Findings Of Fact The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida. The majority of owners of lots in the Hollerich Subdivision are in favor of the gate. The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east. Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds. Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not. The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds. The odor causes nausea, sore throats, and sneezing. Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards. The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels. The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality. The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red. The amount of wrack entering the canal and accumulating there has been increasing over the last five years. The proposed structure will stop wrack from entering the canal and will function as a weedgate. The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety. Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement. DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property. The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest. Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences. DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0599, 86-0600, 86-0601, 86-0954, and 86-0955 l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and 29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22 as being immaterial to the issues herein; and 24-27 as being subordinate. 2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12, 14 and 15 as not being supported by the evidence in this cause. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John H. Voorhees Route 1, Box 612 F Big Pine Key, Florida 33043 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Dale Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Proposed Rule 62-302.540, as formally noticed for adoption by the Department of Environmental Protection on July 18, 2003, is an invalid exercise of delegated legislative authority?
Findings Of Fact The Everglades A vast expanse of solitude, the flow of whose waters is nearly imperceptible to the human eye; a matchless mosaic of shallow sawgrass marsh, wet prairies interspersed with tree islands, and aquatic sloughs; terra incognita prior to the arrival of the Native American predecessors and ancestors of today's Miccosukee Tribe; secluded terrain, yet a distinctive home to a broad diversity of wetland species including those that are threatened and endangered such as the wood stork, snail kite, bald eagle, Florida panther and American crocodile; exceptional habitat for extensive populations of wading birds; an ecosystem of utmost environmental importance highlighted by the commitment in recent years of prodigious federal, state, and regional resources devoted to, among other endeavors, ground- breaking scientific research and construction of mammoth projects for water management in furtherance of restoration and preservation; the principal and most significant subtropical freshwater peat wetland in North America: the tributes bestowed upon Marjory Stoneman Douglas' inimitable "River of Grass" are many. Among the accolades, one adjective stands out: "unique." Put simply, there is no ecosystem on earth like the Everglades. The Florida Legislature succinctly honored the immense watershed's one-of-a-kind nature in the opening paragraph of the 1994 Everglades Forever Act with the enactment of one sentence: "The system is unique in the world and one of Florida's greatest treasures." § 373.4592(1)(a), Fla. Stat. By this recognition of international prominence and incalculable import to the state of Florida, the Legislature reiterated that the Everglades are, indeed, irreplaceable. Oligotrophic and Phosphorus-limited The system that makes up the Everglades and its ecology was formed due to a number of factors described in the "Background" section of this Order, below. Among the most significant of the factors is that the system is oligotrophic: poor in one or the other (or a combination) of the nutrients necessary to sustain life. In the case of an ecologically healthy Everglades, the system is poor in the nutrient phosphorus. There is also a disproportionately low level of phosphorus in relation to the presence of other nutrients (nitrogen and potassium) so that the system is described as not only oligotrophic but "phosphorus limited," as well. Among the findings in the Everglades Forever Act, (the "EFA" or the "Act"), that refers to phosphorus is the following: The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. § 373.4592(1)(d), Fla. Stat. Section (4) of the Act, entitled "Everglades Program" contains a subsection devoted to "Evaluation of water quality standards." Its provisions include the direction to the Department and the District to complete research to "[n]umerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area[,]" § 373.4592(4)(e)1.a., Fla. Stat. The Class III narrative nutrient criterion (the "Narrative Criterion") is that "[i]n no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna." § 373.4592(4)(e)2., Fla. Stat. A criterion, furthermore, is set by the EFA at "10 parts per billion (ppb)," section 373.4592(e)2. (the "Default Criterion") if the Department does not by rule adopt a numeric phosphorus criterion for the Everglades Protection Area (the "EPA") by December 31, 2003. In response to the mandate of the EFA, the Department, in July of 2003, published its proposal for a rule that numerically interprets for phosphorus the Narrative Criterion (the "Proposed Rule.") The Proposed Rule Rule 62-302.540 is entitled "Water Quality Standards for Phosphorus Within the Everglades Protection Area." OR-1. As "specific authority" it lists Sections 373.043, 373.4592 and 403.061. For "law implemented" it lists Sections 373.016, 373.026, 373.4592, 403.021(11), 403.061, and 403.201, Florida Statutes. The Proposed Rule is the result of a decade-long process. The process involved "tens of millions of dollars worth of research . . . and . . . thousands of man-hours . . . worth of . . . data evaluations." (Tr. 1614) From the outset, the process for development of the Proposed Rule was transparent; all of the data and the analyses of the data continued to be made available to interested parties. Before the passage of the EFA, work had begun on an Everglades Nutrient Threshold Research Plan (the "Research Plan"). The Research Plan had been developed and adopted under the direction of the Department by a panel of scientists appointed by the Everglades Technical Oversight Committee (the "TOC"). The TOC, in turn, was the product of an agreement settling a suit by the federal government in federal court to require the state of Florida to enforce water quality standards in the Everglades (the "Settlement Agreement," discussed, below). In 1995, the Department created the Everglades Technical Advisory Committee (the "ETAC") to assist in the development of the phosphorus criterion and to ensure transparency. The ETAC consisted of representatives of the Everglades National Park (the "Park"), the Arthur R. Marshall Loxahatchee National Wildlife Refuge (the "Refuge" or "WCA-1"), the District, the Florida Game and Fresh Water Fish Commission, USEPA, the Army Corps of Engineers, the Miccosukee and Seminole Tribes, agricultural interests and environmental groups. In addition to the ETAC process, the Department coordinated a series of workshops and site visits involving research groups, external peer-reviewers, and interested parties starting with an initial workshop held by the District in February of 1995 and culminating in a 1998 Peer Review Report. From June 1996 through December 2001, the Department made 13 presentations to the Environmental Regulation Commission (The "ERC") detailing the Department's efforts to establish a numeric interpretation of the Narrative Criterion. These presentations culminated in the filing of a Notice of Proposed Rulemaking in December of 2001. The presentations were followed by a publicly noticed ERC rule approval hearing beginning in January of 2002. Continued over a series of 14 monthly ERC meetings (each a full day or two days), the hearing ended with ERC approval of Proposed Rule 62-302.540, Water Quality Standards for Phosphorus Within The Everglades, on July 8, 2003. Numerous stakeholders and special interests presented information to the ERC during the rule approval hearing process. These included the Tribe and Friends and the intervenors to this rule challenge proceeding. The record reflects that the process by which both the criterion was established and that led to the Proposed Rule was a long-term and deliberative public process with comment, input and criticism directed to the Department from a broad array of perspectives and interests. A Brief Summary In order to understand the contentions of the Tribe and Friends and the responses of the other parties, a discussion of the background that led to the Proposed Rule beginning with the formation of the Everglades and concluding with recent amendments to the EFA by the 2003 Florida Legislature is necessary. Following that discussion, the Proposed Rule will be described in more detail together with address of the issues. First, however, is the following brief summary of the Proposed Rule. The Proposed Rule contains nine sections. Section (1) articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area. It establishes, as the Proposed Rule's title reflects, water quality standards for phosphorus, that contain, as one element, the numeric interpretation of the Narrative Criterion. Section (2) bears a similarity with the Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, that contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Relevant to its initial finding, Section (2) sets forth the finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the [Everglades Protection Area] must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Section (3) of the Proposed Rule contains definitions. Among them is the definition of "Impacted Areas": "areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Section (4), of the Proposed Rule concerns two concepts: establishment of the phosphorus criterion, the "heart of the Proposed Rule" and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Section (5) of the Proposed Rule entitled "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" contains a complexity of subsections. Subsection (a) requires separate determinations in impacted and unimpacted areas in each of the four water bodies into which the EPA is divided: Water Conservation Area 1 ("WCA-1" or the "Refuge"), Water Conservation 2 ("WCA-2"), Water Conservation Area 3 ("WCA-3") and Everglades National Park (the "Park"). Subsection (b) governs achievement in the Park and the Refuge. Subsection (c) governs the achievement in WCA-2 and WCA-3. Subsection (d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the EPA and to prevent false positives. Subsection (e) governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions, both natural and man-induced, the Department believes not to be consistent with determining an accurate estimate of ambient water column total phosphorus. It excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Section (6) provides long-term compliance permit requirements for phosphorus discharges into the EPA. Section (7) sets forth moderating provisions designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA. There are two types of moderating provisions in the section. Subsection (a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (b) allows for discharges to be permitted that accomplish the purpose of "hydropattern restoration" under certain circumstances. Section (8), by reference, incorporates a single document: "Data Quality Screening Protocol, dated ." Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule is determined to be invalid under applicable laws or is disapproved by the U.S. Environmental Protection Agency (the "USEPA") under the Clean Water Act. Standing and/or Identification of the Parties The parties stipulated to the standing of the Tribe, Friends, New Hope and the Coop to initiate the proceedings in Case Nos. 03-2872RP, 03-2873RP, 03-2883RP, and 03-2884RP. The parties stipulated to the standing of U.S. Sugar to intervene in the consolidated proceeding with Intervenor- Respondent status. The parties stipulated to the standing of the South Florida Water Management District to intervene as a Respondent in the consolidated proceeding. The parties further stipulated to facts with regard to standing that identify the parties. These are contained in paragraphs 20, 21, and 27-43 under Tab 4 of the Pre-hearing Stipulation, at pages 65-71 of the stipulation. They are incorporated by reference. A summary of the identifications (repetitive of those incorporated by reference) follows. This summary in no way limits the facts incorporated by the reference to the Pre- hearing Stipulation. Miccosukee Tribe of Indians The Everglades has been the home of the Miccosukee Tribe for generations, and it is an integral part of their culture, subsistence, religion, historical identity and way of life. Members of the Tribe work, reside, and practice their culture and way of life in the Everglades Protection Area. The Tribe's land interests in the Everglades Protection Area include, without limitation, perpetual Indian rights; a perpetual lease from the state of Florida for the use and occupancy of substantial WCA-3A, which the state of Florida guarantees will be maintained in its natural state in perpetuity; aboriginal title of Tribal members to portions of the Everglades; and rights to traditional use and occupancy in Everglades National Park. Tribal members live in, use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. Friends of the Everglades Friends of the Everglades is a Florida based non- profit corporation founded in 1969 by Marjory Stoneman Douglas, a pioneer conservationist, recipient of the Presidential Medal of Freedom, and the author of the Everglades River of Grass. Mrs. Douglas formed this grassroots organization to educate the public about the importance of the Greater Kissimmee-Okeechobee- Everglades ecosystem, to protect the Everglades ecosystem from human activities that would impair its health and natural function, and to work for its restoration. Friends of the Everglades has approximately 3,500 members who use and value the Everglades for recreational and spiritual pursuits, including hiking, walking, bird watching, fishing and nature trips. Members of Friends use various sections of the Everglades Protection Area and want to protect and preserve these areas for themselves and future generations. The members of Friends of the Everglades use and enjoy the areas which will be affected by the water quality standards for phosphorus and its implementation. DEP The Department of Environmental Protection, is the state agency authorized, to adopt through the ERC water quality standards under Chapter 403. It is also directed by the Everglades Forever Act to adopt a numeric interpretation of the Narrative Criterion for the Everglades Protection Area. The DEP Secretary has rulemaking responsibility under Chapter 120, but must "submit any proposed rule containing standards to the [ERC] for approval, modification, or disapproval[.]" § 403.805, Fla. Stat. The ERC The Environmental Regulation Commission (the "ERC") is required to "exercise the standard-setting authority of the department under . . . section 373.4592(4)(d)4. and (e)." § 403.804, Fla. Stat. In exercising its authority, the ERC is directed to "consider scientific and technical validity, economic impacts, and relative risks and benefits to the public and the environment." Id. Sugar Cane Growers Cooperative of Florida The Cooperative is an agricultural marketing cooperative association formed and operating pursuant to Chapter 618, Florida Statutes. The Cooperative and its 54 member- farmers cultivate sugar cane and other crops in the Everglades Agricultural Area (EAA) in Palm Beach County, Florida. That cultivation involves the use and management of surface waters which are supplied to and ultimately released from their lands by way of the Central and Southern Florida Flood Control Project (the "C&SF Project") approved by the U.S. Congress over 50 years ago. South Florida Water Management District The District has been a party to the rulemaking that led to the Proposed Rule, actively participating in the presentation of testimony and written submissions. A significant portion of scientific data used to establish the phosphorus criterion in the Proposed Rule was predicated upon District staff research. In addition, the EFA mandates the District to obtain permits for all of its structures that discharge into the Everglades. In accordance with the EFA, the Phosphorus Rule sets the permitting requirements for the District's discharge structures. Accordingly, the Phosphorus Rule will impact the District's implementation of the Long-Term Plan and how it will operate its discharge structures. U.S. Sugar, New Hope and Okeelanta U.S. Sugar is a privately held agribusiness corporation with its principal offices in Clewiston, Florida. New Hope Sugar Company and Okeelanta Corporation are privately held agribusiness corporations with their principal offices in West Palm Beach, Florida. U.S. Sugar, New Hope, and Okeelanta all own farmland within the Everglades Agricultural Area (EAA). U.S. Sugar owns about 194,000 acres of farmland in Florida. Most of U.S. Sugar's, New Hope's and Okeelanta's farming operations occur in the EAA where they grow and processes sugar cane. The Challenges of the Tribe and Friends The Tribe and Friends described a unified position with regard to their separately-filed challenges that the Proposed Rule constitutes an invalid exercise in delegated legislative authority in the "position statement" section of the Pre-Hearing Stipulation filed by the parties: The [P]roposed Rule, first and foremost, fails to establish a numeric interpretation of the narrative nutrient criterion for phosphorus that would prevent an imbalance of the natural populations of aquatic flora and fauna in the Everglades Protection Area. The grounds upon which the Tribe and Friends are challenging the [P]roposed Rule . . . include, but are not limited to: distorted findings of fact; improper designation of impacted areas; improper use of a geometric mean to establish the criterion that will cause an imbalance of flora and fauna; improper merging of the numeric criterion with moderating and permitting provisions that will in fact negate the numeric criterion; improper measurement methodology that does not prevent imbalance or protect designated use; improper division of the Everglades Protection Area into impacted and unimpacted areas; allowance of an arbitrary and capricious method for analyzing data; allowance of hydropattern restoration with water above the criterion that will cause an imbalance of flora and fauna; adoption of the Long Term Plan as a moderating provision, which is really a license to pollute, and which will also result in an imbalance of flora and fauna; and an improper vesting of authority in the Department of Environmental Protection to change the Long Term Plan. Pre-Hearing Statement, pp. 7-8. Factual statements that are at issue in the view of the Tribe and Friends are listed in the Pre-Hearing Stipulation at pages 74 to 77. Distilled to its essence, the Tribe and Friends' claim that the Proposed Rule because of flaws, including the establishment of a numeric phosphorus criterion of for Class III waters in the EPA as "a long-term geometric mean of 10 ppb," Section (4) of the Proposed Rule, "does not prevent an imbalance to the natural population of aquatic flora and fauna." (Tr. 59) This essence is captured in two of the eight statements of ultimate facts in their petitions, (see paragraphs 19-26, pgs. 5-6 of the Petition in Case No. 03-2972RP): The proposed Rule will not in fact prevent an imbalance in the natural populations of aquatic flora and fauna in the Everglades Protection Area. The proposed Rule is not in fact a numeric interpretation of, or consistent with, the Class III narrative criterion for phosphorus which prohibits causing an imbalance in natural populations of aquatic flora and fauna. Id., at p. 5. The concerns of the Tribe and Friends were summed up in opening argument as falling under ten main points. For purposes of discussion, these ten categories may be titled as "1) Authority to establish a Water Quality Standard for Phosphorus and Merger of the Criterion with Achievability; Moderating Provisions and Permitting Provisions; 2) Inaccurate Findings; 3) Defensible Science and Consideration of Achievability and Economics; 4) The Impacted Areas Definition; The Phosphorus Criterion Does Not Protect Against Imbalance; Relationship of Criterion to the Park, Refuge, Unimpacted Areas, Impacted Areas; 7) Achievement Methodology; 8) Data Screening; 9) Creation of a Legislative Permit To Pollute Through the Year 2016; and, 10) Use of Moderating Provisions and the Long-Term Plan. (See Tr. 39-59) An understanding of the contentions of the Tribe and Friends and the responses of DEP, the ERC, the District, U.S. Sugar, New Hope and the Cooperative, requires a considerable amount of background, beginning with the historical Everglades. The Historical Everglades The Historical Everglades was part of one system that began at its northernmost with the chain of lakes at the headwaters of the Kissimmee River and extended downriver through Lake Okeechobee and southward across the interior of southern peninsular Florida to Florida Bay. Formed over a period of at least 5,000 years, the system reached a peak in the mid-19th Century. The system at that point in time (not long before the initiation of a series of man-made alterations that had profoundly negative environmental effects) is commonly referred to as the "1850 system." Most of the water that flowed in the Everglades over its millennia of formation was introduced through rainfall. The 1850 system, therefore, was ombrotrophic: one in which atmospheric deposition (rain) is the primary source of nutrients and water table recharge. The 1850 system contained a variety of habitats. A densely vegetated area immediately south of Lake Okeechobee (a zone of custard apple associated with abundant wildlife and immense bird rookeries) transitioned to elderberry, dense sawgrass, and then to less dense sawgrass. Cypress swamps stood on the western periphery, pine flatwoods on the eastern edge; ridge and slough areas dotted with tear-shaped tree islands aligned in the direction of southerly flow dominated the central region. At the southern end, freshwater entered the Shark River and Taylor sloughs and was carried by small rivers and through mangrove thickets at the southern tip of the Florida Peninsula to meet the salt waters of the sea. The presence of the tremendous numbers of birds and their rookeries in the area immediately south of Lake Okeechobee led to phosphorus concentrations in the soil in this "enriched custard apple zone" as high as 1,500 to 2,000 parts per million. The zone comprised slightly under 300,000 acres, about 10% of the approximately 3,000,000 acres in the historical freshwater Everglades. Lake Okeechobee Pulses A critical relationship existed between the lake and the areas of the historical Everglades further south. The enriched custard apple zone, the sawgrass marsh, the wet prairies and the aquatic sloughs received waters directly from Lake Okeechobee from time-to-time by means of gentle overflow. Sheet flows generated from the lake languidly pulsed southward in seemingly endless repetition interrupted only by drops in water levels that came with seasonal fluctuations. The flows were confined for the most part by ridge systems such as the Atlantic Coastal Ridge to the east and terrain that includes plateaus, the Immokalee Rise and Big Cypress Swamp at a higher elevation to the west. To a relatively slight extent, waters from the flows escaped eastward to the Atlantic or westward to the Gulf of Mexico. For the most part, the hydro-pulses, above the gently sloped peat and marl soils below, successively overran the southern interior of the peninsula that is South Florida to join the sloughs that carried them to the salt water of the seas connected to Florida Bay. Contributions to the System's Make-up On the inexorable journey southward, the slow-flowing waters were fed by the main source of Everglades flow: plentiful rain. The rains included the torrents from the inevitable tropical storms and hurricanes that were instrumental in creating the system as they blew across South Florida. Stressors such as fire, drought, and rare but occasional frosts, made additional contributions to the shaping of the ecosystem and its unique ecology. Aside from the rain-driven nature of the system, the lake-generated hydro-pulses and the seasonal fluctuations in water levels together with intermittent contributions by fire, drought, frost and torrential rain that shaped its ecology, there is another central premise concerning the formation and life of the Everglades. The system is poor when it comes to the nutrient with which this proceeding is concerned: phosphorus. Phosphorus in the Historical Everglades With the exception of localized areas associated with tree islands or because of fire or other natural occurrences such as an alligator hole, the phosphorus concentrations in the water column south of the enriched zone historically achieved homeostasis at or below an extremely low level: 10 parts per billion ("ppb"). The historic Everglades south of the enriched zone had concentrations of phosphorus in the water column that ranged from 5 to 8 ppb in slough habitats to a phosphorous level one or two ppb higher in the areas of dense sawgrass, that is, peaking at a level of 10 ppb homeostatically. An exception to these low levels of phosphorus in the historic Everglades south of the enriched zone is the tree island. Tree islands had higher levels attributed to the habitation of the islands by wildlife that translocated nutrients from the marsh to the islands. In the case of translocation by birds, translocation of phosphorus lowered the concentration of nutrients in the marsh fed on by the birds and increased it wherever birds congregated, especially in rookeries. Extremely low levels of phosphorus were an essential component of the health of the historical Everglades and its unique ecology. At the base of this phosphorus limited ecology, historically and today, is the periphyton community, described by Ronald Jones, Ph.D., and the Tribe and Friends' expert witness, as "the real key to the Everglades." (Tr. 2958) The Periphyton Base of the Everglades Ecosystem Today, periphyton accounts for 30% to 50% of the vegetative biomass of the Everglades and 70% to 80% of the daily productivity of the system. In a healthy Everglades ecology, periphyton are knitted together in formations referred to as periphyton sweaters or as "periphyton mats." A periphyton mat is composed of different microscopic life forms, predominately blue-green algae or cyanobacteria, followed by diatoms and green algae. The microbial organisms are held together by mucilage that they produce themselves. The majority of a periphyton mat (about 68%) is void of mucilage and the organisms, themselves. In the aquatic environment of the Everglades, therefore, this space is filled with water, which leaves 30% or so of the mat as organic material. Six percent of the organic material is composed of the cells of the microscopic cyanobacteria, diatoms and green algae. The remaining 94% of the organic material is mucilage, the substance that holds the cells together in a glue-like fashion. Mucilage is a direct result of the phosphorus-poor environment. It is essential to the survival of the periphyton cells because "in intimate contact with each other . . . they're able to make the most efficient use of the . . . resources" (Tr. 2982), particularly the most limited resource: phosphorus. When levels of phosphorus increase in the water column, periphyton mats fall apart. There is no longer a need for the cells to produce mucilage, an activity "expensive" (Tr. 2981) in carbon, as there is in a healthy Everglades ecology when limited phosphorus must be maximized by the periphyton communities. Today, periphyton mats continue to disintegrate at an alarming rate in the Remaining Everglades despite recent progress made in reducing the inflow of excessive amounts of phosphorus in discharges that comprise some of the water management practices of the District. Nonetheless, progress is being made toward a reversal of Everglades loss. In an October/November 2003 publication of the South Florida Water Management District, the District in an article entitled "Encouraging Signs for Everglades Recovery," reported that "[b]etween 1995 and 2003, the rate of cattail expansion in Water Conservation Area 2A . . . declined from 2,375 acres per year to 785 acres per year." Tribe/Friends Ex. 138. The District's publication explained why cattails, one indicator looked at by scientists "among multiple indicators to determine the condition of the Everglades," id., are a marker of poor ecological health in the Everglades: Cattails are a natural aquatic plant, typically found in wetland systems around the world, including the Everglades. In fact, it is an approved species for shoreline restoration projects in the state of Florida. Under historic conditions, the Everglades' low-nutrient levels kept the smattering of cattail plants in check. But cattail is an aggressive, opportunistic plant. Fueled by high phosphorus inflows from agricultural and urban areas, cattail began to bully its way into the Everglades landscape, out-muscling more desirable plants such as sawgrass and other vegetation which provide habitat for wildlife. Thickets of cattail form a dense mat, blocking sunlight and lowering dissolved oxygen levels needed by aquatic life below. They grow so close together that wading birds are unable to forage for food in the shallow marsh. Sustained deep water levels also give cattails a competitive advantage due to their ability to move oxygen from their leaves down to their roots. In the late 1980s and early 1990s, aerial vegetation mapping and field visits in a 104,000 acre portion of the Everglades known as Water Conservation Area 2A verified intense growth stands along major inflow points. This cattail explosion was visual documentation of changes in the Everglades habitat due to excess nutrients and became a rallying cry for water quality improvements. Id. While a slowing in the rate of cattail expansion is progress toward slowing the loss of the Everglades, an annual rate of 785 acres of cattail expansion is a serious threat to the Everglades that remain today. The Remaining Everglades The "remaining Everglades" is the roughly 50% or 1.6 million acres of the Everglades today left from the original 3,000,000 acres or so of the historical Everglades. The remaining Everglades is what remains of the system in the wake of the anthropogenic changes that began in the second half of the 19th Century. Anthropogenic Changes The initial man-made or "anthropogenic" changes to the Everglades began with the arrival of Hamilton Disston, a Philadelphia developer. The state deeded him land for the purpose of drainage or "re-claiming" of swampland. Under a contract entered in 1881 with the Board of Trustees for the Internal Improvement Fund as part of the first comprehensive drainage plan, Mr. Disston dug canals from Lake Okeechobee in directions both east and west. To the east, leading to the Atlantic Ocean, is the St. Lucie Canal. "[T]o the west is the Caloosahatchee--and its called a river, but it looks rather more like a canal if you . . . look at it today." (Tr. 1536) The effect of the two canals was to lower the level of Lake Okeechobee by several feet. Mr. Disston's efforts were followed by efforts by Governor Broward, directed by him personally, that implemented advice from the Army Corps of Engineers. The Corps had advised that converting the swampland adjacent to the lake into agricultural land would require flood control, irrigation systems and drainage. The Corps also had advised that reclamation of the narrow eastern edge of Everglades (now much of the developed Lower East Coast of Florida) would require a substantial levee on the coastal lands' western border and drainage ditches where small streams flowed from the Everglades to the Atlantic. As part of the activity recommended by the Corps, a set of four major canals was dug in a generally southeasterly direction: the West Palm Beach Canal, the Hillsboro, the North New River, and the Miami Canal. In the late 1920's, around 1926 and 1928, there were back-to-back hurricanes in South Florida. Damage was primarily south of the lake in the area now known as the Everglades Agricultural Area. The hurricanes "resulted in tremendous loss of life, and . . . widespread flooding in the area. In response, the Army Corps of Engineers built . . . Hoover Dike, . . . the dike that now [surrounds] the lake." (Tr. 1538) The dike renders the lake a contained, closely managed body of water. These developments altered the natural balance between water and soil in substantial parts of the historical Everglades. Drainage led to parched prairies, muckfires, the flooding of farms and communities, and salt water intrusion into the water supplies of the Lower East Coast of the state. HOUSE DOCUMENT No. 643, dated May 6, 1948 is a letter from the Secretary of the Army to the Congress. It transmitted, in turn, a letter from the Chief of Engineers, United States Army, submitting a comprehensive report to the Congress of the United States that pronounced concern about the Everglades. The document summarized, for example, the toll that water control changes had exacted on Everglades wildlife: Southern and Central Florida were originally one of the greatest natural habitats for fish, birds and game on the North American continent. The shores of Lake Okeechobee and the Everglades once afforded a refuge for thousands of water fowl and other birds which are now virtually extinct . . . In brief, it appears that large parts of the Everglades should be held and protected as conservation areas which would be ideal for preservation of wildlife. Coop. 9a, p. 36 (paragraph 48 of the Report of the District Engineer.) These facts added to the urgency of the need for conservation. But the concern led to further alteration disruptive to Everglades ecology. Authorized by Congress in 1948, the "Central and Southern Florida Project for Flood Control and other Purposes" (the "C&SF Project") implemented a comprehensive plan to reclaim wetlands for agricultural and urban development. The project's purposes included flood control, water supply for municipal, industrial and agricultural uses, prevention of saltwater intrusion, water supply for Everglades National Park, and protection of fish and wildlife resources. To take advantage of the fertile soils in the custard apple zone immediately south of the lake, the C&SF Project called for the creation of the Everglades Agricultural Area (the "EAA")4 to bring into agricultural production 500,000 acres. Other large portions of the Everglades have also been converted to agricultural use. The project was also intended to pump water south into interconnected water conservation areas in Palm Beach, Broward, and Dade Counties to facilitate the other purposes of the project. The C&SF Project includes 1,000 miles each of levees and canals, 150 water control structures, and 16 major pump stations. The extensive agricultural operations and considerable residential and commercial development that followed the initiation of the project are dependent on the maintenance of this highly controlled system of canals, levees and pumps, now operated by the South Florida Water Management District (the successor to the Central and Southern Flood Control District created by the state in response to the federal project.) The C&SF Project was largely complete by 1962 with the creation of works that facilitated man-made divisions of the historic Everglades located within the Everglades Protection Area (the "EPA"). The EPA The EPA is defined at Section 372.4592(2)(i). It consists of four divisions or water bodies whose segmentation has been facilitated by the C&SF Project works: three Water Conservation Areas and the Everglades National Park. Water Conservation Area 1 is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (it is referred-to in this order, therefore, interchangeably as the "Refuge," or WCA-1.) WCA-2 is further divisible into 2A and 2B and WCA-3 is further divisible into 3A and 3B. The fourth water body in the EPA is the Park. The Main Effects of the Anthropogenic Changes There are two main effects of the changes made by humans to the historical Everglades. The first is an issue of water quantity and flow. The hydrology of the system has been dramatically altered. What was once "broad, shallow sheet flow across the marsh," dictated by nature is now "a compartment- alized system with segmented flow" (Tr. 1539) managed to a highly significant degree by man. Hydropatterns have been altered in a number of ways that have resulted in major effects. The draining of the system has affected the water table. Water that had flowed through the peat, in addition to above the peat, keeping it wet, no longer does so in many parts of the Everglades. On the other hand, water impounded in the WCAs moved subsequently through canals and levees has made some areas, including relatively shallow areas, deeper. The custard apple zone has been drastically affected hydrologically; it no longer exists. Roughly in its place is the EAA. The EAA is 6 to 8 feet lower than the historic custard apple zone. In fact, the EAA is lower than the Everglades immediately to its south, precisely the opposite of the situation in the historical Everglades. Most of the soil is still present in the EAA, but because it has lost its hydric characteristic it is ten times denser than the soil found to the south. The soils density is another result of hydropattern disruption. The second effect is one of water quality. Drainage from the urban areas to the east and from the EAA have created water quality problems. Pesticides and herbicides have made their way into the Everglades. Both agricultural and urban land uses result in the release of excess nutrients, including phosphorus and nitrogen, from fertilizers. These excess nutrients are carried in stormwater runoff. They are also present in agricultural discharges. The runoff and discharges are ultimately pumped through water management district canals and facilities into the remaining Everglades. While pesticides, herbicides and nitrogen pose water quality problems, the preeminent water quality problem in the Everglades is phosphorus enrichment. For the 3 or 4 decades prior to the initiation of best management practices ("BMPs"), including those that employ stormwater treatment areas ("STAs") constructed in the last decade or so, the levels of phosphorus in the water column reaching the WCAs ranged from approximately 100 to 200 ppb. The introduction of excessive levels of phosphorus into the Everglades caused and continues to cause profound changes to its biology. Natural populations of aquatic flora and fauna adapted to the oligotrophic and phosphorus-limited system become displaced by species that thrive on the phosphorus rich waters pumped into the EPA and the phosphorus from these waters that settles out and makes its way into Everglades soil. In some areas of the EPA into which the Federal Project and the water management practices that have followed have pumped phosphorus-enriched water from the EAA, soil phosphorus concentration exceeds 500 parts per million. See areas designated in yellow on Coop Ex. 21 or in green on Coop Ex. 8E. These areas (defined by the Proposed Rule as "impacted"), for the most part, are on the periphery of the Refuge, WCA-2A (where the impacted areas extend deeply from the northeastern border into the interior of the conservation area), WCA-3A and WCA-3B. An exception occurs in the middle of WCA-3A along the Miami Canal which runs from Lake Okeechobee through the EAA and then across WCA-3 in a southeasterly direction. The impacted areas shown on Coop Ex. 8E comprise about 6% of the total 1.6 million or so acres of the freshwater portions of the Remaining Everglades. The conversion of a low nutrient or oligotrophic system to a high nutrient system is known as "eutrophication." One especially visible example of a nutrient-induced shift in biology is the displacement of sawgrass marshes with an invasive monoculture of pollutant-tolerant cattails. The oligotrophic nature of the system is the same today in areas of the Everglades that have not suffered the impacts of man. This determination is supported by the low nutrient content in Everglades peat and at interior marsh sites as determined by a recent study. Today, "a large body of evidence [citations omitted] indicates that . . . the primary limiting nutrient throughout the remaining Everglades" is phosphorus. DEP 23, Vol. 1, p. 4., but there is no gaseous form of phosphorus. The amount of phosphorus that comes directly from rain, therefore, is very low, "usually less than a part per billion." (Tr. 2765) Pollen, plant particles and dust tossed into the air in the normal course of events make up "dry fall." Dry fall contains phosphorus. Dry fall can drift into the waters of the Everglades but usually its components, including phosphorus, get deposited through rain on a localized scale. Dry fall, therefore, is another source of phosphorus in the Everglades. A major source of phosphorus in the Everglades today stems from discharges that are a part of a regime of water management practices conducted by the South Florida Water Management District. Discharges of water from urban and agricultural areas generally have contained phosphorus at levels significantly higher than occur naturally in the Everglades. Soils in the EAA and elsewhere subside through a process of inundation, drying out and oxidation. As soil oxidizes, concentrations of phosphorus are left behind. Rainfall produces stormwater runoff which carries with it the more concentrated phosphorus that eventually is pumped off of the agricultural fields and into the canals. In addition, fertilizers, plowing and burning in the EAA, all contribute to excess phosphorus entering the system. Critical Indicators of Impact and Imbalance On the basis of the testimony of Dr. Jones, impact and imbalance to aquatic flora and fauna caused by excessive phosphorus is determined by use of three critical indices: (1) water column concentrations; (2) soils; and (3) vegetation, with a particular emphasis on periphyton. Water column concentrations of phosphorus higher than background conditions contribute to higher soil concentrations by way of the phosphorus settling out of the water. So does compaction. As soils compact (as in the case of soils in the EAA) the soil gets heavier with more phosphorus per unit area. Compacted soils under water tend to leach phosphorus out in higher concentrations, a process referred to as "reflux." Since periphyton is composed of microscopic organisms, the initial impacts of phosphorus on periphyton are difficult to observe. Nonetheless change takes place in these microcosms in an early step of a chain of events described at hearing by Dr. Jones. The first step toward change in Everglades ecology due to the entry of excess phosphorus into the system occurs with an increase in total phosphorus in the water column by way of the introduction of phosphorus-laden discharges of water or reflux. The second step is a change in the microbial community, with the first indicator being decreased alkaline phosphotase production. The third and fourth steps, interchangeable depending on soil type, cross a threshold of visible change. The visible change takes place in the periphyton community (periphyton mats disintegrate); the other step is a total phosphorus increase detectable in the soils. The fifth step is an increase in the biomass because of increased growth. The increase in growth translates eventually into more litter and soil build up. The sixth step is the change in the composition of plant species that leads to an imbalance of flora and fauna. Imbalance in flora occurs in macrophytes ("plants we can see," Tr. 2940) with the loss of sawgrass. In the seventh step, cattails emerge. When cattails fill in wet prairies, an imbalance in fauna soon follows, the eighth step. Habitat is lost for wading birds and other organisms that had used the area resulting in a decrease of those organisms. This eight-step process culminates in visible destruction of Everglades ecology and ecology defined by low productivity, low biomass and low litter production. Most significantly, at the end of the process, the imbalance in Everglades aquatic flora and fauna is complete. Imbalance of Aquatic Flora and Fauna The Everglades Forever Act and the Proposed Rule do not contain a definition of "imbalance of aquatic flora and fauna." As demonstrated by Dr. Jones, the process of reaching the state of imbalance is a continuum. It begins with the introduction of excess phosphorus to the water column and is complete when wading birds and other fauna lose habitat because of the take-over and dominance of cattails. According to U.S. Sugar's witness, Donald M. Kent, Ph.D., an expert in wetlands ecology, imbalance in aquatic flora and fauna occurs when there is visible change in periphyton: "If periphyton just completely disappeared and didn't come back, or it changed from what we've considered a desirable natural species to something that was indicative of pollution, that would be imbalance." (Tr. 3934) These visible changes are also evident with regard to vascular plants, such as bladderwort that, as in the case of periphyton, is particularly sensitive to excess phosphorus. Visible changes to the periphyton community, such as disintegration of mats, and to bladderwort and other vegetation, coincide with changes in macroinvertebrates, such as insects, and fish. See Tr. 3947. In other words, once the continuum of impact has reached the point of visible change to periphyton and vascular vegetation, an imbalance in aquatic flora and fauna is relatively sure to occur soon. Dr. Kent's definition of "imbalance in the aquatic flora and fauna" is consistent with a definition of imbalance employed for the Park and the Refuge in the Settlement Agreement reached in litigation between the United States, the State of Florida and the South Florida Water Management District in the early part of the last decade. See findings, below. Phosphorus-laden waters discharged into the Everglades lead to another effect related to imbalance: phosphorus gradients that are man-made. Phosphorus Gradients Prior to localized phosphorus gradients produced by canal inflows with high phosphorus levels today, there was a historic phosphorus gradient in the Everglades. It existed before the man-made changes that cut Lake Okeechobee off from the rest of the 1850 system. The historic phosphorus gradient was manifest in the high levels of phosphorus that existed in the custard apple zone immediately south of Lake Okeechobee in comparison to the phosphorus levels south of this enriched zone. Today there are localized phosphorus gradients. They occur relatively close to the points of discharge of waters managed by the District where the waters flow into the EPA. Generally, the closer to a point of discharge the greater the concentration of phosphorus in the water column and the greater the soil concentration of phosphorus. As the flow of the phosphorus-laden waters continues downstream the concentrations in the water column and the soils tend to decrease. Florida and the United States Adopt Water Quality Laws Florida Water Quality Laws In 1967, Florida adopted Chapter 403, entitled "Florida Air and Water Pollution Control Act." Ch. 67-436, Laws of Fla. This act recognized that water bodies serve multiple beneficial uses that must be protected to promote the public welfare. Water quality standards were adopted for this purpose. Chapter 403 established a policy to "conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish, and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses." § 403.021(2), Fla. Stat. The act empowered the Department to "develop . . . a grouping of waters into classes . . . in accordance with the present and future most beneficial uses," and to "establish . . . water quality standards for the State as a whole or for any part thereof[.]" § 403.061(10) and (11), Fla. Stat. In 1968, the Department of Air and Water Pollution Control (one of DEP's predecessor agencies) promulgated regulations enumerating five classes of beneficial uses to be protected. Coop Ex. 9, App. 4, at 1. The Rule enumerating the five classes can now be found at Florida Administrative Code Rule 62-302.400. Water bodies not specifically identified in the Rule are listed as Class III on the basis of the designated uses "Recreation, Propagation and Maintenance of a Healthy, Well-Balanced Population of Fish and Wildlife." Fla. Admin. Code R. 62.302.400(1) and (12). Surface waters in the WCAs and the freshwater portion of the Park are Class III waters. (See also Tr. 1568) "Water quality criteria" were adopted for each class to protect the uses in that class and all higher numbered classes. Fla. Admin. Code Ch. 28-5 (1968). See Coop Ex. 9, App. 4, at 1. The original water quality criteria were not required to be met uniformly throughout a given water body; rather, they were applied after an opportunity for mixture with the receiving water had been afforded. Fla. Admin. Code R. 28.5.05(1)(1968). See Coop Ex. 9, App. 4, at 5. Relief from Department rules was also allowed in certain circumstances. § 403.201, Fla. Stat. In 1978, effective March 1, 1979, the Department updated the water quality criteria for the different water use classes, and added a narrative nutrient criterion that applies to Class III waters, outside mixing zones: (20) Nutrients - in no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. Fla. Admin. Code R. 17-3.121 (1979). See Coop Ex. 9, App. 7, at 41 and 43. This is the same nutrient criterion language now found at Florida Administrative Code Rules 62-302.530 and 62- 302.530(48). The 1979 rules did not define the phrase "imbalance in natural populations of aquatic flora and fauna" for this narrative criterion, nor has the phrase been subsequently defined by rule. The 1979 rules also added a new use category for waters of special recreational or ecological significance, known as "Outstanding Florida Waters" (OFWs), which included the Park and the Refuge. Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979). See Coop Ex. 9, App. 7 at 13-14. These waters are now included in the listing of OFWs at Florida Administrative Code Rule 62-302.700(9)(a) and (b). Under Florida Administrative Code Rule 62-302.700(1), "No degradation of water quality, other than that allowed in Subsections 62-4.242(2) and (3), is to be permitted" in OFWs. Pertinent to the issue in this proceeding, these OFW rules have remained in substantially the same form as they did in 1979. Florida Administrative Code Rule 62-4.242(2) is entitled "Standards Applying to Outstanding Florida Waters." Subsection (2)(a) of the rule prohibits permits from being issued "for any proposed activity or discharge within an [OFW], or which significantly degrades" an OFW, unless the permit applicant can affirmatively demonstrate that the proposed discharge is "clearly in the public interest" and that "existing ambient water quality . . . will not be lowered." Subsection (2)(c) of the rule defines "existing ambient water quality" as "the better quality of either (1) that which could reasonably be expected to have existed for the baseline year of an [OFW] designation or (2) that which existed during the year prior to the date of the permit application." Since the Park and Refuge were designated as OFWs when the OFW rules were adopted in 1979, the "baseline year" for the Park and Refuge was 1978-79, some 15 years after construction of the C&SF Project had segregated the Everglades in the units of the EPA and had begun its operations that redistributed natural water flows. The permitting rules further specify, at Rule 62- 4.242(2)(c), the following: The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to maintain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if: The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or Management practices and suitable technology approved by the Department are implemented for all stationary installations including those created for drainage, flood control, or by dredging or filling; and There is no alternative to the proposed activity, including the alternative of not Id. undertaking any change, except at an unreasonably higher cost. The 1979 revisions added a second policy to limit further degradation of Florida surface waters, at Florida Administrative Code Rule 17-3.041(3)(a) and (b)(1979). See Coop Ex. 9, App. 7 at 13-14. Known as the "antidegradation policy," the policy applies to both OFW and non-OFW waters and can now be found at Florida Administrative Code Rule 62-302.300, with implementing permitting requirements at Florida Administrative Code Rule 62-242. In addition to establishing permitting criteria for discharges to OFWs, as noted above, the Rule also allows for discharges to other waters (which would include WCA 2 and WCA 3) that cause water quality degradation "if necessary or desirable under federal standards and under circumstances that are clearly in the public interest[.]" See Fla. Admin. Code R. 62-4.242(1)(listing various factors for determining what constitutes "clearly in the public interest"). The rules also articulate policies "to limit the introduction of man-induced nutrients," especially to low nutrient waters, to prohibit new violations of water quality standards, and to limit degradation below designated uses. Fla. Admin. Code R. 62-302.300(13)-(18). See also Fla. Admin. Code R. 17-3.041(3)(a) and (b) (1979); SCGC Ex. 9, App. 7 at 2. In its 1979 rewrite of the state's water quality standards, the Environmental Regulation Commission (the "ERC") recognized that Florida's water body use classifications and the associated water quality criteria might not be appropriate for part or all of a given water body. Therefore, in the same rule that contained the antidegradation policy, the ERC approved a special set of provisions as a substantive part of Florida's water quality standards. It was understood that "the implementation policies and procedures [of these new rules] . . . will govern the manner in which the proposed water quality standards are applied." Written Statement of the Facts and Circumstances Justifying the Proposed Amendments, p. 2, filed with the Secretary of State on August 18, 1978. Coop Ex. 9, App. 10. Known as "moderating provisions," these special "implementation policies and procedures" remain an integral part of Florida's "water quality standards." The ERC's 1979 rationale for "moderating provisions" continues today in substantially the same language as a key feature of DEP rules: 1. The Department's rules that were adopted on March 1, 1979, regarding water quality standards are based upon the best scientific knowledge related to the protection of the various designated uses of waters of the State; and 2. The mixing zone, [and] site specific alternative criteria . . . provisions are designed to provide an opportunity for the future consideration of factors relating to localized situations which could not adequately be addressed in this proceeding, including economic and social consequences, attainability, irretrievable conditions, [and] natural background . . . . . . . [T]he continued availability of the moderating provisions is a vital factor providing a basis for the Commission's determination that water quality standards applicable to water classes in the rule are attainable taking into consideration environmental, technological, social, economic, and institutional factors. The companion provisions of Chapters 17-4 and 17-6, F.A.C., approved simultaneously with these Water Quality Standards are incorporated herein by reference as a substantive part of the states comprehensive program for the control, abatement and prevention of water pollution. Without the moderating provisions described in (b)2. above, the Commission would not have adopted the revisions described in (b)1. above, nor determined that they are attainable as generally applicable water quality standards. Fla. Admin. Code R. 62.300.200(10). See also Fla. Admin. Code R. 62-4.249 (providing for ERC review "at the earliest opportunity" if a moderating provision is invalidated). Moderating provisions, as are "water quality criteria," are constituents of "water quality standards" as shown in Florida Administrative Code Rule 62-302.200 (29) and (30), which currently defines the terms as follows: "Water quality criteria" shall mean elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing the quality of water that supports the present and future most beneficial uses. "Water quality standards" shall mean standards composed of designated present and future most beneficial uses (classification of waters), the numerical and narrative criteria applied to the specific water uses or classification, the Florida antidegradation policy, and the moderating provisions contained in this Rule and in F.A.C. Rule 62-4, adopted pursuant to Chapter 403, F.S. Thus, a water quality standard is not necessarily a simple number. For over a quarter of a century a water quality standard has been a system of regulation, with four separate components that include classified uses, water quality criteria, an antidegradation policy, and moderating provisions. One final aspect of state water quality standards is pertinent to these proceedings. The term "net improvement," which appeared first in the original EFA at Section 373.4592(4)(e)3., was introduced into Florida law in 1984 as part of the Warren K. Henderson Wetlands Protection Act, Ch. 84- 79, Laws of Fla., and was originally codified at Section 403.918(2)(b), as part of the Act's dredge and fill permitting criteria. In 1993, when it established the environmental resources permitting program in Chapter 93-213, Laws of Florida, the Legislature transferred "net improvement" to Section 373.414(1)(b)3. The language has remained essentially the same: If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the governing board or the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. ii. The Federal Clean Water Act The Federal Water Pollution Control Act of 1972 (now known as the "Clean Water Act" or "CWA") established a comprehensive federal water pollution program to further its objective "to restore and maintain the chemical, physical, and biological integrity of the Nation's water." 33 U.S.C. § 1251(1)(2002). It declared a national goal, "wherever attainable," to achieve "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." Id. The CWA assigned to the States the primary role in establishing water quality standards. Id. § 1313. See also Chevron USA, Inc. v. Hammond, 726 F.2d 483, 489 (9th Cir. 1984). The United States Environmental Protection Agency (the "USEPA" to distinguish it from this order's reference to the Everglades Protection Area as the "EPA") has the duty to then review State water quality standards for approval under the CWA. 33 U.S.C. § 1313. Like Florida's system, USEPA regulations explain that a "water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria to protect the uses." 40 C.F.R. § 131.2. In a manner similar to Florida's rules, federal water quality laws also clearly distinguish between "water quality criteria" and "water quality standards": The word "criterion" should not be used interchangeably with, or as a synonym for, the word "standard." The word "criterion" represents a constituent concentration or level associated with a degree of environmental effect upon which scientific judgment may be based. As it is currently associated with the water environment it has come to mean a designated concentration of a constituent that when not exceeded, will protect an organism, an organism community, or a prescribed water use or quality with an adequate degree of safety. A criterion, in some cases, may be a narrative statement instead of a constituent concentration. On the other hand, a standard connotes a legal entity for a particular reach of waterway or for an effluent. A water quality standard may use a water quality criterion as a basis for regulation or enforcement, but the standard may differ from a criterion because of prevailing local natural conditions, such as naturally occurring organic acids, or because of the importance of a particular waterway, economic considerations, or the degree of safety to a particular ecosystem that may be desired. (Citations omitted.) National Resources Defense Council, Inc. v. USEPA, 770 F. Supp. 1093, 1100 (E.D. Va. 1991)(quoting from USEPA guidance), aff'd, 16 F.3d 1395 (4th Cir. 1993). The CWA requires states to periodically review and update their water quality standards. Such revisions must be submitted to USEPA for review to ensure that they contain designated uses of the waters and water quality criteria for those waters needed to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act. 33 U.S.C. § 1313(c)(2)(A). The practicality of water quality controls is also relevant under the CWA. Recognizing that use attainability (or criterion achievement) can be precluded under certain conditions, USEPA regulations provide that States (or Indian Tribes) "may, at their discretion, include in their standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances." 40 C.F.R. § 131.13. See SCGC Ex. 9, App. 10. USEPA regulations specify six independent situations where states may justify the grant of relief via rule or permit for specific discharges or entire water bodies (or portions thereof). 40 C.F.R. § 131.10(g). States and Tribes are given such regulatory flexibility when any of the following factors is present: Naturally occurring pollutant concentrations prevent the attainment of the use; or Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more damage to correct than to leave in place; or Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in attainment of the use; or Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic like protection uses; or Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. Id. In essence, these USEPA rules have found circumstances where the inclusion of moderating provisions in state and tribal water quality standards is appropriate. Background Levels of Phosphorus Today Background levels of phosphorus in the four water bodies in the EPA vary. Everglades National Park, the least-impacted and most pristine section of the EPA, has an historic background level of phosphorus that varied between 5 to 8 eight ppb. Today, background levels have the same range during the wet season (the summer months to late fall). In the dry season, phosphorus levels can be anywhere from 8 to 13, with some instances of very high numbers in isolated pools where fish congregate when the system has dried down (in February and late winter) and water levels decrease. Everglades National Park is an Outstanding Florida Water (OFW). Fla. Admin. Code R. 62.302.700(1)(9). That designation offers special protection that is consistent with the existing ambient water quality at the period of designation. Background levels in the Park are consistently lower than background levels in the water conservation areas. Background concentration levels of phosphorus in the water column are not uniform in the Refuge, Water Conservation Area-1. The perimeter canal has significant impacts from nutrients. In contrast, the interior of WCA-1 is pristine and contains uniform levels of phosphorus. The interior part of WCA 1 has a background level of phosphorus in the water column of between 5 and 9 ppb. WCA-1 is perched. The perched effect has been exacerbated by the drainage and canals placed around the Refuge. The Refuge is an OFW. That designation offers special protection consistent with the existing ambient water quality at the period of designation (1978, 1979). Historic levels of phosphorus in WCA-2, divisible into WCA 2A and WCA 2B, probably existed in the range of 5 to 8 ppb. Although today the background levels in some areas are still in this range, there are other indicators of impact. Measurements of the enzyme alkaline phosphatase can be made that indicate change not susceptible to visible detection. Bacteria produce this enzyme when there is an absence of phosphorus. In an oligotrophic situation, the bacteria produce a great deal of this enzyme, which allows them to cycle phosphorus more efficiently. Where the levels of the enzyme are depressed, it indicates higher levels of phosphorus. Conversely, where the levels of alkaline phosphatase are high, the more oligotrophic the system. Another way to determine impact is to measure the phosphorus levels in the tissue concentrations of the periphyton itself. In WCA 2A, the periphyton has slightly higher phosphorus tissue concentrations than elsewhere in the Everglades. Much of WCA-2A suffers from excess phosphorus at some level based on levels of alkaline phosphatase and examination of the periphyton community. Water Conservation Area 3 can be divided into three distinct hydrological areas: WCA-3A North, WCA-3A South, and WCA-3B. WCA-3A is northwest of the L-67 canal; WCA-3B is south east of the canal. WCA-3A can be divided into WCA-3A North and WCA-3A South, because Alligator Alley, a roadway, separates the two and constricts water flow. There are different background levels of phosphorus in WCA-3A North and South. Areas in WCA-3A show impacts along the canals and inflow points. WCA-3A North has a slightly higher phosphorus concentration than WCA-3A South. There are also nutrient impacts along the Miami Canal. Background levels of phosphorus in WCA-3A, north of Tamiami Trail, are around 7 to 8 ppb. Most areas of WCA-3A South are pristine, as shown by the presence of intact periphyton mats. Exceptions exist along the canals and along Tamiami Trail, as indicated by cattails and altered native species. The vegetation in WCA-3B is mostly eleocharis, periphyton and utricularia (bladderwort). All three of these vegetative species are indicative of healthy Everglades ecology. While the periphyton mat is the key to Everglades health, the presence of utricularia offers a different indication of the health of the ecosystem. It is "a carnivorous plant . . . characteristic of . . . oligotrophic environments because . . . [utricularia] have to get their nutrients by . . . eating other organisms [rather than from the water or soil]." (Tr. 2836) The current background levels of phosphorus in the water column in WCA-3 are from 5 to 8 ppb. The Federal Lawsuit and the Settlement Agreement In 1988, the United States sued the South Florida Water Management District (the "District") and the Department of Environmental Regulation ("DER"), the predecessor to the Department of Environmental Protection. Among the allegations in the complaint, the federal government alleged that the District's pumping of phosphorus-rich water into the Everglades National Park and Loxahatchee Wildlife Refuge resulted in violations of State water quality standards. See generally United States v. South Fla. Water Management District, 847 Supp 1567 (S.D. Fla. 1992). The federal government further alleged that DER and the District had failed to take appropriate regulatory action to prevent water quality violations within the Park and the Refuge. As the litigation proceeded, the Florida Legislature in 1991 passed the Marjory Stoneman Douglas Everglades Protection Act, codified as Section 373.4592 (re-named as the Everglades Forever Act in 1994) to address concerns raised by the federal government. In July of the year in which the Act passed, the federal and state parties settled the litigation initiated three years earlier. The "Settlement Agreement" set forth a commitment of the parties to restore and maintain water quality in the Park and the Refuge. Among other matters, the Settlement Agreement envisions a remedial plan in which the District agreed (a) to adopt a regulatory program that requires EAA interests to implement on-farm best management practices ("BMPs") to reduce phosphorus in stormwater running off their lands and (b) to construct over 35,000 acres of publicly owned STAs within the EAA to further reduce phosphorus in waters prior to discharge into the Everglades. The Settlement Agreement set forth a definition of "Imbalance in natural populations of aquatic flora and fauna" in paragraph 1., the "Definitions" section of the agreement: "Imbalance in natural populations of aquatic flora and fauna" and "imbalance of flora and fauna" shall have the meaning in Florida Administrative Code Rule 17-302.560: "Class III Waters - Recreation, Propagation and Maintenance of Healthy, Well-Balanced Population of Fish and Wildlife. (19) Nutrients: In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna." Imbalance includes situations when nutrient additions result in violation of other standards contained in Chapter 17-302 as defined in Rule 17.302.510(3)(j). In the case of the Park and Refuge, imbalance specifically shall include nutrient additions that result in, but are not limited to, replacement of native periphyton algal species by more pollution-tolerant algal species, loss of the native periphyton community or, in advanced stages of nutrient pollution, native sawgrass and wet prairie communities giving way to dense cattail stand or other nutrient-altered ecosystems, which impair or destroy the ability of the ecosystem to serve as habitat and forage for higher trophic levels characteristic of the Everglades. Numerical interpretation of imbalance shall specifically include an array of indices to measure sensitivity of the ecosystem to small changes in nutrients, such as nutrient cycling processes and the basic components of the Everglades ecosystem, including periphyton and other sensitive indicators of nutrient enrichment. Tribe/Friends 164, (Exhibit B), p. 3, 4 (emphasis supplied). The specific inclusion in the definition of "imbalance" in the Settlement Agreement of "replacement of periphyton algal species by more pollution-tolerant algal species [and] loss of the native periphyton community . . . " applies to the Park and the Refuge. The definition of "imbalance" to include periphyton disruption and loss does not apply to WCA-2 or WCA-3. The Settlement Agreement also drew a distinction between "interim concentration limits" set for the Park and "interim concentration levels" set for the Refuge on both an interim and long-term basis: "Interim concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 1997 October 1, 2003, as determined in Appendix A. "Interim concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 1997 February 1, 1999, as determined by Appendix B. "Long-term concentration limits" for the Park shall mean the concentration limits to be measured at discharges to the Park and attained by July 1, 2002 December 31, 2006, as determined by Appendix A. "Long-term concentration levels" for the Refuge shall mean the geometric mean of concentration levels to be measured at 14 interior marsh stations and attained by July 1, 2002 December 31, 2006 as determined by Appendix B. Id., p. 4. Since the use of "geometric mean" in the Proposed Rule has been placed at issue by the Tribe and Friends, it is notable that the Settlement Agreement employs a geometric mean to measure concentration levels of the Refuge as a water body at interior marsh stations. In contrast, a geometric mean is not employed by the Settlement Agreement in the measurement of concentration limits in the Park since by the agreement's definition "limits" (unlike "levels") are not applicable to ambient water quality but are applicable rather to discharges. Appendix A of the Settlement Agreement establishes the interim and long-term discharge limits for waters entering the Park at designated locations: Phosphorus limits apply to flow-weighted - mean concentrations computed on an annual Water Year basis, with data reported and calculated on a monthly basis. To account for hydrologic variations in Shark River Slough, the limits vary with the previous 12-month's total flow in each basin. The long term limit for Taylor Slough and the Coastal Basin is fixed and does not vary with the flow. The limits represent the 10% rejection level of the observed flow- weighted-mean concentration at a given total annual flow, adjusted to a baseline time period of March 1, 1978 to March 1, 1979 for Shark River Slough (OFW baseline). The baseline time period for the Taylor Slough and Coastal Basins is Water Year 1984. Compliance with these limits is expected to provide a long term average flow-weighted mean inflow concentration of approximately 8 ppb for the Shark River Slough Basin and 6 ppb for the Taylor Slough and Coastal Basins. Approximate values are as follows: Dry Year Wet Year (117 Kac-ft/yr) (1061 Kac-ft/yr) Shark River Slough - Interim Limits Flow-Weighted Mean < 14 ppb < 9 ppb Shark River Slough - Long Term Limits Flow-Weighted Mean < 13 ppb <8ppb Taylor Slough & Coastal Basins - Long Term Limit is 11 ppb. Tribe/Friends 164, Appendix A, at A-2 to A-3. Appendix B to the Settlement Agreement establishes interim and long-term levels for waters within the Refuge at designated locations. The interim marsh concentration levels are based upon a 14 station geometric mean of between 8 and 22 ppb, based upon water stage levels, and the long-term levels range from 7 to 17 ppb, adjusted to a baseline time period of June 1978 to June 1979. This baseline starts and ends three months after the baseline used for OFWs. Compliance with the long-term Park "limits" is to be determined based on the flow-weighted means of monitoring data collected at specified structures discharging into the Park. Compliance with the long-term Refuge "levels" is to be determined based on the geometric means of monitoring data collected at a network of 14 specified stations located in the interior marsh of the Refuge. The long-term limits for the Park are necessary to satisfy the OFW Rules. In the case of the Refuge, the levels were derived to depict the existing ambient water quality that existed as of the 1978 time frame that corresponds to the OFW baseline. Appendix B further provides that the "Class III standard" applies if a Technical Oversight Committee (the "TOC" established in the Agreement) determines that it is lower than the 14-station geometric mean. Appendix B states "[t]he current control program, consisting of on-line STAs and BMPs . . . is designed to achieve a long-term average annual flow-weighted concentration of 50 ppb for each discharge to the Refuge and WCAs from the EAA." Tribe/Friends 164 at B-2. If the interim, or lower of the long- term Refuge levels or Class III criteria are not met with the current control program, the state is directed by agreement to "require additional components to be added . . . to meet a maximum annual discharge limitation of 50 ppb for discharges into the Refuge from the EAA." Id. More intensive management of the STAs alone will not suffice to satisfy the requirement for additional components. A range of such components includes more intensive management, but also includes increased STAs acreage, a stronger regulatory program or a combination of the three. If the lower of the Class III or long-term levels is not met by December 31, 2006, and the 50 ppb maximum annual discharge limit is being met at all inflow structures into the Refuge from the EAA, the TOC is required to "recommend a lower maximum annual discharge limits for the structures to be enforced by the [state]." Id. at B-4. The Definitions section of the Settlement Agreement states that "'Class III water quality standards' shall have the meaning set forth in Florida Administrative Code Chapter 17- 302." Tribe/Friends 164, p. 2. With regard to research and monitoring, the Settlement Agreement provided, in part, Several aspects necessary to achieve compliance with this Agreement must be defined by additional research. The research objectives are to: Numerically interpret the narrative Class III nutrient water quality criteria (i.e., the nutrient levels which cause an imbalance of flora and fauna in the units of the EPA); and Assess current and continuing responses of the EPA to nutrient input levels resulting from the efforts to achieve interim and long-term concentration limits and levels. Tribe/Friends 164, pp. 15-16. In its 1992 consent decree approving the Settlement Agreement, the federal district court emphasized that "the agreement is not self-executing, but rather is subject to Florida's [Administrative Procedure Act]." South Fla. Water Management Dist., 847 F. Supp. at 1570. The federal and state parties agreed to propose the substantive requirements of the agreement for finalization in the state administrative process, including the Park limits and Refuge levels (and the numeric interpretation of the Class III criterion). Id. at 1572. "The Agreement does not predetermine the outcome of any state proceedings required under Chapter 120 of the Florida Statutes . . . . The Agreement requires the District and DER to fulfill their obligations under existing state law." Id. The Everglades Forever Act In 1994, after a renewal of litigation as a result of attempted implementation of the requirements of the Settlement Agreement and the Marjory Stoneman Douglas Everglades Protection Act, the Florida Legislature enacted the Everglades Forever Act (the "EFA"). Findings and Intent The EFA sets forth extensive "Findings and Intent" in its opening paragraphs. Among those are the following: (a) The Legislature finds that the Everglades ecological system not only contributes to South Florida's water supply, flood control, and recreation but serves as the habitat for diverse species of wildlife and plant life. The system is unique in the world and one of Florida's greatest treasures. The Everglades ecological system is endangered as a result of adverse changes in water quality, and in the quantity, distribution and timing of flows, and, therefore, must be restored and protected. * * * . . . The Legislature finds that waters flowing into the Everglades Protection Area contain excessive levels of phosphorus. A reduction in levels of phosphorus will benefit the ecology of the Everglades Protection Area. . . . the Everglades ecosystem must be restored both in terms of water quality and quantity. § 373.4592(1), Fla. Stat. (Emphasis supplied) The Everglades Program and the Everglades Construction Project The EFA codified and expanded the phosphorus reduction program of the Settlement Agreement by adoption of the Everglades Program. See § 373.4592(2)(h), (4)(a) and (4)(f), Fla. Stat. The Everglades Program includes: (a) implementation of "best management practices," defined in section 373.4592(2)(b), (or "BMPs") and the Everglades Construction Project ("ECP") defined in Section 373.4592(2)(g); and (b) a comprehensive program and projects to improve and restore water supply and hydroperiod. § 373.4592 (4)(a),(b), and (f), Fla. Stat. The ECP "represents the largest environmental cleanup and restoration program of this type ever undertaken." § 373.4592(1)(h), Fla. Stat. The ECP was targeted to achieve a 50 ppb, flow-weighted mean discharge concentration. The Everglades Agricultural Privilege Tax The EFA funded the ECP, in part, by creating an Everglades Agricultural Privilege Tax assessed annually: for the privilege of conducting an agricultural trade or business on: All real property located within the EAA that is classified as agricultural . . .; and, [certain leaseholds or other interests in real property.] § 373.4592(6), Fla. Stat. Direction to DEP and Rule-making The EFA directed DEP and the District to undertake research to numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area and to evaluate water quality standards applicable to the EPA and EAA canals. The precise language of the direction is: Evaluation of water quality standards.-- The department and the district shall employ all means practicable to complete by December 31, 1998, any additional research necessary to: Numerically interpret for phosphorus the Class III narrative nutrient criterion necessary to meet water quality standards in the Everglades Protection Area; and, Evaluate existing water quality standards applicable to the Everglades Protection Area and EAA canals. § 373.4592(4), Fla. Stat. This direction led DEP to conduct rulemaking in conjunction with the ERC to establish a "phosphorus criterion" for the EPA that interpreted the Act's narrative criterion. The Narrative Criterion Limited to Everglades phosphorus, the Narrative Criterion in the EFA replicates to an extent the "narrative nutrient criterion" in Florida Administrative Code Rule 62- 302.530(49)(b): In no case shall nutrient concentrations of body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The Narrative Criterion of the Act is quite similar; both it and the "narrative nutrient criterion" in the Proposed Rule prescribe that in no case shall there be alterations allowed so as to cause imbalance in natural populations of aquatic flora and fauna. As stated earlier neither the EFA nor DEP rules define the terms "imbalance" or "natural populations of aquatic flora and fauna." The EFA directs, however, that the criterion "shall not be lower than the natural conditions of the [EPA]" and that it "shall take into account spatial and temporal variability." § 373.4592(4)(e)2., Fla. Stat. The difference between the two criteria - one in the existing rule governing all nutrients, the other in the EFA and carried forward in the Proposed Rule - is one of limitation; the term "nutrient concentrations" in the existing rule is replaced with "such phosphorus criterion" in the Act and the term "body of water" is replaced with "waters in the Everglade Protection Area": In no case shall such phosphorus criterion allow waters in the Everglades Protection Area to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. § 373.4592(4)(e)2, Fla. Stat. The Narrative Criterion is central to this case and the dispute between the Miccosukee Tribe and the Friends of the Everglades on one side and the rest of the parties to this Proposed Rule Challenge on the other. The case of the Tribe and Friends draws much of its force from the clarity and power of the Legislature's choice of the Narrative Criterion's first three words, "[i]n no case." This proscription, absolute on its face, is the introduction to the Narrative Criterion's mandate that the phosphorus criterion not allow waters in the EPA to alter the natural balance of flora and fauna. The power and clarity of the Narrative Criterion is at the base of the criticism of the Proposed Rule by the Tribe's witness Colonel Terry L. Rice, (US Army ret.). The Testimony of Colonel Rice The Tribe opened its case by calling Terry L. Rice, Ph.D., a retired colonel in the U.S. Army and a former Commander of the Army Corps of Engineers District headquartered in Jacksonville. The Corps District once under the command of Colonel Rice is composed of Florida, Puerto Rico and the Virgin Islands. Colonel Rice's Ph.D. is in Water Resources Engineering--Hydraulics and Hydrology. He is a registered professional engineer in Florida and several other states. He has numerous other credentials, including an M.S. from the University of Illinois, and a B.S. from the United States Military Academy at West Point. He has been a Senior Service College Fellow at the Walsh School of Foreign Service at Georgetown University, and is both an Honor Graduate of the Command and General Staff College at Fort Leavenworth and a Graduate of the Department of State's Foreign Service Institute. Colonel Rice's many credentials, his high-level training and the depth of his experience nationally and internationally are strikingly impressive. They serve as his qualifications for the fields of expertise in which he was accepted in this case (hydrology, water resources engineering and regulatory and permitting issues as related to Everglades restoration) and, moreover, bolster his credibility as a witness. Of particular relevance to this case is that from August of 1994 to October of 1997, Colonel Rice while a District Commander for the Corps was responsible for projects and planning to enhance flood control, navigation, shore protection and environmental restoration in the Corps District that contains the state of Florida. During this period of his distinguished military career, the Corps was directed to develop the Comprehensive Everglades Restoration Plan ("CERP"). For Colonel Rice this meant that "Everglades restoration was his top priority." Tribe 169. He arrived in Jacksonville at the Corps' District headquarters in 1994, three months after the EFA was passed, a moment described by Colonel Rice as "the crucible of . . . this . . . coming together." (Tr. 72) Colonel Rice's responsibility was to steer the development of CERP. Among the projects he was involved in were: the modified water deliveries project coming out of the 1989 act, a major restoration project, still not done; the C-111 restoration; the Kissimmee Restoration, which I'm happy to say, is moving along very well. Something I think we're all proud of; and the Everglades Restoration Project. (Tr. 72-3) This required that Colonel Rice permit under the Clean Water Act construction of the STAs so the water management district would be allowed to fill the Everglades in which they would be constructed. In the midst of Colonel Rice's being in charge of CERP, the Governor of Florida established the Governor's Commission for Sustainable South Florida to oversee CERP from the state's perspective. At roughly the same time, the Secretary of the United States Department of Interior established the South Florida Ecosystem Task Force to oversee CERP at the federal level. Colonel Rice served the Assistant Secretary of the Army for Civil Works as his representative on the federal task force and served on the Governor's Commission as well. The work of these two groups, much of it under the guidance of Colonel Rice and the Corps, culminated in a consensus on CERP. Colonel Rice's leadership in the formulation of CERP has been a tremendous accomplishment reflected in its recognition in all three branches of the federal government. He has received a letter of commendation from the White House for his work on Everglades Restoration. He has testified before Congress about it and a report on his efforts has been read into the Congressional Record. On several occasions, Colonel Rice has testified before Judge Hoeveler in the litigation over the Everglades initiated in 1989. His testimony has been in regard to issues related to water quantity, water quality, use of a geometric mean, interpretation of the Settlement Agreement, the STAs and the 404 program under the Clean Water Act. Colonel Rice's opinion is that the Proposed Rule does not protect the Everglades. He believes that the various components of the Proposed Rule when taken together "overwhelm the resource." (Tr. 153) Objection was made to Colonel Rice's opinion on the basis that it was beyond the scope of his expertise. The objection was overruled. It was concluded that while not a wetlands ecologist, Colonel Rice was qualified nonetheless to render his opinions in light of all of his qualifications, particularly the depth of his experience in Everglades issues. Colonel Rice criticized the Proposed Rule on a number of different grounds. Among them is that by employing a geometric mean for the phosphorus criterion, the rule "skews data low" (Tr. 155), in such a way as to allow phosphorus discharge that will not protect the Everglades. He also faulted achievement methodologies employed by the Proposed Rule and data exclusion. Furthermore, he criticized its allowance of discharging phosphorus water into areas that were not impacted by phosphorus if a net environmental benefit accrued by virtue of hydropattern restoration. Within each set of Colonel Rice's criticisms, there were a number of different faults he found with the Proposed Rule. He criticized some of the data exclusion provisions in subsection (e) of Section (5), "Methods for Determining Achievement of the Criterion in the Everglades Protection Area" of the Proposed Rule. For example, he testified that words "flood" and "drought" in the subsection are not defined. The lack of definition, in his view, confers unbridled discretion on DEP to exclude data. Since water levels are the subject of water management practices by the District, moreover, Colonel Rice fears that floods and drought in the Everglades could be manmade, thus allowing manmade manipulation of data exclusion. Furthermore, he questioned the subsection's exclusion of data related to "authorized restoration activities," one of the "temporary" human activities listed in paragraph (5)(e)4., of the Proposed Rule. He assumed that the term related to all of the projects under CERP and stated that while CERP will cause permanent impacts, there will be periods of construction and stabilization with regard to CERP projects that will cause impacts temporarily. Colonel Rice also questioned the exclusion of data under paragraph (5)(e)5., of the Proposed Rule that related to samples taken when hydrologic conditions were outside the range that occurred during the time period used to set the numeric criterion (the "period of record") on the basis of the Proposed Rule's lack of a definition of the period of record. The evidence demonstrates, as discussed below, that the period of record for establishing the numeric phosphorus criterion is 1978-2001.5 Colonel Rice questioned the allowance of hydropattern restoration using phosphorus-rich waters to achieve what might appear to provide immediate improvement on the basis of the concept of "resilience." Overly dried areas suffer impacts from the lack of hydration. "But when you add water back, [the impacted area] comes back to life fairly rapidly." (Tr. 163) That is, areas that suffer impacts for lack of water retain short-term resiliency. In contrast, phosphorus does not leave once it permeates the soil. "So when it comes to the standpoint of resilience, it only becomes prudent to make sure you've got clean water before you rehydrate." Id. Rehydration beforehand, with phosphorus-rich waters, results in "losing something you're not going to gain back in a reasonable amount of time." (Tr. 163) In other words, pollution of the water column in the Everglades with phosphorus and deposits of the phosphorus into the soil renders the area formerly unimpacted by phosphorus but impacted by disruption of hydropatterns or lack of water much less resilient and much less capable of achieving recovery in a reasonable amount of time. One of Colonel Rice's criticisms related to a moving front of degradation visible in its last stage by the advancement of cattails, the "tombstones on the grave of the Everglades." (Tr. 333) Indeed, it was proven that phosphorus enrichment in the EPA is causing a moving front. Colonel Rice offered a solution. Instead of measuring ambient water quality, that is, the quality of the water body as a whole, Colonel Rice suggested that a phosphorus criterion should be established at the points of discharge, that is, "in the water as it flows into the Everglades." (Tr. 335) He further suggested that the criterion should be a concentration of 10 ppb. There is little question from this record that Colonel Rice is correct that if the water flowing into the Everglades had a phosphorus concentration of 10 ppb, the phosphorus in the inflows of water would not cause an imbalance of the natural populations of aquatic flora and fauna. Despite the fact that Colonel Rice is not a wetlands ecologist, his opinions, given his outstanding qualifications, and his integral involvement with the Everglades as a District Commander in the Army Corps of Engineers, the entity that has had such a huge hand in the Everglades over the years and which now has such a central role in the restoration and preservation of the Everglades, are weighty ones. Colonel Rice's opinion that the Proposed Rule is not protective of the resource is the equivalent of stating that it allows the discharge of phosphorus that will create an imbalance of the natural flora and fauna, contrary to the Narrative Criterion. The ultimate issue in this case, however, is not limited to just whether the Proposed Rule interprets the Narrative Criterion appropriately. The ultimate issue in this case, is whether the Proposed Rule is an invalid exercise of delegated legislative authority, a determination that depends on an understanding of the all of the legislation that is at issue. Indeed, it depends on an understanding of the EFA as a whole. Beyond the Narrative Criterion, there are several aspects of the EFA that must be taken into account before the determination that this case requires is made. Those aspects, in other provisions of the EFA, include amendments enacted in 2003 immediately prior to the publication of the Proposed Rule. For example, Colonel Rice testified that "net improvement" in the Everglades would mean when cattails start to recede. The term "net improvement" in the EFA quite plainly refers to an improvement in water quality. Water quality could improve in an impacted area but not enough to cause cattails to recede. Thus, Colonel Rice's definition of "net improvement" is at odds with the EFA's use of the term. In short, there are provisions aside from the Narrative Criterion in the EFA that directly or indirectly authorize aspects of the Proposed Rule with which Colonel Rice finds fault. Other Provisions of the EFA The EFA requires the Department to establish discharge limits in permits using the "relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area." § 373.4592(4)(e)3., Fla. Stat. The Department is charged with determining ambient water quality based on the phosphorus discharges just as it does in the application of water quality standards generally in bodies of water in Florida other than the EPA. These limits must be set at a level "necessary to prevent an imbalance in the natural populations of aquatic flora and fauna" and "to provide a net improvement in the areas already impacted." Id. Again, the EFA charges the Department with the approach the Department has used for many years in its application of water quality standards. Compliance with the rule is to be based on a long- term geometric mean of phosphorus concentration levels at representative sampling stations "to assure" that the EPA "is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted." Id. Furthermore, Id. Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of the receiving waters in the [EPA . . .]. For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively, of the settlement agreement dated July 26, 1991, entered in case No. 88-1886-Civ-Hoeveler, United States District Court for the Southern District of Florida, that recognizes and provides for incorporation of relevant research. The EFA was amended by two session laws passed in 2003. The amendments were described at hearing by Frank Nearhoof, DEP's Administrator of Water Quality Standards and Special Projects Program. The program is responsible for a broad range of technical and regulatory activities under the EFA, CERP Regulatory Act and the Lake Okeechobee Protection Act. Mr. Nearhoof was accepted as an expert in Everglades ecosystem; the Everglades Forever Act; water quality data evaluation, including the statistical evaluation of data; and the establishment and implementation of water quality standards. The amendments were also described by Gary Goforth, Ph.D., Consulting Engineer with the Water Resources Management Group in the District. The 1994 EFA implemented BMPs and STAs to reduce phosphorus concentrations in the water column to 50 ppb. It also called for research to permanently establish a phosphorus criterion that would, in all likelihood, establish a number lower than 50 ppb. By 2003, enough was known as the result of experience with BMPs, the STAs and research "to implement a second phase of technology." (Tr. 1566) The EFA as amended in 2003 called for the implementation of this second phase and made four basic changes described by Mr. Nearhoof at hearing: long term plan [was put in place], which basically builds on the initial Everglades Construction Project, and adds certain modifications to the various STAs to enhance their treatment effectiveness. It . . . provided funding . . . of 450 million dollars . . . to build those enhanced features. . . . [I]n recognition that we're . . . setting a low criterion . . . , and that our technology [isn't] quite [sufficient] yet, it . . . put in place a relief mechanism to deal with that technological limitation ... -- the net improvement moderating provision. . . . And it also added another moderating provision for rehydration . . . of unimpacted areas . . . in the sense that they're unimpacted by phosphorus, [although] hydrologically impacted. And that's the provision that's been discussed that . . . under certain circumstances could allow [rehydration] even though the water may be less than perfect at that point in time. (Tr. 1566-1568) The EFA as amended in 2003 also requires the District to implement "without delay" and to periodically revise the Long-Term Plan, which is defined as "the district's 'Everglades Protection Area Tributary Basins Conceptual Plan for Achieving Long-Term Water Quality Goals Final Report' dated March 2003, as modified herein." § 373.4592(2)(j), Fla. Stat. The Long-Term Plan contemplates three enhancements to the state's current phosphorus control program and a demonstration project for an approach claimed to be effective with regard to phosphorus reduction. First, the District will install a series of interior levees and water control structures in the STAs that will increase their ability to move water uniformly through the treatment areas, thereby increasing phosphorus uptake. Second, portions of the existing cattail populations in the STAs will be converted to submerged aquatic vegetation (SAV). (Research has shown that combined cattail and SAV operations perform better than cattail alone.) Third, the District will refine the operations of the STAs in order to better balance hydraulic load and nutrient for each of the treatment cells between which the water is moved. Fourth, the District will conduct a large-scale demonstration project to explore the viability of periphyton-based stormwater treatment areas ("PSTA"), a technology claimed to allow further reduction in phosphorus levels. The demonstration project was described by Gary Goforth, Ph.D., at hearing: [W]e will be building a . . . demonstration project in STA-3/4. It will be [in] . . . one of the downstream cells of STA-3/4. * * * The total area devoted to the demonstration[] [is] 400 acres. There's a 200-acre upstream portion that'll be entirely SAV. And then downstream . . . there'd be roughly a 100-acre PSTA cell, and then a 100-acre SAV cell side-by-side. (Tr. 3800-3801) The results of the PSTA cell phosphorus reduction will be compared to the results of the SAV cell to determine if PSTA is a superior technology, as claimed, for phosphorus reduction by means of stormwater treatment areas. The Long-Term Plan also contemplates coordination with the $8.1 billion Comprehensive Everglades Restoration Plan ("CERP"). CERP is a conceptual plan intended to modify and replumb the C&SF Project to rectify water resource problems caused by the Project. It addresses water quality, water quantity, timing of water deliveries and the distribution of water flows. With a 50-year planning horizon (until 2050), CERP calls for full implementation by the year 2036. There are several CERP projects that will require direct coordination. For example, CERP includes a project that will divert water from the C-11 basin (which presently pumps water into the Everglades from the S-9 pump station), south and away from WCA-3, in order to eliminate the basin as a source of phosphorus. The project will render obsolete an STA that had been planned for western Broward County. The District, therefore, is implementing source controls in the interim so as to obviate redundant costs. Computer modeling of the Plan's pre-2006 strategies predicts phosphorus levels in discharges from the STAs at a geometric mean of 10 to 14 ppb. In the event the phosphorus criterion is not achieved by January 2007, however, the Long- Term Plan sets forth additional control measures to be evaluated and implemented if necessary. In addition to the provisions relative to the Long- Term Plan, the EFA as amended in 2003 allows a Department rule adopting a phosphorus criterion to include "moderating provisions," not to extend beyond December 2016 without further legislative authorization: The Department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to the impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with the anti- degradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592(4)(e)2., Fla. Stat. EFA Requirement for Research and Monitoring The EFA also required establishment of an extensive research and monitoring program to serve as the scientific foundation for the phosphorus criterion rulemaking and related efforts. § 373.4592(4)(d), Fla. Stat. As part of that program, the EFA required the District to conduct annual workshops and to file annual peer-reviewed status reports on the research and monitoring efforts with the Governor and the Legislature. § 373.4952(4)(d)5., Fla. Stat. Besides the EFA, the reports address a number of different requirements in law. In fact, they contain "over 40 different legal mandates and permit reports . . . under one cover" (Tr. 3429) and so are referred to as the Everglades Consolidated Reports. See, e.g., District 16, the 2003 Everglades Consolidated Report. Post-EFA Events In the wake of the enactment of the EFA and the acceptance of the Settlement Agreement a number of events occurred relevant to these proceedings. The EFA phosphorus criterion research program and external peer-review process were implemented and documented. See 2003 Everglades Consolidated Report, Executive Summary, DEP Ex. 24. The USEPA issued technical guidance on state water quality standards and also on how Florida should go about establishing the numeric interpretation for the narrative nutrient criterion for the Everglades. Modifications to conform the Settlement Agreement to the EFA were proposed by the settling parties in 1995. They were approved by the federal court in 2001. See DEP Ex. 13. The primary changes included increases of the number and sizes of the STAs and an extension from July 1, 2002 until December 31, 2006, of the deadline for meeting the long-term limits for the Park and for meeting the lower of the Class III standard or long-term levels for the Refuge. In August of 1994, the USEPA updated its Water Quality Standards Handbook ("USEPA WQS Handbook"). See Coop Ex. 9, substitute App. 13 (filed January 15, 2004). The USEPA WQS Handbook makes clear that state relief procedures that are a part of their water quality standards "must be consistent with the requirements of 40 CFR 131." Id. at pp. 5-12. See 40 CFR § 131.13 ("States may, at their discretion, include in their State standards, policies generally affecting their application and implementation.") USEPA will continue to approve state- granted relief if, among other things, "the State demonstrates that meeting the standard is unattainable based upon one or more of the grounds outlined in 40 CFR 131.10(g) for removing a designated use." See Coop Ex. 9, substitute App. 13 (filed January 15, 2004) at pp. 5-12. In 1997, while the state's research and phosphorus reduction programs were underway, the Tribe adopted water quality standards for "all Tribal Reservation Surface Waters." ("Tribe Standards"). Miccosukee Tribe of Indians, Water Quality Standards, Dec. 19, 1997. See US Sugar Ex. 11. Tribe Standards allow for moderating provisions in the form of variances or mixing zones (id. at 24-27), where the discharger demonstrates, among other things, "that meeting the standard is currently unattainable based on one or more of the grounds outlined in 40 CFR § 131.10(g) from removing a designated use." Id. at 24, 30. Development of the Proposed Rule The EFA Mandate re: a Numeric Phosphorus Criterion In addition to the Department's rulemaking authority set out in Section 403.061(7), allowing the Department to implement Chapter 403 as a whole, Chapter 373 includes an analogous provision. Section 373.043 states that the Department has the authority "to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter," referring to Chapter 373 which includes the EFA. Lest there be any confusion on the point, the EFA mandate to adopt a numeric interpretation of the Narrative Criterion is set out under Section 373.4592(4)(e), entitled, "Evaluation of water quality standards." In keeping with the nature of the phosphorus criterion as an element of a water quality standard, moreover, the Proposed Rule is entitled, "Water Quality Standards for Phosphorus Within the Everglades Protection Area." Development of the Criterion The development of the phosphorus criterion is well documented. See DEP Ex. 24, Chapter 5; DEP Ex. 23, Everglades Phosphorus Criterion Technical Support Document, Parts I-III. A number of different groups provided research, some of which preceded the EFA, that contributed to its development. The District had been conducting research for some time, "some of their publications go back into the 70's." (Tr. 1582) Duke University Wetlands Center conducted research in the Everglades, some of which was intended to be useful for Department rulemaking with regard to phosphorus. Florida International University also conducted research useful to the Department. In the meantime, the Settlement Agreement was entered and approved by the federal court. The agreement called for a Technical Oversight Committee (the "TOC"). See Definition R., p. 6, of the Settlement Agreement in DEP Ex. 13. Paragraph 18 of the Settlement Agreement required that each of five persons, the Superintendent of the Park, the Manager of the Refuge, the Secretary of the Department, the Executive Director of the District and the District Engineer, Jacksonville District, U.S. Army Corps of Engineers, appoint one technical representative to the TOC. Among the purposes of the TOC was to "plan, review and recommend all research, monitoring, and compliance, conducted pursuant to the terms of this agreement . . . ." DEP Ex. 13, paragraph 18, p. 26, of the Amended Settlement Agreement attached to the Omnibus Order. The TOC also "was set up to assure that technical issues were going to be addressed in an open, deliberative forum." (Tr. 3425) TOC nominated four participants to develop a threshold research plan under the direction of Dr. Landon Ross, the Department's chief biologist at the time. Two of the four working under Dr. Ross' direction were federal nominees, Dr. David Lean and Dr. William Walker; two were state nominees, Dr. Robert Wetzel and Dr. Kenneth Reckhow. Convened under the direction of Dr. Ross, the four produced a formal technical document: the Everglades Nutrient Threshold Research Plan (the "Research Plan", sometimes referred to as "Lean, et al.," because the name of Dr. Lean is listed first on the formal document). Not only was the Research Plan developed with federal and state input, but its results were reported annually in the Everglades Consolidated Report. They were, moreover, subject to and approved by an annual peer review conducted as part of the document's preparation. The methods of the process, the reporting of its results and the ensuing peer review led witnesses at hearing, including Dr. Garth Redfield, Chief Environmental Scientist for the District, to conclude that the criterion and its achievement methodology were protective of the Everglades aquatic flora and fauna, and were developed in accordance with accepted scientific practices. One of the Tribe and Friends' criticism of the methodology for deriving the phosphorus criterion, presented through David Parkhurst, Ph.D., is that it ignores mass balance, a concept which assists in the measurement of the net amount of phosphorus left in a water body after the calculation of the flow of phosphorus into and out of the water body. Indeed, an initial question was whether the research should address the mass of phosphorus entering the Everglades. In conjunction with an Everglades Technical Advisory Committee ("ETAC"), "all of the scientists that were actively working in the area," (Tr. 1591) were convened. A peer-review group of three outside scientists were impaneled to review the question as well. While it was determined that the system responds to both mass and concentration, the consensus was that it was both easier and better to conduct research on the basis of the concentration levels of phosphorus in the waters of the Everglades. One reason that it was decided not to conduct research on load is that in order to determine load, "you'd have to know the flow." (Tr. 1595) Flow is easily calculated as it comes through structures, that is, at the point of discharge. It is not easily calculated in the marsh where flow is so slow. "[Flow] isn't a calculable number in the middle of [Everglades] marsh typically." (Tr. 1597) Moreover, because of the Legislature's policy choice to regulate phosphorus in a water quality standard for ambient water quality rather than at the point of discharge, it makes more sense to approach the problem from a concentration level perspective. The calculation of load is also complicated by the necessity to know both the "flow in" and "flow out." This calculation is further complicated by seepage, "surface water that's going into the ground . . . ." (Tr. 1598), precipitation, dry fall, and the effect of evaporation. At bottom, regardless of whether concentration levels or load was examined, the purpose of the Research Plan was to determine a threshold at which a departure from natural flora and fauna occurred such that there was imbalance. It was determined that the research toward a threshold at which imbalance occurs should focus on concentration levels in the ambient water. The Three-prongs of the Research Plan The Research Plan recommended a three-prong approach consisting of (1) field transect monitoring along existing man- made nutrient gradients; (2) dosing experiments; and (3) laboratory experiments. Research performed by the South Florida Water Management District included all three approaches suggested by the panel under the Research Plan. Additional research efforts included those of the Duke University Wetland Center, Florida International University, and the USEPA's Regional Environmental Monitoring and Assessment Program (REMAP). Throughout the process of developing the Proposed Rule, the Department solicited feedback from interested parties through the TOC and an ETAC, convened by the Department specifically for that purpose. While valuable to understanding imbalance, the mesocosm and laboratory studies were not used directly to derive a numeric phosphorus criterion. As explained in the 2003 Everglades Consolidated Report (the "2003 Report"): While the District's mesocosm and laboratory studies provide much information about how and why the biological changes occur, they were not designed nor intended to be used to derive a numeric criterion. (District Ex. 16, p. 5-6) That left the transect monitoring as the main approach that had been recommended by the Research Plan. It is described in the 2003 Report: [DEP's] efforts to derive a numeric P [Phosphorus] criterion relied primarily on data collected by the District along a series of transects traversing existing phosphorus gradients in each portion of the EPA (WCA-2, the Refuge, WCA-3 and ENP [the Park]). [DEP] relied heavily on the gradient transect studies during the derivation of the P criterion due to their distinct advantages over experimental studies. Because some areas within the EPA have received elevated levels of phosphorus- rich runoff for as long as 40 years, [DEP] had an excellent opportunity to study what had happened to the natural biological communities in the marsh as a result of long-term P enrichment. Id. Whatever the outcome of the threshold research with regard to a numeric concentration level expressed as a geometric mean or as some other measure of central tendency that constituted a threshold of imbalance, DEP did not use a numeric expression of a threshold to derive the numeric phosphorus criterion. In adopting its ultimate approach, DEP's hypothesis was not a threshold hypothesis. (See Tr. 3288) Rather than asking the question at what long-term geometric mean level of phosphorus concentration does imbalance occur, DEP asked the question at what long-term geometric mean of phosphorus concentration is balance maintained. In other words, the approach was not a "threshold approach." (See Tr. 3288) Instead of using a threshold point at which imbalance occurs as a beginning point in setting the numeric criterion (see the discussion of confidence intervals, below), DEP set out find the central tendency of water column concentrations of phosphorus in which "reference conditions" were maintained. Reference conditions are conditions in which there is no imbalance. This approach, which "switches" (id.) a threshold hypothesis had ramifications, as explained below, for whether DEP should move downward in value from the geometric mean revealed by the data in deriving the criterion (the direction militated by a threshold approach if there was to be any movement away from the data's geometric mean) or upward in value (the direction taken by DEP since the approach determined a geometric mean at which there was no imbalance.) The site of the reference conditions, also as explained more fully below, was in the same general area (identified by DEP as "minimally impacted") in which gradient transect threshold research was conducted. Unlike the transects which crossed from unimpacted soils into impacted soils, however, the reference sites were in unimpacted soils only. Ultimately, analysis of the data collected from specific "reference sites" in a "minimally impacted" area of WCA-2 was used to establish the numeric phosphorus criterion. This methodology for establishment of the numeric phosphorus criterion is referred to by DEP as the "reference site" approach. Reference Site Approach The 2003 Report describes the "reference site" approach, its scientific acceptance and the basis for its use: [DEP] employed a "reference site" approach during the evaluation and analysis of the District gradient transect data. The use of reference sites to evaluate biological integrity, establish restoration goals and develop water quality criteria has become standard practice [citations omitted] since the USEPA issued an explicit definition of "biological integrity" in 1982 that incorporated the concept of reference sites [citation omitted]. [DEP] used the reference site approach during the development of a numeric P [phosphorus] criterion for the EPA based on maintaining balanced populations of natural flora and fauna (reference conditions) because of its widespread acceptance, the existence of long-term manmade P gradients in the EPA, and the type of biological response characteristic of P enrichment. Id. Figure 5-1 on page 5-8 of the 2003 Report (admitted into evidence as an excerpt from the report, DEP 24A) is a sediment contour map. The sediment contours provide phosphorus concentrations in milligrams per kilogram in the upper 10 centimeters of sediment. The map shows the locations of transect monitoring sites established across a phosphorus gradient in WCA-2A. The gradient extends from the source of phosphorus enrichment (points where phosphorus-rich waters are discharged, also termed as "canal inflows") into an area in which imbalance caused by phosphorus enrichment was not visible, described in the 2003 Report as "not impacted." District Ex. 16, p. 5-6. Some of the contours are designated with numeric values of milligrams per kilogram. They range from a high of 1600 mg/kg to a low of 400 mg/kg. There are two transects on the WCA-2A site, an "E" transect and an "F" transect. The E transect shows five transect stations labeled E1 through E5 and a sixth station labeled E0, at the point of the canal inflow. Similar labeling occurs with regard to the F transect with six stations. The higher the station number the farther away it is from the point of discharge so that E5 and F5 are the transect stations that are the farthest from the source of the phosphorus and E0 and F0 (the "0" being a zero) are the stations at the point of discharge or inflow. There are also three other stations on the map identified as U1, U2 and U3. Stations U1, U2 and U3 are farther away from the canal inflows than are E5 and F5. Based on preliminary data analyses and field observations, Stations U1, U2 and U3 were designated as initial "reference" sites, that is, sites that exhibit reference conditions, conditions in which balanced populations of natural flora and fauna are maintained. Consistent with the aim of the Research Plan to establish a phosphorus threshold, the purpose of collecting and analyzing data at the transect stations was to determine where along the transects imbalance had occurred, that is to establish a tipping point or a threshold of imbalance. Multiple measures of the periphyton, macroinvertebrate and macrophyte communities in WCA-2A, along with measure of ecosystem function, were examined. These included the loss of the more sensitive assemblages of organisms such as calcareous periphyton mat, the dominance of more nutrient tolerant organisms, the loss of open water habitat critical to fish and birds, and depressed dissolved oxygen levels. Analyses of the data consisted of multiple statistical tests (including cluster and change point analyses). This allowed DEP to use a weight-of-evidence approach that factored all the analyses into the determination of where along the transects an imbalance occurred. For WCA-2A, the statistically significant changes in the structure and function of the various biological communities generally occurred on the E transect at a point between E4 and E5 and on the F transect at a point between F4 and F5. As one would expect, the farther away from the canal inflow of the phosphorus-rich waters, that is, the farther along the gradient from the point of inflow, the less the impact6 generally. The change generally occurred between 7 and 8 km downstream of the inflows, a point between E4 and E5 on the E transect and between F4 and F5 on the F transect. The 2003 Report makes it clear that the ultimate purpose of the analyses was not to determine a threshold of imbalance from which a numeric phosphorus criterion would be derived but to determine which stations, if any, on the transects were in waters that would support a balance of flora and fauna: The purpose of these analyses was not to derive a phosphorus threshold, but to delineate the sites impacted by P [phosphorus] enrichment from those that are biologically similar to the initial reference sites and could thus be used to derive a long-term P criterion. Id. at 5-7. To re-phrase, "[t]he results of the analyses were used to determine which sites along the gradient are minimally impacted by [phosphorus] enrichment and could therefore be incorporated into a set of reference sites." Id. The ultimate aim, then, was not to determine a threshold value but to determine which of the transect stations could be joined with U1, U2 and U3 to form a set of reference sites. Based on the analyses of the transect data, it was determined that Stations E5 and F5 were not only stations below the gradient where the threshold of imbalance occurred and stations where balance was maintained but that they were biologically similar to the initial references sites, U1, U2 and U3. A single group of reference sites were then formed consisting of these five stations: E5, F5, U1, U2 and U3. After the set of reference sites was established, ambient phosphorus regimes at the sites were used to statistically derive a numeric phosphorus criterion. The Department analyzed the annual median and geometric mean total phosphorus concentrations for the reference sites. Reviewing data from WCA-2A and WCA-1, the Department calculated arithmetic and geometric means and statistical confidence intervals looking at a number of reference periods and locations: 1978 to 2001 and 1994 to 2001 in WCA-2; 1996 to 2001 in WCA-1. The Tribe and Friends attack the reference site approach used by the Department on a number of bases. With few exceptions (criticisms by way of Dr. Jones' testimony, such as that comparison with data collected before 1995 should not be used because data collection was better after 1995 or that use of data from reference sites in WCA-2, an area that does not represent the least impacted portion of the EPA, should not have been used), the attack is based on cross-examination of witnesses who testified in favor of the reference site approach. One such example concerns the Tribe and Friends' assertion that the phosphorus criterion was not selected on the basis of dosing studies, the most common method, as the state concedes, see Tr. 1901, for scientifically determining the threshold effect of a "toxin." Id. With regard to whether dosing studies are the method of choice for determining the threshold effect of all substances, however, Mr. Nearhoof was not sure. With regard to nutrients, such as phosphorus, his answer was that dosing studies, while an acceptable way of evaluating threshold effects, were not necessarily the method of choice: [T]he State of Florida . . . in this exercise [the reference site approach for determining the phosphorus criterion] is way ahead of the nation or the world, for that matter in having done what we've done. I don't think anybody else around has replicated anything remotely like this. So I don't know that there is a common way for that. (Tr. 1901) The results of dosing studies conducted by Dr. Jones (about which Dr. Jones was not allowed to testify because of the Tribe's refusal to disclose documents and data in discovery) had been recently received by DEP but there had not been time to review them in detail. Furthermore, dosing studies were conducted by Duke University, were "corroborative" (Tr. 1904) of the results of the reference site approach used to set the phosphorus criterion. The Tribe also stresses that only five stations in WCA-2, an impacted body of water, were used to establish a criterion that applies to all of the Everglades. The preponderance of the evidence is that five stations were adequate for establishing a set for sites that exhibited reference conditions, particularly given the relationship of two of the stations (E5 and F5) to the transect monitoring studies and the evidence that they were at sites that exhibited reference conditions close to phosphorus gradients and the moving front of advancing cattails. A weighing of the testimony on cross-examination, the use of documents, and the minimal direct examination used to attack the reference site approach against the direct and re- direct testimony of witnesses in support of the approach, leads to the conclusion that, by a preponderance of the evidence, the reference site approach is rational. It is, moreover, scientifically appropriate, reasonable and supported by logic or necessary facts. The Tribe and Friends' attack on the reference site approach fails. The reference site approach yielded data and analysis that was but one step toward establishment of the phosphorus criterion. There were a number of other steps. In the next of the preliminary steps, central tendencies of annualized data that related to stations in either the Refuge or WCA-2A were determined and expressed as geometric means, arithmetic means or both. (For example, see DEP/ERC 17, which provides a summary expressed in both a geometric and an arithmetic mean for WCA-2A for the years 1978-2000, with the exclusion of data for the years 1984, 1985 and 1992 when too little data was collected). A summary of total phosphorus concentrations measured at the five reference sites in WCA-2A appears in Table 5-1 of the 2003 Report in several sets: for individual years from 1978 to 2001; as a summary of the years 1994-2001 and as a summary of the years 1978-2001. A summary of total phosphorus concentrations measured at five stations in the Refuge from 1996 to 2001 appears in Table 5-2 of the 2003 Report. Other steps followed in the derivation of the numeric criterion. These appear in Table 5-3 of the 2003 Report. See the findings related to Table 5-3, including the application of a confidence interval, the selection of the upper limit in the interval, together with a rounding of that limit up to 10, discussed below. These will be explained in the discussion below that relates to Section (4) of the Proposed Rule. Other steps followed as well in the development of the Proposed Rule. Development of the Proposed Rule On July 20, 2001, the Department published a Notice of Rule Development in the Florida Administrative Weekly. The notice announced rule development to establish a numeric phosphorus criterion for the Everglades Protection Area, via the amendment of Rule 62-303.530 (Table: Surface Water Quality Criteria) and creation of Rule 62.302.540 (Water Quality Standards for Phosphorus Within the Everglades Protection Area). Pre-Hearing Stipulation, Ex. 4, No. 4. The parties stipulated to a series of publications of notices and continuances of hearings before the ERC that led to ERC approval of a proposed rule during the July 8, 2003, meeting. Id. at 5-7. During the interim, the ERC held numerous public meetings to consider testimony and other evidence in support of DEP's rule as proposed at that point. ERC considered evidence in support of Lower Cost Regulatory Alternatives submitted by other entities, including the Cooperative, that proposed adoption of a higher numeric phosphorus criterion in impacted areas than in unimpacted areas. On July 18, 2003, the Department published a Notice of Change on the Department's Official Internet Noticing Site, pursuant to Section 120.551, which included the rule as approved by the ERC and announced the availability of a Statement of Estimated Regulatory Costs ("SERC"). Id. at 9. On July 25, 2003, the Department published a second Notice of Change on the Department Official Internet Noticing Site, pursuant to Section 120.551. The notice corrected a scrivener's error in the Notice of Change as published on July 18, 2003. Id. at 10. Issues Related to the Proposed Rule Section (1) Purpose and Scope Section (1) of the Proposed Rule articulates the purpose and scope of the rule and emphasizes that it does more than simply establish a numeric criterion for phosphorus in the Everglades Protection Area but establishes, as the title reflects, water quality standards for phosphorus within the EPA. There is no disputed issue of fact or law as to Section (1) of the Proposed Rule. Section (2) Findings The Department's existing Surface Water Quality Standards rule, Florida Administrative Code Rule 62-302.300, contains detailed findings entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Section (2) of the Proposed Rule is similar. It sets forth findings relevant to the initial finding that "[t]he Legislature, in adopting the Everglades Forever Act, recognized that the EPA must be restored both in terms of water quantity and water quality." Subsection (2)(a) of the Proposed Rule. Petitioners assert the factual inaccuracy of the sentence in Subsection (2)(b) that "Stormwater Treatment Areas (STAs) have reduced phosphorus concentrations to less that the goal of 50 ppb established in the Everglades Forever Act." The assertion is based on Table 4A-1 of the draft 2004 Everglades Consolidated Report. See Tribe/Friends Ex. 120, p. 2. The Table is a Summary of Stormwater Treatment Area (STA) hydrology and total phosphorus (TP) removal for Water Year 2003. For "Flow-weighted mean Outflow TP (ppb)" the table shows values for STA-1W, STA-2, STA-5 and STA-6 of 53, 17, 136 and 26 respectively; for All STAs, the table lists a value of 54. Two of the STAs for Water Year 2003, therefore, were in excess of 50 ppb and STA-5, in particular, was 172% above 50. There is, therefore, a basis for the Tribe/Friends' assertion. In support, their witness, Colonel Rice, after review of the table, concluded that "the most recent information published . . . [shows] that the finding is . . . not really being met." (Tr. 177) Mr. Nearhoof conceded that in the most "recent period," that is, as the Water Year 2003 data is reflected in Table 4A-1 of the Draft 2004 Consolidated Everglades Report, the total phosphorus levels have "crept back up a bit . . . ." (Tr. 2048) Considering the entire time the STAs have been operational (since 1994 for some and 1999 for the others), however, the range of total phosphorus flow-weighted mean outflow "has been generally down [to] . . . 20 to 30 part[s] per billion . . . ." Id. The long-term average of total phosphorus "flow-weighted mean outflow," therefore, has been below 50 parts per billion. Mr. Nearhoof's testimony is confirmed by the statement in the summary of "Chapter 4A: STA Performance and Compliance" of the Draft 2004 Everglades Consolidated Report that: "As of the end of Water Year 2003, the four operational STAs combined have reduced total phosphorus concentrations to about 40 parts per billion (ppb)." Tribe/Friends Ex. 120, p. 1. Petitioners also took issue with a portion of Subsection (2)(g) of the Proposed Rule: "[a]chievement of water quality standards for water quality projects required under the Everglades Forever Act can be most effectively and efficiently attained when integrated with CERP projects." The contested sentence in Subsection (2)(g) is similar to Section 373.4592(3)(c): It is the intent of the Legislature that implementation of the Long-Term Plan shall be integrated and consistent with the implementation of the projects and activities in the congressionally authorized components of the CERP so that unnecessary and duplicative costs will be avoided. Nothing in this section shall modify any existing cost share or responsibility provided for projects listed in s. 528 of the Water Resources Development Act of 1996 (110 Stat. 3769) or provided for projects listed in s. 601 of the Water Resources Development Act of 2000 (114 Stat. 2572). The Legislature does not intend for the provisions of this section to diminish commitments made by the State of Florida to restore and maintain water quality in the Everglades Protection Area, including the federal lands in the settlement agreement referenced in paragraph (4)(e). The "Long Term Plan" details the South Florida Water Management District's overall approach to achieving water quality goals in the Everglades Protection Area. DEP Ex. 25. See also § 373.4592(2)(j), Fla. Stat. Dr. Gary Goforth, the Chief Consulting Engineer for the Water Management District's Water Resources Management Group, detailed the importance of integrating water quality enhancement with CERP projects to avoid unnecessary and redundant costs with the following example: [T]he C-11 West basin . . . discharges water to the Everglades from . . . the Weston Area [near] Fort Lauderdale . . . That . . . basin has several CERP projects associated with it . . . that will reduce significantly the amount of water that eventually goes into the Everglades. So if we're to design and build a project that treats all of the water that presently goes through S-9, within just a very few years, that project would be unnecessary since the CERP project is going to be diverting virtually all of that water away from the S-9 pump station. (Tr. 3807) Dr. Goforth went on to explain that the practical impact of lack of coordination would be spending several hundred million dollars unnecessarily. Once CERP is implemented, moreover, there would be impoundments to assist in meeting water supply needs and diversion of the rest of the water southward. Ultimately, there is nothing about the Findings section as challenged in this proceeding that would support a determination of invalidity. Section (3) Definitions The Tribe and Friends challenge the definition of "impacted areas" in Subsection (3)(d) of the Proposed Rule. "'Impacted Areas' shall mean areas of the EPA where total phosphorus concentrations in the upper 10 centimeters of the soils are greater than 500 mg/kg." Soils are reservoirs of recent history, "so they do give . . . a longer term picture of what's going on in the system." (Tr. 3517) Dr. Jones believes soil "to be a very good indicator if used properly." (Tr. 3099) He has published papers with soil concentrations as a basis for demonstration of impacts to the Everglades. Nonetheless, he does not believe the Proposed Rule uses soil properly to determine impact because of the use of a single level of 500 mg/kg phosphorus concentration as a measure of impact, no matter what the soil type. Colonel Rice joined Dr. Jones in the criticism of the use of a single concentration level in soils because of soil type variability in the Everglades. North of the Tamiami Trail, that is north of the Park, the soil in the Everglades is predominantly peat. South of the Trail, it is a mixture of peat and marl and then becomes calcitic. For each of the soil types, Dr. Jones and Colonel Rice believe a different level of phosphorus is required to determine impact. The soil south of the Trail, moreover, may be more marl than peat or more peat than marl. Depending upon whether the mixture is more peat or marl, Dr. Jones would ascribe different concentration levels of phosphorus in the soil to determine whether there had been impact. Furthermore, there are other indicators, in the opinion of Dr. Jones and Colonel Rice, that should be considered to determine impact: phosphorus in the water column, dissolved oxygen levels, and changes in flora and fauna, particularly in the periphyton communities. Dr. Garth Redfield, on behalf of the District and disclaiming any depth of expertise in soils, conceded that in addition to soil the use of appropriate indicators other than soil would provide more information and so "could" (Tr. 3599) yield better accuracy. But his opinion as a scientist and expert in Everglades ecology is that the definition is reasonable since it was the product of careful deliberation at public workshops by experts from DEP, the District and other groups. Among those experts was Mr. Nearhoof. Mr. Nearhoof did not address directly the opinions of Dr. Jones and Colonel Rice that soil alone should not be used to determine impact. He did testify, however, that soil phosphorus tends to be a more stable and consistent parameter than surface water total phosphorus (one of the other indicators advanced by Dr. Jones) because soil integrates the effect of variability. Soil isopleths are consistent and stable and better able to define an impacted area than water column concentrations, which vary to a greater extent. The Department points out in its proposed order, moreover, that Section (5) of the Proposed Rule, which sets forth the method for determining the achievement of the numeric phosphorus criterion in areas of the EPA deemed impacted, states in its last sentence: Notwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and the annual geometric mean is less than or equal to 15 ppb. While this statement does not meet directly the criticism of Dr. Jones and Colonel Rice, it demonstrates that soils are not always the sole determinative parameter as to whether an area is impacted. Ambient water quality dictates that an area that would be classified as impacted based on a soils analysis be classified as unimpacted if ambient water quality data under the Proposed Rule so dictates. Finally, to the extent that impacted areas have a relationship with imbalance of aquatic flora and fauna, DEP 24A (Figure 5-1 in the 2003 Everglades Consolidated Report) and the discussion, above, concerning the reference site approach demonstrate that the threshold of visible imbalance in the location of the gradient transect monitoring sites in WCA-2 occurs where concentrations of phosphorus in the upper 10 cm of soil are somewhere between 400 mg/kg and a level above 600 mg/kg. The F5 station is located between contour lines marked 400 and 600. The E5 station is close to a spot that is below 400 mg/kg. It may be concluded that it is at a spot that is below 500 mg/kg. The F4 station is in an area that is between a 600 mg/kg contour and an 800 mg/kg. So is the E4 station. The points of imbalance determined by the transect studies in WCA-2, therefore, lends support to the definition of an impacted area as one whose phosphorus soil concentrations in the upper 10 cm exceed 500 mg/kg., that is, at a spot that is between the E5 and E4 stations (somewhere between 400 mg/kg and above 600 mg/kg) on the E transect and between the F5 and F4 stations (somewhere between a 400 to 600 mg/kg value and a value above 600 mg/kg) on the F transect. A weighing of the evidence leads to the conclusion that the Department by a preponderance of the evidence has proven that the definition is valid. Section (4) Phosphorus Criterion Section (4), of the Proposed Rule, concerns two concepts: establishment of the phosphorus criterion and achievement of the criterion. Establishment of the criterion occurs in the section's first sentence: The numeric phosphorus criterion for Class III waters in the EPA shall be a long-term geometric mean of 10 ppb, but shall not be lower than the natural conditions of the EPA, and shall take into account spatial and temporal variability. Achievement of the criterion is covered by the second and last sentences of the section: Achievement of the criterion shall take into account deviations above the long-term geometric mean of 10 ppb, provided that such deviations are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Establishment Establishment of the criterion is at the "heart" of the Proposed Rule. It is a numeric interpretation of the Narrative Criterion and, if adopted timely, avoids the statutory imposition of the Default Criterion. The numeric criterion of the Proposed Rule differs in specificity from the Default Criterion in the statute. The Default Criterion is silent as to whether the criterion shall be an "arithmetic" or "geometric" mean or some other statistical or non-statistical measure of concentration of a water body based on multiple sampling events such as "mode," "median," or "harmonic mean." Unlike the Default Criterion in the statute, the Proposed Rule specifies that the phosphorus criterion "shall be a long-term geometric mean of 10 ppb " The Department, supported by the other parties opposed to Petitioners, justifies the use of a "geometric mean" in the Proposed Rule's establishment of the criterion on a number of bases. For one, subsection (4)(e) of the EFA, "Evaluation of water quality standards," the very subsection of the EFA that mandates adoption of a "Phosphorus Criterion Rule," also mandates that compliance with the criterion be based upon a long-term geometric mean of concentration levels: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving waters in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. § 373.4592(4)(e)3, Fla. Stat. (Emphasis supplied) For another, a long-term geometric mean of concentration levels is a conventional way of determining numeric criteria, elements in water quality standards that govern ambient water quality, as well as compliance with the standards. If the Tribe and Friends' opponents are correct, that the statutory language with regard to "long-term geometric means" and "water quality standards" defeat a determination that the Proposed Rule constitutes an invalid exercise of delegated legislative authority on the basis of its use of long-term geometric mean in establishment of the criterion, then there is no need to find facts with regard to the criticism. Even if the other parties are correct, however, there is relevance to the criticism because it relates to Colonel Rice's opinion that a number of factors in the Proposed Rule allow a greater amount of phosphorus to enter the Everglades (use of a long-term geometric mean being only one of them) that when taken alone or together contravene the statute's Narrative Criterion. Statutory language aside, the Department and the other parties vigorously responded to the criticism at hearing by offering justification for the use of a long-term geometric mean. Findings of fact are also made with regard to the response. Criticism of the Use of a Geometric Mean In statistics textbooks when the word "mean" without a descriptor is used, it refers to the arithmetic mean. "Arithmetic mean" is also a term used interchangeably with "average" as in the average of a number of different values. An arithmetic mean accurately describes the average concentration levels of substances in a number of samples of water whose concentration levels vary. A geometric mean accurately describes the central tendency of concentration levels in samples of water whose data set exhibits a log normal distribution. A mean is one of several methods of expressing a measure of "central tendency," a central value around which less frequently observed high and low values fluctuate. (Other methods of expression of central tendency of a data set include modes and medians. Means, moreover, are not limited to geometric and arithmetic means, there is also a harmonic mean that is an expression of central tendency.) Because "central tendency" may be expressed by several methods, Dr. Ian McKeague, DEP's expert statistician, referred to it as a term that is not well-defined and that has a flexible meaning. (See Tr. 652) "[Central tendency] . . . in a vague sense . . . represent[s] . . . the center of a . . . collection of measurements or a distribution." Id. Which method of expression is most appropriate depends on characteristics of the data set or measurements it describes. For data sets that are log-normally distributed, the more statistically appropriate and preferred expression of central tendency is a geometric mean. "Arithmetic means" are determined by adding a series of values (or data points) and dividing the sum by the number of values (or data points). Using three numbers, an arithmetic mean would be arrived at by this formula: a + b + c = d; d/3 = the arithmetic mean In the formula, three values (a, b, and c) are added to reach a sum (d). The sum is then divided by the number of values (3) to calculate the arithmetic mean of the three values. To use numbers, by way of example: 1 + 4 + 16 = 21; 21/3 = 7. The arithmetic mean of the three numbers, "1, 4 and 16" is "7." A "geometric mean" is "the antilog of the mean logarithm of a set of numbers, or equivalently, the nth root of the product of n numbers." Tribe/Friends Ex. 46. The formula for calculating a geometric mean of three numbers is: x (b) x (c) = d; the cube or 3rd ? (in this example, the 3rd root is taken because it employs three values) of d = the geometric mean. The value "a" is multiplied by the value "b" which is multiplied by the value "c." The product of the three is "d." The cube root or "3rd root" is taken of d because there are three values in the data set. The cube root of "d" is the geometric mean. To use the same numbers as used in the example of an arithmetic mean, above: 1 x 4 x 16 = 64; the cube root or 3? of 64 = 4. For all practical purposes, the geometric mean of a data set is always lower than the arithmetic mean of the same data set. (Geometric means and arithmetic means will be the same when the data points are equal, an event that in the real world of water sampling almost never occurs. See Tr. 244.) In the examples used above, for instance, the geometric mean of the data points with values of 1, 4 and 16 is "4," a number lower than "7," the geometric mean for the same data points. A geometric mean of samples of concentration levels of a substance in water may bear little resemblance to physical reality. (Dr. Parkhurst, at page 449 of the transcript, testified that the geometric mean "has no physical meaning whatsoever." It is accepted that a geometric mean may have no physical meaning in some cases. But the testimony that it never has physical meaning is rejected as an overstatement in light of other testimony of record.) This point was made by Colonel Rice with an example similar to an example employed by Dr. Parkhurst in his paper admitted into evidence as Tribe/Friends 46: Arithmetic Versus Geometric Means for Environmental Concentration Data, Parkhurst, Environmental Science and Technology/News, Feb. 1, 1998, p. 92A. Colonel Rice referred to two jars of equal volumes of water, one of which contained one arsenic unit and the other of which contained 100 arsenic units.7 The arsenic concentration of the first bottle is one unit per bottle; the concentration of the second is 100 units per bottle. Pouring the two bottles together into a container double the size of the jars would yield a concentration of 50.5 units per the bottle volume. This concentration would be the same as the arithmetic mean of the two original bottles: 1 + 100 = 101. The sum of the two data points (101) divided by the number of data points (2) equals 50.5. In Colonel Rice's example, the geometric mean would be 10, a number far lower than the actual concentration expressed by the arithmetic mean of 50.5. The geometric mean would be calculated by multiplying the values of the two data points: 1 x 100 to equal 100. The square root or 2? (taken because there are two data points) of 100 equals 10. The example is cited because it so clearly illustrates several characteristics of geometric means versus arithmetic means. The example is problematic, however, when applied to the methodology used to derive the numeric phosphorus criterion and the achievement methodologies in the Proposed Rule. Neither the derivation nor the achievement methodologies are the result of taking two containers or "buckets" as they were referred to by a critic of Colonel Rice's testimony, and pouring them together. The derivation and the achievement methodologies involve taking many samples at number of stations over time. A comparison of the examples of Colonel Rice and Dr. Parkhurst shows another property of comparison between arithmetic mean and geometric mean. The greater the variability among data points in the data set used to calculate the arithmetic and geometric means, the greater the difference between the two. One reason that the geometric mean of a set of data points of concentration levels of substances in water may bear little resemblance to the actual concentration level of water is that the geometric mean discounts large values. It does so, moreover, without knowing the cause of the high value and without a conscious choice to exclude it for a justifiable reason. For example, a high value could be due to a high discharge of phosphorus that could cause degradation. On the other hand, a station from which a sample is taken could have become contaminated by a nearby alligator hole, a localized event that would justify exclusion of the sample's data because it has little, if anything, to do with phosphorus discharge into the EPA. Another problem with the use of a geometric mean is that it can reverse the appropriate way in which a set of data is to be regarded if there is much greater variability in one set than in another. An example was testified to by Dr. Parkhurst and appears at page 50 of the Tribe/Friends proposed recommended order. Assume that the values represent parts per billion of phosphorus in samples of Everglades water: Data Set A Data Set B 2, 20 10, 11 Total Value=22 Total Value = 21 Arithmetic Mean = 11 Arithmetic Mean = 10.5 2 + 20 = 22; 22/2 = 11 10 + 11 = 21; 21/2 = 10.5 Geometric Mean = 6.32 Geometric Mean = 10.49 2 x 20 = 40; 2?40 = 6.32 10 x 11 = 110; 2?40 = 10.49 In Data Set A, the concentration, as reflected by the arithmetic mean, is higher than in Data Set B: 11 ppb versus 10.5 ppb. Yet, the geometric mean of Data Set A (6.32) is lower than the geometric mean of Data Set B (10.49). The reversal is due to the higher variability in Data Set A (a difference of 20 between 2 and 22) than in Data Set B (a difference of only 1 between 10 and 11). Support for Use of a Geometric Mean The true long-term concentration of a chemical constituent within a water body cannot ever be known precisely. Part of the problem is the enormous variability in ecological systems. As Dr. Coleman explained, "there is enormous variability in ecological systems, whether they're marine, arctic, freshwater, terrestrial, any system. And a high degree of variability means that there's an enormous amount of uncertainty." (Tr. 1012) The true long-term concentration of a chemical constituent of a water body, therefore, must be estimated from a set of samples. Frequency distribution, a characteristic of data, can be plotted by preparing a graph with values of the parameter on the horizontal or x-axis and the observed frequencies of these values on the vertical or y-axis. As plotted, the data points in a data set may exhibit a normal distribution on the graph: the distribution of data points starts out low, rises to a central but rounded peak, and then returns to smaller values. Plotted on a graph, the result is a bell-shaped curve. Data points showing concentration of chemical constituents in water, and environmental data in general, often exhibit log-normal distribution rather than normal distributions. A log-normal distribution differs from a normal distribution in that instead of resulting in a bell-shaped curve, it results in a right-skewed or long-tailed distribution: the right end of what would have been a bell curve (where higher values are represented) is pulled to the right. A log-normal distribution may have an extremely long tail skewed to the right of the graph when there are infrequent but very high valued data points. In the case of phosphorus concentrations in a water sample, a long-tail would be created by rare but high level of concentrations in samples. When Department staff plotted the data used to establish the numeric phosphorus criterion, the data set demonstrated characteristics more closely approximating a log- normal distribution than a normal distribution. The data set only "approximated" a log-normal distribution because "an actual log-normal distribution is a . . . hypothetical construct." (Tr. 1633) When it comes to plotting data from sampling events "there is no perfect log normal distribution." Id. But the data collected by DEP "clearly, and very demonstratively, are . . . log-normally distributed [as opposed to normally distributed]." (Tr. 1634) Certain statistical parameters are appropriate for use with log-normally distributed data. One of them is the geometric mean. As Dr. Ian McKeague, the Ralph A. Bradley Professor of Statistics as Florida State University, testified in answer to the question "[w]hen might a geometric mean be used in statistics?" (Tr. 645): Especially when you're dealing with distributions that are called long-tailed. For example, log-normal, where there's . . . an area with central tendency, and then there's a long tail, as you see in a log normal -- typically -- very often found . . . in environmental data. Id. There is no statistical reason one would ever use an arithmetic mean as a measure of central tendency, given data demonstrating a log-normal distribution. While a geometric mean discounts high values, an arithmetic mean, on the other hand, may be too influenced by high values if the aim is to find central tendency. A high value, especially if data points are few, will raise the arithmetic mean substantially. In particular, in the case of data that exhibits a log-normal distribution, the arithmetic mean might be significantly removed from point of central tendency if there were some data point that was unusually high in relation to the remainder of the data. It was statistically appropriate, therefore, that a geometric mean be used in establishment of the phosphorus criterion. Furthermore, as testified to by Dr. McKeague, it would be statistically inappropriate to mix parameters in a single endeavor such as for protecting the Everglades from imbalance by derivation of a criterion and assessing compliance. In other words, it would not be appropriate to use an arithmetic mean to derive the criterion and then a geometric mean, as required by the EFA, to assess compliance. These opinions of Dr. McKeague were supported by Dr. Sielken. Natural systems such as the Everglades are subject to significant spatial and temporal variation. When taking water samples across a network of monitoring stations, water column total phosphorus concentrations will most certainly vary spatially from station to station or temporally from sampling event to sampling event at the same station. Seasonal changes, localized disturbances and extreme climatic-related events like fire, flood or hurricane increase variability. Phosphorus concentrations measure in samples of water taken from the Everglades, therefore, may range from relatively small to relatively large. Still they tend toward a central value characteristic of phosphorus concentration in most of the Everglades most of the time, a determination of which is the aim of water quality standards concerned with ambient water quality. Application of the geometric mean to a data set demonstrating a log-normal distribution results in a more accurate estimate of the true central tendency of the population of measures and therefore a more accurate estimate of the concentration of water column total phosphorus in the areas sampled over most of the time. The Tribe and Friends suggest that an arithmetic mean should be used for establishment of the phosphorus criterion. Since compliance with the criterion by use of a geometric mean is mandated by the EFA, however, using an arithmetic mean for establishment of the criterion would amount to a mixture of statistical parameters. Mixing statistical parameters is "not . . . natural . . . statistically. It's not appropriate . . . one tells . . . little about the other." (Tr. 668) An arithmetic mean, moreover, has its own problem that accompanies its virtue of taking into account all values including rare but very high ones. If a high value is due, for example, to airboat traffic near the sampling site that has stirred up the sediment and caused a high reading due to reflux and the sample has escaped screening, it is justifiable to exclude it because of limitations on data collection.8 (See findings, below). An arithmetic mean would not exclude this high value when it should be excluded. The Numeric Value In addition to the decision to describe the phosphorus criterion in terms of a long-term geometric mean, DEP also had to establish a numeric value. There were several steps in the process of deriving a numeric value that followed the selection of the references sites. Means, both arithmetic and geometric, of reference conditions at individual reference sites and at all reference sites taken together are reflected in DEP/ERC Ex. 17 and several other exhibits that contained Table 5-3 of the 2003 Everglades Consolidated Report. The 2003 Everglades Consolidated Report was admitted into evidence in its entirety as District Ex. 16. (It bears an exhibit label marked "WMD 16.") Table 5-3 on page 5-14 of the report is entitled, "Comparison of results of phosphorus criterion derivation for WCA-2A and WCA-1 using several methods and data sets." The Table was also admitted into evidence as an excerpt from the 2003 Everglades Consolidated Report both as Tribe and Friends Ex. 119-B and as DEP Ex. 24B. Conclusions were drawn from the Evaluation of WCA-2A and Refuge Data as reflected in the 2003 Everglades Consolidated Report. These conclusions appear at page 5-13 and page 5-14 of the 2003 Everglades Consolidated Report. In these conclusions appears the following sentence: "Based on EFA requirements, the annual geometric mean TP [total phosphorus] concentrations are used to characterize the P [phosphorus] regime in the minimally impacted areas of the Refuge and WCA-2A." WMD Ex. 16, p. 5-13 (emphasis supplied). Table 5-3 contains a column entitled "1978-2001 Reference site data minus three years with less than four measurements." (It was appropriate to delete the data from the three years referenced because there was not enough of it.) It has essentially three columns. The first bears the heading "Central Tendency of Annual Geometric Means" and is divided into "Measure" and "Value." The second bears the heading "95% Confidence Interval (Mean with the sign for 'plus or minus')." The third bears the heading "Upper Limit." In the column referred to in paragraph 5., above, adjacent to "Mean" (as opposed to "median") is shown a Central Tendency of Annual Geometric Means Value of 8.51. This number, 8.51, is the geometric mean of reference conditions, a description of central tendency in all of the reference sites at which there was no visible imbalance. The Department chose 8.51 as a starting point from which to derive the numeric phosphorus criterion. The Department then employed another statistical tool in the derivation of the criterion: a confidence interval. After determination of the interval, DEP chose the upper limit in the interval and then rounded that number to 10, as explained below. Determining long-term geometric means of reference conditions that exhibit balance, rather than seeking a threshold of imbalance (which, in essence, "switches" the hypothesis, tr. 3288) had an impact on the derivation of the numeric criterion. The approach allowed DEP to raise the numeric value from the long-term geometric mean revealed by the data rather than to lower it as would have been the usual process had the geometric mean been associated with a threshold of imbalance. Confidence Intervals and Limits Even with relatively large data sets used to derive a value, the analysis of the data and the calculations used to determine the value rarely, if ever, results, in certainty that the value produced by the data is absolutely correct. To provide a level of confidence about the parameter sought to be derived, DEP resorted to a confidence interval. A mathematical characteristic derived from a data set, the confidence interval is an expression of the probability that the true value (in the case of the Proposed Rule, the "true" value reflecting reference conditions or balanced populations of flora and fauna) is within a statistical range or interval. A confidence interval, therefore, is a statistical tool that provides probabilities of confidence that the parameter sought is captured within the range of values within the interval. Confidence intervals are expressed in terms of percentage. The percentage values may vary. For example, in setting toxin thresholds a confidence interval of 75% is sometimes used. (The evidence indicated that percentages of confidence between 90 and 99% are most common.) With regard to derivation of the phosphorus criterion, a 95% confidence interval was applied. It was scientifically sound to apply a 95% confidence interval. Such a broad interval is commonly applied in exercises of the type undertaken that led to the Proposed Rule. The 95% interval as reflected in Table 5-3 and DEP/ERC Ex. 17 was 8.51 plus or minus 1.03 or an interval that spanned from its lowest value to its highest value a total of 2.06 units. There is a 95% probability that the true value of the geometric mean of phosphorus levels under reference site conditions, therefore, will fall between 7.48 and 9.54 ppb, that is, in a range 1.03 above and below the annual geometric mean of 8.51. At the same time, there is a 2.5% confidence level that the true value is above the interval and a 2.5% confidence level that the true value is below the interval or a total confidence level of 5% that the true value is outside the interval. The lowest number in a confidence interval is referred to as the "lower confidence limit" or the "lower limit"; the highest number in the interval as the "upper confidence limit" or "upper limit." Using the geometric mean of 8.51, the lower confidence limit of the 95% confidence interval is 7.48 (8.51 minus 1.03). The upper confidence limit is 9.54, or as shown on the table, 9.55 (due to a rounding error, perhaps, or decimals beyond the 9.54 not expressed on the chart exhibiting the data analysis.) The upper limit will be referred to, therefore, as 9.55 as reflected on the table. In its process of deriving the numeric phosphorus criterion, the Department selected the highest number or the upper confidence limit within the 95% confidence interval revealed by its data: 9.55. The Department chose the upper confidence limit on the basis that the substance tested for is a nutrient and on the basis that the 8.51 number derived from the data reflected reference conditions of balance rather than a threshold of imbalance. Had the substance been a toxin, DEP, in all likelihood, would have determined a threshold of response inimical to human health and then selected the lower limit because when it comes to toxins, any error that might be made should favor human health. Dr. Parkhurst criticized the selection by DEP of the upper confidence limit. He explained that protection of the resource would be accomplished more likely by selecting the geometric mean (8.51) than the upper limit or even more surely by selecting the lower limit (7.48). Selection of the upper confidence limit, in his words, "is protecting the polluter essentially." (Tr. 501) During his testimony, Dr. Parkhurst was asked if an upper limit was used to set the criterion in the Proposed Rule. He answered in the affirmative "on the basis of three pieces of information" (tr. 501): In my deposition, I talked about a recent article in a journal of the American Statistical -- Statistical Association called Chance. It's a paper by two authors, the last names are Q-i-a-n and L-a-v-i-n-e. That paper says in it that the DEP set its criterion of 10 by finding a best estimate of central tendency of the geometric mean to be 8.5, and then they used the upper limit of that, which was 10, to set the criterion. That's one piece of information. The second piece of information is that several of the depositions that I've read by DEP, and other people, said that they had used confidence intervals in this way. And thirdly, Table 5-3 of the 2003 Consolidated Everglades Report shows that that's being done. (Tr. 501-502) Dr. Parkhurst was then asked questions about Table 5-3. After being shown Table 5-3 at hearing, the following question and answer occurred during Dr. Parkhurst's testimony: Q. Now, what does this table tell you about the upper confidence limit? A. What it tells me is totally consistent with what Qian and Lavine said, mainly that the central tendency of the annual geometric mean, which is another way of saying, in some sense, the best estimate of what the geometric mean would be at these threshold spots, was 8.51. (Tr. 503) Objections to this testimony on the basis of its being beyond the witnesses' expertise were overruled. (Tr. 504- 506) No objection to Dr. Parkhurst's testimony about Table 5-3 was made contemporaneous with the testimony, but during cross- examination, the District moved to strike the testimony about Table 5-3 on the basis of surprise. (Tr. 555) The motion was granted. But it was also made clear that Dr. Parkhurst's testimony about the confidence interval independent of reference to Table 5-3 was not stricken. See Tr. 574. That testimony, based on the two sources other than Table 5-3, concluded that after applying a confidence interval to a geometric mean of 8.5, an upper limit was chosen to reach the criterion's number of 10. (See Tr. 501) During DEP's case Table 5-3 was introduced into evidence as DEP Ex. 24B and discussed. A table that contained the precise information in Table 5-3 that was discussed by Dr. Parkhurst was also introduced into evidence by DEP and admitted, DEP/ERC Ex. 17. It contains more information than Table 5-3 in that it "is a cross comparison of the . . . use of the arithmetic mean versus the use of geometric mean for the derivation of the criterion." DEP/ERC Ex. 17 reveals that the "Mean + 95% Confidence Interval" for "All Reference Sites" expressed as a geometric mean is 9.55; as an arithmetic mean, it is 12.50. Like Table 5-3, DEP/ERC Ex. 17 shows a geometric mean for all reference sites as being 8.51, and the addition of a 95% confidence interval of 1.03 above the 8.51 to arrive at an upper limit of 9.55. Selection of the upper limit in the 95% confidence interval did not conclude DEP's process in producing the ultimate number for the criterion. DEP rounded the 9.55 up so that the process finally yielded a numeric phosphorus criterion as a geometric mean of 10. The rounding up was also criticized by Dr. Parkhurst: [I]nstead of using their best estimate of what the geometric mean would be at these reference sites, [DEP has] used a value that's a whole unit higher than that. . . . [I]n fact, they've . . . rounded . . . up to 10. . . . [W]hat's happened is [DEP] changed the best estimate of 8.5 to a geometric mean of 10. (Tr. 504) . . . By using that value, [DEP is] underregulating and overprotecting [the discharger of phosphorus.] As found above, the threshold approach would not have supported the selection of the highest number in the 95% confidence interval that surrounded the geometric mean revealed by the data. But as DEP made clear, the numeric criterion was not derived on the basis of a threshold approach. It was derived from a reference site approach. The Department sought a value from reference site conditions, conditions at which imbalance was sure not to occur. Had a threshold of imbalance been the parameter sought in the calculations, "you'd be concerned with the lower confidence [limit]." Id. Selection of the highest number in the 95% confidence interval (9.55) that surrounds the geometric mean (8.51) and then rounding that number up to 10 achieves another purpose besides deriving a numeric value which is a component of an interval within which balance is sure to occur. It also helps to ensure that a value in excess of 10 ppb reflects a true exceedence of the criterion and not just expected variability around the long-term geometric mean. See Respondent's Proposed Order, p. 40. In other words, the selection of the upper limit in the confidence interval and the rounding of that number to 10 helps to avoid false positives. (See Tr. 1711-1714) U.S. Sugar, New Hope, and the Coop directly confront Dr. Parkhurst's suggestion that the upper limit in the 95% confidence level should have been replaced by the geometric mean revealed by the data or the lower limit in the 95% confidence interval: Setting the criterion at the population geometric mean would result in at least a 50% chance that the actual long-term geometric mean of unimpacted sites would be above the criterion. [Citations omitted.] Setting it at the lower confidence limit would be even more improper. That would result in a 95 percent chance that the unimpacted reference sites would be above the criterion over the long-term, with no actual change having occurred at the sites that the Department identified as unimpacted. (Proposed Final Order submitted by U.S. Sugar, New Hope and the Coop, p. 90) This argument again raises avoidance of false positives as a justification for selecting the upper limit of the 95% confidence level and then rounding that number to 10. The argument is correct as far as it goes but there is another half to the story: the effect on false negatives. The record does not reveal whether DEP determined a precise geometric mean of the threshold of imbalance. But it may be inferred that it is a long-term geometric mean with a value above 8.51. It is clear from the record, therefore, that setting the numeric criterion at the geometric mean of 8.51, rather than at 9.55, the upper limit of a 95% confidence interval, would result in a greater avoidance of false negatives. Setting the numeric criterion at the lower limit of the confidence interval provides even more assurance that false negatives (reports of no imbalance in sites that do not have balanced populations of flora and fauna) do not occur. An understanding of the full picture proves Dr. Parkhurst's point. It is desirable, of course, to avoid false positives. There is a caution in the EFA, moreover, that the criterion "shall not be lower than the natural conditions of the Everglades Protection Area," paragraph (4)(e)2. of the EFA, a warning not to set the numeric criterion too low. But there is no caution in the EFA that a percentage of false positives are to be avoided within some acceptable range of costs. In contrast to the lack of language in the EFA concerning the avoidance of false positives stands the Narrative Criterion. The goal of the Narrative Criterion, after all, is to ensure that phosphorus-rich waters discharged into the EPA do not cause an imbalance in flora and fauna. It favors, therefore, the avoidance of false negatives over the avoidance of false positives. Avoidance of false positives is not a basis for establishment of the numeric phosphorus criterion. Furthermore, moving away from the geometric mean established by the data in a direction that provides less certainty that false negatives will be avoided threatens contravention of the Narrative Criterion. There are bases other than avoidance of false positives in the record, however, for why a geometric mean of 10 does not contravene the Narrative Criterion. Other Bases Mr. Nearhoof offered the first basis. In addition to the geometric mean of 8.51 that led to an upper limit of 9.55, there are seven other upper limits expressed as either a mean or a median for four different data sets on Table 5-3 of the 2003 Everglades Consolidated Report. Three of the data sets are for Water Conservation Area 2A: "1994-2001 References site data"; "1978-2001 Reference site data [that includes data from the period for Station U3]"; and "1978- 2001 References site data minus three years with less than four measurements." The fourth data set is for Water Conservation Area 1: "1996-2001 Reference site data." See DEP Ex. 24A. In addition to the upper limit of 9.55 already discussed for the 1978-2001 Reference site data that excludes data for three years, upper limits of 95% confidence intervals around central tendencies expressed as means and medians for each of these data sets are 8.69, 8.77, 10.57, 9.42, 9.25, 10.08, and 10.00. The overall average result reflected on the table, of the upper limits is 9.54. Including the 9.55 value used by DEP in the derivation of the criterion, two of the values on the chart are above 10, one is exactly 10, three are between 9 and 10 and two are below 9. Mr. Nearhoof offered DEP's evaluation of all of these values: . . . [W]hen you do all of those calculations, that number essentially bounces all around 10. . . . [T]hat's exactly why we concluded that 10 was the number. And I think we clearly documented that on all of our technical documents. We could probably collect data for another decade and calculate this several different ways, and it's going to continue to bounce around 10. We, therefore, chose the simple means . . . of adopting the 10. (Tr. 1667) These upper confidence levels, however, as detailed by Dr. Parkhurst, suffer from the same problem as the one selected: their use reduces the risk of false positives but increases the chance of false negatives. The better basis offered by Mr. Nearhoof is that other studies were corroborative that a long-term geometric mean of 10 would be protective. For example, the lower confidence levels of studies that sought to establish thresholds, such as a study conducted by the Duke University Wetland Center, yielded a number around 10. (See Tr. 1671 and 1903) The Coop and New Hope offered testimony from Sujoy Roy, Ph.D., and Robert Sielken, Ph.D., that the long-term geometric mean of 10 was a highly conservative number and that a threshold of imbalance was likely to be at a much higher number. On the basis of an independent analysis of DEP's water quality and biological data, Dr. Roy recommended that a 30 ppb standard be adopted for impacted areas and an annual geometric mean of 16 ppb for unimpacted areas be adopted, the lower end of what he believed to be the threshold of imbalance. In his view, these levels would have been adequate to sustain fish and wildlife in the Everglades. (Tr. 1235) Conspicuous by its absence from his testimony is a reference to protection of flora, in general, and periphyton mats, in particular. Aside from the lack of mention of the effect on flora and periphyton, Dr. Roy's opinion that a long-term geometric mean of 10 ppb is a highly conservative value is rejected because his numbers are too much at variance with other evidence of record. Dr. Sielken testified before the ERC in the hope of convincing it and DEP that the numeric criterion, expressed as a geometric mean, should be at a number higher than 10, which in turn would raise the numbers in the Four Part Test. His calculations, based on a different analysis than that employed by DEP, led him to the opinion that the numeric phosphorus criterion in the Proposed Rule is too conservative and will lead to an excessive number of false positives. Dr. Sielken's calculations utilized a "prediction" interval instead of the confidence interval used by DEP. His calculations lead to the conclusion that, from a reference site approach, a geometric mean of 13 would be a more appropriate number than 10. Again, such a number would reduce false positives but any reduction in false positives by bumping the number up carries with it an increase in false negatives. The more the number is raised from the geometric mean DEP calculated, the greater the threat of contravention of the Narrative Criterion. Donald M. Kent, Ph.D., was accepted as an expert in wetlands science and wetlands ecology. Dr. Kent cited an example in which periphyton disappeared in WCA-2A but then reappeared. (See Tr. 3932) The example contradicts any implication to be taken from the chain of events described by Dr. Jones, that imbalance in flora and fauna inevitably occurs once the step is reached where periphyton mats disintegrate. Nonetheless, Dr. Kent's opinion is that imbalance in flora and fauna occurs when periphyton completely disappears and change is visible among vascular plants. He explained at hearing: . . . I found that periphyton and bladderwort were particularly sensitive, and seemed to be the first -- first change that was evident . . . in the field when the phosphorus levels got too high Another reason is that . . . macroinvertebrates . . . insects and so forth, and . . . fish, those changes seem to be coincident with . . . major changes in vegetation. (Tr. 3947) There is no need to "look[] at whether the number of insects is changed, or the number of fishes . . . ." (Tr. 3948) Once change is observed in bladderwort or permanent change in periphyton, imbalance in flora and fauna will follow. Dr. Kent's opinion is that there is a range at which periphyton and bladderwort become imbalanced because of phosphorus in the water column. A summary of data provided by DEP, the District and Duke University demonstrated that "naturally occurring periphyton was imbalanced at anywhere from 14 to 27 parts per billion." (Tr. 3951). That the number "14" is the low end of a range at which imbalance of periphyton occurs is revealed by his testimony and U.S. Sugar Ex. 4A. Dr. Kent, moreover concluded that "15 [is] a nice safe place" (tr. 3959) for the numeric phosphorus criterion. Dr. Kent's work validates DEP's determination that balance will be maintained if there is compliance with a long-term geometric mean of 10. Dr. Kent concluded that compliance with the numeric phosphorus criterion would not allow waters in the EPA to be altered so as to cause an imbalance in the natural populations of aquatic flora and fauna. While DEP did not give a number at which imbalance would occur, the reference sites were in areas that were minimally impacted and close to impacted areas. Thus, DEP's number at which balance is maintained must be relatively close to a number at which imbalance occurs. Unlike Dr. Roy, Dr. Kent's numbers for imbalance are relatively consistent with DEP's conclusion based on maintenance of balance. Dr. Kent was not the only wetlands ecologist to testify that the Proposed Rule's establishment of the numeric phosphorus criterion as a long-term geometric mean of 10 will not cause imbalance. Other witnesses accepted as experts in wetlands ecology or Everglades ecology who offered the same ultimate opinion were Dr. Redfield and Environmental Administrator Frydenborg. Furthermore, Mr. Nearhoof, experienced in Everglades issues, offered the same opinion. In contrast, no wetlands ecologist testified that the Proposed Rule will cause an imbalance. The only wetlands ecologist offered by the Tribe and Friends was Dr. Jones. He was precluded from testifying about any criticism of the Proposed Rule on the basis of the pre-hearing ruling discussed in the Preliminary Statement of this order because of the Tribe's refusals with regard to discovery. After DEP, the District, U.S. Sugar, New Hope and the Coop had rested their cases-in-chief, the Tribe and Friends re- called Colonel Rice. The questions asked of Colonel Rice concerned DEP Ex. 19 which consisted of charts related to total annual inflows, annual average stage and total annual rainfall in WCA-2 and WCA- His testimony did not relate to any of Mr. Nearhoof's testimony or Dr. Kent's testimony as other bases for why a long- term geometric mean of 10 was appropriate for the Proposed Rule's numeric phosphorus criterion. Choosing to rely on the evidence presented in the opening phase of the hearing when the Tribe was required to go forward, the Tribe and Friends did not present any further evidence in response to the opinions offered by Dr. Kent, Dr. Redfield, Mr. Frydenborg and Mr. Nearhoof with regard to the numeric phosphorus criterion. In the final analysis, Colonel Rice's opinion that the Proposed Rule's numeric phosphorus criterion will lead to imbalance, must be weighed in the context of the entire record and against the opinions of three wetlands or Everglades ecologists and Mr. Nearhoof, an expert with a depth of experience in Everglades issues. As weighty as Colonel Rice's opinion may be, it is outweighed by the opinions of others. Achievement The Proposed Rule requires that achievement of the phosphorus criterion take into account deviations above the long-term geometric mean of 10 ppb if attributable to any of three categories of events: (1) the full range of spatial and temporal variability; (2) statistical variability inherent in sampling and testing procedures; or (3) higher natural background conditions. Achievement is to be determined by the methods in Subsection (5) of the Proposed Rule. Section (5) Methods for Determining Achievement of the Criterion in the Everglades Protection Area The Proposed Rule sets forth the methods for achievement for both impacted and unimpacted areas. Water Bodies The methods used depend on the "water bodies." The Proposed Rule lists the four "water bodies" into which the EPA is divided: Water Conservation Area 1 (the Refuge), Water Conservation 2, Water Conservation Area 3, and Everglades National Park. Subsection (5)(b) governs achievement in the Park and the Refuge. Subsection (5)(c) governs the achievement in WCA-2 and WCA-3. Achievement in the Park and the Refuge Subsection 5(b) tracks closely the language of Section 373.4592(4)(e)3: For the Everglades National Park and the Arthur R. Marshall Loxahatchee National Wildlife Refuge, the method for measuring compliance with the phosphorus criterion shall be in a manner consistent with Appendices A and B, respectively of the [Settlement Agreement], that recognizes and provides for incorporation of relevant research. The Proposed Rule adds a caveat. Should the Settlement Agreement be rescinded or terminated, achievement of the criterion is to be assessed as in the remaining portions of the Everglades. For the Refuge, paragraph (5)(b)1., of the Proposed Rule states that: The Department shall review data from the interior marsh stations established pursuant to Appendix B of the Settlement Agreement and will determine that the criterion is achieved if the Department concludes that average phosphorus concentrations at interior marsh stations will not result in a violation of the total phosphorus concentration levels established for the interior marsh stations using the methods set forth in Appendix B. In addressing discharges into the Refuge, the paragraph applies the concept of "technology based effluent limitations" or "TBELs." Phosphorus concentrations within the inflows to the Refuge that are above the average for the interior marsh stations will not be considered a violation of the numeric criterion--even if they exceed the average phosphorus concentrations for the interior marsh stations--so long as they meet the TBEL established for the discharge. In Section 373.4592(3)(b) of the EFA, the Legislature concluded that the Long-Term Plan provides the best available phosphorus reduction technology ("BAPRT"). The TBEL provision of the paragraph recognizes the possibility that discharges into the Refuge may exceed the numeric criterion even when complying with a TBEL derived from applying the BAPRT. While discharges exceeding the criterion but satisfying a TBEL may not be considered violations, the TBEL provision does not eliminate the requirement to assess achievement applying Appendix B of the Settlement Agreement as set out in the first provision of the paragraph. In fact, as explained by Everglades TOC Chair Garth Redfield, the Settlement Agreement calls for long-term phosphorus limits of 7 ppb (measured as a geometric mean), below the proposed numeric criterion of 10 ppb applicable elsewhere in the EFA. Assessing achievement of the numeric phosphorus criterion in the Park, as directed by the EFA, is based upon the limits established in Appendix A to the Settlement Agreement. Because of the influence of specific discharge structures, assessment is related to flow in the Park with long-term phosphorus levels set at 8 ppb as a flow-weighted mean. Achievement in WCA-2 and WCA-3: The "Four Part Test" For those parts of the EPA not falling within the Park or Refuge (WCA-2 and WCA-3), Section 373.4592(4)(e)3., states in pertinent part: Compliance with the phosphorus criterion shall be based upon a long-term geometric mean of concentration levels to be measured at sampling stations recognized from the research to be reasonably representative of receiving water in the Everglades Protection Area, and so located so as to assure that the Everglades Protection Area is not altered so as to cause an imbalance in natural populations of aquatic flora and fauna and to assure a net improvement in the areas already impacted. (Compliance with the Proposed Rule cannot be determined, obviously, until the stations are set and they are not yet set.) The achievement methodology for "unimpacted areas" is contained in paragraph (5)(c)1., of the Proposed Rule; for "impacted areas" in paragraph (5)(c)2. There are two differences between the methodologies for unimpacted areas and impacted areas. First, "[a]chievement of the criterion in unimpacted areas in each WCA shall be determined based upon data from stations that are evenly distributed and located in freshwater open water sloughs similar to the areas from which data were obtained to derive the phosphorus criterion." Paragraph (5)(c)1., of the Proposed Rule. There is no requirement that the stations in impacted areas be in sloughs similar to the areas from which data were obtained to derive the criterion. Second, with regard to impacted areas, "[i]f . . . limits are not met, no action shall be required, provided that the net improvement or hydropattern restoration provisions of subsection (7) [of the Proposed Rule] . . . are met." Subparagraph (5)(c)2., of the Proposed Rule. No clause providing such an escape from compliance with achievement of the criterion is applicable to unimpacted areas. Discussed earlier in this order with reference to the definition of "impacted area" based on soils, there is one more clause that is not part of the "Four Part Test" applicable to both unimpacted areas and impacted areas. It is the final sentence in the paragraph (5)(c) of the Proposed Rule: "[n]otwithstanding the definition of Impacted Area in subsection (3), individual stations in the network shall be deemed to be unimpacted if the five-year geometric mean is less than or equal to 10 ppb and annual geometric mean is less than or equal to 15 ppb." The remainder of the Proposed Rule's section on the achievement methodologies in WCA-2 and WCA-3 contain the Four Part Test applicable in both unimpacted and impacted areas. Each of the four parts of the test must be met for there to be achievement of the criterion except that: Consistent with subsection (4) above, exceedences of the above provisions shall not be considered deviations from the criterion if they are attributable to the full range of natural spatial and temporal variability, statistical variability inherent in sampling and testing procedures, or higher natural background conditions. Paragraphs (5)(c)1., and 2., of the Proposed Rule. The first part of the test is the primary achievement test. It converts the "long term" geometric mean mandated by the statute for achievement of the criterion to a "five year" geometric mean: "[both impacted and unimpacted areas] of the water body will have achieved the criterion if the five year geometric mean is less than or equal to 10 ppb." See paragraphs (5)(c)1., and 2., of the Proposed Rule. To protect against imbalance, since a "long term" geometric mean of "five years" is employed in the first part of the Four Part Test, three additional provisions (Parts 2, 3 and 4 of the Test) must be met. The second, third, and fourth parts of the Four Part Test, therefore, are backstops to ensure achievement of the narrative criterion and to protect the resource. Part 2 of the Four Part Test or "the three of five" test, see DEP Proposed Order, p. 44, is that "the annual geometric mean averaged across all stations is less than or equal to 10 ppb for three of five years[.]" Subparagraphs (5)(c)1., a., and 2.,a., of the Proposed Rule. Part 3 of the Four Part Test or "the one-year 11" test, id., is that "the annual geometric mean averaged across all stations is less than or equal to 11 ppb[.]" Subparagraphs (5)(c)1.,b., and 2., b., of the Proposed Rule. Part 4 of the Four Part Test or "the one-year 15 test," is that "the annual geometric mean at all individual stations is less than or equal to 15 ppb. Individual station analyses are representative of only that station." Colonel Rice criticized the Four Part Test based on its discounting of high values by use of a geometric mean as the measure of central tendency and the manner in which the test takes into account spatial and temporal variability. He offered an example of 99 stations in pristine areas and one in an area with concentration readings of 200 ppb in which degradation was occurring. The example was hypothetical, since it is not known "where they're going to be finally . . . ." (Tr. 251) The degradation "would be masked as far as this compliance methodology goes." Id. Whatever validity Colonel Rice's criticism has with regard to protection of the resource ultimately, the Four Part Test follows the statute. It employs a "long-term" geometric mean, as mandated by the EFA, in its primary step, the first part of the test, when it calls for achievement "if the five year geometric mean is less than or equal to 10 ppb." Subsections (5)(c)1., and 2., of the Proposed Rule. It accounts, moreover, in Part (3) of the test, the "one-year 11" provision, for spatial variability as required by the EFA, when it calls for an annual geometric mean "across all stations," subparagraphs (5)(c)1., b. and 2.,b., of the Proposed Rule. And, in Part (2) of the test, the "three of five" provision, it accounts for temporal variability as required by the EFA when it calls for a geometric mean at a level "for three of five years." Subparagraphs(5)(c)1.,a., and 2.,a., of the Proposed Rule. Adjustment of Achievement Methods Subsection (5)(d) requires a technical review of the achievement methods set forth in the Proposed Rule at a minimum of five-year intervals with reports to the ERC on changes as needed. The purpose of the paragraph is to make sure periodically that the methodologies for achievement are working both to protect the Everglades and to prevent false positives. Data Screening Subsection (5)(e) of the Proposed Rule governs "Data Screening." It sets forth a number of provisions that allow the Department to exclude data from calculations used to assess achievement if the data are not of the proper quality or quantity or reflect conditions not consistent with determining an accurate estimate of ambient water column total phosphorus. Data excluded under subsection (5)(e) are not discarded under the Data Quality Screening Protocol referred to in paragraph (5)(e)2. "[I]t's extremely important [that what is done] with any data set is clearly documented " (Tr. 2220) The purpose of such documentation is transparency "so that all interested parties can determine what [DEP] is doing and why . . . ." Id. To that end, the Data Screening Protocol, which is incorporated by reference in Section (8) of the Proposed Rule requires that "[t]he [Department/District] shall note for the record any data that are excluded and provide any details concerning the reasons for excluding those data." (Tr. 2220) It is proper to exclude data when a sample is not representative of the ambient total phosphorus concentrations in the EPA because of variability both within the Everglades system, itself, and variability outside the system that is associated with the methods of data collection and measurement. An explanation was offered at hearing by Russell Frydenborg, a DEP Natural Science Manager. Mr. Frydenborg has considerable relevant experience with the State over many years that, among many aspects, involves the assurance of scientific quality. Mr. Frydenborg explained that in addition to the natural variability in the Everglades environment caused by rainfall, biological and seasonal changes and the like, there is also variability associated with measurement due to error. For example, tap water has significantly higher levels of phosphorus than does the natural background water of the Everglades. It is not unusual for tap water to have a range between 40 and 80 micrograms of phosphorus per liter (40 to 80 ppb). Tap water used to rinse measurement gear will leave a residue of phosphorus. The contamination of equipment such as bottles by phosphorus residue left after rinsing will produce artificially high levels of phosphorus in samples. Data obtained by means of contaminated equipment must be excluded. Subsection (5)(e) excludes data that is associated with both variability due to measurement error and due to some of the natural and other variability in the Everglades system, itself. Paragraphs (5)(e)1., and 2., address measurement error. Paragraph (5)(e)1., requires the exclusion of data that fails to comply with the Chapter 62-160, the Department's Quality Assurance Rule (the "QA Rule.") The purpose of the QA Rule is to assure that data used by the Department are appropriate and reliable, and collected and analyzed by scientifically sound procedures. The QA Rule encompasses a comprehensive quality assurance program that addresses quality control in the field and the laboratory. Paragraph (5)(e)2., excludes data if it fails to meet the Department's "Data Quality Screening Protocol," developed as part of the criterion development process to address quality assurance concerns of particular importance when sampling phosphorus in the water column. For example, the protocol requires that water samples not be taken from sites less than 10 centimeters in depth. See DEP Ex. 21. Attempting to sample in such shallow waters (less than four inches) may disturb nutrient rich floc that would contaminate the sample and result in artificially high total phosphorus concentration. Paragraph(5)(e)3 excludes data "collected from sites affected by extreme events . . . until normal conditions are restored . . . ." Examples of such events are listed: "fire, flood, drought or hurricanes . . . ." While all "extreme events" are not listed, all that are listed are events associated primarily with the Everglades system itself, that is, they are events associated with natural phenomena that contributed to the formation of the Everglades and the maintenance of its phosphorus-limited status. (It is possible, however unlikely, that drought or flood today could be caused by water management practices. Changes in water levels caused by water management practices, moreover, are covered by paragraph (5)(e)5.) Fire, flood, drought and hurricanes are extreme natural conditions. It is known that they will occur in the future but it is difficult to predict precisely when. It is possible to design a sampling regime that would capture spatial and temporal variability caused by these natural events. As a practical matter, however, the Department and District are limited physically and fiscally as to the number of quality samples that can be properly taken in any one year. It is the Department's position, therefore, that the effects of such natural phenomena, all influences that contributed to the formation and continue to contribute to the health of the Everglades, must be screened from consideration. The Department is comfortable with the screening because the data that is not screened is from water samples that have integrated the effects of extreme events so that, in the end, data related to the long-term impact of the events is not screened, only data related to the short-term impact of the events. Felecia Coleman, Ph.D., is a member of the Best Available Science Committee of the National Research Council, an arm of the National Academy of Sciences. She was accepted at hearing as an expert in principles of scientific method. Scientific disciplines have their own methodologies that vary. The underlying principles of the scientific method are the same, however, for all the disciplines. It is not good scientific method, in Dr. Coleman's opinion, to exclude data related to fire, flood, drought and hurricanes from calculations to determine achievement of the criterion in the Everglades. While they are events that are extreme in the Everglades, they are also events that are normal in the Everglades and produce significant effects on the Everglades' ecological system. To exclude them, then in Dr. Coleman's opinion, fails to take into account spatial and temporal variability in the system due to these events that occur in all parts of the Everglades from time-to-time. The Department argues just the opposite. To reach the objectives of sampling strategies intended to assure the collection of "representative" samples within a routine natural variability or hydrologic cycle, extreme event data must be excluded. Representative conditions, moreover, reflect the integration of the effects of extreme events over time, thereby taking into effect the temporal variability of the system. The concept of "representation" takes into account the practical consideration in support of the screening of extreme events: the Department cannot obtain sufficient data to account for variability caused by untold combinations and permutations of extreme events. Failing to screen the variability or "noise" caused by such events, moreover, would result in excessively high estimates of total phosphorus concentrations. To include data taken when the water was under the short-term influence of the extreme event would skew the data high because not enough samples could be taken when the waters sampled were not under the short-term influence of the extreme event to off-set the impact of the event in a fair way so as to produce results that were representative. Paragraph (5)(e)4., requires the exclusion from assessment calculations of data affected by localized disturbances whether natural or caused by humans. As in the case of extreme events, the Proposed Rule lists some of these disturbances: airboat traffic, authorized restoration activities, alligator holes and bird rookeries. The former two are human activities; the latter two, natural. In common, all are "localized" rather than tending to be system-wide like the listed extreme events. Future physical disturbances from airboat traffic and alligators will suspend sediment and flocculent organic material that contains phosphorus from discharges that occurred prior to the Proposed Rule. A spike in the total phosphorus concentration for a sample taken at the disturbed location may contribute to an indication that the criterion has not been achieved. The same is true of samples heavily influenced by organic waste, a concentrated source of phosphorus, produced in bird rookeries. Temporary restoration activities may suspend nutrient-laden floc and sediment as well causing artificially high phosphorus concentrations not reflective of typical ambient conditions. Samples taken in the wake of these localized activities are not representative. Just as in the case of extreme event data, if a sampling regime of sufficient magnitude to properly take into account for such short-term and random variability were theoretically possible so as to produce results representative of typical conditions, neither the Department nor the District has the resources to implement such a program. Without a sufficient number of samples, data influenced short-term by localized activity will skew the data too high. And, in the end, samples taken that are not influenced short-term by the localized activities will have integrated the effects of the activities over the long-term. Paragraph (5)(e)5. of the Proposed Rule requires the exclusion of data from assessment calculations from years when hydrologic conditions are outside the range that occurred during the period used to set the phosphorus criterion. Examples of such conditions are given in the Proposed Rule: rainfall amount, water levels and water deliveries. The period used to set the criterion is not defined, but conditions during the development of the criterion reflected a broad range of conditions such that this provision would rarely by employed. In the unlikely event an extreme in water quantity covered by paragraph (5)(e)5. occurred, data collected under such conditions would not reflect normal ambient conditions. Section (6) Long-Term Compliance Permit Requirements for Phosphorus Discharges into the EPA Permits for discharges into the EPA are addressed in Subsection 373.4592(4): The department shall use the best available information to define relationships between waters discharged to, and the resulting water quality in, the Everglades Protection Area. The department or the district shall use these relationships to establish discharge limits in permits for discharges into the EAA canals and the Everglades Protection Area necessary to prevent an imbalance in the natural populations of aquatic flora or fauna in the Everglades Protection Area, and to provide a net improvement in the areas already impacted. During the implementation of the initial phase of the Long-Term Plan, permits issued by the department shall be based on BAPRT and shall include technology-based effluent limitations consistent with the Long-Term Plan. § 373.4596(4)(e)3., Fla. Stat. See also, § 373.4592(10), Fla. Stat. Section (6) of the Proposed Rule, entitled "Long-Term Compliance Requirements for Phosphorus Discharges into the EPA," sets forth an initial requirement in subsection (6)(a), that an applicant for a permit to discharge into the EPA provide reasonable assurance that the discharge will comply with state water quality standards as set forth in the section. Subsection (6)(b) sets forth three conditions, under any of which, discharges will be deemed to be in compliance. The first is that phosphorus levels in the discharges will be at or below the criterion. This condition is independent of ambient water quality. It refers to phosphorus levels of the discharged water at the point of discharge. If such a level meets the criterion, the level in the ambient water body (provided it was lower than the level in the discharge prior to discharge) will remain lower than the level in the discharged water. The second is that discharges will not cause or contribute to exceedences of the criterion in the receiving waters, the determination of which will take into account the phosphorus in the water column that is due to reflux. The "cause or contribute" analysis is not unique to the permitting of discharges to the EPA but a longstanding concept routinely applied in the Department's permitting of wastewater discharges. If a discharge contains a pollutant in concentrations in excess of the ambient criterion, but the discharge of the pollutant is accommodated by the system such that no exceedence of the criterion occurs in ambient waters, then the discharge has not caused or contributed to a violation of the criterion or that standard of which the criterion may be a part. If an exceedence occurs, but it is not the result of the phosphorus in the discharge but rather caused by reflux--the biogeochemical release of phosphorus into the water column from the sediment stirred by the discharge--the discharge would also be said not to have "caused or contributed to" the exceedence of the criterion. Phosphorus discharges may also exceed the phosphorus criterion, under paragraph (6)(c)3, if they comply with moderating provisions set forth in Section (7) of the Proposed Rule. Moderating provisions are a type of relief mechanism whereby the permit applicant is not held to strict compliance with the applicable standard or criterion if a variety of alternative conditions are met. Under subsection (6)(d), discharges into the Park and Refuge must not result in a violation of the concentration limits and levels established for the Park and Refuge in Appendices A and B, respectively, of the Settlement Agreement as determined through the methodology set forth in Section (5). Closely tracking statutory language, subsection (6)(d) of the Proposed Rule states that discharge limits from permits allowing discharges into the EPA shall be based upon TBELs established under BAPRT and shall not require water quality based limitations ("WQBELs") through the year 2016. Section (7) Moderating Provisions Subsection (7)(a) sets forth a moderating provision for impacted areas within the EPA. Moderating provisions are designed to "moderate" or temper the impact of the phosphorus criterion on the regulation of discharges into the EPA and are specifically allowed by the EFA as the result of legislative amendment enacted in 2003: . . . The department's rule adopting a phosphorus criterion may include moderating provisions during the implementation of the initial phase of the Long-Term Plan authorizing discharges based upon BAPRT providing net improvement to impacted areas. Discharges to unimpacted areas may also be authorized by moderating provisions, which shall require BAPRT, and which must be based upon a determination by the department that the environmental benefits of the discharge clearly outweigh potential adverse impacts and otherwise comply with antidegradation requirements. Moderating provisions authorized by this section shall not extend beyond December 2016 unless further authorized by the Legislature pursuant to paragraph (3)(d). § 373.4592((4)(e)2., Fla. Stat. There are two types of moderating provisions in the section. Subsection (7)(a) allows discharges to be permitted upon a showing of "net improvement" to the receiving waters. Subsection (7)(b) allows for discharges to be permitted that accomplish for purposes of "hydropattern restoration" under certain circumstances. To be permitted under (7)(a), the applicant must meet two criteria. First, the permittee must demonstrate that BAPRT will be implemented that includes a continued research and monitoring program designed to reduce outflow concentrations of phosphorus. Paragraph (7)(a)1 of the Proposed Rule. Second, the applicant must demonstrate that the discharge will be into an impacted area. The subsection states that the "Long-Term Plan" shall constitute BAPRT consistent with the Legislature's declaration in Section 373.4592(3)(b): The Legislature finds that the Long-Term Plan provides the best available phosphorus reduction technology based upon a combination of the BMPs and STAs described in the Plan provided that the Plan shall seek to achieve the phosphorus criterion in the Everglades Protection Area. Consistent with the Legislative finding, the subsection states, "[t]he planning goal of the Long-Term Plan is to achieve compliance with the criterion . . . ." Paragraph (7)(a)3., of the Proposed Rule. As part of the permit review process, moreover, the Department will review the Process Development and Engineering component of the long-term plan and determine if changes are needed to comply with the Proposed Rule, including the numeric criterion. Any changes the Department deems necessary "shall be incorporated through an adaptive management approach." Id. Under subsection (7)(b), discharges that cause relevant ambient concentrations in excess of the criterion may be allowed for hydropattern restoration in unimpacted areas if three conditions are met. First, the permittee must implement BAPRT under sub-paragraph (7)(a)1.a. Second, the environmental benefits of hydropattern restoration must clearly outweigh potential adverse effects in the event phosphorus levels in the discharge exceed the criterion. Third, the discharge must comply with the Department's long-standing antidegradation requirements. Section (7)(c) declares that the Proposed Rule's moderating provisions do not pre-empt other moderating provisions. Section (8) Document Incorporated by Reference A single document is referenced for incorporation into the Proposed Rule: "Data Quality Screening Protocol, dated ." Section (8) of the Proposed Rule. Although the Proposed Rule does not identify the Data Quality Screening Protocol by date, a protocol was adopted by the ERC. It was made available to the public electronically via the Department's website "by PDF file on the site dated March 21, 2003." (Tr. 3358) The protocol adopted by the ERC and made available to the public is the protocol about which testimony was taken at hearing. The date was left blank with the intention of filling it in with the effective date of the Proposed Rule once that date becomes known. Section (9) Contingencies Section (9) requires notification to the ERC in the event that "any provision of the rule" is challenged. It also mandates that the Department bring the matter back before the Commission for reconsideration in the event "any provision of the rule: (a) is determined to be invalid under applicable laws; or (b) is disapproved by the U.S. Environmental Protection Agency under the Clean Water Act . . . ." Section (9) of the Proposed Rule.
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1994. COPIES FURNISHED: 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 Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
Findings Of Fact Respondent William O. Reynolds filed with Respondent Department of Environmental Regulation an application to construct a weedgate and fence at the mouth of a dead-end canal in Atlantis Estates Subdivision located on Big Pine Key in Monroe County, Florida. When the Department noticed its intent to issue a dredge and fill permit to Reynolds, Petitioner James A. Abbanat filed his objection. That cause was referred to the Division of Administrative Hearings for conduct of a formal hearing and was assigned DOAH Case No. 84-1508. On March 8, 1985, a Recommended Order was entered in that cause find in, inter alia, that the proposed project would be constructed in Class III waters of the State (Outstanding Florida Waters), that the weedgate and fence should cause no state water quality violations and should not unreasonably interfere with navigation, that they should actually improve water quality and navigation within the canal and should not significantly decrease water quality outside of the canal, that the project would not be contrary to the public interest, and that the applicant had provided reasonable assurances that the project would not violate Department standards, rules, or applicable statutes. Although the permit application was not certified by a professional engineer registered in the state of Florida, the Recommended Order concluded that that technical deficiency should not form the basis for denying the permit but rather that the permit should be granted with conditions. On April 22, 1985, a Final Order was issued adopting the Recommended Order but denying the permit application solely due to the lack of certification of the permit application by a professional engineer registered in the state of Florida. Despite the denial of his application for a permit, Respondent William O. Reynolds caused to be constructed a weedgate and fence. At some undisclosed time Reynolds did, however, submit to the Department of Environmental Regulation a set of drawings for the fence and weedgate. Although the drawing for the weedgate as built was certified by a professional engineer registered in the State of Florida, no fence drawing was so certified and the fence as built was located differently than the fence as shown in the drawings. The drawings showed a fence extending from the weedgate through the cove at the entrance to the canal for a distance of 200 feet, while the fence as installed is 100 feet in length and is located within the canal itself. On August 19, 1986, Respondents entered into a consent order acknowledging the prior denial of Reynolds" application due to lack of certification of the permit application, reciting that certification had been obtained, and authorizing the project. Interested persons were not notified of the entry of the consent order. Accordingly, when Petitioner Abbanat learned of its existence and filed his objection to the entry of that consent order, the Department of Environmental Regulation afforded the required point of entry into administrative proceedings and referred the matter to the Division of Administrative Hearings for the conduct of a formal hearing. That objection initiated this cause. The weedgate as built is in substantial accord with the plans submitted to the Department by Reynolds and certified by Joel Rosenblatt, a professional engineer registered in the state of Florida. The design, location, and size of the weedgate as built is substantially similar to that proposed in DOAH Case No. 84-1508. The weedgate as built has the same system of cables and weights and is supported by support posts on each side. As built, the weedgate opens in the middle to permit unimpeded ingress and egress of boats. The weedgate causes neither interruption of water flow nor erosion. The effect of the weedgate as built on state water quality standards is the same as the effect determined in DOAH Case No. 84-1508, i.e., the presence of the weedgate causes no water quality violation either in the canal or in the water just outside the gate and fence. The presence of windblown wrack in the canal was the major cause of state water quality violations. The sole purpose of the gate and fence is to prevent wrack from entering the canal and decaying there causing lowered dissolved oxygen levels and anoxic and/or anaerobic conditions. There has been little or no wrack in the canal since the weedgate and fence were installed, and the weedgate and fence are beneficial to and appear to have improved the water quality in the canal. The 200-foot fence across the cove at the mouth at the canal shown in the drawings submitted to the Department of Environmental Regulation does not exist since it has been prohibited by the Department of Natural Resources. Instead, Reynolds constructed a 100-foot fence perpendicular to the north side of the weedgate and joined to the rip-rap on the north side of the canal which forms the south edge of the cove. The fence as built prevents wrack from being blown around the gate into the canal, does not affect the water quality in the canal or in the cove, and does not interfere with navigation. The cove itself collects wrack to some degree under natural conditions and without the fence to the south of it because all discontinuities on the Florida Keys eastern coastline tend to trap windblown wrack until it is moved elsewhere by wind or current. The cove does collect more wrack since the fence was installed than it did before the fence was installed; however, estimating the amount would be speculative. Although Petitioner's lot adjoins the canal, it does not adjoin the cove. The owner of the property which does adjoin the cove favors the existing weedgate and fence. The placement of the weedgate and fence does not interfere with navigation in or out of the canal. It is a policy of the Department of Environmental Regulation to issue a consent order for a project if the project has already been built and is of such design and quality that the Department would be able to issue a permit for it had a proper permit application been filed. The weedgate and the fence are of such design and quality that the Department would be able to issue a permit had Reynolds resubmitted his application showing the revised location of the fence and if the drawings were certified by a professional engineer. It was determined in DOAH Case No. 84-1508 that the project was not contrary to the public interest. Since that time the standard has changed from "not contrary to the public interest" to "in the public interest." Although the Department presented only conclusory evidence that it had received reasonable assurances that the public interest standard is met by the project as built, Petitioner allowed that evidence to stand uncontroverted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving the consent order signed by the Department of Environmental Regulation and William O. Reynolds on August 19, 1985, and ratifying the conditions contained therein. DONE and RECOMMENDED this 21st day of January 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January 1987. APPENDIX DOAH CASE NO. 86-1091 The Department of Environmental Regulation's proposed findings of fact numbered 1, the first two sentences of 2, 3-5, 10-12, 14-17, 19, and 20 have been adopted either verbatim or in substance in this Recommended Order. The remainder of the Department of Environmental Regulation's proposed findings of fact have been rejected as follows: the third sentence of 2 as not being a finding of fact; the first two sentences of 9 as being unnecessary; the last two sentences of 9 as not being supported by the record; and 13 and 15 as being irrelevant to the issues herein. Respondent Reynolds' proposed findings of fact numbered 1, 5, and 6 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Reynolds' proposed findings of fact have been rejected as follows: 2-4 and 5 as being unnecessary for determination herein, and 7 as being not supported by the record in this cause. Petitioner's proposed finding of fact numbered 5 and the first sentence of number 4 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1 and 2 as being unnecessary; 3 and 6 as not being supported by the record in this cause; 5 and 10 as being contrary to the weight of the credible evidence; and 7 and the second and third sentences of 4 as not constituting findings of fact. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James A. Abbanat 5561 S.W. 3rd Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
Findings Of Fact The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at 21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department. The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding. Dr. Peebles testified: I can't honestly believe that me filling 14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for . . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these subjects. (Tr. at 19) Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71) Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake. On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr. 35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception. The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected. The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent, substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception. The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing." Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69) However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony. To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Burden of Proof The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877. At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/ Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted. Cumulative Impacts The Department takes exception to the Hearing Officer's conclusion of law that: Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6) At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989). As my predecessor Secretary Tschinkel observed: Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985). The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988). - The doctrine was approved by the courts in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted. It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990). In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects. As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected. The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof. Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects. Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes. Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1) For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception. Public Interest Test The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application. DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida1 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725 The Agency filed proposed findings of fact which were read and considered. The Agency's findings were adopted or rejected for the reasons indicated as follows: Paragraphs 1-10 Adopted Paragraph 11 Adopted that it will damage fishing; however, this damage will be insignificant and will not truly affect tee fishing on the lake. Paragraph 12 Adopted The Applicant's letter was read and considered as oral argument on the issues presented at hearings. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606 William H. Congdon, Esq. Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issues for determination in this proceeding, are as follows: Whether St. Johns' Rules 40C-2.301(4)(d), and (i), F.A.C. [adopted, as well, in the Applicant's Handbook as Sections 10.3(D),(H) and (I)] are invalid exercises of delegated legislative authority, because of vagueness and arbitrariness. because, to the extent water quality is regulated, St. Johns has exceeded its statutory authority. Whether St. Johns utilizes an unwritten, and, therefore, invalid rule for determining allowable parts per million of phosphorus and nitrogen. Whether St. Johns' policy of reliance on Department of Environmental Regulation (DER) Rule Chapter 17-3, F.A.C., constitutes an invalid rule. MATERIAL ADMISSIONS AND STIPULATIONS In Stipulations filed at or before the hearings on November 22, 1988 and February 27, 1989, the parties have agreed as follows: Zellwood Drainage and Water Control District and the individual Petitioners in this case have standing to bring this Section 120.56, F.S., rule challenge. Zellwood filed a timely consumptive use permit application with St. Johns, as an existing use. St. Johns classified the application as one for an existing use. The review of the application occurred in December 1985. The sole basis of St. Johns' recommended denial is Zellwood's alleged non-compliance with Rules 40C-2.301(4)(d), (h), and (i), F.A.C., and those same provisions found in Section 10.3(D), (H) and (I) of the Applicant's Handbook. The factual basis of St. Johns' denial of Zellwood's consumptive use permit application is the quality of the water discharged into Lake Apopka and the effect the discharge has on the lake. In its admissions filed at the February 27, 1989 hearing, St. Johns admits that unless an applicant has an operation permit issued by DER, St. Johns uses the State Water Quality standards in Chapter 17-3, F.A.C. (DER's rule) in deciding whether a use of water causes serious harm to the water quality of source or receiving waters, pursuant to Rules 40C-2.301(4)(h) and (i), F.A.C., and whether a use of water has reduced environmental or economic harm to an acceptable amount pursuant to Rule 40C-2.301(4)(d), F.A.C.
Findings Of Fact Petitioner, Zellwood Drainage and Water Control District was created as a special district in Orange County, Florida, by act of the Legislature, Chapter 20714, Laws of Florida, in 1942. The district is located south and west of the town of Zellwood, along the northeast shore of Lake Apopka, and comprises approximately 8700 acres. The district is governed by a board of governors; William Rex Clonts, Jr. is currently Chairman. Plainly stated, the purpose of the district is to make its lands suitable for farming by maintaining pumps, canals, a dike, roads and other improvements. The land within the district is lower than the level of the lake and surrounding land. Without drainage, the land could not be farmed. The individual petitioners are farmers owning land and farms within the district. There are approximately twelve farms, primarily family-owned, growing broccoli, carrots, celery, leaf lettuce, radishes, greens, sweet corn and sod. The farms within the district, utilizing the improvements of the district, pump water from Lake Apopka for nematode control and for irrigation in times of dry seasons. Except when the water is allowed to evaporate off the fields, water is then discharged back into Lake Apopka. Water is also discharged for flood control. When water is used as described above, it moves across the lands and it tends to pick up nutrients depending on the composition of the soil and the concentrations of the soil in the water. Almost every consumptive use of water has an associated discharge. From a regulatory standpoint, water quality and water quantity are intertwined. Both withdrawal from and discharge to a waterbody can degrade the water quality of that body. The only consumptive use permit applications denied by St. Johns on the basis of the quality of the discharge water are Zellwood's, Duda Farms', and other neighbors of Zellwood near Lake Apopka. However, in cases other than these St. Johns has recognized water quality problems and has issued water use permits with conditions which would help remedy the problem. When reviewing a consumptive use permit application such as Zellwood's, St. Johns applies, among others, these relevant provisions of its Rule 40C- 2.301, F.A.C.: 40C-2.301 Conditions for Issuance of Permits. To obtain a consumptive use permit for a use existing on the effective date of implementation, the applicant shall apply for a permit under the provisions of Section 373.226, Florida Statutes, and Rule 40C- 2.04(2), Florida Administrative Code, and shall establish that it is a reasonable beneficial use and is allowable under the common law of Florida. * * * The following criteria must be met in order for a use to be considered reasonably beneficial: The use must be such quantity as is necessary for economic and efficient utilization. The use must be for a purpose that is both reasonable and consistent with the public interest. The source of the water must be capable of producing the requested amounts of water. The environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount. To the degree which is financially environmentally, and socially practicable, available water conservation and reuse measures shall be used or proposed for use. The consumptive use should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems. The consumptive use should not cause or contribute to flood damage. The water quality of the source of the water should not be seriously harmed by the consumptive use. The water quality of the receiving body of water should not be seriously harmed by the consumptive use. A valid permit issued pursuant to Rule 17-4.240 or Rule 17- 4.260, Florida Administrative Code, shall establish a presumption that this criterion has been met. (emphasis added) Rules 17-4.240 and 17-4.260, F.A.C. are DER rules relating to operation permits for water pollution sources, and permits for sewage works, respectively. Zellwood contends that the standards in 40C-2.301(4)(d), (h) and (i), F.A.C., above, have no scientific meaning, do not put the applicant on notice as to what discharge would be permitted, and leave too much discretion to the agency. Sanford "Sandy" Young is an environmental consultant who testified on behalf of Zellwood. He specializes in limnology, the study of physical, chemical and biological aspects of fresh water. Young claims that the language of the rules is too vague to allow him to advise a client. He contrasts these rules with the DER water quality standards in Chapter 17-3, F.A.C., adopted by the Environmental Regulation Commission, which do include specific numbers where possible. St. John's department of resource management is responsible for reviewing and processing permit applications, including applications for consumptive use permits. In addition to using its own staff of engineers, hydrologists, and environmental specialists, the Department consults with its sister department of water resources, the district's program and research department, for additional technical expertise. On matters related to water quality, St. Johns' staff also consults with DER staff. St. Johns uses the provisions of DER rule Chapter 17-3 to measure the "serious harm" referenced in St. Johns' rules. Rule 17-3.121(19), F.A.C., sets the standard for nutrients in surface waters classified as Class III, such as Lake Apopka, as follows: (19) Nutrients - In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The nutrient standard provided in Rule 17-3.121, F.A.C., above, requires a site specific determination of the volume and concentrations of the nutrients that are discharged. The point at which an imbalance would be created is different from different bodies of water. Nutrients behave in a very site specific fashion, and in order to derive a scientific estimate of nutrient criteria for a specific body of water, the characteristics of that body have to be taken into account. It would be impossible to develop a numerical standard which would apply to all. The nutrient standard in Rule 17C-3.121, F.A.C. is applied, therefore, on a case-by-case basis. In permit application review, when there is not sufficient time to do actual field samplings and to run an exhaustive model of nutrient loading, the staff relies on available data, available literature and what is provided in the application itself, to make a recommendation to the district board regarding approval or denial. The staff's recommendation as to Zellwood was based on published literature on Lake Apopka and its existing water quality conditions and on available data from consultants on the quality and quantity of discharge and quantity from the Zellwood farms. As a rule of thumb, in this case, and not as an official district policy, the staff felt that .1 milligram per liter phosphorus, and 2 milligrams per liter nitrogen, would be an acceptable working level for discharge into Lake Apopka. That level itself would also depend on the amount of water being discharged. The .1 milligram and 2 milligrams level assumes a discharge of 20 billion gallons per year. The staff, in establishing such levels in consumptive use permits, strives to establish a discharge that will not contribute to the water quality of the receiving body staying below Class III standards (when that Class has been designated by DER). St. Johns has not adopted the nutrient level described above as a rule, but neither does it apply the level generally to other permit applications. Without a given volume of water, without knowledge of the ecological state of the receiving body, it is impossible to determine whether a given nutrient concentration, such as the parts per liter of nitrogen and phosphorus described above, would cause an imbalance of natural flora and fauna in the receiving body. St. Johns has adopted Rules 40C-2.301(4)(d), (h) and (i), F.A.C., in accordance with the rulemaking provisions of Section 120.54, F.S. In addition, Chapter 40C-2, F.A.C., has been reviewed by DER and accepted without objection as consistent with Chapter 17-40, F.A.C., the state water policy, and other applicable statutory standards.
The Issue The issues for determination in this case are whether Respondent Jeffrey Hill should pay the administrative penalty and investigative costs, and should undertake the corrective actions that are demanded by the Florida Department of Environmental Protection (“Department”) in its Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (“NOV”).
Findings Of Fact Respondent is the owner and operator of a community water system and its associated piping, designated PWS No. 2124409, located on parcel ID No. 03-4S-17-07486-001 on Country Club Road, in Lake City, Columbia County, Florida (“the property”). Respondent is a “person” as defined in section 403.852(5), Florida Statutes. Respondent is a “supplier of water” as defined in section 403.852(8). The water system is a “public water system” and a “community water system” as defined in sections 403.852(2) and (3), respectively. The community water system is a Category V, Class D water system with a capacity of 28,800 gallons per day that supplies between 25 and 3,300 people, using groundwater as its source. Count I Count I of the NOV charges Respondent with failure to sample for nitrate and nitrite in 2012 and 2013, which was admitted by Respondent. Count II Count II of the NOV charges Respondent with failure to sample for primary inorganic contaminants for the 2011-2013 compliance period, which was admitted by Respondent. Count III Count III of the NOV charges Respondent with failure to analyze for secondary contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count IV Count IV of the NOV charges Respondent with failure to sample for volatile organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count V Count V of the NOV charges Respondent with failure to sample for synthetic organic contaminants in the 2011-2013 compliance period, which was admitted by Respondent. Count VI Count VI of the NOV charges Respondent with failure to sample for total coliform from June 2013 to date, which was admitted by Respondent. Count VII Count VII of the NOV charges Respondent with failure to employ an operator for the system since May 2013, which was admitted by Respondent. Count VIII Count VIII of the NOV charges Respondent with failure to submit test results required by Florida Administrative Code Chapter 62-550, and failure to file a monthly operation report since April 2013, which was admitted by Respondent. Count IX Count IX of the NOV charges Respondent with failure to issue Tier 3 notices in May 2013 and March 2014, advising customers of the failure to monitor for certain contaminants, which Respondent admitted. Count X Count X of the NOV charges Respondent with failure to provide a consumer confidence report to his customers in 2012 and 2013, which was admitted by Respondent. Count XI In Count XI of the NOV, the Department states that it incurred $530 in investigative costs related to this enforcement matter, which is admitted by Respondent.
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Conclusions Pursuant to notice, the Division of Administrative Hearings (DOA), by its duly designated administrative law judge, the Honorable Donald R. Alexander, held a formal administrative hearing in the above-styled case on October 20 and 21, and November 6, 1997, in Gainesville, Florida. A. APPEARANCES For Petitioners, GREENSPACE PRESERVATION ASSOCIATION, INC.; FRANK WARD; SAL LOCASCIO; FREDERICK P. PETERKIN; AND HAROLD M. STAHMER.:: Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 For Respondent, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT (District staff): Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 For Respondent, CITY OF GAINESVILLE. (the City): Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110 On December 19, 1997, Judge Alexander submitted to the St. Johns River Water Management District, and all other parties to this proceeding, a Recommended Order, a copy of which is attached hereto as Exhibit "A." District staff filed exceptions to the Recommended Order. This matter then came before the Governing Board on January 14, 1996, for final agency action. B. STATEMENT OF THE ISSUE The issue in this case is whether the City’s applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved. C. RULINGS ON EXCEPTIONS RESPONDENT DISTRICT STAFF’S EXCEPTIONS 1. Exception 1 District staff take exception to conclusion of law 60 and assert that the Administrative Law Judge’s conclusion the City provided reasonable assurances that its notice general permit application meets the requirements of Rule 40C-400.475(2), Florida Administrative Code (F.A.C.), is not complete in that the Judge should have also cited Rule 40C400.475(1), F.A.C. The Governing Board may reject or modify conclusions of law and interpretation of administrative mules over which it has substantive jurisdiction. §120.57(1)G), Fla. Stat. (1997). Rule 40C-400.475(1), F.A.C., sets forth certain size thresholds which a project must be below to qualify for this noticed general environmental resource permit, A project must both be below these size thresholds and meet the conditidns of Rule 40C-400.475(2), F.A.C., to be authorized by this noticed general environmental resource permit. , In this case, the Administrative Law Judge found that the activity for which this noticed general environmental resource permit is sought involves piling supported structures. (Finding of Fact 39) The Administrative Law Judge found that the total area of the proposed bridge and boardwalk over surface waters or wetlands is approximately 481 square feet. (Finding of Fact 41). The Administrative Law Judge determined that the affected waters, Hogtown and Possum Creeks are designated Class HI waters. (Finding of Fact 41)” Since the City’s application for this noticed general environmental resource permit involves piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters, District staff's exception number one is accepted, and Conclusion of Law 60 is modified to read that the District’s requirements applicable to the City’s noticed general environmental resource permit application are found in Rule 40C-400.475(1) and (2), F.A.C., and that the City has provided reasonable assurances that the project meets these requirements. 2. Exception 2 In its exception 2, District staff takes exception to the Administrative Hearing Officer’s ultimate recommendation of approving the subject applications. District staff asserts that in his recommendation, the Administrative Hearing Officer did not set forth the relevant conditions which are to be a part of the recommended permits. District staff asserts that these conditions were implicitly accepted by the Administrative Law Judge in making his recommendation. "As to the application for the stormwater permit, we note that Rule 40C-42.032, F.A.C., provides that, unless waived or modified by the Board, certain limiting conditions are placed on every permit issued by the District under Chapter 40C-42, F.A.C. These conditions are set forth in Rule 40C-43.032(2)(a), F.A.C. These same conditions are set forth in District staff's Exhibit 3A which was admitted. (See Preliminary Statement portion of Recommended Order) The record does not indicate that any party objected to these conditions, or that the Administrative Law Judge otherwise thought they should be changed or waived. No party has objected to the District staff's exception on this point. Thus, District staff's Exception 2 is accepted as to the standard conditions in Rule 40C- 43.032(2)(a), F.A.C., and these standard conditions shall be a part of the City’s stormwater permit. District staff’s Exception 2 also asserts that Special ERP conditions 1, 7, 8, 9, and 28, and Other Conditions 1, 2, and 3, should be attached to the stormwater permit. Special ERP conditions 1, 7, 8, 9, and 28 were set forth in District staff's Exhibit 3B which was admitted. (See Preliminary Statement portion of Recommended Order). Other conditions 1 and 2 were set forth in the City’s Exhibit 19 (consisting of the District staff s technical staff report for the stormwater permit) which was admitted. Other condition 3 was set forth in District staff’s Exhibit 4 which was admitted. The record does not indicate that any party objected to any of these conditions. Moreover, the Administrative Law J udge’s findings of fact reflect the requirements of these conditions. For example, other condition number 3 is referred to in Finding of Fact 17, special condition 7 is referred to in Finding of Fact 24, and the monthly sinkhole monitoring requirements of special condition 8 is reflected in Finding of Fact 33. Thus, it appears the Administrative Law Judge assumed the application of these special conditions in determining that reasonable assurances were provided. Therefore, District staff's Exception 2 is accepted on this point, and these conditions shall be a part of the City’s stormwater permit. As to the application for the noticed general permit, Rule 40C-400.215, F.A.C., requires several standard conditions, set forth in that tule, to be applied to all noticed general environmental resource permits. This conditions were also set forth in the City’s Exhibit 20 which was admitted. There is nothing in the record or the Administrative Law Judge’s findings of fact that indicates that these conditions should not be applied to this noticed general environmental resource permit. Therefore, District staff's Exception 2 is accepted on this point, and the conditions of Rule 40C-400.215, F.A.C., shall be a part of the City’s noticed general environmental resource permit. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated December 19, 1997, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (rulings on District staff’s Exceptions 1 and 2). The City of Gainesvilles’ applications numbered 42-001-0789AIG-ERP and 400-001- 0309AIG-ERP for a stormwater environmental resource permit and noticed general environmental resource permit, respectively, are hereby granted under the terms and conditions provided herein. . DONE AND ORDERED this A ay of January 1998, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT Sea DAN ROACH RENDERED this 79 day ‘leary CHAIRMAN Z. PATRICIA C. SCHUL DISTRICT CLERK copies to: DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building = 77" > > 1230 Apalachee Parkway Tallahassee, Florida 32399-1550; Jennifer B. Springfield, Esquire Mary Jane Angelo St. Johns River Water management District Post Office Box 1429 Palatka, FL 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, FL 32602-1110
