern. Seventeen of these species are wetland dependent. T. 269. Birds, including a number of species listed as endangered or threatened such as great blue herons, woodstorks, anhingas, limpkins, sandhill cranes and ospreys, use the shrub communities around Alachua Lake, the cypress swamp in the eastern lobe and other areas of the eastern lobe for breeding, nesting, and foraging. T. 269, 270, 271, 277, 364, 365. Several species of migratory ducks overwinter in the central area of the Preserve, particularly in the shrub wetland communities around Alachua Lake. Without the flow of water from Prairie Creek the open water in Alachua Lake would be lost and consequently, the overwintering habitat for the ducks would be lost. T. 240, 270, 518. Immature bald eagles use the eastern lobe wetlands for foraging. T. 270. Additionally, the northern harrier, American kestrel and peragrine falcon use wetlands within the Preserve as foraging habitat. T. 364, 365. Mammals, such as river otters, brown water rat, bobcats, bats and long-tailed weasels, use the wetlands within the Preserve, and the eastern lobe particularly, as breeding, nesting, and/or foraging habitat. Reptiles, such as the American alligator, live in the Preserve. T. 270-271, 375, 377-378; SJ Ex 14. The diversity and abundance of animals living in or using the Preserve is greater in the eastern lobe and central area than the western lobe. T. 273, 274. Different species of birds frequent the western lobe. Typically, species more indicative of a drier terrestrial environment are found in the western lobe. T. 272. If the Prairie Creek flow is diverted from the Preserve, the eastern lobe would be driven towards a drier, terrestrial habitat and the functions of the eastern lobe wetlands would be totally lost. T. 277. The sheetflow across the eastern lobe is a unique feature of the Preserve, and without this sheetflow animals such as the endangered brown water rat would not live there. T. 277. Without the Prairie Creek sheetflow, animals dependent on Alachua Lake and the wetlands, such as the brown water rat and the woodstork, would have to find other areas to live, forage, breed and nest due to the loss of wetlands and open water habitat. T. 277, 518. When the water levels in the Preserve are low and wetlands are lost, the birds that depend on the wetlands for nesting will not nest in the Preserve nor elsewhere. T. 532. The wetland communities within the Preserve require a range of water level fluctuations which includes periods of high water levels, average water levels and low water levels. Wetlands must remain wet long enough to exclude upland plants and to conserve hydric soils, yet sufficiently dry often enough to allow germination of wetland plants and the compaction and oxidation of flocculent sediments. T. 293, 294, 298, 299, 310, 311; SJ Ex 1 pp. 23-25. Periods of high water levels maintain lower swamp and shallow marsh habitats, facilitate the dispersal of the seeds of wetland plants, allow wetland species that normally occur at lower elevations to move up into the forested communities, prevent the encroachment of upland species into the upper wetland area, and advance the transportation of organic matter from uplands to wetlands. Inundation of the floodplain and forested communities provide nesting, spawning, refugia, and foraging habitat for fish and other aquatic organisms. T. 294, 296, 310, 311; SJ Ex 1 pp 23- 25. The frequency, timing and duration of high water levels influence the composition and survival of wetland forests. T. 310, 311; SJ Ex 1 p 23. Periods of average water levels create and maintain organic soils and maintain wetland habitat for wetland dependent wildlife. T. 293, 297; SJ Ex 1 p 25. Periods of low water levels rejuvenate floodplain wetlands by allowing seed germination and growth of wetland plants. Seeds of many wetland plant species require saturated soils without standing water in order to germinate. T. 291, 293, 298, 299; SJ Ex 1 pp 24, 25. Periods of low water levels increase the rate of aerobic microbial breakdown and decomposition of organic sediments, and allows the consolidation and compaction of flocculent organic sediments. The consolidation, compaction and decomposition of flocculent organic sediments improves substrates for fish nesting and seed germination. T. 298, 299; SJ Ex 1 pp 24-25. Upland animals use the wetlands during periods of low water levels for foraging and breeding. T. 298, 299. Three elevation transects were used by District staff to identify the elevations of plant communities on the Preserve and develop environmental criteria for the Preserve floodplain. T. 302, 305-306; SJ Ex 1 pp 26, 27, 31, 60. Ecological criteria were developed by District staff to accommodate the hydroperiod requirements of lake and wetland biota. The ecological criteria consisted of hydrologic duration, i.e. how long an area is flooded; and recurrence intervals, i.e. how often an area is flooded. T. 304, 309; SJ Ex 1 pp 23, 61. Maintaining appropriate hydrologic durations and recurrence intervals for plant communities enables the plant communities to support populations of fish and wildlife. T. 307, 312. The District identified the following five significant water management levels: infrequent high water level, frequent high water level, minimum average water level, frequent low water level, and infrequent low water level. The water management levels characterize zones along the elevation gradient of the Preserve. T. 307, 308; SJ Ex 1 p 61. The five different recurrence intervals and the associated hydrologic durations became the hydrologic criteria used by District staff for the water management levels. T. 312. The District evaluated six water management alternatives for the Preserve: the "existing conditions" alternative which simulated the current morphometry of the Paynes Prairie sub-basin; the "total restoration" alternative, under which all the Prairie Creek flow is restored to Paynes Prairie; the "50/50 management" alternative, under which the inflow capacity at the Camps Canal Culvert is reduced by 50 percent and the outflow capacity at the main structure at Alachua Lake is reduced by 50 percent; the "elevation threshold" alternative, under which when the water level at Newnans lake is at 66 feet NGVD or above and the water level at Orange Lake is at 56 feet NGVD or below, then the inflow structure at Camps Canal Culvert is reduced by 50 percent while the outflow capacity at the main structure is maintained at 100 percent; the "Sweetwater Branch" alternative, under which flow from Prairie Creek is replaced by Sweetwater Branch flow; and the "no restoration" alternative, under which the entire flow from Prairie Creek is diverted to Orange Lake. T. 313, 314; SJ Ex 1 p 119. Based upon the hydrologic durations and recurrence intervals defined by the ecologic criteria, the District determined five water management levels for each water management alternative. SJ Ex 1 p 61. The five water management levels and the associated recurrence intervals and hydrologic durations form a fluctuation management regime. The fluctuation management regime for each water management alternative was evaluated with respect to the existing biological features of the aquatic and wetland communities of the Paynes Prairie sub-basin. SJ Ex 1 pp 61, 124, 125. Under the total restoration alternative the water levels on the Preserve would rise thereby improving the hydrologic regime on the prairie, but the possibility of flooding and damaging U.S. Highway 441 would also increase. The minimum average water level of Orange Lake would decrease by 0.67 feet. T. 331, 333; SJ Ex 1 pp 125-130; SJ Ex 8. The no restoration alternative would not satisfy all the hydrologic criteria. The minimum average water level on the Preserve would decrease by 1.01 feet under this alternative. Under this alternative the acreage inundated by the minimum average water level is reduced by approximately 2,400 acres. Additional wetland acres are lost due to the absence of the Prairie Creek sheetflow across the eastern lobe. The minimum average water level in Orange Lake would increase by 0.16 of a foot. T. 324, 334-336; SJ Ex 1 pp 124, 125, 131; SJ Ex 8. Eliminating the flow of Prairie Creek into Paynes Prairie would be detrimental to the current and future biological conditions on the Preserve. SJ Ex 1 p 131. Under the 50/50 management alternative the average flow from Prairie Creek would be reduced from 45 percent to 22.5 percent and the outflow to Alachua Sink would be reduced by 26 percent. T. 337; SJ Ex 1 p 131. The high water levels and the low water levels increase slightly within the Preserve and Orange Lake under the 50/50 management alternative; however, the residence time of water and the concentration of nutrients, including phosphorous and nitrogen, would increase thereby degrading water quality within the Preserve. T. 338, 340, 341; SJ Ex 1 pp 124, 125, 127, 128, 131, 132; SJ Exs 7 and 8. The reduction of sheetflow from Prairie Creek under the 50/50 management alternative would adversely affect the wetlands in the eastern lobe. SJ Ex 1 p 132. Under the elevation threshold management alternative water levels within the Preserve would decrease. The Preserve would receive less water during some periods of naturally high flows reducing the duration and frequency of inundation in the eastern lobe wetlands and, therefore, negatively impacting wildlife dependent upon seasonal high flows. T. 344; SJ Ex 1 p 133; SJ Ex 7. The flow provided by Sweetwater Branch provides approximately 15 percent of the Preserve's average inflow, whereas Prairie Creek provides approximately 50 percent of the Preserve's average inflow. T. 346. Sweetwater Branch is more or less confined to a channel and discharges into Alachua Sink bypassing the Preserve and its eastern lobe. T. 347. Under the Sweetwater Branch alternative the eastern lobe would be deprived of the sheetflow essential to the maintenance of wetlands and the wildlife in the eastern lobe. The eastern lobe would dry out and the plant communities would change to old field or wet prairie. The functions of the plant communities to wildlife would also change under this alternative. T. 347. The Sweetwater Branch alternative would not support fish and wildlife in the eastern lobe of the Preserve. T. 347. The water quality of Sweetwater Branch is poor. Sweetwater Branch has higher concentrations of nitrogen and phosphorous than Prairie Creek. If the nutrient-rich Sweetwater Branch water was diverted onto the Preserve the types and abundances of vegetative communities would change from native vegetation to monocultures of nuisance vegetation that thrive in nutrient-rich environments. T. 346-349; SJ Ex 1 pp 133-134. The existing conditions alternative provides over the long term an average of approximately 45 percent of the Prairie Creek flow by gravity flow through the Camps Canal Culvert to the Preserve. T. 355, 356; SJ Ex 1 p 121. Under the existing conditions alternative, the five hydrologic criteria for both the Preserve and Orange Lake are met and the water level elevations meet the desired recurrence intervals and hydrologic durations. T. 324, 350, 351. The fluctuation management regime provided by the existing conditions alternative partially restores sheetflow from Prairie Creek to the Preserve in sufficient, but fluctuating, water quantities necessary to maintain habitat for fish and wildlife within the eastern lobe. T. 350, 351. It is essential for the protection of the fish and wildlife that utilize and depend upon the Preserve to maintain the flow of Prairie Creek into the Preserve. T. 351, 517. The Preserve needs flow from Prairie Creek in volumes reserved by the proposed rule to protect its fish and wildlife. T. 351. The management levels established by the environmental criteria used for each of the water bodies in the basin will continue to be met in Orange Lake with an average of 45 percent of Prairie Creek flow going to the Preserve and 55 percent going to Orange Lake. T. 432, SJ Ex 1 pp 127, 134, 146. Based upon the substantial and uncontroverted evidence in this case, it is concluded that the water reserved by the Reservation Rule is required for the protection of fish and wildlife of the Preserve.
Findings Of Fact The Applications. Permit DC51-189086 (Moon Lake Road Site). The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing. On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date. On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued. Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site). The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD. The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing. The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD. Permit DO51-199516 (Ryals Road Site). The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation. Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed. The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD. Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System. The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP. A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem. The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two. The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems. Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed. On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990. On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line." The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so. The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683. After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request. The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application. The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing. The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation. Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit. Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994. Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems. Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.) A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient. There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random. Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system. The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches. The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water. The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system. Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions. It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches. As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions. Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size. The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp. Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River. Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches. The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body. One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering. Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance. In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit. If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required. Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites. Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert. Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds. To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from .58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System. Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet. Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches. Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove. During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds. Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows: Site Visit Inches of rainfall Gallons of rainfall 4/15/91 3.58 9,786,659 7/11/91 5.41 14,789,337 7/12/91 5.60 15,308,742 8/27/91 2.91 7,955,078 10/12/93 1.02 2,788,378 12/7/93 0.03 82,011 The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts. It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site. Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed. Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. MGD. No load testing was done at Oakley Grove at more than .250 to .270 Even at the historical loading rate, the evidence did not reflect that the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted. In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom. It was, however, proven by evidence introduced as Department Exhibit 32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions. Alleged Settlement Offer. Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County. The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System. Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case. It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993. Ground Water Quality at Oakley Grove. During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates. Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time. On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993. The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site. The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively. Surface Water Quality Considerations. The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study. In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates. Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates. In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites. Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove: --At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen = 0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml. --At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml. --At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml. --At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml. --At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream. However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD). County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993: East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean 0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510- 3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean 352 per 100 ml. South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean 1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml. In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81). As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based. Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to .075 MGD.) In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed. The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions. The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County. As for pH, there was evidence that the background wetland had a pH of 5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units. Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units. Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all. The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts. The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state. Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters. Other Considerations at Moon Lake Road In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money. Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property. Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA"). Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD. The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System. Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site. If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply. Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner. Evidence on Elements of Estoppel. The "Representations." Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations. Saddlebrook Village Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87. Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions. Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area. The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards. Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions. Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters. Saddlebrook Village Percolation Pond System was never upgraded to the .250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites. Shady Hills Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD. The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89. The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards. Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards. Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters. The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit. Lake Padgett Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989. The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards). The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present. Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters. Construction of Oakley Grove The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89. The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD. The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards. Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition. Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD. The "Detrimental Reliance." The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993. Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000. In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about $2,600,000 after issuance of the construction permit for the Oakley Grove project. To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity. It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993. If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. Alleged Default Permit for Moon Lake Road. Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought. The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part: However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete. On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application. Subject Matter Index of Agency Orders. The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981. After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings. There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index. There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices. Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive. Alleged Biased Review. David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications. On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen. When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything. Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent. Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation. David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined. David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects. Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen. About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person." Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person. Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes. Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites. DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit. DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter. The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects. It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants. It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities. However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: In Case No. 92-1604: Denying the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study. If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170). Case No. 92-1653: Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study. Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD. Denying the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity. Case No. 92-1654: Denying, as moot, the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD. RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. Accepted and incorporated. Speculative and unnecessary. 6.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted but subordinate and unnecessary. 14.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-34. Accepted but subordinate and unnecessary. 35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 45.-53. Accepted and incorporated to the extent not subordinate or unnecessary. 54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done. 55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 59. Rejected as not proven. 60.-61. Accepted but subordinate and unnecessary. 62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done. 63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.") 77.-79. Accepted but subordinate and unnecessary. 80.-92. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 95.-113. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusions of law. First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law. Conclusions of law. 117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as designed, as permitted for construction, and as constructed, subject to available disposal capacity.) 123.-148. Accepted but subordinate and unnecessary. As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary. As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 154.-155. Accepted but subordinate and unnecessary. 156.-158. Accepted and incorporated to the extent not subordinate or unnecessary. 159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated. 160.-161. Accepted and incorporated to the extent not subordinate or unnecessary. 162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds. 163.-166. Accepted and incorporated. 167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water." Accepted but subordinate and unnecessary. Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied. Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. 173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.) Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven; also, subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law. Accepted but subordinate and unnecessary. 186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law. 188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and 100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered. 191.-192. Accepted and incorporated. 193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity. Accepted (assuming they are built as designed) and incorporated. Last word should be "dry"; otherwise, accepted and incorporated. Accepted and incorporated. 198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found. 202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.) 207.-211. Rejected as not proven. See 202.-206., above. 212. Accepted and incorporated. 213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above. 220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site. 227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters. 231.-232. Accepted and incorporated. 233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.) 235.-239. Accepted and incorporated to the extent not subordinate or unnecessary. 240.-243. Accepted but subordinate and unnecessary. 244. Accepted and incorporated to the extent not subordinate or unnecessary. 245.-248. Accepted but subordinate and unnecessary. 249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 250.-251. Rejected as not proven. 252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.) Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. 257.-258. Accepted but subordinate and unnecessary. 259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary. 260.-261. Accepted but subordinate and unnecessary. 262. Rejected as not proven. 263.-269. Accepted but subordinate and unnecessary. 270. Rejected as not proven. 271.-279. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.) Accepted and incorporated. As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 287.-289. Rejected as not proven and as conclusion of law. 290. Accepted and incorporated. 291.-293. Accepted and incorporated to the extent not subordinate or unnecessary. 294.-295. Conclusions of law. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated. 302. Accepted but subordinate and unnecessary. 303.-308. Rejected as not proven without WQBEL studies. Rejected as not proven. Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.) 311.-312. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven without WQBEL studies. 316.-317. As to (g) and (h), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 324. Conclusion of law. 325.-326. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary. 330.-331. Subordinate and unnecessary. See 353. 332. Rejected as not proven. 333.-334. Subordinate and unnecessary. See 353. 335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353. 351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 352.-353. Subordinate and unnecessary. See 353. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Conclusion of law. Accepted and incorporated. Accepted but subordinate and unnecessary. 361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary. 363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated. 372.-401. Accepted but subordinate and unnecessary. 402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.) 403.-405. Accepted and incorporated to the extent not subordinate or unnecessary. 406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated. 408. Rejected as not proven. See 406., above. 409. Rejected as not proven. See 407., above. 410.-416. Accepted but subordinate and unnecessary. 417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven. 422. Accepted but unnecessary. 423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary. 424. Assuming performance in accordance with the application, accepted but unnecessary. 425.-430. Accepted and incorporated to the extent not subordinate or unnecessary. 431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven. 432.-445. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) First sentence, rejected as not proven; second sentence, conclusion of law. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 457.-465. Accepted and incorporated to the extent not subordinate or unnecessary. 466.-470. Rejected as not proven without WQBEL studies. 471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies. 472. Rejected as not proven. See 310., above. 473.-475. Accepted but subordinate and unnecessary. 476. Rejected as not proven. 477.-478. Accepted but subordinate and unnecessary. Rejected as not proven (that the discharges are.) As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven without WQBEL studies. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. First sentence, accepted and incorporated; rest, rejected as not proven. 491.-493. Accepted and incorporated to the extent not subordinate or unnecessary. 494. Accepted and incorporated to the extent not subordinate or unnecessary. 495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven. 496.-499. Accepted and incorporated to the extent not subordinate or unnecessary. 500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary. 501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.) 502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.) 505.-509. Accepted and incorporated to the extent not subordinate or unnecessary. 510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above. 511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 512.-524. Accepted and incorporated to the extent not subordinate or unnecessary. 525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.) 526. Rejected as not proven that he was directed to "speak in favor of the County's permit application." 527. Accepted and incorporated to the extent not subordinate or unnecessary. 528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary. 529.-530. Accepted and incorporated to the extent not subordinate or unnecessary. 531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above. 532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 535. Accepted but subordinate and unnecessary. 536.-537. Rejected as not proven without WQBEL study. 538.-543. Accepted and incorporated to the extent not subordinate or unnecessary. 544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).) 545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary. 547.-552. Accepted and incorporated to the extent not subordinate or unnecessary. 553.-557. Accepted but moot and unnecessary. Rejected as not proven. Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. 563.-566. Accepted but moot, subordinate and unnecessary. 567. Subordinate to facts not proven. 568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary. 569. Rejected as subordinate to facts not proven. 570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary. 571.-573. Accepted but moot, subordinate and unnecessary. Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary. Accepted but moot, subordinate and unnecessary. Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary. Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary. Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary. Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary. Rejected as not proven. 581.-582. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and conclusion of law. 583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. 585. Accepted and incorporated to the extent not subordinate or unnecessary. 586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary. 587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or unnecessary. 591. Rejected as not proven. 592.-593. Accepted and incorporated to the extent not subordinate or unnecessary. 594. Rejected as not proven. 595. Accepted but moot, subordinate and unnecessary. 596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary. 597.-599. Accepted but moot, subordinate and unnecessary. 600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary. 601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or unnecessary. 603.-604. Rejected as not proven. Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 610.-620. Accepted and incorporated to the extent not subordinate or unnecessary. 621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. 623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.) Respondent's Proposed Findings of Fact. The Department's proposed findings of fact are numbered separately by facility: Oakley Grove Accepted and incorporated. "Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated. 3.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.) Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Subordinate to facts found. Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches. 13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary. 19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.) 26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.) 30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-36. Accepted. Largely subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusion of law. Accepted and incorporated. 40.-42. Conclusion of law. Accepted and incorporated. If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary. Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means. Accepted and incorporated to the extent not subordinate or unnecessary. 47.-49. Accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Accepted and incorporated to the extent not conclusion of law. 57.-58. Accepted and incorporated to the extent not conclusion of law. Rejected as conclusion of law and as not proven what is "typical." Accepted and subordinate to facts found. 61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 83.-102. Accepted and incorporated to the extent not subordinate or unnecessary. 103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 104.-106. Accepted and incorporated to the extent not subordinate or unnecessary. 107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.) Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (The manual was maintained at a different location.) Moon Lake Road 1.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. One was proposed in evidence presented at the hearing but not in the application. 15.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. "Any" is rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 30.-32. Accepted. Subordinate to facts found. Accepted and incorporated to the extent not conclusion of law. First sentence, unclear; second sentence, accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. 36.-38. Accepted and incorporated to the extent not conclusion of law. "Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others. Accepted and incorporated. 41.-43. Accepted and incorporated to the extent not subordinate or unnecessary. 44.-49. Accepted and incorporated to the extent not subordinate or unnecessary. 50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case. 53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.) 54.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Rejected as contrary to the greater weight of the evidence and facts found. 57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above. Rejected as contrary to the greater weight of the evidence and facts found. Accepted but subordinate and unnecessary. 61.-63. Rejected as contrary to the greater weight of the evidence and facts found. 64.-65. Accepted but subordinate and unnecessary. 66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient. Ryals Road 1.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated. Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 13.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15.-26. Accepted but moot, subordinate and unnecessary. 27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary. 28.-33. Accepted but moot, subordinate and unnecessary. 34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire de la Parte, Gilbert & Bales, P.A. P.O. Box 2350 Tampa, Florida 33601-2350 Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Counsel for the respective parties stipulated to the following facts: Quayside Associates, Ltd., is a Florida limited partnership whose address is 10670 N.E. Quay Plaza, North Miami, Florida 33134. Respondent is the Department of Environmental Regulation, an agency of the State of Florida as defined in Section 120.52(1), Florida Statutes. This Petition relates to the Department's File No. DF13-28371-6E. Petitioner was the applicant for the subject permit and will, as applicant, be directly affected by a denial thereof. On February 28, 1980, Petitioner applied to the Department for approval of its Phase II Docking Facility which included an elevated walkway with wave break panels, nineteen (19) new wet slips and twenty-five (25) davits. (Exhibit "1") On March 6, 1980, a completeness review form was sent to the applicant's representative by the Department. (Exhibit "2") On March 6, 1980, the applicant's representative responded to the comments of the Department and completeness summary by letter from J. Frederic Blitstein to the Department's Subdistrict Office. (Exhibit "3") As shown by the Department letter of May 29, 1980, response to the completeness summary were received by the Department from the applicant on March 7 and 11, 1980, with final Department of Natural Resources clearance, as requested by the completeness summary, received by the Department of March 14, 1980 (see Exhibit 4). The response of the Depart- ment of Natural Resources is attached hereto as Exhibit "5". On March 20, 1980, the representative of the Department made an on-site visit to the site as shown by the Departmental Summary Permit Processing Worksheet attached as Exhibit "6". On April 9, 1980, the Department received the comments and recommendations of the Dade County Department of Environmental Resources Management which indicated that it had "no objection to the issuance of the Permit" subject to certain stipulations and conditions. (Exhibit "7") On June 25, 1980, the Department held its scheduled Biscayne Bay Aquatic Preserve Hearing in Miami, Dade County, Florida. On July 2, 1980, the Department issued a completion notice to the applicant indicating completion of the application on June 25, 1980. (Exhibit "8") On September 9, 1980, the Department issued its Letter of Intent to Deny which gives rise to the subject proceeding. (Exhibit "9") This Petition ensued and was filed with the Department on September 24, 1980. The State of Florida, Division of Administrative Hearings has jurisdiction over this matter and has jurisdiction to make an Interlocutory Ruling regarding same. This Stipulation may be utilized for interlocutory purposes or for all subsequent purposes.
The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
The Issue The issues to be determined in this matter are: (1) whether the five separate orders issued by the Secretary of DEP on June 29, 2018, adopting five basin management action plans (BMAPs) for the Suwannee River, the Volusia Blue Spring, the Silver Springs-Rainbow Spring Group, the Santa Fe River, and the Wekiwa Spring-Rock Springs, comply with the provisions of section 403.067, Florida Statutes, and the Florida Springs and Aquifer Protection Act, sections 373.801 through 373.813, Florida Statutes (the Act); and (2) whether Petitioners demonstrated that their substantial interests were affected and, therefore, have standing.
Findings Of Fact Based on the parties' stipulations, on matters officially recognized, and the evidence adduced at the final hearing, the following findings of fact are made. Respondent DEP is the administrative agency of the state statutorily charged with, among other things, protecting and restoring Florida's water resources. The agency's duties include administration and implementation of sections 403.067 and 373.807. Thus, the agency is responsible for developing and implementing Total Maximum Daily Loads (TMDLs) and BMAPs for waters that do not meet applicable water quality standards, including those for impaired Outstanding Florida Springs (OFS). Individual Petitioners Petitioner Greenhalgh, is DEP’s district geologist for the northeast district, and for the Suwannee River Water Management District (SRWMD). Mr. Greenhalgh and his wife’s family own property in the Suwannee River BMAP area, including one-half mile of Suwannee River shoreline, a spring, and a farming operation. For his entire life, Mr. Greenhalgh swam, dived, snorkeled, canoed, and fished in the Suwannee River basin and its springs, and he continues to do so. He has observed in his lifetime that the Suwannee River and springs, once incredibly clear, with vigorous flows, unbelievable numbers of fish, and a bottom covered in eelgrass, now have much lower flows, few fish, and an almost complete coating of algae. Mr. Greenhalgh is concerned that if the water quality of the springs systems and Suwannee River are not adequately addressed, they will remain polluted and he will never be able to enjoy them with his daughter as he did in the past. Mr. Greenhalgh contends that the Suwannee River BMAP does not adequately address nitrate loading, will allow further degradation of water quality, and, consequently, adversely affect his use and enjoyment of the springs and Suwannee River. Petitioner Tatum has lived on the Santa Fe River with his wife since 2003. Their property includes 400 feet of river shoreline and a small spring. There are several other springs near his residence. Mr. Tatum has been scuba diving and collecting fossils in the river and its springs since 1977 and continues to do so. He and his family snorkel, swim, kayak, canoe, and enjoy wildlife-viewing on the river and springs. He has concerns that rising nitrate levels in the springs and river are elevating the nitrate level in his wells, and that proliferation of algae in the river diminishes his use of the springs and river. When Mr. Tatum started diving in the river and springs, he could see to the bottom of the river and springs. Green plants, wildlife, and fish were abundant. Now the only plant life in the river near his residence is filamentous algae and a green scum. Mr. Tatum is aware that the Santa Fe River BMAP is supposed to reduce nitrates in the river over a 20-year time span, but he is concerned the goals will not be met, and that over the next 20 years conditions will continue to deteriorate. Dr. Still lives on Lake Sampson in Bradford County, Florida. Lake Sampson is in the Upper Santa Fe River Basin. He has used the Lower and Upper Santa Fe River and its springs for recreation since he moved to the area in 1979. He enjoys canoeing, swimming, photography, walking, and observing the environment of the river and springs. Excessive algal growth due to increased nutrients has significantly impacted Dr. Still's use and enjoyment of the river and springs, including swimming and canoeing. The Individual Petitioners proved that their substantial environmental interests could reasonably be affected by the proposed BMAPs. Organizational Petitioners The Ichetucknee Alliance, Inc., (Alliance) is a 501(c)(3) not-for-profit educational organization with a mission of restoring, preserving, and protecting the Ichetucknee River and its associated contributing springs. Formed in 2013 by advocacy groups looking out for the Ichetucknee River, the Alliance presently has 173 dues-paying members. All but five live in Florida, and 143 live near the Ichetucknee River in Columbia, Suwannee, Gilchrist, or Alachua County. Seven members own property on the Lower Ichetucknee River. The Alliance members use and enjoy the Ichetucknee River and its springs for swimming, tubing, fishing, kayaking, photography, and for its beauty. The Alliance members are concerned that the Santa Fe River BMAP, which includes Ichetucknee springs, would not restore the water quality of the springs and spring run. The Alliance members contend that their substantial interests would be adversely affected by the BMAP's failure to restore water quality. Mr. Jopling is a founding member and current president of the Alliance. Mr. Moran is a member of the Alliance. Both have enjoyed the Ichetucknee River and springs for decades, and continue to do so for swimming, tubing, kayaking, canoeing, photography, and aesthetic appreciation. Both have seen degradation of the Ichetucknee River and are concerned that the BMAP will not result in improvement in water quality to restore the river. Both support the Alliance’s challenge to the BMAP. Mr. Moran has been photographing Ichetucknee springs for the past 34 years, including images from 1995 and 2012 showing the degradation of the springs over time. The Alliance is involved in many projects and activities to restore, protect, and preserve the Ichetucknee River and its springs. For example, the Alliance sponsors educational videos. Members participate in a river watch program, perform water clarity and other testing, as well as a fish count to quantify the impact of nitrates and loss of flow on fish life in the Ichetucknee River. Members also participate in regular river clean-up trips. Approximately a third of the Alliance members, about 60 members, are actively involved in these projects. The Alliance actively advocates on behalf of its members for the restoration, protection, and preservation of the Ichetucknee River, including advocacy in front of the Columbia County Commission, DEP, and SRWMD. The Alliance participated in the development of the BMAP for the Santa Fe River by participating in public meetings on the subject and determined that the BMAP would not restore the water quality of the Ichetucknee River or springs. Our Santa Fe River, Inc., (OSFR) is a 501(c)(3) not-for-profit all- volunteer organization. Mr. Roth, the current president of OSFR, testified that the organization has approximately 100 dues-paying members, at least 90 percent from the local area. OSFR's mission is to protect the waters and lands supporting the aquifer, springs, and rivers within the watershed of the Santa Fe River. OSFR accomplishes this mission by promoting public awareness of the ecology, quality, and quantity of the waters and lands immediately adjacent to and supporting the Santa Fe River, including its springs and underlying aquifer. OSFR provides education, stewardship, and advocacy for the river and springs. It educates about issues impacting the river and springs by providing information booths at various fairs and festivals. OSFR provides stewardship for the river and springs through clean-ups, which occur about four times per year. Approximately 20 to 25 members usually take part in these events. OSFR advocates for the river and springs by attending every SRWMD meeting, by attending both county commission meetings and various city meetings. Most members of OSFR use and enjoy the river and springs by canoeing, kayaking, and swimming. Some members enjoy fishing and diving. Witnesses Mr. Roth, Ms. Jipson, and Mr. Moran are members of OSFR who use and enjoy the Santa Fe River and its springs by kayaking, canoeing, swimming, photography, and aesthetic enjoyment. They have seen the river and springs degrade over time, and support OSFR's challenge of the BMAP. On behalf of its members, OSFR participated in the development of the Santa Fe River BMAP, attending a public hearing, and commenting. OSFR had concerns about the BMAP's funding, enforceability, and failure to address the entire pollutant load. After participating in the BMAP development, OSFR concluded the Santa Fe BMAP was inadequate and decided to file this challenge. OSFR members support this challenge. Friends of the Wekiva River, Inc., (FOWR) has been a non-profit 501(c)(3) corporation since 1982. FOWR's purposes are to promote and protect the unique environmental and recreational values of the Wekiva River and its tributaries, to protect the integrity of the Wekiva River Basin, to work toward restoration and continuation of the Wekiva River, and its tributaries, in their natural state, to engage lawfully in the exchange and dissemination of information concerning the purposes and objectives of the corporation, and to carry on educational activities to the same end. FOWR has a dues-paying membership of 145, with 80 lifetime members. Almost all reside within the Wekiva basin. Many members of FOWR use and enjoy the Wekiva River and its springs for canoeing, swimming, snorkeling, wildlife photography, and to just enjoy the peace and serenity of the river. For example, Mr. Cliburn, who is the secretary of FOWR, and Ms. Jones use and enjoy the Wekiva River and its springs for canoeing, swimming, birdwatching, and aesthetic enjoyment. They have seen degradation of the river and springs over time. They are familiar with the Wekiwa Spring-Rock Springs BMAP and do not believe it will restore the river and springs, thus affecting their use and enjoyment of the resource in the future. FOWR provides activities for its members to use and enjoy the Wekiva River and its springs, including bird walks, field trips, and nature talks about the natural resources in the Wekiva Basin. FOWR also sponsors clean-up actions for the Wekiva River. FOWR, on behalf of its members, actively participates with governmental agencies concerning protection of the Wekiva River and its springs, FOWR headed up the process leading to the Wekiva River's designation as an Outstanding Florida Water and a National Wild and Scenic River, FOWR aided in the development of the Wekiva Protection Act, and advocated for the installation of sewers in the Wekiva basin. FOWR, on behalf of its members, provided comments and attended meetings concerning DEP’s adoption of the BMAP. DEP designated FOWR as a "stakeholder" in the BMAP development process. FOWR representatives concluded that the BMAP would not adequately protect and restore the springs and river and decided to challenge the BMAP. Members strongly favor pursuing the challenge. FOWR and its members are concerned that failure of the BMAP to adequately address nitrate water quality issues in the Wekiva Basin would adversely affect their substantial interests. The proliferation of algae, damage to fish and wildlife, and loss of water clarity would interfere with and damage their use and enjoyment of the river and springs. Sierra Club, Inc., (Sierra Club) is a national organization comprised of state chapters and local groups. The Suwannee-St. Johns Sierra Club Group (Group) was authorized by Sierra Club to file the petition challenging the Suwannee River BMAP. The mission of the Group is to explore, enjoy, and protect, by any means possible, the natural and wild spaces. There are approximately 2,300 members of the Group. The Group provides information and programs for its members to use and enjoy the Suwannee River Basin and its springs, such as outdoor nature- based exploration activities. Members have expressed concern that filamentous algae are visually impacting their use and enjoyment of the Suwannee River Basin waters and springs; that fishing is diminished; that the habitat does not look like it once did because the submerged and other vegetation are changing; and that people are getting rashes from contact with these waters. Mr. Mericle lives within the Suwannee BMAP basin on the northern Withlacoochee River, and is a member of the Sierra Club. He swims almost daily in the river, fishes, boats, and enjoys the serenity of the river. He is an outings leader for Sierra Club and takes people on canoe and kayak trips on the river. He is concerned that if the goal of the BMAP is not achieved and water quality continues to be diminished or not restored, he will be adversely affected in his guide business, in his property values, and by loss of his intrinsic enjoyment of the river and springs. The Group, on behalf of its members, provided comments to DEP regarding the Suwannee River BMAP. DEP accepted Sierra Club as a "stakeholder" in the BMAP development process. Current Group vice-chair Ms. Jipson and Mr. Mericle testified that their members' substantial interests would be affected if the Suwannee River BMAP is not strengthened. Rainbow River Conservation, Inc. (RRC), is a 501(c)(3) corporation incorporated in 1991. The mission of RRC is to protect and preserve the water quality, the natural beauty, the riverbed, and the floodplains of the Rainbow River, RRC pursues this mission through education, conservation, stewardship, and advocacy. RRC consists of about 250 member families. RRC members are mainly local, with 94 percent living in Florida. About a third of the members live on the Rainbow River. Members of RRC use and enjoy the river and springs in a variety of ways, including kayaking, canoeing, swimming, snorkeling, and diving. Some members enjoy photographing the river and springs and sharing their photography. Mr. Eno, president of RRC, and Senator Jones, an RRC member, testified about their use and enjoyment of the Rainbow River and its springs, including boating, kayaking, and swimming. Board director, Mr. Hart, also testified that he uses and enjoys the Rainbow River for photographing wildlife. Each has observed, and become increasingly concerned, with the degradation of the river and springs. They testified that increases in nitrate, Hydrilla, and algae are adversely impacting their use and enjoyment of the river and springs. RRC provides many programs and activities to protect and preserve the Rainbow River and its springs, including providing a website and brochures to members and the public regarding the river and springs. RRC has organized an annual river clean-up for the past 30 years. Typically, about 150 people participate in the river clean-up. RRC members collect data for river studies to help evaluate the condition of the river. On behalf of its members, RRC addresses governmental agencies about issues concerning the Rainbow River and springs, including at meetings with DEP, the Southwest Florida Water Management District, and the Department of Transportation. RRC was active in the City of Dunnellon’s decision to convert septic tanks to centralized sewers. RRC participated in development of the BMAP for the Rainbow River and springs and was listed as a "stakeholder" in the BMAP. After participating in the BMAP process, RRC decided to challenge the BMAP on behalf of its members because it concluded that the BMAP would not reduce nitrates enough to restore water quality in the river and springs. RRC members support this BMAP challenge. RRC members believe that failure to address water quality problems related to nitrate will affect their substantial interests by continued proliferation of algae. Such proliferation will impact the natural habitat, beauty, and recreational opportunities the RRC members enjoy. Silver Springs Alliance, Inc. (SSA), was incorporated in 2011. Its mission is to protect, restore, and preserve the Silver Springs ecosystem. SSA has approximately 55 dues-paying members, mostly from Marion County. SSA, on behalf of its members, communicates with governmental officials regarding matters affecting the water quality and water quantity of the springs. Mr. Spontak, president of SSA, testified that he has met with county commissioners, state representatives, and state senators about springs issues. Members of SSA use and enjoy Silver Springs and Silver River for kayaking and swimming. Mr. Spontak testified that he kayaks and swims in the river and springs frequently, and has been doing so since the 1950's. He testified that the springs and river once had glistening white sand and bright green eel grass, but over time the condition of the springs and river deteriorated. The silver sand is now covered with a brownish-gray accumulation of dead algae. The main spring, which had been like a fishbowl in the past, is now more of an algal bowl. On behalf of its members, SSA filed the petition challenging the BMAP for Silver Springs because information from scientists involved with this issue indicated that the BMAP would not accomplish the goal of reducing nitrates enough to restore the springs and river. The members are concerned that their substantial interests would be adversely affected by the BMAP's failure to restore water quality. SMC is a 501(c)(3) corporation formed in 1992. It has over 100,000 members and supporters world-wide, with 15,000 in Florida, and around 850 in Volusia County where Volusia Blue Spring is located. The mission of SMC is to protect imperiled manatees and their aquatic habitat for the future. On behalf of its members, SMC is involved in government actions on local, state, and federal levels that may impact manatees and their aquatic habitat. SMC's efforts have been instrumental in furthering manatee conservation and scientific knowledge. SMC established a manatee observer program, where staff and trained volunteers document manatee use of Volusia Blue Spring and provide data on life histories to further species management efforts. Together, over 50 volunteers have documented nearly 1,800 hours of observations. SMC is also instrumental in educating the public and raises funds by allowing members to adopt specific manatees that populate Volusia Blue Spring. SMC maintains both underwater and above- water cameras at the springs to continuously monitor manatees on a webcam. This monitoring allows for research and for members who adopt a manatee to monitor its activities in the spring. This "manaTV" program is very popular, with thousands of viewing hours from more than 100,000 individuals. Mr. Rose, SMC’s executive director, has observed the degradation of Volusia Blue Spring since the 1990's. Mr. Rose testified that more algae is present on the bottom and on plants and sunken tree branches. In the past, the spring looked blue; now, it looks green. He testified that he has observed a steady increase in nitrogen levels and algal growth in the springs. Mr. Rose testified that the algae impacts the manatees in Volusia Blue Spring. Algae attract armored catfish, which aggravate the manatees by constantly moving over them to scrape off epiphytic materials, including skin cells. This irritation causes manatees to constantly roll and move instead of resting and conserving energy. The nuisance may drive them out of the spring into the river, where they may be exposed to cold stress and increased risk of collision with watercraft. Further increase in algae in the spring could attract other exotic species that affect manatees, such as snails that are vectors for parasitic flukes which are known to impact manatees elsewhere. The increase in algae also reduces visibility, which impacts SMC's manatee observation program. SMC participated in development of the Volusia Blue Spring BMAP, attending meetings with DEP. DEP designated SMC as a "stakeholder" in this BMAP development. SMC determined that the proposed BMAP did not address SMC's concerns and decided to file a petition challenging the BMAP. SMC members, including active volunteers, believe that their use and enjoyment of Volusia Blue Spring, and their ability to engage with, observe, and appreciate manatees, is adversely affected by existing water quality problems that seem to worsen. The Organizational Petitioners proved that a substantial number of their members' substantial interests could reasonably be affected if the BMAPs are inadequate to address pollutant loading, and are inadequate to restore and protect the subject rivers and springs. The BMAPs at Issue These proceedings were brought by nine petitioners under joint representation, and Dr. Still, pro se separately. Joint Petitioners challenged five BMAPs adopted in 2018: the Santa Fe River BMAP; the Silver and Rainbow Rivers BMAP; the Suwannee River BMAP; the Volusia Blue Spring BMAP; and the Wekiwa Spring-Rock Springs BMAP. Dr. Still challenged the Santa Fe River BMAP. BMAPs were previously adopted for the Santa Fe River basin in 2012 and for Silver Springs, Rainbow Springs, and Wekiwa River-Rock Springs in 2015. The 2018 BMAPs for these water bodies are revisions or replacements of those earlier BMAPs. The 2018 BMAPs for Suwannee River and Volusia Blue Spring are the first for those waters. In the 2016 legislative session, the Florida Legislature enacted the Act. DEP was required, under section 373.807, to develop and implement BMAPs for all OFSs for which an impairment determination had been made under the numeric nutrient standards in effect for spring vents. For these BMAPs, the relevant standard is 0.35 milligrams of nitrate per liter (0.35 mg- N/l), with the exception of Wekiwa Spring-Rock Springs, where the standard is 0.286 mg-N/l. Of 33 OFSs designated in section 373.802(4), DEP classified 24 as impaired for nitrate, and 15 of the 24 are contained within the areas of the five BMAPs challenged in these proceedings. Both Dr. Knight and Mr. Greenhalgh testified that nitrate levels have increased significantly in OFSs in recent decades, and are continuing to increase. Impacts of elevated nitrate levels in springs are severe. Native aquatic vegetation is largely replaced or smothered by noxious, filamentous algae and other algae. Biological productivity is reduced significantly, and invertebrate and fish populations plummet. Mr. Moran provided pictorial evidence that OFSs are no longer "pools of stunning blue wonder" but are "in ecological collapse." These are some of the signs of impairment that the BMAPs are supposed to eliminate over the next 20 years. BMAP Overview Section 373.807(1)(b) requires that a BMAP for an OFS must be adopted within two years of initiation, must include "[a] list of all specific projects and programs identified to implement a nutrient total maximum daily load [TMDL]"; and an "implementation plan designed with a target to achieve the nutrient [TMDL] no more than 20 years after the adoption of a [BMAP]." DEP "shall develop a schedule establishing 5-year, 10-year, and 15- year targets for achieving the nutrient [TMDL]." A project is a very specific activity happening on the landscape usually a "turn dirt type" where something is being built. A program is a set of existing activities, processes, or strategies. Section 403.067(7)(a) authorizes development of a BMAP as one of the ways to implement a TMDL, the calculation of which establishes "the amount of a pollutant that a water body or water body segment may receive from all sources without exceeding water quality standards." A TMDL is a restoration target. However, TMDLs are not self-implementing and a BMAP is one way to implement a TMDL. Each new or revised BMAP shall include the appropriate management strategies available through existing water quality protection programs to achieve TMDLs, which may provide for phased implementation; a description of best management practices adopted by rule; and a list of projects in priority ranking with a planning-level cost estimate, estimated date of completion, source and amount of financial assistance, and a planning-level estimate of each listed project's expected load reduction. See §§ 403.067(7)(a) and 373.807(1)(b), Fla. Stat. Section 403.067(7)(b) allows implementation of TMDLs through "existing water quality protection programs." These include permitting programs; nonregulatory and incentive-based programs, such as best management practices, cost sharing, waste minimization, pollution prevention, agreements established pursuant to section 403.061(21), and public education; and other water quality management and restoration activities, such as surface water improvement and management plans approved by water management districts. A BMAP also "must include milestones for implementation and water quality improvement, and an associated water quality monitoring component sufficient to evaluate whether reasonable progress in pollutant load reductions is being achieved over time." § 403.067(7)(b)6., Fla. Stat. As Mr. Frick testified, DEP collects and receives water quality data from the projects and programs. DEP then assesses progress by looking at the trend or trajectory of the restoration activities towards achieving the milestones set in the BMAPs. The results of annual updates and scheduled five-year reviews may result in revisions to a BMAP. Each BMAP contains a discussion of strategies to reduce pollutant loads, with a notation of the load reductions necessary at the spring vent, and a summary of the projected load reductions or credits from BMAP actions and policies. In addition, each BMAP includes a set of five-year milestones, with projections to reduce nitrogen loading by certain percentages over five-year increments. Each BMAP has a milestone of achieving the total amount of needed reduction by the 15-year milestone. Priority Focus Areas Section 373.803 requires the delineation of priority focus areas (PFAs) for each OFS or group of springs identified as impaired. DEP must use the "best available data from the water management districts and other credible sources," and "shall consider groundwater travel time to the spring, hydrogeology, nutrient load, and any other factors that may lead to degradation of an [OFS]." In addition, the delineation "shall use understood and identifiable boundaries such as roads or political jurisdiction for ease of implementation." DEP's expert professional geologist, Mr. Hicks, was a primary researcher and author of the PFA reports for each BMAP. Mr. Hicks testified that the PFAs were areas around the springs of greatest vulnerability and impact. PFAs were normally a subset area within the spring shed delineated with the goal of identifying the most vulnerable area closest to the spring vent. Mr. Hicks described the delineation of a PFA as being based on "aquifer vulnerability, which was related, obviously, to the recharge to groundwater, the soil characteristics," and a "boundary that was easily recognizable by lay people, . . . like a road or a county line or an edge of a river." Petitioners raised criticisms regarding the PFA boundaries in some of the BMAPs. In response, DEP's other professional geologist, Mr. Hansen, testified that because the statute required the boundaries to follow easily identifiable features, some of the PFA boundary lines may fall outside of a spring shed and may even overlap with an adjacent PFA or spring shed. Mr. Hansen persuasively testified that DEP sought to limit such overlap as much as possible. In response to questioning by Dr. Still, Mr. Hansen also explained that spring sheds were defined by utilizing existing potentiometric surface maps from the Florida Geological Survey or the United States Geological Survey. Use of these maps allowed DEP to construct flow nets showing the contributing groundwater flow to a spring or group of springs. Mr. Hansen persuasively testified that use of these maps and other data allowed DEP to conservatively define spring shed boundaries. Dr. Still further questioned Mr. Hansen regarding the nonconclusion of certain dairies, wastewater facilities, and large agricultural operations in the PFA boundary for the Devil's Spring system and Hornsby Spring in the Santa Fe River BMAP. Mr. Hansen testified that from a regulatory standpoint, the importance of PFAs concerned the prohibition on new septic systems on lots less than one acre. None of the Petitioners' criticism cast any serious doubts on the validity of DEP's PFA delineation in each BMAP. TMDL Initial Allocations versus Estimated Allocations of Pollutant Loads Petitioners took the position that in adopting TMDLs for the springs, DEP made an "initial allocation of allowable pollutant loads among point and nonpoint sources," within the context of section 403.067(6)(b), which would require further action in the BMAP. That further action would be to establish a "detailed allocation to specific point sources and specific categories of nonpoint sources" in the BMAP. See § 403.067(6)(b), Fla. Stat. The TMDL rules at issue established reasonable and equitable allocations of the TMDL between point versus nonpoint types of sources of pollution. The TMDL rules did not establish an initial allocation of allowable pollutant loads among point and nonpoint sources. There are no direct discharges of wastewater into the OFSs at issue, so there are no allocations established among individual point sources in these TMDL rules. The TMDL rules establish an allocation between point and nonpoint sources specific, but they do not establish an allocation among the categories of nonpoint sources, such as urban turf fertilizer, sports turf fertilizer, agricultural fertilizer, onsite sewage treatment and disposal systems, wastewater treatment facilities, animal wastes, and stormwater facilities. The TMDLs in question provide, as a target, a reduction to a certain concentration. For example, the TMDL for Silver Springs describes, as a waste load allocation for surface water discharges subject to DEP's Municipal Stormwater Permitting Program, a requirement that sources "are to address anthropogenic sources in the basin such that in-stream nitrate concentrations meet the TMDL target." Fla. Admin. Code R. 62-304.500(20). In the case of Silver Springs, the TMDL does not require any reduction to any particular point source or any specific category of nonpoint source. For nonpoint sources in the aggregate, the TMDL requires an overall reduction in anthropogenic sources in the basin in order to achieve a desired endpoint with respect to nutrient concentrations in the springs. In addition, if the waterbody did not meet the TMDL within a planning period, there would be no way of knowing whether the shortfall could be attributed to any specific source or group of sources. For the same reason, the TMDL did not make an initial allocation of allowable pollutant loads. The same analysis would apply to each of the TMDLs implemented by the BMAPs in this case. The TMDLs for the Santa Fe River, rule 62- 304.410(1); for Silver Springs and related water bodies, Florida Administrative Code Rule 62-304.500(20); and for Volusia Blue Spring, rule 62-304.505(15), follow a similar format. The pertinent TMDL for the Suwannee River, rule 62-304.405(2), follows a roughly similar format. The TMDL describes a concentration target, and the next sentence describes a range of reductions necessary to achieve the load allocation. The TMDLs for Wekiwa Spring-Rock Springs show an allocation of percent reductions, based on a period of record from 1996 through 2006. Section 373.807(1)(b) requires that a BMAP for an OFS must include identification of each point source or category of nonpoint sources, and an estimated allocation of the pollutant load for each point source or category of nonpoint sources. The pie charts in section two of each BMAP identified current sources and current load estimates to groundwater from each of the sources described in the pie charts. This estimated allocation was done using the nitrogen source inventory and loading tool (NSILT) described below. The purposes of NSILT and the resulting pie charts were not to establish the TMDL initial or detailed allocations reference above, as argued by Petitioners. The pollutant of concern in each of the BMAPs was nitrogen, which DEP assessed quantitatively as it appears in the form of nitrate. In the instance where phosphorus was raised as a potential pollutant of concern, DEP made a reasonable decision not to conduct a more detailed discussion of strategies to reduce phosphorus concentrations, given that the strategies to address excess nitrates would also act to reduce phosphorus concentrations. Point sources of nitrogen are generally regulated by permits, e.g., wastewater treatment facilities (WWTF). Nonpoint source pollution was the main concern raised in these proceedings. Most nonpoint source nitrogen that leaches into groundwater comes either from land application of urban and agricultural fertilizer, or from human and animal waste. In the Suwannee and Santa Fe BMAP areas, agricultural or farm fertilizer (FF) and livestock waste (LW) are by far the largest sources of nitrogen. In the Silver and Rainbow BMAP areas, septics (OSTDS) leach about as much as agricultural sources. In the Wekiwa Spring-Rock Springs and Volusia Blue Spring BMAPs, leaching from septics and urban turfgrass fertilizer (UTF) predominates. Sports turfgrass fertilizer (STF) is also identified in the BMAP pie charts. An NSILT yielded the pie charts that depict the relative percent contributions of nitrogen from different pollution sources or categories to groundwater for each of the spring systems addressed in the BMAPs. The NSILT tool and the resulting pie charts, took into account mass loading to the spring shed, the biological attenuation factor, and the hydrologic attenuation factor. There was no serious dispute concerning the NSILT tool. In fact, Dr. Knight concurred with the numbers resulting from the DEP's NSILT analysis for the five BMAPs at issue. He opined that the increasingly excessive levels of nitrate seen in the majority of the springs covered by the five BMAPS are coming from human sources at the land surface as exemplified in DEP's NSILT analysis. Dr. Knight testified that the springs occur in areas of karst geology where the Floridan aquifer is vulnerable to any pollutants put at the land surface. Thus, the place to control sources of nitrogen is at or near the land surface within a spring shed or basin. Estimated Nutrient Load Reductions As already noted, each BMAP contains a discussion of strategies to reduce pollutant loads, with a notation of the load reductions necessary at the spring vent, and a summary of the projected load reductions or credits from listed projects, programs, and strategies. In each BMAP, DEP calculated the total load reduction required to meet the TMDL at the spring vents, and, determined percent reductions at the 5-year milestones to reach 100 percent in 15 years. However, DEP stated in the BMAPs that "[w]hile reductions to groundwater will benefit the springs, it is uncertain to know with precision how those reductions will impact the necessary reductions at the spring." DEP's expert witnesses testified that uncertainty involved in the fate and transport of nitrate in groundwater resulted in a lack of sufficient information to find a direct relationship between specific nonpoint source loadings as identified in the pie charts, and the pollutant loadings at the spring vents. Despite this uncertainty, DEP's expert witnesses and the BMAP documents state that the BMAPs are designed to achieve 70 percent of the load reductions needed for the spring vents within 10 years of adoption, and, 100 percent within 15 years. Dr. Knight acknowledged that other experts, including DEP hydrogeologists, had many years of experience with the subject of fate and transport. However, he persuasively testified that nitrate is very stable once it enters the aquifer, i.e., the groundwater, and exits naturally at the spring vents and artificially through well pumping. Further, he acknowledged that "we do have enough information to understand fate and transport enough to know where the loads are coming from and to go after them at the source." Dr. Knight testified that the Blue Water Audit program of the Florida Springs Institute "basically utilize[es] similar tools to DEP for the NSILT analysis." The Blue Water Audit, however, applies an NSILT-type analysis to "every land parcel over five acres in the springs region of Florida so that we have the loads from basically every parcel." The program includes looking at consumptive use, i.e., well pumping, and other factors that were not included in DEP's NSILT analysis. At spring vents, DEP has done isotopic analyses that identify inorganic and organic nitrogen. Dr. Knight testified that since the sources of inorganic nitrogen is fertilizer, and organic nitrogen is animal and human waste, then it is possible to identify categories of nonpoint sources of inorganic and organic nitrogen. Combined with a program like the Blue Water Audit, it is possible to work backwards. Thus, one could get a reasonable estimate of how much the nitrogen load should be reduced at the land surface because "the percentage reduction needed at the spring vent is essentially the same percentage reduction needed at the land surface." The above quoted statements from the BMAPs, and DEP's expert witnesses, cited fate and transport uncertainty as a reason that a direct relationship cannot be drawn between specific nonpoint source categories as identified in the pie charts and the pollutant loadings at the spring vents. However, the BMAPs also recognize that "reductions to groundwater will benefit the springs," and "[l]oad reduction to the aquifer is needed to achieve the load reductions requirements at the spring vent." Thus, each BMAP establishes restoration actions that are "designed to reduce the amount of nutrients to the aquifer, which will reduce the load at the vent and ultimately achieve the necessary reductions." Monitoring of the spring vent during implementation will be employed to monitor progress. The restoration actions include the following: New OSTDS – Upon BMAP adoption, the OSTDS remediation plan prohibits new systems on lots of less than 1 acre within the PFA, unless the system includes enhanced treatment of nitrogen as defined by the OSTDS remediation plan, or unless the OSTDS permit applicant demonstrates that sewer connections will be available within 5 years. Local governments and utilities are expected to develop master wastewater treatment feasibility analyses within 5 years to identify specific areas to be sewered or to have enhanced nitrogen reducing OSTDS within 20 years of BMAP adoption. The OSTDS remediation plan is incorporated as Appendix D. Existing OSTDS – Upon completion of the master wastewater treatment feasibility analyses, FDOH rulemaking, and funding program for homeowners included in the OSTDS remediation plan, but no later than 5 years after BMAP adoption, modification or repair permits issued by FDOH for all OSTDS within the PFA on lots of less than 1 acre will require enhanced treatment of nitrogen, unless sewer connections will be available based on a BMAP-listed project. All OSTDS subject to the policy must include enhanced treatment of nitrogen no later than 20 years after BMAP adoption. WWTFs - The effluent standards listed in Table ES-1 will apply to all new and existing WWTFs in the BMAP area (inside and outside the PFA). [TABLE] UTF – UTF sources can receive up to 6% credit for DEP's approved suite of public education and source control ordinances. Entities have the option to collect and provide monitoring data to quantify reduction credits for additional measures. STF – STF sources include golf courses and other sporting facilities. Golf courses can receive up to 10% credit for implementing the Golf Course BMP Manual. Other sports fields can receive up to 6% credit for managing their fertilizer applications to minimize transport to groundwater. FF – All FF sources are required to implement BMPs or perform monitoring to demonstrate compliance with the TMDL. A 15% reduction to groundwater is estimated for owner-implemented BMPs. Additional credits could be achieved through better documentation of reductions achieved through BMP implementation or implementation of additional agricultural practices, such as precision irrigation, soil moisture probes, controlled release fertilizer, and cover crops. LW – All LW sources are required to implement BMPs or perform monitoring. A 10% reduction to groundwater is estimated for owner-implemented BMPs. Additional credits could be achieved through better documentation of reductions achieved through BMP implementation. OSTDS Remediation Plans Section 373.807(3) provides that as part of a BMAP for an OFS, the DEP and other state and local agencies "shall develop an [OSTDS] remediation plan" if the OSTDSs "within a [PFA] contribute at least 20 percent of nonpoint source nitrogen pollution or if the [DEP] determines remediation is necessary to achieve the [TMDL]." The remediation plan shall identify cost-effective and financially feasible projects necessary to reduce the nutrient impacts from OSTDSs, and shall be completed and adopted as part of the BMAP no later than the first five-year milestone. The five-year period would enable local governments to prepare wastewater feasibility plans to determine where additional sewer facilities are feasible. DEP used the pie charts in each BMAP to determine whether to create an OSTDS remediation plan under the statutory thresholds. DEP also used the pie charts to engage interested parties and make decisions on where additional projects might provide the most benefit. Primarily, the pie charts drove the "policy envelopes" for the OSTDS remediation plans, discussed below. The OSTDS remediation plan for each BMAP included management strategies for pollution from septic systems. The BMAPs provide two general management strategies for OSTDS as a nutrient pollution source. First, each OSTDS remediation plan, at a minimum, implements the statutory requirement that for new development within prescribed PFAs, conventional septic systems are prohibited on lots of less than one acre. Conventional septic systems were not designed for nitrogen removal, and thus, do not include enhanced nitrogen removal technology. The BMAPs in some cases required upgrading by installation of certain technologies to OSTDSs, as permitted by the Florida Department of Health (DOH), which would enhance the nitrogen removal process. However, the BMAPs do not create any performance requirements for septic systems. The BMAPs required the installation of certain technology as permitted by DOH. DEP estimated that upgrading conventional septic systems by installing nitrogen reducing technologies would remove 65 percent of existing nitrates over the term of the BMAP, while abandonment of a system and connection to central sewer would remove nitrates at a factor of 9 percent. That figure took into account the potential for technologies that may evolve over the term of the BMAPs. Second, the statute requires DEP to consider options for existing conventional septic systems. This resulted in the development of conceptual "policy envelopes." The term "policy envelope" refers to a range of four remediation options for applying septic upgrades. The remediation options are detailed in each BMAP's Appendix D. In envelope A, the BMAP would require owners with OSTDSs on lots of less than one acre within the PFA to install an enhanced septic system or connect to sewer. In envelope B, the policy would extend to all lots within the PFA, that is, also for lots one acre or greater. In envelope C, the OSTDS policy would apply to all lots within the PFA, and also to the entire spring shed for lots of less than one acre. In envelope D, the policy would apply to all OSTDSs within the spring shed. DEP anticipates that within the first five years after the BMAPs are adopted, it would need to modify the BMAPs for the OSTDS remediation plans to become final and effective. In the case of the Volusia Blue, Wekiwa-Rock, and Silver and Rainbow BMAPs, it would be necessary to amend the BMAPs to adopt, within the OSTDS plan, a requirement to enhance or abandon existing septic tank systems. For the Silver Spring and Rainbow Spring BMAP, for the Volusia Blue Spring BMAP, and for the Wekiwa Spring-Rock Springs BMAP, DEP added a "backstop provision" in section D.1.3 of Appendix D. That provision takes into account the existing OSTDS policy, which would require the installation of an advanced septic system at the time it is replaced or a connection to central sewer. Under the backstop provision, the homeowner must perform the upgrade no later than 20 years after BMAP adoption. Petitioners' experts testified that DEP made two calculation errors in its NSILT analysis when estimating the amount of nitrogen that reaches groundwater from conventional septic systems. These errors relate to population factors and environmental attenuation factors (EAF). DEP used the United States Environmental Protection Agency's (EPA) national average nitrogen generation rate of 9.012 lbs-N/person/year. However, DEP then applied an "effective population factor" that adjusted the number of people per household to account for daytime residential absenteeism. DEP's expert, Mr. DeAngelo, admitted that the calculations erroneously adjusted for absenteeism, which was already taken into account in EPA's figures. He also testified that DEP would correct this point in the next BMAP revision. DEP's witnesses explained that the calculation error affected both the loading projections as well as the projected credits for nutrient reductions. However, the recalculation would not lead to a change in management strategies in any of the BMAP OSTDS remediation plans, largely because the changed calculation would increase both existing loading, as well as future credits. Agricultural Best Management Practices Each BMAP must include a description of suitable interim measures or best management practices (BMPs) for agricultural and nonagricultural nonpoint pollutant sources. These BMPs may be adopted by rule by DEP for nonagricultural BMPs, and by the Department of Agriculture and Consumer Services (DACS) for agricultural BMPs. BMPs that are a means of achieving reductions in nitrogen loading from agricultural sources are described in manuals. The manuals for agricultural BMPs are incorporated by reference in rules adopted by DACS. Other than existing BMPs, and some cost-sharing programs authorized by separate legislation, DEP had no more effective means to reduce nutrient loading from agricultural sources in the BMAPs at issue. Petitioners' expert, Dr. Knight, suggested that DEP could increase the likelihood of TMDL compliance by imposing restrictions on agricultural activities. However, even Dr. Knight acknowledged that DEP's existing statutory authority was limited. DEP's expert witnesses testified that DEP did not adopt policies other than BMPs for the control of nutrients from agricultural sources, it did not limit agricultural practices beyond what was required in BMPs, and it did not require any changes in land use, because it did not have the statutory authority to do so. The BMAPs include a discussion of policy alternatives that the Department may pursue if BMPs prove to fall short. For example, the Santa Fe BMAP states that: Section 403.067, F.S. requires that, where water quality problems are demonstrated despite the proper implementation of adopted agricultural BMPs, FDACS must reevaluate the practices, in consultation with DEP, and modify them if necessary. Continuing water quality problems will be detected through the BMAP monitoring component and other DEP and SRWMD activities. If a reevaluation of the BMPs is needed, FDACS will also include SRWMD and other partners in the process. Joint Exhibit 1 at 94. The BMAPs include descriptions of certain agricultural practices that are not included in any adopted BMP manual. These are generically referred to as "Additional Agricultural Reduction Options," or "advanced agricultural practices." Those activities, if pursued, might lead to additional reductions in loading from those agricultural sources. The BMAPs also include information on practices that may be developed "beyond BMP implementation" to achieve additional reductions with the qualification that those practices may require funding and additional design. Petitioners presented evidence regarding alleged shortcomings in the process of verifying the relative success of certain BMPs. DEP's expert witness, Mr. Frick, testified that DEP participates in an "initial verification" of agricultural BMPs, and determines, based on best professional judgment and research, that implementing those BMPs would improve water quality. Mr. Frick also testified that DEP has conducted initial verification of each BMP at issue in this proceeding. DEP's initial verification occurs before DACS adopts a BMP by rule. Petitioners' presentation of alleged shortcomings in the verification process of DACS adopted rules was more in the nature of an administrative rule challenge, which was not within the scope of this proceeding. Mr. Frick testified that DEP has acted with knowledge of a statutory obligation to perform a "confirmatory verification" regarding the effectiveness of agricultural BMPs. DEP has performed confirmatory verifications on only two agricultural BMPs, and neither of those BMPs are cited in the BMAPs at issue in this case. Section 403.067(7) provides that a re-evaluation of a BMP may be required when water quality problems are shown, "despite the appropriate implementation, operation, and maintenance of best management practices, and other measures required by rules adopted under this paragraph." However, DEP is not required to conduct a confirmatory verification as a condition that must occur before it can rely on the BMP in a BMAP. DEP made a projection, in the BMAPs, of nutrient reductions that could be achieved through the implementation of BMPs. The parties presented disputed evidence regarding the percentage of reductions that might be achieved through implementation of those BMPs. But the factual disputes regarding the relative effectiveness of BMPs did not change the limits of DEP's statutory mandate to use BMPs for the control of nutrients from agricultural sources. The preponderance of the evidence showed that DEP made reasonable estimates of expected nutrient reductions that could be achieved through the implementation of agricultural BMPs. Projected Credits and Projected Reductions Each BMAP contains a discussion of strategies to reduce pollutant loads, with a notation of the load reductions necessary at the spring vent, and a summary of the projected load reductions or credits from BMAP actions and policies. Also, each BMAP includes a set of five-year milestones, with projections to reduce nitrogen loading by certain percentages over five-year increments. Each BMAP has a milestone of achieving the total amount of needed reduction by the 15-year milestone. For the Santa Fe BMAP, the upper range of estimated potential credits from existing BMAP policies and existing credits, together with "Advanced Agricultural Practices and Procedures," is 1,248,134 pounds of nitrogen per year (lb/yr). This amount is substantially less than the needed reduction of 1,853,372 lb/yr. The discussion of "Advanced Agricultural Practices," as with similar discussions in other BMAPs, is based on a range of 10 percent to 50 percent reduction from 100 percent of fertilized agricultural acres. The Santa Fe BMAP also addresses other potential policies in the future that may increase the likelihood of achieving the TMDL. Notably, Table 15 of the BMAP includes a summary of "[p]otential for additional load reductions to groundwater," based on a summary of fertilized acres with a potential change in practice, and a range of potential reductions from 1 to 100 percent. The Silver and Rainbow BMAP addresses two spring basins. The estimated potential credits fall short for both basins. The upper range of total credits for the Upper Silver River BMAP area of 691,719 lb/yr, is less than the needed reductions in the amount of 930,135 lb/year. The upper range for the total credits for the Rainbow Spring Group and Rainbow River BMAP is 508,644 lb/yr compared to needed reductions in the amount of 1,783,607 lb/yr. The OSTDS remediation plan for the Silver and Rainbow BMAP would apply to all OSTDSs within the BMAP boundaries. The BMAP requires that when it is necessary to repair or replace an OSTDS, the owner would install a system with enhanced treatment of nitrogen. In addition, all OSTDSs would be required to adopt enhanced treatment or connect to central sewer no later than 20 years after BMAP adoption. The Silver and Rainbow Springs BMAP proposes several initiatives on top of the existing management strategies, policies, and programs. These initiatives include additional reductions from urban turf fertilizer, and additional options in agricultural practices. The BMAP also includes the discussion, "Commitment to Implementation," reflecting a consensus agreement among interested parties to implement additional policies and reduce nitrogen discharges. Also, and particularly notable given the conditions discussed below, the BMAP plans additional actions to identify locations with consistently high nitrate concentrations for the purposes of prioritization, additional policy implementation, or remediation of identified sources. As explained in the BMAP, the instream nutrient calculations for the Rainbow Spring Group and Rainbow River yielded unexpected results. This presented a substantial challenge for restoration of the spring. The total loading calculated for the Rainbow Spring Group and Rainbow River BMAP area is substantially larger than what was estimated using the NSILT. There are several possible explanations for this difference: Legacy loads already in groundwater have moved through the system to be discharged at the springs. Rainbow Spring Group is discharging water that may be originating in DEP's defined Silver Springs and Upper Silver River BMAP area. There is an unidentified source(s) of loading not accounted for in the NSILT analysis. Hydrogeological changes have occurred that move water more quickly to the springs potentially reducing the attenuation of sources. The policies and submitted projects included for the Rainbow Spring Group and Rainbow River BMAP area will achieve a reduction of 340,689 to 508,644 lb/yr to groundwater. While reductions to groundwater will benefit the springs, DEP is uncertain how those reductions would impact the necessary reductions at the springs. As projects are implemented, DEP will continue to monitor the springs to evaluate those reductions against the required load reductions. The BMAP is designed to achieve 70 percent of the load reductions needed for the spring vents within 10 years of adoption and 100 percent within 15 years. DEP will evaluate progress towards the milestones for both Silver Springs and Rainbow Spring Group and will report to the Governor and Florida Legislature on both BMAP areas. DEP will adjust management strategies to ensure the target concentrations are achieved, including periodic water quality evaluations and estimation of loading from the spring vents. This may include additional policy implementation or adjustment and development of improved or new BMPs to address nitrogen sources, or expanding the area to which the OSTDS remediation policies apply. Any such changes would be incorporated into an updated BMAP through a formal adoption process. Current policies and submitted projects for both BMAP areas provide less than the required reductions. Additional strategies and actions could be identified through modeling and data analysis tools that can identify groundwater locations with consistently high nitrate concentrations, and assist in determining reasons for the high concentration of nitrate. These areas may need prioritization for policy implementation, additional policy implementation or adjustment, or simply the remediation of identified sources. An additional source identification effort described in Section 1.6.4 is a potentially collaborative effort between DEP, state agencies, local governments, and the water management districts. As with other BMAPs, the Silver and Rainbow BMAP includes milestones for reducing nitrogen loading in five-year increments so that it achieves 100 percent of the needed reductions at the time of the 15-year milestone. For the Suwannee BMAP, the upper range of total potential credits of 4,859,027 lb/yr exceeds the needed reduction of 4,075,935 lb/yr. However, the figure for credits relies extensively on "Advanced Agricultural Practices and Procedures," based again upon a certain percentage of reduction from fertilized acres with a change in practice. Those practices are encouraged, but not required, in the BMAP. Implementation of those practices will require additional funding and more detailed design. For the Volusia Blue BMAP, the lower range of total potential credits of 169,714 lb/yr far exceeds the needed reductions of 61,653 lb/yr. The majority of those credits are derived from reductions in OSTDS discharges. For the Wekiwa-Rock BMAP, the lower range of total predicted credits of 311,612 lb/yr exceeds the needed reductions of 209,428 lb/yr. The majority of those credits are derived from reductions in OSTDS discharges, and with a substantial contribution from improvements in wastewater treatment facilities. In summary, each of the BMAPs include an estimate of the total reductions that may be achieved through implementation of projects, and also include an estimate of the load to groundwater. Some of those estimated reductions, i.e., advanced agricultural practices, are not mandated, are not within DEP's statutory authority to mandate, and are likely to require additional funding and stakeholder commitment. Each BMAP includes a series of five-year milestones for achieving the total reductions by the fifteenth year, and DEP is required to submit a report to the Legislature if it determines that those milestones will not be met. See § 403.0675, Fla. Stat. DEP's experts testified that while a comparison of credits and necessary load reductions may be useful in selecting the appropriate suite of management strategies, a direct comparison is not overly meaningful, because of DEP's position regarding uncertainty in the fate and transport of nutrients. Dr. Knight's testimony regarding fate and transport of nutrients was persuasive. However, DEP was correct that ultimate success can only be determined by monitoring at the spring vent. Petitioners' "global issue" argument appeared to be that the BMAPs must be perfect when first adopted. However, Petitioners' contention was not supported by the evidence and the law discussed below. Even where the projected benefits from projects and programs fall short of the projected required reductions, DEP fulfilled its duty to create implementation plans designed with a target to achieve the TMDL within 20 years. For each BMAP, DEP pursued reasonable strategies, within its existing statutory authority, to achieve the milestones and the restoration targets. Future Projections Each BMAP contained a discussion of future growth management strategies, and that section identified mechanisms that would address future increases in pollutant loading. This section of the BMAPs provided the information required in the only statutory mandate on the subject. See § 403.067(7)(a)2., Fla. Stat. The record reflects that DEP had access to data that shows reasonable projections of increased population in the BMAP areas, as well as increases in agricultural uses. DEP did not include those projections in the proposed BMAPs based on its experience with other programs. For example, Mr. Frick testified that in a similar program, the implementation of a "reasonable assurance plan" for Tampa Bay, the plan was able to achieve the restoration goal notwithstanding an increase of over one million people to the population. Mr. DeAngelo testified that as populations increase, the increase is offset by installation of wastewater treatment facilities, which are more efficient than advanced septic systems in reducing nitrogen loading. Thus, DEP reasonably concluded that restoration goals can be achieved notwithstanding substantial increases in population. This is particularly true where "mechanisms," such as legal land use restrictions, are put in place while a plan is implemented. On those occasions where growth may create new challenges for meeting the restoration target, increases in loading will be controlled to the maximum extent permitted by existing legal authority. Contrary to Petitioners' contentions, the NSILT tool, while useful for showing conditions at a given point in time, was not useful for running hypothetical scenarios to depict what may happen in the future. Petitioner Paul Still's objections DEP determined that three springs in the Santa Fe River Basin are impaired OFSs. The three springs are Devils Ear Spring; Hornsby Spring; and the Ichetucknee Spring Group. Petitioner Still initially alleged that DEP erroneously concluded that Santa Fe Spring was not an OFS. Petitioner Still withdrew that allegation on the record, and DEP's expert, Mr. DeAngelo, confirmed that Santa Fe Spring was not impaired. Petitioner Still took issue with DEP's use of a monthly average as a restoration target in the Santa Fe BMAP. In the Santa Fe/Suwannee Technical Report for the nutrient TMDL in the Suwannee and Santa Fe Basins, DEP explained the reason for using a monthly average as follows: In conclusion, based on the information currently available, the Department believes that a monthly average nitrate concentration of 0.35 mg/L should be sufficiently protective of the aquatic flora or fauna in the Suwannee and Santa Fe River Basins. A monthly average is considered to be the appropriate time frame as the Suwannee periphyton data set was based on a 28 day deployment and a the response of algae to nutrients is on the order of days to weeks. An elevated pollutant concentration in the system alone does not necessarily constitute impairment as long as there is no negative response from the local aquatic flora or fauna. Based on information provided above, 0.35 mg/L nitrate is the target concentration that will not cause an imbalance in the aquatic flora or fauna in the Suwannee and Santa Fe River Basins. DEP Exhibit 3 at page 68. Petitioner Still also took issue with DEP's discussion of the restoration target stated in the Santa Fe TMDL, which refers to nitrate, as opposed to other nitrate compounds. Mr. Frick explained that DEP, in the TMDLs, generally referred to total nitrogen as opposed to a discussion of more specific nitrogen compounds. This usage was appropriate, given the ultimate conversion of organic nitrogen compounds to nitrate. Petitioner Still raised an issue regarding whether it would be appropriate to create two BMAPs for the Santa Fe basin, and to make separate analyses for the lower and upper basins. However, because pollutants from the upper basin flow to the lower basin, DEP's creation of a BMAP for the entire basin is reasonable. No persuasive evidence to the contrary was presented. Petitioner Still noted that the PFA for the Santa Fe BMAP extended in some cases beyond the springshed. This was necessary, in some instances, to follow identifiable boundaries. Other objections raised by Petitioner Still were considered and rejected as irrelevant or unpersuasive. Summary Each BMAP included the appropriate management strategies available through existing water quality protection programs to achieve TMDLs, a description of BMPs adopted by rule, and a list of projects in priority ranking. Each BMAP included a list of projects for which certain information was unavailable, and thus the information was not included. Each DEP witness, who was the basin management coordinator for that BMAP, persuasively testified that they undertook best reasonable efforts to find the information. Those efforts will be ongoing throughout the life of each BMAP. Each BMAP included a priority rank for each listed project, given the context and explanation provided in the text of the BMAP. That text, together with the list itself, showed the priority rank for each listed project. Each BMAP included a description identifying mechanisms that would address potential future increases in pollutant loading. Petitioners did not present any persuasive evidence that the descriptions of those mechanisms were untruthful or inaccurate. Each BMAP was designed with a target to achieve the TMDL within 20 years after adoption. The water quality monitoring component in each BMAP was sufficient to evaluate whether reasonable progress in pollutant load reductions will be achieved over time. Each BMAP included all the information required by the Act and section 403.067(7).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Department of Environmental Protection enter a Final Order approving the five separate orders issued by the Secretary on June 29, 2018, adopting five BMAPs for the Suwannee River, the Volusia Blue Spring, the Silver Springs-Rainbow Spring Group, the Santa Fe River, and the Wekiwa Spring-Rock Springs. DONE AND ENTERED this 17th day of February, 2021, 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 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2021. COPIES FURNISHED: Jeffrey Brown, Esquire Department of Environmental Protection, Office of the General Counsel 3900 Commonwealth Boulevard Mail Stop 35 Tallahassee, Florida 32399-3000 Carson Zimmer, Esquire Kenneth B. Hayman, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard Mail Station 43 Tallahassee, Florida 32399-3000 Anne Michelle Harvey, Esquire Save the Manatee Club 500 North Maitland Avenue, Suite 210 Maitland, Florida 32751 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 8770 Dr. Martin Luther King, Jr., Street N St. Petersburg, Florida 33702 Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, Florida 32301 Douglas Harold MacLaughlin, Esquire 319 Greenwood Drive West Palm Beach, Florida 33405 Paul Edward Still 14167 Southwest 101st Avenue Starke, Florida 32091 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
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)
The Issue Appendix "A" to the final order describes the issues of fact and law which must be resolved.
Findings Of Fact This proceeding is a Subsection 120.54(4), Florida Statutes, rule challenge to proposed Rule 40C-61 proposed by St. Johns and published in Volume 20, Number 44, on pages 8142 through 8151, of the November 4, 1994, issue of the Florida Administrative Weekly (FAW), as subsequently modified by St. Johns' Governing Board on December 14, 1994, and January 11, 1995. The proposed rule adopts Lake Apopka; the Lulu Creek, Teacup Springs, and Fullers Cross tributaries; the Lake Level, and Apopka-Beauclair canals, and the McDonald canal west of the Zellwood Drainage and Water Control District exterior levee; as "works of the District," and collectively refers to them as the "Lake Apopka works of the District." With certain exceptions not relevant to this proceeding, the proposed rule requires persons who discharge water into any of the Lake Apopka works of the District to obtain a works of the District permit. The proposed rule then establishes a maximum number of pounds of phosphorus per year which may be discharged into these Lake Apopka works of the District from controllable sources (the "nutrient limitation"). The nutrient limitation is divided into several source categories one of which is any agricultural operation existing on January 1, 1995, which discharges water to any of the Lake Apopka works of the District by incorporating a pumped discharge from stationary or portable facilities ("pumped agriculture"). The pumped agriculture source category is collectively limited to 10,351 pounds of phosphorus annually. Zellwood is a legislatively created water control district authorized, among other things, to provide for drainage works and water supply for the lands located within its geographical boundaries. Zellwood covers approximately 8,700 acres which are primarily devoted to the growing of vegetables. The landowners own and farm the land within Zellwood. Zellwood also owns land within its boundaries. In connection with the agricultural operations conducted by landowners, and in connection with the functions Zellwood carries out in order to meet its responsibilities to landowners, Zellwood periodically discharges water containing phosphorus to the Lake Level Canal and Lake Apopka through a pump system which it operates for the benefit of the landowners. The landowners will be required to obtain an individual works of the District permit under the proposed rule because the landowners are agricultural operations existing on January 1, 1995, which discharge water, directly or indirectly, to Lake Apopka and Lake Level Canal by incorporating a pumped discharge from stationary or portable facilities. The proposed rule allows persons required to obtain individual permits to submit a collective application for an individual permit based upon a management plan for a defined geographic area. Zellwood will submit a collective application for an individual permit for the landowners. Under a collective application, to obtain an individual permit and comply with the proposed rule, Zellwood will have to reduce the 40,675 pounds of phosphorus per year which Zellwood is currently allowed to discharge to Lake Level Canal and Lake Apopka under a Consent Order between Zellwood and St. Johns, to 6,873 pounds of phosphorus per year. Zellwood is substantially affected by the proposed rule. Lake Apopka is designated by the Department of Environmental Protection (DEP) as a Class III water body. (Rule 17-302.600(1), Florida Administrative Code) The designated uses for Class III water bodies are" "[r]ecreation, propagation and maintenance of a healthy, well balanced population of fish and wildlife." (Rules 17.302.400(1) and 17.302.600(1), Florida Administrative Code) For water quality standard purposes, phosphorus is categorized as a nutrient. The nutrient standard for Class III water bodies is: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna." (Rule 17.302.530 (48)(b), Florida Administrative Code). Florida law provides no generally applicable numeric standard for Class III water bodies for phosphorus. The transparency water quality standard for Class III water bodies is "[d]epth of compensation point for photosynthetic activity shall not be reduced by more than 10 percent as compared to natural background value." (Rule 17- 302.530(68), Florida Administrative Code) The "[c]ompensation point for photosynthetic activity" is defined as "the depth at which one percent of the light intensity at the surface remains unabsorbed." (Rule 17-302.200(5), Florida Administrative Code) Rule 17-302.200(13), Florida Administrative Code, defines "[n]atural background" as "the condition of water in the absence of man-induced alterations based on the best scientific information available to the Department." The rule further provides that: "[t]he establishment of a natural background for an altered waterbody may be based upon a similar unaltered waterbody or on historical pre-alteration data." Lake Apopka is a hyper-eutrophic lake enriched with nutrient levels that exceed the Class III standard for nutrients. Lake Apopka also does not currently meet the Class III water quality standard for transparency. In order to determine, for purposes of the proposed rule, the maximum number of pounds of phosphorus per year from all sources which could be discharged into Lake Apopka to cause the lake to meet the Class III water quality standard for the nutrient phosphorus and the Class III standard for transparency, St. Johns staff conducted analyses intended to determine the historic water chemistry conditions in Lake Apopka to establish values for the natural background condition of the lake. St. Johns used this information to determine goals for the major indicators of trophic state (total phosphorus, chlorophyll a, and secchi depth) which, if attained, would cause the lake to once again meet Class III standards. The St. Johns' analyses to determine the historic water chemistry of Lake Apopka and the goals for the major indicators of trophic state consisted of: (a) an analysis of reference lakes which are not as severely impacted by human activities as Lake Apopka which St. Johns believed to be comparable to what Lake Apopka would be; (b) an analysis of using an empirical model that related phosphorus concentrations to other water quality constituents to estimate pre-impact conditions and the minimum quality allowed by Class III standards; and (c) an input-output model. Zellwood does not dispute the analysis which was used in the empirical model or the input-output model analysis. St. Johns then used the steady-state formulation of Volenweider's 1969 input-output model to predict the equilibrium phosphorus concentration in Lake Apopka under various phosphorus loading scenarios. A variable which is used by this Volenweider model is a sedimentation coefficient. St. Johns defined the sedimentation coefficient as the mean annual net deposition of phosphorus to the sediments divided by the mean lake water mass of phosphorus. The sedimentation coefficient value St. Johns used in the model was developed from data obtained from two sets of lake sediment samples taken 19 years apart. Using this sedimentation coefficient in the Volenweider model, St. Johns determined the equilibrium concentration of phosphorus in Lake Apopka that would be predicted to result from various levels of phosphorus loading. St. Johns also developed an external nutrient budget for Lake Apopka by measuring phosphorus inputs and outputs to the lake over a four year period. Sedimentation coefficients were also developed from this nutrient budget. Using information from the nutrient budget, St. Johns categorized phosphorus contributions into Lake Apopka into uncontrollable and controllable sources. Using information obtained from the Volenweider modeling effort, St. Johns determined the maximum amount of phosphorus from all sources which it believed could be put into Lake Apopka to allow the lake to achieve Class III water quality standards. St. Johns then subtracted the annual pounds of phosphorus contributed to Lake Apopka from uncontrollable sources to determine the maximum amount of phosphorus that St. Johns believes can be contributed to Lake Apopka from controllable sources to allow the lake to achieve Class III water quality standards. The maximum amount of phosphorus which St. Johns believes can be contributed to Lake Apopka from controllable sources to allow the lake to achieve Class III water quality standards became the nutrient limitation set forth in the proposed rule. The proposed rule contains a methodology for calculating adjustments to the nutrient discharge limitation in response to rainfall events. In paragraph 11.B.2. of its petition, Zellwood alleged that this rainfall adjustment methodology is arbitrary and capricious. Zellwood now withdraws this count of the petition, and does not dispute the rainfall adjustment methodology contained in the proposed rule. The water level in Lake Apopka is controlled by a structure known as the "Apopka Lock and Dam," which is operated by St. Johns. St. Johns establishes and controls the water levels in Lake Apopka through its operation of the Apopka Lock and Dam. Lake Level Canal has a free connection with Lake Apopka, and the water level in Lake Level Canal rises and falls in relation to the rise and fall of the water level in Lake Apopka. St. Johns establishes and controls the water levels in Lake Level Canal by establishing and controlling the water levels in Lake Apopka. ZELLWOOD'S SERVICES TO LAND OWNERS AND OPERATIONS Zellwood is a special drainage and water control district in Orange County, Florida. It was created in 1941 under Chapter 20715, Laws of Florida. The landowners own and farm the majority of the land within Zellwood's boundaries. Zellwood owns a small portion of the land within its boundaries, including portions of the Lake Level Canal. Zellwood discharges stormwater directly to Lake Apopka. It also discharges stormwater into canals that flow into Lake Apopka. These discharges principally occur during periods when the stormwater cannot be used for irrigation and must be pumped from the land surfaces into the receiving waters. It is not the annual amount of rainfall that promotes the discharge, it is the frequency, intensity and distribution of the rainfall that promotes the discharge. Zellwood receives approximately 51 inches of rainfall annually. That amounts to 12 billion gallons of stormwater. In an average year Zellwood would also take from 1 to 2 billion gallons from Lake Apopka for irrigating crops or flooding the land to control nematodes. The 51 inches of rainfall received by Zellwood contains approximately 6,100 pounds of phosphorous. The lake water pumped onto the Zellwood properties contains as much as 2,800 pounds of phosphorous. Zellwood pumps approximately 4 to 5 billion gallons of water to Lake Apopka or the Lake Level Canal per year, constituted of rainwater and the lake water which it uses for irrigation and flooding. The rainfall which is discharged constitutes 30 or 40 percent of the rainfall received by Zellwood. To satisfy the budget requirements for phosphorous called for by the proposed rule in its allocation, Zellwood would need to construct a settling pond of at least 800 to 1200 acres to control phosphorous discharge above the amount allocated by the proposed rule. According to the proposed rule, pumped agriculture, such as the Zellwood properties may only discharge .79 pounds of phosphorous per acre per year. Zellwood owns interest in the Lake Level Canal from the bank on the canal that is associated with its property to the centerline of the canal itself. WORKS OF THE DISTRICT Historically St. Johns has declared naturally existing water bodies to be works of the District for its regulatory purposes. LAKE APOPKA: PRESENT AND IMMEDIATE PAST HISTORY Lake Apopka is a naturally existing water body. Lake Apopka is a large shallow lake in central Florida. Its surface area covers approximately 30,000 acres. Its average depth is approximately 6 feet. In its recent history Lake Apopka has been severely impacted by natural and artificial events. A hurricane uprooted the majority of native aquatic plants in Lake Apopka in 1947. At that time Lake Apopka was dominated by aquatic macrophytes, large aquatic plants. Following the hurricane event the large aquatic plants have never been reestablished in the lake. At present the lake is dominated by a phytoplankton-based community (algae). When the Apopka-Beauclair Canal was opened to connect Lake Apopka to a down stream chain of lakes, Lake Apopka was lowered approximately three feet. The lowering of the water depth in Lake Apopka to make this connection had an impact on the lake. In its recent history Lake Apopka has been impacted by sewage effluent discharge from the City of Winter Garden, Florida, discharges from adjacent citrus processing facilities and discharges of excess stormwater from adjacent vegetable farms, all contributing to the nutrient loading in the lake. Lake Apopka was further impacted by attempts to control water hyacinth in the lake by spraying those plants with herbicides and leaving them to decompose. In the late 1950s, 20 million pounds of gizzard and threadfin schad were killed and left to decompose in the lake. The spraying of hyacinth and the fish kills adversely impacted Lake Apopka. All the events described contributed to the lake being dominated by phytoplankton and exceeding Class III water quality standards that have been previously discussed. The events described have had an influence on the material deposited at the lake bottom. Adjacent to the water column in the lake is a significant deposit of unconsolidated flocculent material. Beneath that layer is a layer of consolidated flocculent material. The overall flocculent material contains large amounts of phosphorous. The flocculent material hinders the attachment of aquatic macrophytes and the ability for gamefish to successfully inhabit the lake. The unconsolidated and consolidated layers are distinguished in appearance and consistency. The consolidated layer contains the remains from aquatic macrophytes and remains of snails that lived on those plants. The unconsolidated layer does not contain those materials. Both layers contain deposits of algal cells and allochthonous particulate organic material. STATUTES AND RULES St. Johns cites to Sections 373.044 and 373.113, Florida Statutes, for its specific authority to adopt the proposed rule. It cites as laws implemented by the proposed rules, Section 373.085, 373.086 and 373.103, Florida Statutes. Chapter 85-148, Laws of Florida, directs St. Johns to engage in a pilot project to determine a technically and economically feasible method of restoring Lake Apopka to Class III water quality standards. The State Water Policy found in Chapter 17-40, Florida Administrative Code, also reminds St. Johns to reduce pollutant loadings from older stormwater management systems, as necessary, and to restore or maintain the beneficial uses of waters through implementation of basin specific rules. The basin in question here is the Lake Apopka drainage basin which includes works of the District adopted by proposed rule 40C-61. TECHNICAL AREAS FOR RULE DEVELOPMENT Here the major technical areas for rule development included: The establishment of target phosphorous concentration for a restored Lake Apopka; Use of the Volenweider model to determine the amount of external loading that would permit the lake to reach the target phosphorous concentration; and Development of an external phosphorous budget based upon external sources of phosphorous introduced to the lake as a means to allocate allowable discharges of phosphorous among the external sources. HISTORIC WATER CHEMISTRY AS A MEANS TO ESTABLISH VALUES FOR NATURAL BACKGROUND CONDITIONS IN THE LAKE AND TO SET GOALS FOR THE MAJOR INDICATORS OF TROPHIC STATE (TOTAL PHOSPHOROUS, CHLOROPHYLL a AND SECCHI DEPTH), AS EQUATED TO PHOSPHOROUS CONCENTRATION FOR A RESTORED LAKE APOPKA DEP Class III water quality standards contemplate establishment of "natural" or "natural background" conditions. In the proposed rule, to approximate the natural condition in Class III waters St. Johns was interested in determining the maximum number of pounds of the nutrient phosphorous that could be discharged per year from all sources into Lake Apopka and adequately address Class III water quality standards as described and interpreted by St. Johns in developing the proposed rule. In associated topics for Class III water quality considerations examined in the proposed rule, secchi-depth is a measurement related to water transparency. Chlorophyll a information indicates the number of particles or standing stock of algae that would affect transparency. Total phosphorous is involved with the issue of transparency in that it influences chlorophyll a. Through its analyses St. Johns attempted to establish a target concentration for phosphorous in Lake Apopka which would reflect the pre- impacted condition in Lake Apopka. Without establishing that target concentration St. Johns was persuaded that the lake could not be restored to natural conditions/Class III standards as St. Johns perceived those standards in the rule development. To achieve its end St. Johns made analyses which were intended to determine the historic water chemistry conditions in Lake Apopka that were equivalent to the natural condition of the lake. In carrying out its task St. Johns was unable to resort to an analysis of water chemistry samples taken from Lake Apopka in its pre-impacted condition because such samples did not exist. In particular St. Johns analyses of the historic water chemistry (natural conditions) consisted of: An analysis of reference lakes which were not believed to be as severely impacted by human activities as Lake Apopka; An analysis using an empirical model that related phosphorous concentrations to other water quality constitutes to estimate pre-impact conditions; and An input/output model. As described before Zellwood does not dispute the use of the empirical model or the input/output model, other than whether St. Johns used the mean or median from the range of data derived from those analyses, and if it did, whether that depiction of the results from the analyses was an arbitrary or capricious choice. St. Johns did not use a mean or median value to depict the data derived from the input/output model or the empirical model. St. Johns did perform a sensitivity analysis associated with the empirical model to determine the effect on the results by modifying input levels. There were two parts to the reference lake analysis. In the first part St. Johns examined geologic and physiographic maps of Florida as a means to select lakes for the analysis that were fairly large in surface area and were in similar geologic strata compared to Lake Apopka. In this part St. Johns also examined whether there were large wetlands in the watershed for the lakes under consideration and whether those lakes had a large river flowing through them. Those were matters of concern because they tend to affect the water quality of a lake. Because the results of the selection process in the first part were criticized, St. Johns performed a second part to the analysis and used those results. In the second part of the referenced lake study St. Johns started with a data set of 134 Florida lakes. These lakes were then screened through four filters which were designed to exclude those lakes that did not have physical characteristics similar to Lake Apopka. St. Johns proceeded on the basis that these physical characteristics would affect a lake's water quality. Beyond the use of filters to eliminate certain lakes, St. Johns also removed lakes which were saline or esturaine in nature, and those known to be in an impaired condition and for which there did not exist water quality information concerning their pre-impaired condition. This process also required removing Lake Apopka from the analysis for purposes of using data about the lake in the analysis. Those lakes that remained after the screening process in the second part of the referenced lake study were lakes which basically met Class III water quality standards or had pre-impairment data available for comparison. The level of phosphorous concentrations in those nine lakes represented a broad range of trophic states. To check the appropriateness of the filters used in the second part to the referenced lake study, St. Johns performed a sensitivity analysis by passing data about the 134 lakes through the same four filters in a process which reduced the most restrictive filter and increased the least restrictive filter in their numeric values. When the more restrictive filter was reduced, only Lake Apopka remained in the analysis. This indicated that the use of a more restrictive value was not appropriate because only Lake Apopka would be left. By increasing the numeric value in the least restrictive filter, this left more than nine lakes with a median phosphorous concentration of 48 parts per billion (ppb). This compared with a mean phosphorous concentration for the nine lakes from the initial part of the study of 46 ppb. This comparison indicated that increasing the least restrictive filter to include more lakes in the study did not substantially change the median value for phosphorous. Phosphorous concentrations in the nine lakes resulting in the second part to the referenced lake analyses, before the sensitivities check was made, ranged from 11 to 76 ppb. Those ranges fell in a bell-shaped distribution. The frequency distribution for the values in the nine lakes studied in the second part to the referenced lake analysis were similar to the distribution for the underlying data set related to those lakes. To arrive at the most representative value for phosphorous for the distribution of the underlying data one would select from the center of the distribution, not from the extreme ends. Given the similarity between the frequency of phosphorous concentrations in the nine lakes and the distribution of the underlying data set, St. Johns selected the median value of 46 ppb as the most representative phosphorous concentration in the nine lakes. St. Johns ran three statistical tests in the range of 11 to 76 ppb for phosphorous in the nine lakes in the second part to the study. The purpose of those statistical tests was to identify outliers or extreme values. St. Johns did not consider any of the values to be outliers from a statistical point of view. Given that the levels of phosphorous concentration in the 134 Florida lakes, which constituted the starting point for the analysis in the second part, carried values from 3 to 4,000 ppb for phosphorous in those lakes, the screening process dramatically decreased the range of values for phosphorous to a distribution between 11 and 76 ppb. In performing the reference lake analyses St. Johns did not attempt to identify trophic state for each lake. It attempted to derive a range of phosphorous concentrations and select from that range the most probable phosphorous concentration value to depict the natural conditions or historic water chemistry in Lake Apopka. In this process St. Johns did not try to find pristine lakes in Florida to establish the value for phosphorous in Lake Apopka, rather St. Johns attempted to find lakes that would represent water quality in Lake Apopka had it not been subjected to the events that caused adverse impacts through phosphorous loading. As another check on the results reached in the second part to the reference lake study, in which the median phosphorous concentration was 46 ppb, St. Johns referred to the median in a larger data set of Florida lakes in a publication by Huber et al. In the Huber publication the median value was 40 ppb. In combination the information from the reference lake study, the empirical analysis and the input/output model was used by St. Johns to establish the most probable values of total phosphorous, chlorophyll a and secchi depth that would represent the pre-impacted natural background conditions in Lake Apopka. In examining these parameters St. Johns attempted to establish the most probable ranges for natural background in the trophic state variables. St. Johns took these results concerning the three parameters and applied the 10 percent degradation component allowed by DEP Class III water quality standards for transparency. See Rule 17-302.530, Florida Administrative Code. Concerning the trophic state variable phosphorous, St. Johns did not attempt to and did not believe it could pinpoint with scientific certainty what the precise phosphorous concentration for Lake Apopka would be above which one could not achieve Class III water quality standards as it identified those standards. What St. Johns attempted was to set the most probable range for Class III water quality standards for phosphorous concentrations in Lake Apopka to create the probability of a mesa-trophic state in a warm water tropical lake. Lake Apopka is a warm water tropical lake. St. Johns wanted to avoid phosphorous concentrations in a range that was higher than that which would support Lake Apopka in a mesa-trophic state for fear that increased concentrations above that range would dramatically increase the possibility that its perception of Class III water quality standards would not be achieved. St. Johns through its staff took into account the public concern for achieving the desired trophic condition in Lake Apopka that was consistent with those Class III water quality standards and the ability for Zellwood and others similarly situated to install and operate treatment facilities sufficient to meet the requirements in the proposed rule. That is to say, the limitations on discharge found in the proposed rule. Through the exercise in employing the reference lake study, the empirical model analysis and the input/output model analysis St. Johns concluded that the most probable phosphorous concentration range to meet Class III water quality standards in Lake Apopka was 38 to 55 ppb. By comparison the proposed rule contemplates achieving load limitations which would result in a future steady state phosphorous concentration in the lake of 56 ppb. The means employed by St. Johns to establish the steady state total phosphorous concentration of 56 ppb in a restored Lake Apopka which would meet its perception of Class III water quality standards for phosphorous were scientifically valid. Assuming its authority to employ a phosphorous water quality standard similar to the water quality standard for nutrients used by DEP or to utilize the DEP standard in developing the proposed rule, the means were not arbitrary and capricious. VOLENWEIDER MODEL Having determined that the target phosphorous concentration to meet Class III water quality standards for phosphorous was 56 ppb, St. Johns used that number in a water quality model to back calculate the amount of phosphorous that could be discharged into Lake Apopka from external sources and still maintain the phosphorous concentration level. The model employed was a Volenweider model. This Volenweider model is a basic input/output model which seeks to predict long-term steady state phosphorous concentrations based upon external loading of phosphorous. The formula in the model is expressed as: P = W/ (Q+ Sigma V). P represents the steady-state phosphorous concentration. W represents the annual loading of phosphorous from all external sources. Q represents the annual inflow of water. Sigma represents the net sedimentation coefficient. V represents the lake volume. To exercise the Volenweider model that determines the steady-state phosphorous concentration St. Johns considered various levels of phosphorous loading from external sources. In using the Volenweider model St. Johns had in mind the long view when Lake Apopka would reach an equilibrium which met its interpretation of Class III water quality standards for phosphorous. The model they selected met that goal because it is not time dependent. Nor was St. Johns attempting to predict year-to-year variability in phosphorous concentrations that might occur in Lake Apopka. Neither was the intent to predict transient responses that might result from reduction in external phosphorous loading. In choosing the long-term steady-state approach, St. Johns recognized that phosphorous concentrations reached at the equilibrium for the changed Lake Apopka would vary. Finally, consistent with St. Johns' intent, this Volenweider model is not designed to predict how long it would take Lake Apopka to reach a new equilibrium steady-state. The Volenweider model is an acceptable model for predicting steady state phosphorous concentration in Lake Apopka over the long term. The Volenweider model does account for mixing in the lake volume. It accounts for loss of phosphorous through net sedimentation to the bottom sediments and for loss of phosphorous through outflow. In the model, the net phosphorous sedimentation coefficient refers to the mean annual net deposition of phosphorous to the sediments divided by the mean lake water mass of phosphorous. Net phosphorous sedimentation considers the process of gross sedimentation which is the total amount of phosphorous settling out of the water column to the sediments over a span of time, as well as the release of phosphorous from the sediments. Net sedimentation is the product of the gross sedimentation minus the release of phosphorous from the sediments. The historical experience which St. Johns has had in monitoring gross sedimentation of phosphorous and the release of phosphorous from the bottom sediments has never revealed a net release of phosphorous from the sediments as opposed to a net sedimentation of phosphorous to the sediments. In determining sigma, the net sedimentation coefficient, St. Johns considered a study performed by Schneider and Little in 1968 in which the sediments in Lake Apopka were examined. The results in that study were then compared with a study conducted by Reddy and Gretz in 1987, involving an examination of the Lake Apopka sediments. In particular St. Johns was interested in measuring increases in sediment depth in the top layers of sediments between 1968 and 1987 for phosphorous. The Schneider report describes the top layer of core samples taken as "floc." The next layer is "muck." Under the muck layer in some samples there is a report of finding shell. Under the muck in other samples there is a report of peat. In some core samples sand was underlying the muck. In one sample sand, then peat was underlying the muck. In some samples clay was underlying the muck. In one sample only peat was found. In some instances the muck layer was described as a combination of muck and shell. In one instance the muck layer was described as muck, shell and vegetative detritus. In one instance the muck layer was described as vegetative detritus only. In some samples muck was not found. In some instances the lake bottom was not penetrated when samples were taken. In gross terms the Schneider report refers to the bottom sediments as muds, and it comments that those muds for the most part are unconsolidated. Top sediments are referred to as surficial sediments said to be approximately 99 percent water. The ooze beneath those top sediments is at a depth of one meter and is slightly more dense being constituted of 90 percent water. The Schneider report found that soft deposits covered more than 90 percent of the bottom of the lake. In some instances the unconsolidated deposition was found to be 40 feet thick with an average thickness throughout the lake of approximately five feet. In the Schneider study ninety sites throughout the lake were sampled by coring. In 1987, Reddy took sediment core samples on the same sampling grids that were used by Schneider, but not in the exact location. The same number of samples were extracted. The Reddy report describes the sediment cores from top to bottom as horizons in which there is unconsolidated floc (UCF) overlaying consolidated floc (CF), which overlays peat, sand, clay and marl. The Reddy report describes the UCF layer as consisting primarily of deposits of algal cells and allochthonous particulate organic matter. Moreover, the Reddy report refers to this layer as being actively involved in re- suspension of nutrients during wave events. The report indicates that this layer was found in 86 sampling sites. The Reddy report refers to the CF layer as consisting of settled algal cells, detritius from aquatic macrophytes and allochthonous particulate organic matter. The report shows that this layer was found in 81 sample sites. The report reminds the reader that the maximum core depth retrieved from the lake horizon differentiation was 200 cm and that certain locations were measured at a total sediment depth of greater than 600 cm using metal tubing unrelated to core extraction. St. Johns in employing the findings in the Schneider and Reddy reports equated the floc layer in the Schneider report with the UCF layer in the Reddy report and the muck layer in the Schneider report with the CF layer in the Reddy report. From its review of those reports, associated data in the Reddy report and conversations about the Reddy report, it determined to use the increased depth between the floc layer in the Schneider report and the UCF layer in the Reddy report to establish a net sedimentation coefficient for use in the Volenweider model. Additional information about the Reddy report which St. Johns took into account in comparing the sediment studies with those in the Schneider report, was related to electronic data files on the Reddy sediment samples and consultation with Dr. Reddy and Matt Fisher, co-authors in the Reddy report. St. Johns used the accrual in the top layer at each of the sampling sites that occurred in the 19 year period. It then multiplied that accrual in sediment by the dry weight density of the sediment, also referred to as bulk density, and the phosphorous content to calculate the accrual of phosphorous in the 19 year period. The comparison of the top layer sediments in the Schneider and Reddy reports involved a paired analysis of most of the 90 sites involved with the individual studies. St. Johns then used an averaging technique to calculate the amount of phosphorous deposited over the entire lake. The first step in that process was to average the four corners of each of the square areas on the grid to arrive at an average phosphorous accrual in each of the squares. It took this information to do an areal weighting in view of the fact that each average square area does not represent equal areas of the lake when taking into account those areas around the margin of the lake. St. Johns weighted each average square area by its representative area then derived a weighted average phosphorous deposition for the top layer over the 19 year period. In its averaging approach St. Johns attempted to account for the fact that the core sampling in the Schneider studies and Reddy studies were not taken from the exact same spots. St. Johns assumed that the Reddy study had not systematically found areas that were greater or lesser in the accumulation of the top layer sediments when addressing possible sampling sites. Under the circumstances, variability in the top layer accumulation is random and the random error caused by variability sums to zero and is eliminated by the use of averaging. The difference between the paired analysis in the top layer, and the lake wide averaging for the top layer, concerning the accrual of phosphorous, was an additional three percent for the lake wide averaging. In its final depiction of the sedimentation coefficient for phosphorous St. Johns employed the paired analysis in exercising the model. St. Johns was not convinced that what Schneider refers to as the muck layer and Reddy refers to as the CF layer had increased in the 19 years between the studies. It premised its belief on the notion that the second layer is qualitatively different from the top layer. In a comparison of sample sites in the Schneider and Reddy studies where the second layer had been completely measured it was persuaded that there had not been a statistically significant increase in the sediments. St. Johns was aware through direct knowledge of some sampling done in the Reddy study that the top of the core was characterized by a lighter color. That layer was kind of bumpy and almost airy in appearance. It began to consolidate the further down you proceeded in the top layer. Down the core sample there was a sharp interface and below the interface the color was darker. Below the interface in the core sample had shell material in it. When the core material in that sample was extruded it was observed as being geletinous at the top in the unconsolidated material. In the area where the material was consolidated the core broke off pretty cleanly. Below the interface was what the observer referred to as hydrobiidae snails, detritus from aquatic macrophytes and planordidae that live on plants. The material where the snails were found was sticky and thick and once extruded from the sample would stand up. The upper layer was more uniform in its consistency and by its appearance came from a phytoplankton-based community. The upper layer was very fine and did not contain large animal remains. The plant material in the lower layer was suggestive of larger submerged plants, macrophytes. The person who made the observations of the core sample taken in the Reddy study was Dr. David Stites, a St. Johns employee. These observations were in contrast to Dr. Reddy's overall findings in the study which found evidence not only of an aquatic macrophyte community but algal cells and allochthonous perticulate organic matter in the CF. Nonetheless, St. Johns proceeded on the basis that the UCF layer in the Reddy study was a phytoplankton-based community and that the CF was laid down in a different lake community than the UCF. St. Johns believed that the CF layer community was one related to large aquatic plants only. Moreover, St. Johns was persuaded that the two types of sediments in the UCF and CF layers resulted from the 1947 hurricane that dislodged large aquatic plants, creating the opportunity for phytoplankton bloom that persists to the present, and by that activity blocks the light which would have allowed the submerged plants to reestablish. In its quantitative comparison of the second layer in the two studies, St. Johns censored the sediment core data contained in the appendix to the Schneider report and utilized only those cores which showed a third sediment layer of sand, clay or peat beneath the muck layer for comparing the muck layer in the Schneider report to the CF layer in the Reddy report. St. Johns censored the sediment core data contained in the Reddy report to those instances in which their was evidence that the sediment core samples had reached levels of sand, clay, marl or peat. Included in this censoring activity was review of the raw electronic data files for the sediment samples in the Reddy report and conversations with Dr. Reddy and Mr. Fisher in the attempt to determine which core samples penetrated through to the sand, clay, marl or peat interface. Given that the Reddy report indicated that the sampling probe used was 200 cm in length and some places in the lake had sediments 600 cm in length, this served as additional evidence that not all sample sites captured the entire CF fraction in the core. St. Johns limited a comparison between the muck layer in the Schneider report and the CF layer in the Reddy report to those sites that they were convinced fully collected those fractions in the core sample. By comparing the limited number of sites St. Johns found that the difference between the muck layer and the CF layer was a negative number but was not statistically different from zero. Therefore St. Johns concluded that the thickness in the CF layer had not increased over the 19 year period between the two reports. In arriving at this conclusion St. Johns paired a limited number of muck and CF sample sites and examined the censored data from the muck samples and the CF samples independently to support the conclusion that there was no increase in the material in the second layer in the intervening 19 years. In performing the muck/CF analysis St. Johns looked at 26 sites from the 1968 study and 28 sites from the 1987 study. They rejected the remaining sites as being sites where the second layer was not completely penetrated and under-represented the amount of muck/CF that may have existed. In its analysis of muck/CF, 17 sites were compared from the two studies as a means determine whether the muck/CF layer had increased in the 19 years. By that analysis the CF layer was shown to have decreased by 11.1 cm. In a second analysis in the muck/CF layer the 26 sites in the 1968 study and 28 sites in the 1987 study were averaged separately to determine any increase in the muck/CF layer over the entire lake. The second analysis using averaging showed a decrease of around 8.1 cm. By using only the accumulation in the floc/UCF layer that occurred during the 19 years St. Johns determined that the phosphorous sedimentation coefficient for use in the Volenweider model was .974 per year. The technique that St. Johns employed to measure the increase in thickness in the floc/UCF layer was scientifically valid. St. Johns' assertion that the floc/UCF layer and the muck/CF layer were constituted of different communities, phytoplankton-based community in the top layer and a macrophyte community in the second layer is not accepted. As the Reddy report established, the CF layer included algal cells which are indicative of a phytoplankton-based community. Consequently, the qualitative analysis which St. Johns made concerning the UCF and CF layers in the Reddy report is rejected to the extent that St. Johns contends that a differentiation exists based upon lake communities in the two fractions in the core samples. The other reasons for asserting that there is a clear demarcation between CF and UCF in the Reddy study and for claiming the description of floc and muck in the Schneider report as being comparable to CF and UCF in the Reddy report are accepted. It was not scientifically correct to defer to the 17 pairings and the averaging for the 26 and 28 sites, respectively, to determine possible increases in the second layer in the intervening 19 years. In measuring muck/CF, the two studies did not penetrate the bottom sediments at all sample sites. Nonetheless, there was an increase in the muck/CF layer at considerably more stations than were used by St. Johns in deciding that the change in the intervening period was a minus value. It was arbitrary and capricious for St. Johns not to take into account all sample sites which showed values for the muck/CF layer when ascertaining whether an increase had occurred in that layer between 1968 and 1987. Moreover, as Dr. Curtis D. Pollman established, a significant number of remaining sites which were compared and averaged came from the northern area in Lake Apopka. That area is an erosional zone, characterized by high water velocities. Those velocities scour the sediment-water interface and entrain sediment particles and move those particles away from the shore into deeper regions which are more flaccid. According to Dr. Pollman, information taken from the sites in that northern area would tend to underestimate the amount of muck/CF deposition in the overall lake when extrapolating the information found in the limited sample sites as a means to depict the change in the second layer deposition in the intervening 19 years between the two reports. Some correction would need to be made to the representative sampling to allow the extrapolation to properly estimate the overall second layer deposition in the lake. This is taken to mean an upward correction in the values. To support his conclusions, Dr. Pollman relied upon his own experiences at Lake Apopka in which he has noted the erosional circumstances in the northern lake area. In addition, Dr. Pollman gained support for his opinion from the Schneider report which suggests that there is an erosional zone in the northern area. His opinions are accepted. Consequently, St. Johns has not properly portrayed the circumstance in the second layer which would cause an under estimation of the sedimentation coefficient per year. It was appropriate for St. Johns to attempt to portray a constant sedimentation coefficient for phosphorous in the existing Lake Apopka, in contrast to the steady state coefficient for phosphorous in a restored Lake Apopka. It is necessary to address the current condition which is algae- dominated to improve the condition to one of increased water clarity and increased growth of submerged and emergent plants that is desired for the restored Lake Apopka. EXTERNAL LOADING: UNCONTROLLABLE SOURCES By exercising the Volenweider model, St. Johns determined the maximum discharge of phosphorous to Lake Apopka from external sources that it believed would allow the lake to meet its target goal for phosphorous concentration. The total phosphorous in the steady state concentration has two components. The first component is from controllable sources. The second component is from uncontrollable sources. The uncontrollable sources were subtracted from the total phosphorous concentration to determine maximum discharge for controllable sources. This forms the basis for the nutrient budget for phosphorous in the proposed rule 40C-61. In considering total phosphorous concentration from external sources St. Johns developed an external nutrient budget for Lake Apopka by measuring phosphorous inputs and outputs in a four year review. The parties do not dispute the phosphorous concentration from controllable sources. There is a dispute concerning uncontrollable sources: atmospheric deposition, rainfall and dryfall, and from Apopka Spring also known as Gord Neck Spring. Rainfall is referred to as wet deposition. Dryfall is also referred to as dry deposition. Dryfall is dust. When atmospheric deposition from rainfall and dryfall enters the lake it directly contributes to the total phosphorous concentration. In the four year review the data collection for wet and dry deposition was conducted in two separate phases. In the years 1989 and 1990 samples were collected from a station in the center of Lake Apopka. In the years 1991 and 1992 a land-based station at the northwest corner of Lake Apopka was used. In collecting data from the lake site in 1989 and 1990, St. Johns measured wet and dry deposition through a bulk deposition collector located on a platform. That collector had two funnels connected to a reservoir through which dry fall was collected during dry periods and the dryfall then was washed into a reservoir by rainfall which was also collected. When the samples were removed from the collector they were taken to a laboratory for analysis. The purpose of the analysis was to determine the total phosphorous concentration in the sample. The total phosphorous concentration in each sample was multiplied by a total volume of rain calculated to have entered the collector during the period of collection. This calculation was then adjusted to reflect the deposition over the total lake area. In turn an apportionment was made to reflect the number of days that transpired between this sample collection and the previous sample collection in order to depict the daily estimates for deposition that were collected between the two sample dates. Those daily loads were then summed to reflect the collection for each month in the review. There were problems with this method of collection at the lake center. The samples that were collected were subject to contamination from bird droppings, insects entering the sample device and human activity. Many attempts were made by St. Johns to avoid this contamination during the two years. In recognition of the problems with contamination, the St. Johns' staff that collected the samples were told to discard samples that were contaminated as evidenced by visual observation. Those instructions were carried out. The samples that remained after discarding some samples based upon their appearance were subject to further censoring in an attempt to eliminate extreme values of phosphorous concentration in the laboratory analysis process. Those extreme values indicated contamination. In the censoring process based upon extreme values four samples were eliminated as being significantly higher than the others. Those four samples were more than three standard deviations from the overall sample mean, indicating problems with contamination. As further evidence that the samples were contaminated, they had high nitrogen concentrations, indicative of contamination from bird droppings. The samples then underwent a further censoring process. This involved establishing a mean phosphorous concentration and a standard deviation for the remaining samples. That standard deviation was one standard above the mean value. Again this censoring process was designed to remove contaminated samples. Samples more than one standard deviation above the mean were discarded. By this process an additional five samples were eliminated. Following the censoring activities 39 samples remained. Those samples formed the basis for determining atmospheric deposition in 1989 and 1990. The process for data collection and censoring contaminated samples were proper steps and scientifically valid. In 1991 St. Johns obtained a wet-dry collector. This is another type of instrument used for measuring atmospheric deposition. This collector consists of two buckets. One bucket collects rainfall and the other bucket collects dryfall. This device automatically covers and uncovers the two buckets in response to whether it is raining or not. St. Johns determined to use the wet-day collector at its land-based collection site for several reasons. First, there was the concern about contamination in the samples that could not be overcome. There was concern that St. Johns did not have sufficient resources and manpower to continue to maintain data collection at a station that was 4 or 5 miles out in the middle of Lake Apopka. In that connection the wet-dry collector that they intended to use in the future had an electrical power source which could not be supplied at the lake center. Therefore, St. Johns abandoned the use of the data collected at the lake center site in favor of the land based collection point. In the 1991 and 1992 years that samples were taken from the land based site, dry deposition was used to determine the total mass of phosphorous in each sample. That number was divided by the total number of days since the last collection had been made to establish the daily load for the period. Monthly totals were summed from the daily values. In setting up the wet-dry collector St. Johns deferred to the NADP/MTN Deposition Monitoring Quality Assurance Plan (1990), to the extent that it felt that the plan was applicable to its collection activities. In setting up the wet-dry collector, St. Johns did not place the collector on a tower 48 to 50 feet high as is currently done in the state-of- the-art methods for use of land-based dryfall collectors. Sometime in 1992 persons who were collecting dryfall began to install the collection device on the towers. Notwithstanding that St. Johns did not use a tower for the wet-dry collection, its method for collection was scientifically acceptable. To get the annual value for atmospheric deposition for the four year period 1989 through 1992 St. Johns added the annual volumes calculated in the 1989 and 1990 data from the lake based station to the annual volumes calculated for the 1991-1992 data collected from the land based station and divided that number by four. This resulted in an annual figure of 7,951 kilograms of phosphorous. The budget for atmospheric deposition of phosphorous in Lake Apopka is reasonable in that the means for establishing that budget is reasonable. Apopka Spring provides phosphorous to Lake Apopka. The spring is connected to the Floridian aquifer. The spring is located in the southwestern portion of Lake Apopka which is known as Gord Neck. To determine the contribution of phosphorous from Apopka Spring, St. Johns looked at the annual average volume of flow from the spring and the annual average of concentration of total phosphorous in that water. In calculating the spring flow volume, St. Johns used United States Geological Survey information obtained by a diver who went into the throat of the spring to measure that flow. The measurements were taken on five occasions. The information on flow was used to develop a model that correlates spring flow, lake stage and Floridian aquifer stage as a means to determine the annual average flow from the spring for the years 1989 through 1992. The diver also took a water quality sample from the throat of the spring on one occasion at the point where the spring immerges from a rock. That sample was analyzed in a laboratory. It showed a total phosphorous concentration of 32 micrograms per liter. The water quality in the Floridian Aquifer can vary significantly over time at the same discharge point from the aquifer. Those changes in the water quality are more noticeable in the instance where the discharge point is close to the aquifer recharge area. That has significance based upon the short period of time in transit from the aquifer recharge area to the discharge point. Among the water quality parameters that are affected by this phenomena, would be the total phosphorous concentration. In the case of Lake Apopka the highest recharge areas in the vicinity are located immediately to the west of Apopka Spring. The direction of groundwater flow in the Floridian Aquifer in that area is from the recharge area to Apopka Spring. Consequently phosphorous concentrations in water discharged from Apopka Spring would be expected to vary significantly over time. This variability in phosphorous concentrations over time makes it inappropriate to rely upon a single sample when attempting to establish a long term budget for total phosphorous contributed from Apopka Spring. Having in mind the need to have more than one sample for establishing the phosphorous concentration from Apopka Spring, St. Johns used water quality data from other springs in the vicinity of Apopka Spring. To complete the data set they used three springs which had recorded values for total phosphorous, chloride concentrations and total dissolved solids that were similar to those in Apopka Springs. This gave St. Johns an additional six samples for total phosphorous to be added to the single value from Apopka Springs to arrive at an average. When the seven values were averaged they yielded a concentration of 75 milligrams per liter. That is the value that St. Johns used in calculating the contribution of Apopka Springs to the lake phosphorous budget. Had St. Johns obtained multiple samples from Apopka Springs over a long period of time this would have optimized its understanding of the long term phosphorous concentration for water discharging from the spring. However, it was not unreasonable for St. Johns to perform the calculations which it did in establishing the phosphorous concentration from Apopka Springs. INTERNAL PHOSPHOROUS LOADING The rule in question does not attempt to remediate the influence which phosphorous loading from internal sources contributes. Rather the rule, without regard for the time line for achieving St. Johns' perception of the Class III water quality standard related to phosphorous, attempts to control external loading in arriving at its anticipated standard. Zellwood asserts that the failure to address internal phosphorous loading was an arbitrary and capricious act. While actions taken to minimize the effects on the water quality caused by internal loading would improve the time course for achieving the steady state equilibrium in Lake Apopka that would achieve its Class III water quality standard for phosphorous, it is not necessary to change the circumstance of internal loading for the improvements to external loading to promote the desired outcome at an undetermined point in the future. By contrast Lake Apopka would not reach the desired Class III water quality standard without reducing external phosphorous loading. That makes the attempt at that reduction a proper beginning for restoring Lake Apopka to Class III water quality standards. Again this assumes the authority to employ a Class III water quality standard similar to the DEP standard or to utilize the DEP standard in developing the proposed rule. St. Johns' governing board has in mind projects for the future to re- vegetate behind moveable barriers, to increase the range of lake fluctuation, to remove rough fish and to construct a marsh flow-way to remove phosphorous. These projects would reduce the time required for the lake to achieve the Class III water quality standard for phosphorous. These projects are not essential to the success of using controls on external loading in restoring the lake to the Class III water quality standard for phosphorous. By contrast, without addressing external loading the other projects would not be feasible. The consequence of not adopting a rule which deals with external loading and waiting for the other proposed projects described to become available before the time that the external loading is addressed, would create a circumstance in which greater amounts of phosphorous have been stored in the sediments and must be dealt with before the lake water quality improves. Although the anticipated restoration by improving external loading is not time dependent, St. Johns has the proper confidence that the recovery will be within a reasonable time. Evidence to support this belief comes from studies of European lakes in which external phosphorous loading was reduced and the phosphorous concentration in the water column improved rather rapidly. Further, a study of Lake Tohopekaliga, a large shallow Florida lake, similar in its depth to Lake Apopka, showed that an 83 percent reduction in phosphorous load led to an 83 percent reduction in total phosphorous. Scraping soils around the edge of Lake Tohopekaliga did not significantly contribute to the decline in phosphorous. Studies in Lake Tohopekaliga also indicated that when the phosphorous load was reduced the sedimentation coefficient showed a year to year variability. That variability did not establish a trend indicating a change in the long-term sedimentation coefficient mean. The studies of that lake tended to support the idea that the sedimentation coefficient measured under current conditions at Lake Apopka is a reasonable value to use in predicting the effects of reducing phosphorous loading. Studies of other lakes such as Lake Thonotosassa, a Florida lake and Lake Shaqawa in Minnesota, showed a marked decline in phosphorous concentration in the water column when external phosphorous loading was reduced. At present Lake Apopka sediments contain available and unavailable phosphorous. Available phosphorous can potentially be used by aquatic organisms such as algae and microbes. It is released from the sediments to the water column. Unavailable phosphorous is more stable and is relatively resistant to transformation for use by organisms. It has poor availability for biological activity. In particular available phosphorous comes from the top sediment layer, the top five to ten centimeters in that layer, that becomes suspended in the water column by a wind event. Phosphorous in the second layer moves up that layer by a process referred to as diffusion. That process is slow. Available phosphorous in the second layer does not enter the water column. Approximately 30 percent of the total phosphorous that is in the lake sediments is in the available category. The remaining 70 percent becomes unavailable based upon formation of resistant organic compounds and in phosphate mineralization. By reducing the external load of phosphorous, as proposed by the rule, this diminishes a source of phosphorous for algae production in the lake. The algae then would become more dependent on uncontrollable external sources and sources released from the top layer. In summary, in this regime, biological activity would convert available phosphorous to unavailable phosphorous by forming resistant organic compounds, and chemical processes will convert phosphorous to minerals such as calcium phosphate which are unavailable. Phosphorous will become unavailable as it is buried deeper in the sediment. Moreover, phosphorous will continue to be flushed from the lake in the instances where the water is released into the Apopka Beauclair Canal. St. Johns was sufficiently conversant with the internal mechanisms for phosphorous production to proceed with the rule promulgation. ECONOMIC FEASIBILITY In preparing the rule St. Johns considered economic feasibility. Most costs associated with complying with the rule are borne by those individuals and entities who would be controlled by the nutrient budget for phosphorous in the various categories of permittees, to include pumped agricultural. There was no showing that the cost associated with administering the permit program called for in the rule would make the program economically infeasible. Under this subject, in developing its rule St. Johns did not act in a manner which is arbitrary or capricious. TAKING It was established that Zellwood has an interest in the Lake Level Canal from the bank on its property to the centerline in the canal. The proposed rule would declare the Lake Level Canal to be a work of the District. In declaring Lake Level Canal a work of the District St. Johns took into account that Zellwood is currently using the canal as a conveyance system for stormwater discharge and intake of water from the lake. By declaring the Lake Level Canal a work of the District consistent with the proposed rule St. Johns recognizes that the beneficial uses of the canal which Zellwood presently enjoys would not be denied. No other proof was presented which would tend to identify any restrictions which would be placed upon Zellwood in using the Lake Level Canal if the rule becomes law and the amount of compensation that Zellwood would be entitled to in return for those restrictions. Consequently, St. Johns has not acted arbitrarily or capriciously in declaring the Lake Level Canal a work of the District through the proposed rule as such activity would be perceived as an unreasonable interference with Zellwood's use of the canal. EQUITABLE ABATEMENT In its permitting function DEP has a procedure which is referred to as the "equitable abatement procedure". See Rule 17-4.242, Florida Administrative Code. In particular, that process applies to permits issued for stationary point source discharges. The Zellwood operation is not a stationary point source that must comply with Rule 17-4.242, Florida Administra-tive Code. There was no showing that St. Johns acted arbitrarily and capriciously by developing the proposed rule without regard for the independent jurisdiction exercised by the DEP through its equitable abatement procedures set forth in Rule 17-4.242, Florida Administrative Code. CONSENT ORDER When developing the proposed rule, St. Johns took into account the existing consent order between St. Johns and Zellwood. The proposed rule recognizes the obligations which Zellwood has under the terms of the consent order. The proposed rule does not impose greater requirements on Zellwood during the time in which the consent order is effective than the consent order establishes.
