19-000645 Thomas Greenalgh vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, February 17, 2021.

Summary: The preponderance of the evidence established that the five BMAPs were valid because they were designed to achieve the TMDLs, as required by sections 373.807 and 403.067, and did implement the provisions of those laws.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S IERRA C LUB ,

Petitioner ,

vs. Case No. 19 - 0644

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

T HOMAS G REENALGH ,

Petitioner ,

vs. Case No. 19 - 0645

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

S AVE T HE M ANATEE C LUB , I NC . ,

Petitioner ,

vs. Case No. 19 - 0646

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

S ILVER S PRINGS A LLIANCE , I NC ., A ND

R AINBOW R IVER C ONSERVATION , I NC . ,

Petitioners ,

vs. Case No. 19 - 0647

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

O UR S ANTA F E R IVER , I NC .; I CHETUCKNEE

A LLIANCE , I NC .; G INNIE S PRINGS

O UTDOORS , LLC; A ND J IM T ATUM ,

Petitioners ,

vs. Case No. 19 - 0648

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

P AUL S TILL ,

Petitioner ,

vs. Case No. 19 - 0649

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Respondent .

/

R ECOMMENDED ORDER

Pursuant to notice , a final hearing was held in these consolidated cases on

November 12 through 15, and 18 through 20, 2019, in Tallahassee, Florida,

before Francine M. Ffolkes, an Administrative Law Judge with the Division

of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioners Sierra Club, Inc.; Thomas Greenhalgh; Save the Manatee

Club, Inc.; Silver Springs Alliance, Inc.; Rainbow River Conservation, Inc.;

Our Santa Fe River, Inc.; Ichetucknee Alliance, Inc.; Jim Tatum; and Friends

of Wekiva River, Inc. (Joint Petitioners):

John R. Thomas, Esquire

Law Office of John R. Thomas, P.A.

8770 Dr. Martin Luther King, Jr. , Street N

St. Petersburg, Florida 33702

Terrell K. Arline, Esquire

Terrell K. Arline, Attorney at Law

1819 Tamiami Drive

Tallahassee, Florida 32301

Douglas Harold MacLaug hlin, Esquire

319 Greenwood Drive

West Palm Beach, Florida 33405

Anne Michelle Harvey, Esquire

Save the Manatee Club

5 00 North Maitland Avenue , Suite 210

Maitland, Florida 32751

For Petitioner Paul Still:

Paul Edward Still , P ro S e

14167 Southwest 101st Avenue

Starke, Florida 32091

For Respondent Department of Environmental Protection (DEP):

Jeffrey Brown, Esquire

Carson Zimmer, Esquire

Kenneth B. Hayman, Esquire

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

S TATEMENT OF T HE I SSUES

The issues to b e determined in this matter are: (1) whether the five

separate orders issued by the Secretary of DEP on June 29, 2018, adopting

five b asin m anagement action plans (BMAPs) for the Suwannee River, the

Volusia Blue Spring, the Silver Springs - Rainbow Spring Group , the Santa Fe

River, and the Wekiwa Spring - Ro ck Springs , comply with the provisions of

s ection 403.067, Florida Statutes , and the Florida Springs and Aquifer

Protection Act, s ections 373.801 through 373. 813, Florida Statutes (the Act) ;

and (2) whether Petitioners demonstrated that their substantial interests

were affected and , therefore , have standing.

P RELIMINARY S TATEMENT

Petitioners contest ed five separate orders issued by the Secretary of DEP

on June 29, 2018, approving five BMAPs for numerous springs throughout

Florida. Petitioners alleged that the five BMAPs d id not comply with the

provisions of section 403.067 and the Act . DEP contended that the five

BMAPs met the requirements of those statutory provisions.

Petitioners filed Amended Petitions that were referred to DOAH by DEP

on or about February 5, 2019. Sierra Club , Inc., and Thomas Greenhalgh

challenged the Final Order Establishing the Suwanee River BMAP and were

a ssigned Case No s . 19 - 0644 and 19 - 0645, respectively . Save the Manatee

Club, Inc. (SMC) , challenged the Final Order Establishing the Volusia Blue

Spring BMAP and was assigned Case No. 19 - 0646. Silver Springs Alliance,

Inc., and Rainbow River Conservation, Inc. , challenged the Final Order

Establishing the Silver Springs and Upper Silver River and Rainbow Spring

Grou p and Rainbow River BMAP, and were assigned Case No. 19 - 0647. Our

Santa Fe River, Inc., Ichetucknee Alliance, Inc., Ginnie Springs Outdoors,

LLC, and Jim Tatum challenged t he Final Order Estab lishing the Santa Fe

River BMAP and were assigned Case No. 19 - 0648. P aul Still (Still) also

challenged the Final Order Establishing the Santa Fe River BMAP and was

assigned Case No. 19 - 0649. Friends of Wekiva River, Inc., challenged the

Final Order Establishing the Weki wa Spring and Rock Springs BMAP and

was assigned Case No. 19 - 0650. The cases were consolidated on February 12

and 14 , 2019 . Ginnie Springs Outdoors, LLC, filed a N otice of W ithdrawal of

P etition on August 22, 2019 , and was dismissed as a petitioner by Order

entered the same day.

On July 18, 2019, DEP filed its Motion in Limine to Exclude Evidence

directed to Joint Petitioners; and a separate Motion in Limine to Exclude

Evidence directed to Petitioner Still. On July 26, 2019, Petitioner Still filed

his response . On July 23, 2019, Join t Petitioners filed a Motion for Order

seeking the undersigned's rulings with regard to certain statutory

interpretations . DEP filed its response on July 30, 2019. On August 8, 20 1 9,

the undersigned entered an Order denying the DEP's motions in limine and

denying the Joint Petitioners' motion.

On July 24, 2019, Joint Petitioners filed a Motion for Official Recognition ,

and DEP filed its response in partial opposition on July 31, 2 019. On

August 8, 2019, the undersigned entered an Order that:

1. The listed statutory laws and administrative

rules (Items P - 1 through P - 12) are officially

recognized.

2. Items P - 13 through P - 17 (final TMDL reports)

are officially recognized and admitted into evidence

under the hearsay exception for public records in

section 90.803(8), Florida Statutes.

3. Items P - 18 through P - 22 are the proposed agency

actions under challenge in this consolidated

proceeding. Official recognition and admission into

evide nce for the truth of the matters therein of

Items P - 18 through P - 22 are denied without

prejudice.

4. Items P - 23 through P - 25 are officially recognized

and admitted into evidence under the hearsay

exception for public records in section 90.803(8).

On August 16, 2019, Joint Petitioners filed a Second Motion for Official

Recognition. DEP filed a Response in Partial Opposition to Motion for Official

Recognition and Cross - Motion to Exclude Evidence on August 23, 2019. On

August 26, 2019, Joint Petitioners filed their response in opposition to the

cross - motion. An Order Denying Respondent's Cross - Motion to Exclude

Evidence was entered on August 26, 2019. Also, on August 26, an Order was

entered granting Joint Petitioners' Second Motion for Official Recogniti on .

The Order stated that "[i] tems P - 26 through P - 35 are officially recognized

and admitted into evidence under the hearsay exception for public records in

section 90.803(8), Florida Statutes. "

The Joint Prehearing Stipulation was filed on September 6, 2019. An

Order was entered on October 29, 2019 , granting Joint Petitioners'

unopposed motion to correct the stipulated exhibit list , officially recognizing ,

and admitting into evidence , Joint Petitioners' Exhibit 121. Joint Petitioners'

filed a p re - h earing m emorandum on November 4, 2019.

Joint Petitioners f iled , on November 19, 2019, a Third Motion for Official

Recognition of "the legislative history of [s]ections 403.067 and 373.807,

Florida Statutes." No response was filed within the time period allowed for

filing a response . The Third Motion for Official Recognition is hereby granted.

A separate Order was entered on January 28, 2020, in which the undersigned

ruled on the parties' designations and cross - designations to admit various

deposition tes timony and exhibits.

At the hearing, Joint Exhibits 1 through 5 (BMAPs) were admitted as

JE - 1 through JE - 5. Joint Petitioners presented the fact testimony of :

Merrillee Jipson ( Jipson ) , Michael Roth ( Roth ) , Burt Eno ( Eno ) , Dennis Jones

( Mr. Jones ) , Faith Jones ( Ms. Jones ) , John Jopling ( Jopling ) , Chris Spontak

( Spontak ) , Mike Cliburn ( Cliburn ) , Chris Mericle ( Mericle ) , Patrick Rose

( Rose ) , Jim Tatum ( Tatum ) , Thomas Greenhalgh ( Greenhalgh ) , and John

Moran ( Moran ) ; and the expert testimony of : Anthony R. Gaudio ( Gaudio ) ,

E. Allen Stewart ( Stewart ) , P.E. ; Robert L. Knight ( Knight ) , Ph . D. ; and

Thomas Greenhalgh ( Greenhalgh ) , P.G. The following exhibits were admitted

into evidence: P - 36 through P - 46, P - 48 through P - 50, P - 58, P - 61 through

P - 63, P - 65, P - 68, P - 75, P - 80, P - 82 through P - 84 (pp. 55 - 58), P - 92, P - 95, P - 99,

P - 100C through P - 100G, P - 103 (Greenhalgh memo and attached aerials),

P - 104 through P - 106, P - 108, P - 109 (pp. 25 - 26 and cover page), P - 110, P - 111,

P - 114 through P - 116, P - 120, P - 1 21, P - 132 through P - 139, P - 140 through

P - 142 (corporate representative deposition transcript designations ), P - 143

(Tripp deposition transcript), P - 144 (Dukes deposition transcript

designations ), and P - 149 through P - 152.

Dr. Still testified on his own behalf as a fact and expert witness. The

following exhibits from Dr. Still were admitted into evidence: S - 1 through S -

3, S - 8 (pp. 5 - 19 and 23), S - 9, and S - 10 (pp. 7 - 8).

DEP presented the fact and expert testimony of Thomas F rick, Gregory

DeAngelo, Kevin R. Coyne, Moira R. Homann, Celeste Lyon, Terr y Hansen,

P.G., and Mary Paulic. DEP also presented the expert testimony of Richard

Hicks, P.G. DEP's exhibits DEP - 12, DEP - 17 through DEP - 22, DEP - 26

through DEP - 3 1 , DEP - 34 through DEP - 39, DEP - 47, DEP - 53, and DEP - 56

through DEP - 63 , were admitted into evidence.

The twelve - volume Transcript of the final hearing was filed with DOAH

on December 13, 2019. The parties were allowed to submit proposed

recommended orders of up to 80 pages. All the parties timely filed their

proposed recommended orders, which were carefully considered in the

preparation of this Recommended Order.

References to the Florida Sta tutes are to the 2019 version, unless

otherwise indicated .

F INDINGS OF F ACT

Based on the parties' stipulations, on matters officially recognized, and

the evidence adduced at the final hearing, the following findings of fact are

made.

Respondent

1. D EP is the administrative agency of the s tate statutorily charged with,

among other things, protecting and restoring Florida's water resources. The

agency's duties include administration and implementation of section s

403.067 and 373.807 . Thus, the agency is resp onsible for developing and

implementing Total Maximum Daily Loads (TMDLs) and BMAP s for waters

that do not meet applicable water quality standards, including those for

impaired Outstanding Florida Springs (OFS).

Individual Petitioners

2. Petitioner Greenhalgh, is DEPÔs d istrict g eologist for the n ortheast

d istrict , and for the Suwannee River Water Management District (SRWMD).

Mr. Greenhalgh and his wifeÔs family own property in the Suwannee River

BMAP area, including one - half mile of Suwan nee River shoreline, a spring,

and a farming operation. For his entire life, Mr. Greenhalgh swam, dived,

snorkeled, canoed, and fished in the Suwannee River basin and its springs,

and he continues to do so. He has observed in his lifetime that the Suwannee

River and springs , once incredibly clear, with vigorous flows, unbelievable

numbers of fish, and a bottom covered in eelgrass , now have much lower

flows, few fish, and an almost complete coating of algae. Mr. Greenhalgh is

concerned that if the water qual ity of the springs systems and Suwannee

River are not adequately addressed, they will remain polluted and he will

never be able to enjoy them with his daughter as he did in the past.

Mr. Greenhalgh contends that the Suwannee River BMAP does not

adequately address nitrate loading, will allow further degradation of water

quality, and , consequently , adversely affect his use and enjoyment of the

springs and Suwannee River.

3. Petitioner Tatum has lived on the Santa Fe River with his wife since

2003. Their pro perty includes 400 feet of river shoreline and a small spring.

There are several other springs near his residence. Mr. Tatum has been

scuba diving and collecting fossils in the river and its springs since 1977 and

continues to do so. He and his family snor kel, swim, kayak, canoe , and enjoy

wildlife - viewing on the river and springs. He has concerns that rising nitrate

levels in the springs and river are elevating the nitrate level in his wells , and

that proliferation of algae in the river diminishes his use of the springs and

river. When Mr. Tatum started diving in the river and springs, he could see

to the bottom of the river and springs . Green plants, wildlife, and fish were

abundant. Now the only plant life in the river near his residence is

filamentous al gae and a green scum. Mr. Tatum is aware that the Santa Fe

River BMAP is supposed to reduce nitrates in the river over a 20 - year time

span, but he is concerned the goals will not be met, and that over the next 20

years conditions will continue to deteriora te.

4. Dr. Still lives on Lake Sampson in Bradford County, Florida. Lake

Sampson is in the Upper Santa Fe River Basin. He has used the Lower and

Upper Santa Fe River and its springs for recreation since he moved to the

area in 1979. He enjoys canoeing, swimming, pho tography, walking , and

observing the environment of the river and springs. Excessive algal growth

due to increased nutrients has s ignificantly impacted Dr. Still' s use and

enjoyment of the river and springs, including swim ming and canoeing.

5. The Individ ual Petitioners proved that their substantial environmental

interests could reasonably be affected by the proposed BMAPs .

Organizational Petitioners

6 . The Ichetucknee Alliance, Inc., (Alliance) is a 501(c)(3) not - for - profit

educational organization with a mission of restoring, preserving, and

protecting the Ichetucknee River and its associated contributing springs.

Formed in 2013 by advocacy groups looking out for the Ichetucknee River , the

Alliance presently has 173 dues - paying members. All but five live in Florida,

and 143 live near the Ichetucknee River in Columbia, Suwannee, Gilchrist, or

Alachua County. Seven members own property on the Lower Ichetucknee

River. The Alliance members use and enjoy the Ichetucknee River and its

springs for swimming, tubi ng, fishing, kayaking, photography, a nd for its

beauty. The Alliance members are concerned that the Santa Fe River BMAP,

which includes Ichetucknee springs, would not restore the water quality of

the springs and spring run . The Alliance members contend tha t their

substantial interests would be adversely affected by the BMAP's failure to

restore water quality.

7 . Mr. Jopling is a founding member and current president of the Alliance.

Mr. Moran is a member of the Alliance. Both have enjoyed the Ichetucknee

R iver and springs for decades, and continue to do so for swimming, tubing,

kayaking, canoeing, photography, and aesthetic appreciation. Both have seen

degradation of the Ichetucknee River and are concerned that the BMAP will

not result in improvement in water quality to restore the river . Both support

the AllianceÔs challenge to the BMA P . Mr. Moran has been photographing

Ichetucknee s prings for the past 34 years, including images from 1995 and

2012 showing the degradation of the springs over time.

8 . The Alliance is involved in many projects and activities to restore,

protect , and preserve the Ichetucknee River and its springs. For example, the

Alliance sponsors educational videos . M ember s participate in a river watch

program, perform water clarity and other testing, as well as a fish count to

quantify the impact of nitrates and loss of flow on fish life in the Ichetucknee

River . Members also participate in regular river clean - up trips.

Ap proximately a third of the Alliance members, about 60 members, are

actively involved in these projects.

9 . The Alliance actively advocates on behalf of its members for the

restoration, protection , and preservation of the Ichetucknee River , including

advoc acy in front of the Columbia County Commission, DEP, and SRWMD.

The Alliance participated in the development of the BMAP for the Santa Fe

River by participating in public meetings on the subject and determined that

the BMAP would not restore the water qual ity of the Ichetucknee R iver or

sp rings.

10 . Our Santa Fe River, Inc., (OSFR) is a 501(c)(3) not - for - profit all -

volunteer organization. Mr. Roth, the current president of OSFR , testified

that the organization has approximately 100 dues - paying members, at least

90 per cent from the local area. OSFR' s mission is to protect the waters and

lands supporting the aquifer, springs, and rivers within the watershed of the

Santa Fe River . OSFR accomplishes this mission by promoting public

awareness of the ecology, qua lity, and quantity of the waters and lands

immediately adjacent to and supporting the Santa Fe River, including its

springs and underlyi ng aquifer.

11. OSFR provides education, stewardship, and advocacy for the river and

springs. It educates about issues impacting the river and springs by

providing information booths at various fairs and festivals. OSFR provides

stewardship for the river and springs through clean - ups , which occur about

four times per year. Approximately 20 to 25 members usuall y take part in

these events. OSFR advocates for the river and springs by attending every

SRWMD meeting , by attending both county commission meetings and

various city meetings.

12 . Most members of OSFR use and enjoy the river and springs by

canoeing, kayak ing, and swimming. Some members enjoy fishing and diving.

Witnesses Mr. Roth, Ms. Jipson, and Mr. Moran are members of OSFR who

use and enjoy the Santa Fe River and its springs by kayaking, canoeing,

swimming, photography, and aesthetic enjoyment. They hav e seen the river

and springs degrade over time , and support OSFR ' s challenge of the BMAP.

13 . On behalf of its members, OSFR participated in the development of

the Santa Fe River BMAP, attending a public hearing, and commenting.

OSFR had concerns about th e BMAP's funding, enforceability, and failure to

address the entire pollutant load. After participating in the BMAP

development, OSFR concluded the Santa Fe BMAP was inadequate and

decided to file this challenge. OSFR members support this challenge.

14 . F riends of the Wekiva River, Inc., (FOWR) has been a non - profit

501(c)( 3) corporation since 1982. FOWR' s purposes are to promote and

protect the unique environmental and recreational values of the Wekiva

River and its tributaries, to protect the integrity o f the Wekiva River Basin,

to work toward restoration and continuation of the Wekiva River , and its

tributaries, in their natural state, to engage lawfully in the exchange and

dissemination of information concerning the purposes and objectives of the

corpor ation, and to carry on educatio nal activities to the same end. FOWR

has a dues - paying membership of 145, with 80 lifetime members. Almost all

reside within the Wekiva basin.

15 . Many members of FOWR use and enjoy the Wekiva River and its

springs for canoe ing, swimming, snorkeling, wildlife photography, and to just

enjoy the peace and serenity of the river. For example, Mr. Cliburn , who is

the secretary of FOWR, and Ms. Jones use and enjoy the Wekiva River and

its springs for canoeing, swimming, birdwatching, and aesthetic enjoyment.

They have seen degradation of the river and springs over time. They are

familiar with the Wekiwa Spring - Rock Springs BMAP a nd do not believ e it

will restore the river and springs, thus affecting their use and enjoyment of

the resource in the future.

16 . FOWR provides activities for its members to use and enjoy the Wekiva

River and its springs, including bird walks, field trips, and nature ta lks about

the natural resources in the Wekiva Basin. FOWR also sponsors clean - u p

actions for the Wekiva River. FOWR, on behalf of its members, actively

participates with governmental agencies concerning protection of the Wekiva

River and its springs, FOWR headed up the proc ess leading to the Wekiva

River' s designation as an Outstanding Florida Water and a National Wild

and Scenic River, FOWR aided in the development of the Wekiva Protection

Act, and advocat ed for the installation of sewers in the Wekiva b as in .

17 . FOWR, on behalf of its members, provided comments and attended

meetings concerning DEPÔs adoption of the BMAP . D EP designated FOWR as

a "s takeholder " in the BMAP development process. FOWR representatives

concluded that the BMAP would not adequatel y protect and restore the

spring s and river and decided to challenge the BMAP. Members strongly

fa vor pursuing the challenge.

18 . FOWR and its members are concerned that f ailure of the BMAP to

adequately address nitrate water quality issues in the Wekiva Basin would

adversely affect the ir substantial interests . The proliferation of algae,

damage to fish and wildlife, and loss of water clarity w ould interfere with and

damage their use and enjo yment of the river and springs.

19 . Sierra Club, Inc. , (Sierra Club) is a national organization comprised of

state chapters and local groups. The Suwannee - St. Johns Sierra Club Group

(Group) was authorized by Sierra Club to file the petition challenging the

Suwannee River BMAP. The mission of the Group is to explore, enjoy, and

protect, by any means possible, the natural and wild spaces. There are

approximately 2,300 members of the Group.

20 . The Group provides information and programs for its members to use

and enjoy the Suwannee River Basin and its springs, such as outdoor nature -

based exploration activities. Members have expressed concern that

filamentous algae are visually impacting their use and enjoyment of the

Suwannee River Basin waters and springs ; that fishing is diminished ; that

the habitat does not look like it once did because the submerged and other

vegetation are changing ; and that people are getting rashes from contact with

these wa ters.

21 . Mr. Mericle lives within the Suwannee BMAP basin on the northern

Withlacoochee River , and is a m ember of the Sierra Club. He swims almost

daily in the river, fishes, boats, and enjoys the serenity of the river. He is an

outings leader for Sierra Club and takes people on canoe and kayak trips on

the river. He is concerned that if the goal of the BMAP is not achieved and

water quality continues to be diminished or not restored, he will be adversely

affected in his guide business, in his property values, and by loss of his

intrinsic enjoyment of the river and springs.

22 . The Group, on behalf of its mem bers, provided comments to DEP

regarding the Suwannee River BMAP. DEP accepted Sierra Club as a

" stakeholder " in the BM AP development process. Current Group vice - chair

Ms. J ips on and Mr. Mericle testified that their members' substantial

interests would be affected if the Suwannee River BMAP is not strengthened .

23 . Rainbow River Conservation, Inc. (RRC), is a 501(c)(3) corporation

incorporated in 1991. The mission of RRC is to p rotect and preserve the

water quality, the natur al beauty, the riverbed, and the floodplains of the

Rainbow River , RRC pursue s this mission through education, conservatio n,

stewardship, and advocacy. RRC consists of about 250 member families. RRC

members are mainly local, with 94 percent living in Flori da. About a third of

the members live on the Rainbow River .

24 . Members of RRC use and enjoy the river and springs in a variety of

ways, including kayaking, canoeing, swimming, snorkeling, and diving. Some

members enjoy photographing the river and springs and sha ring their

photography.

25 . Mr. Eno , president of RRC, and Senator Jones , an RRC member,

testified about their use and enjoy ment of the Rainbow River and its springs ,

including boating, kayaking, and swimming. B oard d irector, Mr. Hart , also

testified that he uses and enjoys the Rainbow River for photographing

wildlife. Each has observed , and become increasingly concerned , with the

degradation of the river and springs . T hey testified t hat increases in nitrate,

Hydrilla, and algae are adv ersely impacting their use and enjoyment of the

river and spri ngs.

26 . RRC provides many programs and activities to protect and preserve

the Rainbow River and its springs, including providing a website and

brochures to members and the public regarding the river and springs. RRC

has organized an annual river clean - up for the past 30 years . Ty pically, about

150 people participate in the river clean - up . RRC members collect data for

river studies to help eval uate the condition of the river .

27 . On behalf of i ts members, RRC addresses governmental agencies

about issues concerning the Rainbow River and springs, including at

meetings with DEP, the S outhwest Florida Water Management District, an d

the Department of Transportation. RRC was active in the City of Dunn ellonÔs

decisi on to convert septic tanks to centralized sewers. RRC participated in

development of the BMAP for the Rainbow River and springs and was listed

as a " stakeholder " in the BMAP. After participating in the BMAP process,

RRC decided to challenge t he BMAP on behalf of its members because it

concluded that the BMAP would not reduce nitrates enough to restore water

quality in the river and springs. RRC members support this BMAP challenge .

28 . RRC members believe that f ailure to address water quality problems

related to nitrate will affect their substantial interests by continued

proliferation of algae . Such proliferation will impact the natural habitat ,

beauty , and recreational opportunities the RRC members enjoy .

29 . Silver Springs Alliance, Inc. (SSA), was incorporated in 2011. Its

mission is to protect, restore, and preserve the Silver Springs ecosystem. SSA

has approximately 55 dues - paying members, mostly from Marion County.

SSA, on behalf of its members, communicates with governmental official s

regarding matters affecting the water quality and water quantity of the

springs. Mr. Spontak, president of SSA, testified that he has met with county

commissioners, state representatives, and state senators about springs

issues.

30 . Members of SSA use a nd enjoy Silver Springs and Silver River for

kayaking and swimming. Mr. Spontak testified that he kayaks and swims in

the river and springs frequently, and has been doing so since the 1950' s. He

testified that the springs and river once had glistening whit e sand and bright

green eel grass, but over time the condition of the springs and river

deteriorated. The silver sand is now covered with a brownish - gray

accumulation of dead algae. The main spring, which had been like a fishbowl

in the past, is now more o f an algal bowl.

31 . On behalf of its members , SSA filed the petition challenging the

BMAP for Silver Springs because information from scientists involved with

this issue indicated that the BMAP would not accomplish the goal of reducing

nitrates enough to restore the springs and river. The members are concerned

that their substantial interests would be adversely affected by the BMAP's

failure to restore water quality.

32 . SMC is a 501(c)(3) corporation formed in 1992. It has over 100,000

members and suppo rters world - wide, with 15,000 in Florida, and around 850

in Volusia County where Volusia Blue Spring is located. The mission of SMC

is to protect imperiled manatees and their a quatic habitat for the future. On

behalf of its members, SMC is involved in gove rnment actions on local, state ,

and federal levels that may impact manatees and their aquatic habitat.

33 . SMC' s efforts have been instrumental in furthering manatee

conservation and scientific knowledge. SMC established a manatee observer

program, where staff and trained volunteers document manatee use of

Volusia Blue Spring and provide data on life histories to further species

management efforts. Together, over 50 volunteers have documented nearly

1 , 800 hours of observations. SMC is also instrumental in educating the public

and raise s funds by allowing members to adopt specific manatees that

populate Volusia Blue Spring. SMC maintains both underwater and above -

water cameras at the springs to continuously monitor manatees on a

webcam. This monitoring allow s for research and for members who adopt a

manatee to monitor its activities in the spring. This "manaTV" program is

very popular, with thousands of viewing hours from more than 100,000

individuals .

34 . Mr. Rose, SMCÔs e xecutive d irector, has observed the degradation of

Volusia Blue Spring since the 1990' s. Mr. Rose testified that m ore algae is

present on the bottom and on plants an d sunken tree branches. In the past ,

the spring looked blue ; now, it looks green. He testified that he has observed

a steady i ncrease in nitrogen levels and algal growth in the springs .

35 . Mr. Rose testified that the algae impact s the manatees in Volusia Blue

Spring. Algae attract armored catfish, which aggravate the manatees by

constantly moving over them to scrape off epiphyt ic materials, including skin

cells. This irritation causes manatees to constantly roll and move instead of

resting and conserving energy . The nuisance may drive them out of the

spring into the river, where they may be exposed to cold stress and increased

r isk of collision wi th watercraft. Further increase in algae in the spring could

attract other exotic species that affect manatees, such as snails that are

vectors for parasitic flukes which are known to impact manatees elsewhere.

The increase in algae also redu ces visibility, which impacts SMC's manatee

observation program.

36 . SMC participated in development of the Volusia Blue Spring BMAP,

attending meetings with DEP. DEP designated SMC as a " stakeholder " in

this BMAP development. SMC determined that the proposed BMAP did not

address SMC ' s concerns and decided to file a petition challenging the BMAP .

SMC members , including active volunteers , believe that their use and

enjoyment of Volusia Blue Spring, and their ability to engage with, observe,

and appreciate manatees, is adversely affected by existing water quality

problems that seem to worsen .

37. The Organizational Petitioners proved that a substantial number of

their members' substantial interests could reasonably be affected if the

BMAPs are inadequate to address pollutant loading, and are inadequate to

restore and protect the subject rivers and springs.

The BMAPs a t Issue

38 . These proceedings were brought by nine p etitioners under joint

representation , and Dr. Still, pro se separately. Joint Petitioners challenge d

five BMAPs adopted in 2018 : the Santa Fe River BMAP; the Silver and

Rainbow Rivers BMAP; the Suwannee River BMAP; the Volusia Blue Spring

BMAP; and the Wekiwa Spring - Rock Springs BMAP. Dr. Still challenged the

Santa Fe River BMAP.

39 . BMAPs were previously adopted for the Santa Fe River basin in 2012

and for Silver Springs, Rainbow Springs, and Wekiwa River - Rock Springs in

2015. The 2018 BMAPs for these water bodies are re visions or replacements

of those earlier BMAPs. The 2018 BMAPs for Suwannee River and Volusia

Blue Spring are the first for those waters.

40 . In the 2016 legislative session, the Florida Legislature enacted the

Act . DEP was required, under section 373.807 , to develop and implement

BMAPs for all OFSs for which an impairment determination had been made

under the numeric nutrient standards in effect for spring vents. For these

BMAPs, the relevant standard is 0.35 milligrams of nitrate per liter (0.35 mg -

N/l), with the exception of Wekiwa Spring - Rock Springs, where the standard

is 0.286 mg - N/l. Of 3 3 OFSs designated in section 373.802(4), DEP classified

24 as impaired for nitrate, and 15 of the 24 are contained within the areas of

the five BMAPs challenged in t hese proceedings.

41 . Both Dr. Knight and Mr. Greenhalgh testified that nitrate levels have

increased significantly in OFSs in recent decades , and are continuing to

increase. Impacts of elevated nitrate levels in springs are severe. Native

aquatic vegetat ion is largely replaced or smothered by noxious, filamentous

algae and other algae . B iological productivity is reduced significantly, and

invertebrate and fish populations plummet. Mr. Moran provided pictorial

evidence that OFSs are no longer " pools of stu nning blue wonder " but are " in

ecological collapse. " These are some of the signs of impairment that the

BMAPs are supposed to eliminate over the next 20 years .

BMAP Overview

4 2 . Section 373.807(1)(b) requires that a BMAP for an OFS must be

adopted within two years of initiation , must include "[a] list of all specific

projects and programs identified to implement a nutrient total maximum

daily load [TMDL]" ; and an "implementation plan designed with a target to

achieve the nutrient [T MDL] no more than 20 years after the adoption of a

[BMAP]." DEP "shall develop a schedule establishing 5 - year, 10 - year, and 15 -

year targets for achieving the nutrient [TMDL]." A project is a very specific

activity happening on the landscape usually a "turn dirt type" where

something is being built . A program is a set of existing activities, processes,

or strategies .

4 3 . Section 403.067 (7)(a) authorizes development of a BMAP as one of the

ways to implement a TMDL, the calculation of which est ablish es " the amount

of a pollutant that a water body or water body segment may receive from all

sources without exceeding water quality standards. " A TMDL is a restoration

target . However, TMDLs are not self - implementing and a BMAP is one way

to implement a TMDL .

44 . Each new or revised BMAP shall include t he appropriate management

strategies available through existing water quality protection programs to

achieve TMDLs , which may provide for phased implementation ; a description

of best management practices adopted by r ule; and a list of projects in

priority ranking with a planning - level cost estimate , estimated date of

completion , source and amount of financial assistance , and a planning - level

estimate of each listed project's expected load reduction. See § § 403.067(7)( a)

and 373.807(1)(b), Fla. Stat.

45 . Section 403. 067 (7)(b) allows implement ation of TMDLs through

"existing water quality protection programs . " These include p ermitting

p rograms ; n onregulatory and incentive - based programs, such as best

management practices, cost sharing, waste minimization, pollution

prevention, agreements established pursuant to s ection 403.061(21), and

public education; and o ther water quality management and restoration

activities, such as surface water improvement and management plans

approved by water management districts .

4 6 . A BMAP also " must include milestones for implementation and water

quality improvement, and an associated water quality monitoring component

sufficient to evaluate whether reasonable progress in pollutant load

reductions is being achieved over time ." § 403.067(7)(b) 6., Fla. Stat. As

Mr. Frick testified , DEP collects and receives water quality data from the

projects and programs . DEP then assess es progress by looking at the trend or

trajectory of the restora tion activities to wards achiev ing the milestones set in

the BMAPs. The results of a nnual updates and scheduled five - year reviews

may result in revisions to a BMAP.

47 . Each BMAP contains a discussion of strategies to reduce pollutant

loads, with a notation of the load reductions necessary at the spring vent , and

a summary of the projected load reductions or credits from BMAP actions and

policies.

48 . In addition, each BMAP includes a set of five - year milestones, with

projections to reduce nitrogen loading by certain percentages over five - year

increments . Each BMAP has a milestone of achieving the total amount of

needed reduction by the 15 - year milestone .

Priority Focus Area s

49. Section 373.803 requires the delineation of priority focus areas (PFAs)

for each OFS or group of springs identified as impaired. DEP must use the

"best available data from the water management districts and other credible

sources ," and " shall c onsider groundwater travel time to the spring,

hydrogeology, nutrient load, and any other factors that may lead to

degradation of an [OFS] . " In addition, the delineation "shall use understood

and identifiable boundaries such as roads or political jurisdict ion for ease of

implementation."

50. D EP's expert professional geologist, Mr. Hicks, was a primary

researcher and author of the PFA reports for each BMAP. Mr. Hicks testified

that the PFAs were areas around the springs of greatest vulnerability and

impact. PFAs were normally a subset area within the spring shed delineated

with the goal of identifying the most vulnerable area closest to the spring

vent. Mr. Hicks described the delineation of a PFA as being based on "aquifer

vulnerability, which was re lated, obviously, to the recharge to groundwater,

the soil characteristics ," and a "boundary that was easily recognizable by lay

people, . . . like a road or a county line or an edge of a river."

51. Petitioners raised criticisms regarding the PFA bounda ries in some of

the BMAPs . In response, D EP's other professional geologist , Mr. Hansen ,

testified that because the statute required the boundaries to follow easily

identifiable features , some of the PFA boundary lines may fall outside of a

spring shed and may even overlap with an adjacent PFA or spring shed .

Mr. Hansen persuasively testified that DEP sought to limit such overlap as

much as possible.

52. In response to questioning by Dr. Still, Mr. Hansen also e xplained that

spring sheds were defined by utilizing existing potentiometric surface maps

from the Florida Geological Survey or the United States Geological Survey .

Use of these maps allowed DEP to construct flow nets showing the

contributing groundwater flow to a spring or group of springs. Mr. Ha nsen

persuasively testified that use of these maps and other data allowed DEP to

conservatively define spring shed boundaries.

53. Dr. Still further questioned Mr. Hansen reg arding the nonconclusion

of cer tain dairies, wastewater facilities, and large agr icultural operations in

the PFA boundary for the Devil ' s Spring system and Hornsby Spring in the

Santa Fe River BMAP. Mr . Hansen testified that from a regulatory

standpoint, the importance of PFAs concerned the prohibition on new septic

systems on lots les s than one acre.

54. None of the Petitioners' criticism cast any serious doubts on the

validity of DEP's PFA delineation in each BMAP.

TMDL Initial Allocations versus Estimated Allocations of Pollutant Loads

5 5 . Petitioners took the position that in adopting TMDLs for the springs,

DEP made an " initial allocation of allowable pollutant loads among point and

nonpoint sources, " within the context of section 403.067(6)(b), which would

require further action in the BMAP. That further action would be to est ablish

a "detailed allocation to specific point sources and specific categories of

nonpoint sources" in the BMAP. See § 403.067(6)(b), Fla. Stat.

5 6 . The TMDL rules at issue established reasonable and equitable

allocations of the TMDL between point versus nonpoint types of sources of

pollution . The TMDL rules did not establish an initial allocation of allowable

pollutant loads among point and nonpoint sources. There are no direct

discharges of wastewater into the O FSs at issue, so there are no allocations

established among individual point sources in the se TMDL rules. The TMDL

rules establish an allocation between point and nonpoint sources specific , but

they do not establish an allocation among the categories of nonpoint sources,

such as urban turf fertili zer, sports turf fertilizer, agricultural fertilizer,

onsite sewage treatment and disposal systems, wastewater treatment

facilities, animal wastes, and stormwater facilities.

5 7 . The TMDLs in question provide , as a target, a reduction to a certain

concent ration. For example, the TMDL for Silver Springs describes, as a

waste load allocation for surface water discharges subject to DEP's Municipal

Stormwater Permitting Program, a requirement that sources " are to address

anthropogenic sources in the basin such that in - stream nitrate concentrations

meet the TMDL target. " Fla. Admin. Code R. 62 - 304.500(20 ).

5 8 . In the case of Silver Springs, the TMDL does not require any reduction

to any particular point sour ce or any specific category of nonpoint source. For

no npoint sources in the aggregate, the TMDL requires an overall reduction in

anthropogenic sources in the basin in order to achieve a desired endpoint

with respect to nutrient concentrations in the springs. In addition, if the

waterbody did not meet the TMDL within a planning period, there would be

no way of knowing whether the shortfall could be attributed to any specific

source or group of sources. For the same reason, the TMDL did not make an

initial allocation of allowable pollutant loads.

5 9 . The same analysis would apply to each of the TMDLs implemented by

the BMAPs in this case. The TMDLs for the Santa Fe River, rule 62 -

304.410(1); for Silver Springs and related water bodies , Florida

Administrative Code Rule 62 - 304.500(20); and for Volusia Blue Spring , rule

62 - 304.505(15), follow a similar format. The pertinent TMDL for the

Suwannee River, rule 62 - 304.405(2), follows a roughly similar format. The

TMDL describes a concentration target, and the next sentence describes a

range of reductions necessary to a chieve the load allocation. The TMDLs for

Wekiwa Spring - Rock Springs show an allocation of percent reductions, based

on a period of record from 1996 through 2006 .

60 . Section 373.807(1)(b) requires that a BMAP for an OFS must include

identification of eac h point source or category of nonpoint sources, and an

estimated allocation of the pollutant load for each point source or category of

nonpoint sources. The pie charts in section two of each BMAP identified

current sources and current load estimates to groundwater from each of the

sources described in the pie chart s . This estimated allocation was done using

the nitrogen source inventory and loading tool (NSILT) described below. Th e

purpose s of NSILT and the resulting pie charts were not to establish the

TMDL initial or detailed allocations reference above , as argued by

Petitioners .

6 1 . T he pollutant of concern in each of the BMAPs was nitrogen, which

D EP assessed quantitatively as it appears in the form of nitrate . In the

instance whe re phosphorus was raised as a potent ial pollutant of concern,

DEP made a reasonable decision not to conduct a more detailed discussion of

strategies to reduce phosphorus concentration s, given that the strategies to

address excess nitrates would also act to reduce phosphorus concentrations.

6 2 . Point sources of nitrogen are generally regulated by permits , e.g. ,

wastewater treatment facilities (WWTF) . N onpoint source pollution was the

main concern raised in these proceedings. Most nonpoint source nitrogen that

leaches into groundwater comes either from land application of urban and

agricultural fertilizer, or from human and animal waste. In the Suwannee

and Santa Fe BMAP areas, agricultural or farm fertili zer (FF) and livestock

waste (LW) are by far the largest sources of nitrogen . In th e Silver and

Rainbow BMAP areas, septics (OSTDS) leach about as much as agricultural

sources . I n the Wekiwa Spring - Rock Spring s and Volusia Blue Spring

BMAPs, leaching from septics and urban turfgrass fertilizer (UTF)

predominates. Sports turfgrass fertilizer (STF) is also identified in the BMAP

pie charts.

6 3 . A n NSILT yielded the pie chart s that depict the relative percent

contribution s of nitrogen from different pollution sources or categories to

groundwater for each of the spring systems ad dressed in the BMAPs. The

NSILT tool and the resulting pie charts , took into account mass loading to

the spring shed, the biological attenuation factor, and the hydrologic

atte nuation factor .

6 4 . There was no serious dispute concerning the NSILT tool. In fact,

Dr. Knight concurred with the numbers resulting from the DEP's NSILT

analysis for the five BMAPs at issue. He opined that the increas ingly

excessive levels of nitrate see n in the majority of the springs covered by the

five BMAPS are coming from human sources at the land surface as

exemplifi ed in DEP's NSILT analysis.

6 5 . Dr. Knight testified that the springs occur in areas of k arst geology

where the Floridan aquifer is vulnerable to any pollutants put at the land

surface . Thus, the place to control sources of nitrogen is at or near the land

surface within a spring shed or basin .

Estimated Nutrient Load Reductions

6 6 . As already noted, e ach BMAP contains a discussion of strategies to

reduce pollutant loads, with a notation of the load reductions necessary at the

spring vent, and a summary of the projected load reductions or credits from

listed projects , programs, and strategies.

6 7 . In each BMAP , DEP calculated the total load reduction required to

meet the TMDL at the spring vents, and, determined percent reductions at

the 5 - year milestones to reach 100 percent in 15 years . However, DEP stated

in the BMAPs that "[w]hile reductions to groundwater will benefit the

springs, it is uncertain to know with precision how those reductions will

impact the necessary reductions at the spring."

6 8 . DEP's expert witnesses testified that uncertainty involved in the fate

and transport of nitrate in groundwater resulted in a lack of sufficient

information to find a direct relationship between specific nonpoint source

loading s as identified in the pie charts , and the pollutant loadings at the

spring vents . Despite this uncertainty , DEP's expert witnesses and the

BMAP documents state th at the BMAPs are designed to achieve 70 percent of

the load reductions needed for the spring vents within 10 years of adoption ,

and , 100 percent within 15 years.

69 . Dr. Knight acknowledged that other experts, including DEP

hydrogeologists, had many years of experience with the subject of fate and

transport . However, he persuasively testified that nitrate is very stable once

it enters the aquifer, i.e., the groundwater , and exits naturally at the spring

vents and artificially through well pumping . Further, he acknowledged that

"we do have enough information to understand fate and transport enough to

know where the loads are coming from and to go after them at the source ."

70 . Dr. Knight testified that the Blue Water Audit program of the Florida

Springs Ins titute "basically utilize[es] similar tools to DEP for the NS IL T

analysis . " The Blue Water Audit, however, applies an NSILT - type analysis to

"every land parcel over five acres in the sp r ings region of Florida so that we

have the loads from basically every parcel." The program includes looking at

consumptive use, i.e., well pumping, and other factors that were not included

in DEP's NSILT analysis.

7 1 . At spring vents, DEP has done isotopic analys es that identif y

i norganic and organic nitrogen. Dr. Knight te stified that since the sources of

inorganic nitrogen is fertilizer , and organic nitrogen is animal and human

waste, then it is possible to identify categories of nonpoint sources of

inorganic and organic nitrogen. Combined with a program like the Blue

Wate r Audit, it is possible to work backwards . Thus, one could get a

reasonable estimate of how much the nitrogen load should be reduced at the

land surface because "the percentage reduction needed at the spring vent is

essentially the same percentage reduction needed at the land surface."

7 2 . The above quoted statements from the BMAPs , and DEP's expert

witnesses , cited fate and transport uncertainty as a reason that a direct

relationship cannot be drawn between specific nonpoint source categories as

identified in the pie charts and the pollutant loadings at the spring vents.

7 3 . However, the BMAPs also recognize that " reductions to groundwater

will benefit the springs , " and " [l]oad reduction to the aquifer is needed to

achieve the load reductions req uirements at the spring vent." Thus, each

BMAP establish es restoration actions that are "designed to reduce the

amount of nutrients to the aquifer, which will reduce the load at the vent and

ultimately achieve the necessary reductions. " Monitoring of the s pring vent

during implementation will be employed to monitor progress.

7 4 . The restoration actions include the following:

New OSTDS Ï Upon BMAP adoption, the OSTDS

remediation plan prohibits new systems on lots of

less than 1 acre within the PFA, unless the system

includes enhanced treatment of nitrogen as defined

by the OSTDS remediation plan, or unless the

OSTDS permit applicant dem onstrates that sewer

connections will be available within 5 years. Local

governments and utilities are expected to develop

master wastewater treatment feasibility

analyses within 5 years to identify specific areas to

be sewered or to have enhanced nitrogen reducing

OSTDS within 20 years of BMAP adoption. The

OSTDS remediation plan is incorporated as

Appendix D.

Existing OSTDS Ï Upon completion of the master

wastewater treatment feasibility analyses, FDOH

rulemaking, and funding program for homeowners

inclu ded in the OSTDS remediation plan, but no

later than 5 years after BMAP adoption,

modification or repair permits issued by FDOH for

all OSTDS within the PFA on lots of less than 1

acre will require enhanced treatment of nitrogen,

unless sewer connections w ill be available based on

a BMAP - listed project. All OSTDS subject to the

policy must include enhanced treatment of nitrogen

no later than 20 years after BMAP adoption.

WWTFs Č The effluent standards listed in Table

ES - 1 will apply to all new and existing WWTFs in

the BMAP area (inside and outside the PFA).

[TABLE]

UTF Ï UTF sources can receive up to 6% credit for

DEP's approved suite of public education and

source control ordinances. Entities have the option

to collect and provide monitoring data to qua ntify

reduction credits for additional measures.

STF Ï STF sources include golf courses and other

sporting facilities. Golf courses can receive up to

10 % credit for implementing the Golf Course BMP

Manual. Other sports fields can receive up to 6%

credit f or managing their fertilizer applications to

minimize transport to groundwater.

FF Ï All FF sources are required to implement

BMPs or perform monitoring to demonstrate

compliance with the TMDL . A 15 % reduction to

groundwater is estimated for owner - impleme nted

BMPs. Additional credits could be achieved through

better documentation of reductions achieved

through BMP implementation or implementation of

additional agricultural practices, such as precision

irrigation, soil moisture probes, controlled release

fertilizer, and cover crops.

LW Ï All LW sources are required to implement

BMPs or perform monitoring. A 10 % reduction to

groundwater is estimated for owner - implemented

BMPs. Additional credits could be achieved through

better documentation of reductions achieved

through BMP implementation.

OSTDS Remediation Plans

7 5 . Section 373.807(3) provides that as part of a BMAP for an OFS, the

DEP and other state and local agencies " shall develop an [OSTDS]

r emediation plan " if the OSTDSs " within a [PFA] contribute at least

20 percent of nonpoint source nitrogen pollution or if the [D EP ] determines

remediation is necessary to achieve the [ TMDL ]. " The remediation plan shall

identify cost - effective and financially feasible projects necessary to reduce the

nu trient impacts from OSTDSs, and shall be completed and adopted as part

of the BMAP no later than the first five - year milestone . The five - year period

would enable local governments to prepare wastewater feasibility plans to

determine where additional sewer facilities are feasible.

7 6 . D EP used the pie chart s in each BMAP to determine whether to create

an OSTDS remediation plan under the statutory threshold s . DEP also used

the pie chart s to engage interested parties and make decisions on where

additional pro jects might provide the most benefit. Primarily, the pie chart s

drove the " policy envelope s " for the OSTDS remediation plan s , discussed

below .

7 7 . The OSTDS remediation plan for each BMAP included management

strategies for pollution from septic systems. The BMAPs provide two general

management strategies for OSTDS as a nutrient pollution source. First, e ach

OSTDS remediation plan, a t a minimum, implement s the statutory

requirement that for new development within prescribed PFAs , conventional

septic systems are prohibited on lots of less than one acre.

7 8 . C onventional septic system s were not designed for nitrogen removal ,

and thus , do not include enhanced nitrogen removal technology . The BMAPs

in some cases require d upgrading by installation of cert ain technologies to

OSTDS s , as permitted by the Florida Department of Health ( DOH ) , which

would enhance the nitrogen removal process. However, the BMAPs do not

create any performance requirements for septic systems . The BMAP s

require d the installation of c ertain technology as permitted by DOH.

7 9 . DEP estimated that upgrading conventional septic systems by

installing nitrogen reducing technologies would remove 65 percent of existing

nitrates over the term of the BMAP, while abandonment of a system and

conn ection to central sewer would remove nitrates at a factor of 9 percent.

That figure took into account the potential for technologies that may evolve

over the term of the B MAPs.

80 . Second, t he statute requires DEP to consider options for existing

conventional septic systems . This resulted in the development of conceptual

"p olicy envelopes. " T he term " policy envelope " refers to a range of four

remediation options for applying septic upgrades . The remediation op tions

are detailed in each BMAP's Appen dix D.

8 1 . In envelope A, the BMAP would require owners with OSTDS s on lots

of le ss than one acre within the PFA to install an enhanced septic system or

connect to sewer. In envelope B, the policy would extend to all lots within t he

PFA, that is, also fo r lots one acre or greater. In envelope C, the OSTDS

policy would apply to all lots within the PFA, and also to the entire spring

shed for lots of less than one acre. In envelope D, the policy would apply to all

OSTDS s within the spring shed.

8 2 . DEP anticipates that within the first five years after the BMAPs are

adopted, it would need to modify the BMAPs for the OSTDS remediation

plans to become final and effective. In the case of the Volusia Blue,

Wekiwa - Rock, and Silver and Rainbow BMAPs, it would be necessary to

amend the BMAPs to adopt, within the OSTDS plan, a requirement to

enhance or abandon existing septic tank systems.

8 3 . For the Silver Spring and Rainbow Spring BMAP, for the Volusia Blue

Spring BMAP, and for the Wekiwa Spring - Rock Spring s BMAP, DEP added a

" backstop provision " in section D.1.3 of Appendix D. That provision takes into

account the existing OSTDS policy, which would require the installation of an

advanced septic system at the time it is replaced or a connection to central

sew er . Under the backstop provision, the homeowner must perform the

upgrade no later than 20 years after BMAP adoption .

8 4 . Petitioners' experts testified that DEP made two calculation errors in

its NSILT analysis when estimating the amount of nitrogen that reaches

groundwater from conventional septic systems. These errors relate to

population factors and environmental attenuation factors (EAF).

8 5 . DEP used the United States Environmental Protection Agency's (EPA)

national average nitrogen generation rate o f 9.012 lbs - N/person/year.

However, DEP then applied an " effective population factor " that adjusted the

number of people per household to account for daytime residential

absenteeism. DEP's expert, Mr. DeAngelo, admitted that the calculations

erroneously ad justed for absenteeism, which was al ready taken into account

in EPA' s figures . He also testified that DEP would correct th is point in the

next BMAP revision.

8 6 . DEP's witnesses explained that the calculation error affect ed both the

loading projections as well as the projected credits for nutrient reductions .

However, the recalculation would not lead to a change in management

strategies in any of the BMAP OSTDS remediation plans , largely because the

changed calculation would increase both existing loading , as well as future

c redits.

Agricultural Best Management Practices

8 7 . Each BMAP must include a description of suitable interim measures

or best management practices (BMPs) for agricultural and nonagricultural

nonpoint pollutant source s . These BMPs may be adopted by rule by DEP for

nonagricultural BMPs, and by the Department of Agriculture and Consumer

Services (DACS) for agricultural BMPs.

8 8 . BMPs that are a means of achieving reductions in nitrogen loading

from agricultural sources are described in manuals . The manuals for

agricultural BMPs are incorporated by reference in rules adopted by DACS.

Other than existing BMPs , and some cost - sharing programs authorized by

separate legislation, DEP had no more effective means to reduce nutri ent

loading from agricultural sources in the BMAPs at issue.

8 9 . Petitioners' expert, Dr. Knight, suggested that DEP could increase the

likelihood of TMDL compliance by imposing restrictions on agricultural

activities. However, even Dr. Knight acknowledg ed that DEP's existing

s tatutory authority was limited. DEP's expert witnesses testified that DEP

did not adopt policies other than BMPs for the control of nutrients from

agricultural sources , it did not limit agricultural practices beyond what was

require d in BMPs, and it did not require any changes in land use , because it

did not have the statutory authority to do so.

90 . The BMAPs include a discussion of policy alternatives that the

Department may pursue if BMPs prove to fall short. For example, the Sa nta

Fe BMAP states that:

Section 403.067, F.S. requires that, where water

quality problems are demonstrated despite the

proper implementation of adopted agricultural

BMPs, FDACS must reevaluate the practices, in

consultation with DEP, and modify them if

ne cessary. Continuing water quality problems will

be detected through the BMAP monitoring

component and other DEP and SRWMD activities.

If a reevaluation of the BMPs is needed, FDACS

will also include SRWMD and other partners in the

process.

Joint Exhibit 1 at 94.

9 1 . The BMAPs include descriptions of certain agricultural practices that

are not included in any adopted BMP manual . These are generically referred

to as " Additional Agricultural Reduction Options ," or " advanced agricultural

practices. " Those activities, if pursued, might lead to additional reductions in

loading from those agricultural sources . The BMAPs also include information

on practices that may be developed " beyond BMP implementation " to achieve

additional reductions with the qualificatio n that those practices may require

funding and additional design.

9 2 . Petitioners presented evidence regarding alleged shortcomings in the

process of verifying the relative success of certain BMPs. DEP's expert

witness, Mr. Frick, testified that DEP parti cipates in an "initial verification"

of agricultural BMPs, and determines, based on best professional judgment

and research, that implementing those BMPs would improve water quality.

Mr. Frick also testified that DEP has conducted initial verification of e ach

BMP at issue in this proceeding .

9 3 . DEP's initial verification occurs before DACS adopts a BMP by rule.

Petitioners ' present ation of alleged shortcomings in the verification process of

DACS adopted rules was more in the nature of an administrative ru le

challenge , which was not within the scope of this proceeding.

9 4 . Mr. Frick testified that DEP has acted with knowledge of a statutory

obligation to perform a " confirmatory verification " regarding the effectiveness

of agricultural BMPs. DEP has perform ed confirmatory verifications on only

two agricultural BMPs, and neither of those BMPs are cited in the BMAPs at

issue in this case.

9 5 . Section 403.067(7) provides that a re - evaluation of a BMP may be

required when water quality problems are shown, " desp ite the appropriate

implementation, operation, and maintenance of best management practices,

and other measur es required by rules adopted under this paragraph ."

However, DEP is not required to conduct a confirmatory verification as a

condition that must oc cur before it can rely on the BMP in a BMAP .

9 6 . DEP made a projection , in the BMAPs, of nutrient reductions that

could be achieved through the implementation of BMPs. The parties

presented disputed evidence regarding the percentage of reductions that

might be achieved through implementation of those BMPs. But the factual

disputes regarding the relative effectiveness of BMPs d id not change the

limits of DEP's statutory mandate to use BMPs for the control of nutrients

from agricultural sources .

9 7 . The preponderance of the evidence show ed that DEP made reasonable

estimate s of expected nutrient reductions that could be achieved through the

implementation of agricultural BMPs .

Projected Credits and Projected Reductions

9 8 . Each BMAP contains a discussion of strategies to reduce pollutant

loads, with a notation of the load reductions necessary at the spring vent, and

a summary of the projected load reductions or credits from BMAP actions and

policies. Also, each BMAP includes a set of five - year milestones, with

projections to reduce nitrogen loading by certain percentages over five - year

increments . Each BMAP has a milestone of achieving the total amount of

needed reduction by the 15 - year milestone.

9 9 . For the Santa Fe BMAP, the upper range of estimated po tential

credits from existing BMAP policies and existing credits, together with

" Advanced Agricultural Practices and Procedures , " is 1,248,134 pounds of

nitrogen per year ( lb/yr ) . This amount is substantially less than the needed

reduction of 1,853,372 lb/ yr. The discussion of " Advanced Agricultural

Practices, " as with similar discussions in other BMAPs, is based on a range of

10 percent to 50 percent reduction from 100 percent of fertilized agricultural

acres.

100 . The Santa Fe BMAP also addresses other potential policies in the

future that may increase the likelihood of achieving the TMDL. Notably,

Table 15 of the BMAP includes a summary of " [p]otential for additional load

reductions to groundwater, " based on a summary of fertilized acres with a

potenti al change in practice, and a range of potential reductions from 1 to

10 0 percent .

10 1 . T he Silver and Rainbow BMAP addresses two spring basins . T he

estimated potential credits fall short for both basins. The upper range of total

credits for the Upper Silv er River BMAP area of 691,719 lb/yr, is less than

the needed reductions in the amount of 930,135 lb/year. The upper range for

the total credits for the Rainbow Spring Group and Rainbow River BMAP is

508,644 lb/yr compared to needed reductions in the amount of 1,783,607 lb/yr.

10 2 . The OSTDS remediation plan for the Silver and Rainbow BMAP

would apply to all OS TD S s within the BMAP boundaries. The BMAP

require s that when it is necessary to repair or replace an OSTDS, the owner

would install a system with enh anced treatment of nitrogen . In addition, all

OSTDS s would be required to adopt enhanced treatment or connect to central

sewer no later than 20 years after BMAP adoption.

10 3 . The Silver and Rainbow Springs BMAP proposes several initiatives

on top of the existing management strategies, policies , and programs . These

initiatives include additional reductions from urban turf fertilizer , and

additional options in agricultural practices . The BMAP also includes the

discussion, " Commitment to Implementation, " ref lecting a consensus

agreement among interested parties to implement additional policies and

reduce nitrogen discharges .

10 4 . Also, and particularly notable given the conditions discussed below,

the BMAP plans additional actions to identify locations with consistently

high nitrate concentrations for the purposes of prioritization, additional

policy implementation, or remediation of identified sources.

10 5 . As explained in the BMAP, the instream nutrient calculations for the

Rainbow Spring Group and Rainbow River yielded unexpected results . This

presented a substantial challenge for restoration of the spring. The total

loading calculated for the Rainbow Spring Group and Rainbow River BMAP

area is substantially larger than what was estimated using the NSILT. There

are several possible explanations for this difference :

¤ Legacy loads already in groundwater have moved

through the system to be discharged at the springs.

¤ Rainbow Spring Group is discharging water that

may be originating in DEP's defined Silver S prings

and Upper Silver River BMAP area.

¤ There is an unidentified source(s) of loading not

accounted for in the NSILT analysis.

¤ Hydrogeological changes have occurred that move

water more quickly to the springs potentially

reducing the attenuation of sources.

10 6 . The policies and submitted projects included for the Rainbow Spring

Group and Rainbow River BMAP area will achieve a reduction of 340,689 to

508,644 lb / yr to groundwater. While reductions to groundwater will benefit

the springs, DEP is unce rtain how those reductions w ould impact the

necessary reductions at the springs. As projects are implemented, DEP will

continue to monitor the springs to evaluate those reductions against the

required load reductions. The BMAP is designed to achieve 70 per cent of the

load reductions needed for the spring vents within 10 years of adoption and

100 percent within 15 years.

10 7 . DEP w ill evaluate progress towards the milestones for both Silver

Springs and Rainbow Spring Group and will report to the Governor an d

Florida Legislature on both BMAP areas. DEP will adjust management

strategies to ensure the target concentrations are achieved, including periodic

water quality evaluations and estimation of loading from the spring vents.

This may include additional poli cy implementation or adjustment and

development of improved or new BMPs to address nitrogen sources , or

expanding the area to which the OSTDS remediation policies apply. Any such

change s would be incorporated into an updated BMAP through a formal

adoption process.

10 8 . Current policies and submitted projects for both BMAP areas provide

less than the required reductions. Additional strategies and actions could be

identified through modeling and data analysis tools that can identify

groundwater locations wi th consistently high nitrate concentrations , and

assist in determining reasons for the high concentration of nitrate. These

areas may need prioritization for policy implementation, additional policy

implementation or adjustment, or simply the remediation o f identified

sources. An additional source identification effort described in Section 1.6.4 is

a potentially collaborative effort between DEP, state agencies, local

governments, and the water management districts.

10 9 . As with other BMAPs, the Silver and Rainbow BMAP includes

milestones for reducing nitrogen loading in five - year increments so that it

achieves 100 percent of the needed reductions at the time of the 15 - year

milestone.

1 10 . For the Suwannee BMAP, the upper range of total potential credits of

4,859,027 lb/yr exceeds the needed reduction of 4,075,935 lb/yr. However, the

figure for credits relies extensively on " Advanced Agricultural Practices and

Procedures, " based again upon a certain percentage of reduction from

fertilized acres with a change in practice. T hose practices are encouraged, but

not required, in the BMAP . I mplementation of those practices will require

additional funding and more detailed design.

11 1 . For the Volusia Blue BMAP, the lower range of total potential credits

of 169,714 lb/yr far exceeds the needed reductions of 61,653 lb/yr. The

majority of those credits are derived from reductions in OSTDS discharges.

11 2 . For the Wekiwa - Rock BMAP, the lower range of total predicted

credits of 311,612 lb/yr exceeds the needed reduction s of 209,428 lb/yr.

The majority of those credits are derived from reductions in OSTDS

discharges, and with a substantial contribution from improvements in

wastewater treatment facilities.

11 3 . In summary, each of the BMAPs include an estimate of the tot al

reductions that may be achieved through implementation of projects, and

also include an estimate of the load to groundwater. Some of those estimated

reductions, i.e. , advanced agricultural practices, are not mandated, are not

within DEP's statutory auth ority to mandate, and are likely to require

additional funding and stakeholder commitment. Each BMAP includes a

series of five - year milestones for achieving the total reductions by the

fifteenth year , and DEP is required to submit a report to the Legislatu re if it

determine s that those milestones will not be met. See § 403.0675, Fla. Stat.

11 4 . DEP's experts testified that w hile a comparison of credits and

necessary load reductions may be useful in selecting the appropriate suite of

management strategies, a direct comparison is not overly meaningful,

because of DEP's position regarding uncertainty in the fate and transport of

nutrients. Dr. Knight's testimony regarding fate and transport of nutrients

was persuasive. However, DEP was correct that ultimate success can only be

determined by monitoring at the spring vent.

11 5 . Petitioners' "global issue" argument appeared to be that the BMAPs

must be perfect when first adopted. However, Petitioners' contention was not

supported by the evidence a nd the law dis cussed below. Even where the

projected benefits from projects and programs fall short of the projected

required reductions, DEP fulfilled its duty to create i mplementation plans

designed with a target to achieve the TMDL within 20 years . For each

BMAP, DEP pursued reasonable strategies, within its existing statutory

authority, to achieve the milestones and the restoration targets.

Future Projections

11 6 . Each BMAP contain ed a discussion of future growth management

strategies, and that section identifie d me chanisms that w ould address future

increases in pollutant loading. This section of the BMAPs provide d the

information required in the only statutory mandate on the subject . See §

4 03.067(7)(a)2 . , Fla. Stat.

11 7 . The record reflects that DEP had access to data that show s

reasonable projections of increased population in the BMAP areas, as well as

increases in agricultural uses. DEP did not include those projections in the

proposed BMAPs based on its experience with other programs.

11 8 . For example, Mr. Frick testified that in a similar program, the

implementation of a " reasonable assurance plan " for Tampa Bay, the plan

was able to achieve the restoration goal notwithstanding an increase of over

one million people to the population. Mr. DeAngelo testified that as

p opulations increase, the increase is offset by installation of wastewater

treatment facilities, which are more efficient than advanced septic systems in

reducing nitrogen loading. Thus, DEP reasonably concluded that restoration

goals can be achieved notwithstanding substantial increases in population.

This is particularly true where " mechanisms , " such as legal land use

restrictions , are put in place while a plan is implemented.

11 9 . On those occasions where growth may create n ew challenges for

meeting the restoration target, increases in loading will be controlled to the

maximum extent permitted by existing legal authority.

1 20 . Contrary to Petitioners' contentions, the NSILT tool, while useful for

showing conditions at a give n point in time, was not useful for running

hypothetical scenarios to depict what may happen in the future.

Petitioner Paul Still's objections

12 1 . DEP determined that three springs in the Santa Fe River Basin are

impaired O FSs. The three springs are Dev ils Ear Spring; Hornsby Spring;

and the Ichetucknee Spring Group. Petitioner Still initially alleged that DEP

e rroneously concluded that Santa Fe Spring was not an OFS . Petitioner Still

withdrew that allegation on the record , and DEP's expert, Mr. DeAngelo ,

confirmed that Santa Fe Spring was not impaired.

12 2 . Petitioner Still took issue with DEP's use of a monthly average as a

restoration target in the Santa Fe BMAP. In the Santa Fe/Suwannee

Technical Report for the nutrient TMDL in the Suwannee and Santa Fe

Basins , DEP explained the reason for using a monthly average as follows:

In conclusion, based on the information currently

available, the Department believes that a monthly

average nitrate concentration o f 0.35 mg/L should

be sufficiently protective of the aquatic flora or

fauna in the Suwannee and Santa Fe River Basins.

A monthly average is considered to be the

appropriate time frame as the Suwannee

periphyton data set was based on a 28 day

deployment and a the response of algae to nutrients

is on the order of days to weeks. An elevated

pollutant concentration in the system alone does

not necessarily constitute impairment as long as

there is no negative response from the local aquatic

flora or fauna. Based on information provided

above, 0.35 mg/L nitrate is the target concentration

that will not cause an imbalance in the aquatic

flora or fauna in the Suwannee and Santa Fe River

Basins.

DEP Exhibit 3 at page 68.

123. Petitioner Still also took issue with DEP's discussion of the

restoration target stated in the Santa Fe TMDL, which refers to nitrate , as

opposed to other nitrate compounds. Mr. Frick explained that DEP, i n the

TMDLs, generally referred to total nitrogen as opposed to a discussion of

more spe cific nitrogen compounds. This usage was appropriate, given the

ultimate conversion of organic nitrogen compounds to nitrate.

124. Petitioner Still raised an issue regarding whether it would be

appropriate to create two BMAPs for the Santa Fe basin, and t o make

separate analyses for the lower and upper basins. However, because

pollutants from the upper basin flow to the lower basin, DEP's creation of a

BMAP for the entire basin is reasonable. No persuasive evidence to the

contrary was presented.

125. Peti tioner Still noted that the PFA for the Santa Fe BMAP extend ed

in some cases beyond the springshed. This was necessary, in some instances,

to follow identifiable boundaries.

126. Other objections raised by Petitioner Still were considered and

rejected as irrelevant or unpersuasive.

Summary

12 7 . Each BMAP included the appropriate management strategies

available through existing water quality protection programs to achieve

TMDLs, a description of BMPs adopted by rule, and a list of projects in

priority ranking. Each BMAP include d a list of projects for which certain

information was unavailable, and thus the information was not included.

Each DEP witness, who was the basin management coordinator for that

BMAP , persuasively testified that they und ertook best reasonable efforts to

find the information . Those efforts will be ongoing throughout the life of each

BMAP.

12 8 . Each BMAP included a priority rank for each listed project, given the

context and explanation provided in the text of the BMAP. Th at text,

together with the list itself, showed the priority rank for each listed project.

12 9 . Each BMAP include d a description identifying mechanisms that

would address potential future increases in pollutant loading. Petitioners did

not present any pers uasive evidence that the descriptions of those

mechanisms were untruthful or inaccurate.

1 30 . Each BMAP was designed with a target to achieve the TMDL within

20 years after adoption. The water quality monitoring component in each

BMAP was sufficient to ev aluate whether reasonable progress in pollutant

load reductions will be achieved over time.

13 1 . Each BMAP included all the information required by the Act and

section 403.067(7).

C ONCLUSIONS OF L AW

Standing

132. It is well - established , that to demonstrate that a person or entity has

a substantial interest in the outcome of a proceeding, two things must be

shown. First, there must be an injury - in - fact of sufficient immediacy to

entitle one to a hearing. Second, it must be shown that the substantial injury

is of a type or nature which the proceeding is designed to protect. The first

has to do with the degree of the injury , and the second with the nature of the

injury. See Agrico Chem. Co. v. Dep't of Envtl. Reg. , 406 So. 2d 478, 482 (Fla.

2d DCA 1981), rev. den. , 415 So. 2d 1359 (Fla. 1982).

133. Agrico was not intended as a barrier to the participation in

proceedings under chapter 120 , Florida Statutes , by persons who are affected

by the potential and foreseeable results of agency action. See Peace

River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. , 18 So. 3d

1079, 1082 - 83 (Fla. 2d DCA 2009)("[S]tanding is a legal concept that requires

a would - be litigant to demonstrate that he or she reasonably expects to be

affected by the out come of the proceedings, either directly or indirectly."

(quoting Hayes v. Guardianship of Thompson , 952 So. 2d 498, 505 (Fla.

2006)) ) .

134. Rather, the intent of Agrico was to preclude parties from intervening

in a proceeding where those parties' substan tial interests are remote and

speculative. See Vill. Park Mobile Home Ass'n v. Dep't of Bus. Reg. , 506 So. 2d

426, 433 (Fla. 1st DCA 1987). Standing is a forward - looking concept, not to be

confused with prevailing on the merits. In substantial interes t cas es, th e

question is whether the party' s substantial interests " could be " affected by

the proposed agen cy action, or whether the party' s substantial interests

" could reasonably be affected by the proposed activities ." Palm Beach Cty.

Envtl. Coal. v. DepÔt o f Envtl. Prot. , 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009);

St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist. , 54 So. 3d

1051, 1054 (Fla. 5th DCA 2011) (citing Peace River/Manasota RegÔl Water

Supply Auth. v. IMC Phosphates Co. , 18 So. 3d 1079 , 1084 (Fla. 2d DCA

2009)).

135. The Individual Petitioners proved that their substantial

environmental interests could reasonably be affected by the proposed

BMAPs.

136. The Organizational Petitioners must prove their associational

standing by satisfying the three - prong test for environmental associational

standing established in Friends of the Everglades , Inc. v. Board of Trustees of

the Internal Improvement Trust Fund , 595 So. 2d 186 (Fla. 1st DCA 1992). In

Friends of the Everglades , the Court held that an environmental organization

must meet both the two - pronged test for standing of Agrico , and the test for

standing of associations under Florida Home Builders Association v.

Department of Labor and Employment Security , 412 So. 2d 351 (Fla. 1982).

137. The Organization al Petitioners proved their environmental

associational standing by demonstrating : 1) that a substantial number of

their members were substantially affected by the challenged agency action;

(2) that the ag ency action they sought to challenge was within their general

scope of interest and activity; and (3) that the relief they request ed was of the

type appropriate for them to receive on behalf of their members. See St.

Johns Riverkeeper, Inc. v. St. Johns Ri ver Water Mgmt. Dist. , 54 So. 3d at

1054 .

138. The Organizational Petitioners' burden is not whether they have or

will prevail on the merits, but rather whether they have presented sufficient

proof of injury to their asserted interests within the two - pron g standing test.

See Bd. of Comm'rs of Jupiter Inlet Dist. v. Thibadeau , 956 So. 2d 529 (Fla.

4th DCA 2007). The Organizational Petitioners proved that a substantial

number of their members' substantial interests could reasonably be affected

if the BMAPs are inadequate to address pollutant loading , and to restore and

protect the subject rivers and springs.

Legal Standards

139. "As in court proceedings, the burden of proof, apart from statute, is

on the party asserting the affirmative of an issue before an administrative

tribunal. " Balino v. Dep't of HRS, 348 So. 2d 349, 350 (Fla. 1 st DCA 1977).

Petitioners had the burden to prove the merits of their challenge at the final

hearing. Petitioners failed to carry that burden.

140. " Findings of fact shall be ba sed upon a preponderance of the

evidence, . . . and shall be based exclusively on the evidence of record and on

matters officially recognized. " § 120.57(1)(j), Fla. Stat.

14 1 . "It is well recognized that the powers of administrative agencies are

measured and limited by the statutes or acts in which such powers are

expressly granted or implicitly conferred. " State Dep't of Envtl. Reg. v.

Puckett Oil Co., 577 So. 2d 988, 991 (Fla. 1 st DCA 1991) ; see also Coastal

Petroleum Co. v. State Dep't of Envtl. Prot., 649 So. 2d 930 (Fla. 1 st DCA

1995). " An agency may not increase its own jurisdiction and, as a creature of

statute, has no common law jurisdiction or inherent power such as might

reside in, for example, a court of general jurisdiction. " Dep't of Envtl. Re g. v.

Falls Chase Special Taxing Dist., 424 So. 2d 787, 793 (Fla. 1 st DCA 1982),

rev. denied, 436 So. 2d 98 (Fla. 1983).

142. DEP argued in its proposed legal conclusions that the applicable

statutes do not contain standards that guide the agency in devel oping

BMAPs. DEP suggests that its general exercise of discretion in designing a

BMAP is not constrained "as long as it includes a ' target ' to comply with the

TMDL within twenty years and does so in a manner consistent with other

existing water quality pro tection programs." For this proposition, DEP cited

to sections 373.807(1)(b)8 . and 403.067 .

143. Contrary to DEP's proposition , the Act and section 403.067(7), which

authorize s development of BMAPs, include criteria or standards to guide

DEP's developmen t of BMAPs for OFSs. See §§ 403.067(7) and 373.807(1)(b),

Fla. Stat. It is axiomatic that a statutory framework contain sufficient

standards and guidelines to enable the agency and the courts to determine

whether the agency is carrying out the legislature' s intent. See Dep't of State

v. Martin , 916 So. 2d 763, 773 (Fla. 2005) ; State v. Scharlepp , 292 So. 3d 872,

875 (Fla. 1 st DCA 2020). Adequate standards and guidelines preclude t he

agency from acting through whim, favoritism, or unbridled discretion . See

Imhotep - Nguzo Saba Charter School v. Dep't of Educ., 947 So. 2d 1279, 1282

(Fla. 4 th DCA 2007).

144. The statutory framework's standards and guidelines also support

DEP's contention that a BMAP is enforceable. A side from their planning

purposes, BMAP s hav e four general types of regulatory consequences. First,

if a responsible stakeholder fails to complete a project on time, for example,

DEP can take enforcement action against that stakeholder.

See § 403.067(7)(d), Fla. Stat . Sec ond, the statute provides regulatory

incentives, in the form of defenses to enforcement actions, to parties who

follow management practices or strategies adopted in the BMAP. Third, the

statute prohibits certain activities in a PFA , an area which is design ated as

part of BMAP adoption. See § 373.811, Fla. Stat. Fourth, DEP can proscribe

specific conditions in permits under existing regulations .

The Act

14 5 . The Act's legislative findings include that "springs are a unique part

of this state's scenic beauty," and provide "critical habitat for plants and

animals, including many endangered or threatened species." § 373.801(1),

Fla. Stat. In addition, the Legislature found that "[w]ater quality of springs is

an indicator of local conditions of the Florida n Aquifer, which is a source of

drinking water for many residents of this state," and that "springs provide

recreational opportunities for swimming, canoeing, wildlife watching, fishing,

cave diving, and many other activities." Id.

14 6 . The Legislature f ound that "[f]or regulatory purposes, [DEP] has

primary responsibility for water quality; the [WMDs] have primary

responsibility for water quantity; [DACS] has primary responsibility for the

development and implementation of agricultural best management

pr actices " ; and local governments "have primary responsibility for providing

domestic wastewater collection and treatment services and stormwater

management." § 373.801(2), Fla. Stat. "The foregoing responsible entities

must coordinate to restore and maintai n the water quantity and water

quality of the [OFSs]." Id.

14 7 . The Legislature recognized that:

(a) A spring is only as healthy as its aquifer system.

The groundwater that supplies springs is derived

from water that recharges the aquifer system in the

f orm of seepage from the land surface and through

direct conduits, such as sinkholes. Springs may be

adversely affected by polluted runoff from urban

and agricultural lands; discharges resulting from

inadequate wastewater and stormwater

management practices ; stormwater runoff; and

reduced water levels of the Floridan Aquifer. As a

result, the hydrologic and environmental

conditions of a spring or spring run are

directly influenced by activities and land uses

within a springshed and by water

withdrawals from the Floridan Aquifer.

(b) Springs, whether found in urban or rural

settings, or on public or private lands, may be

threatened by actual or potential flow reductions

and declining water quality. Many of this stateÔs

springs are demonstrating signs of signi ficant

ecological imbalance, increased nutrient loading,

and declining flow. Without effective remedial

action, further declines in water quality and

water quantity may occur.

(c) Springshed boundaries and areas of high

vulnerability within a springshed n eed to be

identified and delineated using the best

available data.

(d) Springsheds typically cross water management

district boundaries and local government

jurisdictional boundaries, so a coordinated

statewide springs protection plan is needed.

(e) The aquifers and springs of this state are

complex systems affected by many variables

and influences.

(4) The Legislature recognizes that action is

urgently needed and, as additional data is

acquired, action must be modified .

(Emphases added).

§ 373.801(3) a nd (4) , Fla. Stat.

14 8 . U nder section 373.807 , DEP was required to develop and implement

BMAPs for all OFSs for which an impairment determination had been made

under the numeric nutrient standards in effect for spring vents. A BMAP for

an OFS must be adopted within two years of initiation and must include "[a]

list of all specific projects and programs identified to implement a nutrient

total maximum daily load [TMDL]" ; and an "implementation plan designed

with a target to achieve the nutrient [TMDL] n o more than 20 years after the

adoption of a [BMAP]." DEP "shall develop a schedule establishing 5 - year,

10 - year, and 15 - year targets for achieving the nutrient [TMDL]."

§ 373.807 (1)(b), Fla. Stat.

14 9 . Section 403.067(7)(a ) autho rizes development of a BMAP as one of

the ways to implement a TMDL . Each new or revised BMAP shall include the

appropriate management strategies available through existing water quality

protection programs to achieve TMDLs, which may provide for phased

imp lementation; a description of best management practices adopted by rule;

and a list of projects in priority ranking with a planning - level cost estimate,

estimated date of completion, source and amount of financial assistance, and

a planning - level estimate of each listed project's expected load reduction. See

§§ 403.067(7)(a) and 373.807(1)(b), Fla. Stat.

1 50 . The preponderance of the evidence established that e ach BMAP

included the appropriate management strategies available through existing

water quality protection programs to achieve TMDLs ; a description of BMPs

adopted by rule ; and a list of projects in priority ranking. Each BMAP

included a list of projects for which certain information was unavailable .

However, e ach DEP witness, who was the basin manag ement coordinator for

that BMAP, persuasively testified that they undertook best reasonable efforts

to find the information. Those efforts will be ongoing throughout the life of

each BMAP. The Legislation recognized this eventual it y . See 373.801(4), Fla.

S tat.

15 1 . Section 403.067(7)(b) allows implementation of TMDLs through

"existing water quality protection programs" that include permitting

programs; nonregulatory and incentive - based programs, such as BMPs ,

cost sharing, waste minimization, pollution prevention, agreements

established pursuant to section 403.061(21), and public education; and other

water quality management and restoration activities, for example , surface

water improvement and management plans approved by water management

districts or B MAPs.

15 2 . A BMAP also "must include milestones for implementation and water

quality improvement, and an associated water quality monitoring component

sufficient to evaluate whether reasonable progress in pollutant load

reductions is being achieved over t ime." § 403.067(7)(b)6., Fla. Stat. As

Mr. Frick testified, DEP collects and receives water quality data from the

projects and programs. DEP then assesses progress by looking at the trend or

trajectory of the restoration activities towards achieving the mi lestones set in

the BMAPs. The results of annual updates and scheduled five - year reviews

may result in revisions to a BMAP.

15 3 . The preponderance of the evidence established that each BMAP

contains strategies to reduce pollutant loads, with a notation of the load

reductions necessary at the spring vent, and a summary of the projected load

reductions or credits from BMAP actions and policies. In addition, each

BMAP includes a set of five - year milestones, with projections to reduce

nitrogen loading by certa in percentages over five - year increments . E ach

BMAP has a milestone of achieving the total amount of needed reduction by

the 15 - year milestone.

Petitioners' Objections

15 4 . Petitioners contend ed that these BMAPs were invalid because they

were not designed to achieve the TMDLs, as required by sections 373.807 and

403.067, and fail ed to implement provisions of th ose laws. Contrary to

Petitioners' contention, the preponderance of the evidence established that

each BMAP complied with the applicable statutory f ramework and legislative

intent of the Act , and of section 403.067(7) regarding the development of

BMAPs.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

R ECOMMENDED that the Department of Environmental Protection enter a

Final Order approving the five separate orders issued by the Secretary on

June 29, 2018, adopting five B MAPs for the Suwannee River, the Volusia

Blue Spring, the Silver Springs - Rainbow Spring Group, the Santa Fe River,

and the Wekiwa Spring - Rock Springs .

D ONE A ND E NTERED this 1 7 th day of February , 202 1 , in Tallahassee,

Leon County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of February , 202 1 .

C OPIES F URNISHED :

Jeffrey Brown, Esquire John R. Thomas, Esquire

Department of Environmental Protection, Law Office of John R. Thomas, P.A.

Office of the General Counsel 8770 Dr. Martin Luther King, Jr. , Street N

3900 Commonwealth Boulevard St. Petersburg, Florida 33702

Mail Stop 35

Tallahassee, Florida 32399 - 3000 Terrell K. Arline, Esquire

Terrell K. Arline, Attorney at Law

Carson Zimmer, Esquire 1819 Tamiami Drive

Kenneth B. Hayman, Esquire Tallahassee, Florida 32301

Department of Environmental Protection

Office of the General Counsel Douglas Harold MacLaughlin, Esquire

3900 Commonwealth Boulevard 319 Greenwood Drive

Mail Station 4 3 West Palm Beach, Florida 33405

Tallahassee, Florida 32399 - 3000

Paul Edward Still

Anne Michelle Harvey, Esquire 14167 Southwest 101st Avenue

Save the Manatee Club Starke, Florida 32091

500 North Maitland Avenue, Suite 210

Maitland, Florida 32751 Justin G. Wolfe, General Counsel

Department of Environmental Protection

Lea Crandall, Agency Clerk Legal Department, Suite 1051 - J

Department of Environmental Protection Douglas Building , Mail Station 35

Douglas Building , Mail Station 35 3900 Commonwealth Boulevard

3900 Commonwealth Boulevard Tallahassee, Florida 32399 - 3000

Tallahassee, Florida 32399 - 3000

Noah Valenstein, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.