12-002811 Florida Audubon Society vs. Sugar Cane Growers Cooperative Of Florida, United States Sugar Corporation, Sugar Farms Co-Op, And South Florida Water Management District Status: Closed Recommended Order on Monday, February 10, 2014.

Summary: Petitioner failed to prove that the Applicants are not entitled to the Works of the District permits in the Everglades Agricultural Area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY ,

Petitioner ,

vs. Case No. 12 - 2811

SUGAR CANE GROWERS COOPERATIVE

OF FLORIDA, UNITED STATES SUGAR

CORPORATION, SUGAR FARMS CO - OP,

AND SOUTH FLORIDA WATER

MANAGEMENT DISTRICT ,

Respo ndents .

/

RECOMMENDED ORDER

The final hearing in this case was held on April 23 - 26, and

October 17 - 18, 2013, in West Palm Beach, Florida, before Bram D.

E. Canter, Administrative Law Judge of the Div ision of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Florida Audubon Society:

Thomas E. Bishop, Esquire

Michael G. Tanner, Esquire

Charles H. Hardage, Esquire

Tanner Bishop

One Independent Drive, Suite 1700

Jacksonville, Florida 32202 - 50 15

Anna H. Upton, Esquire

Anna H. Upton. P.L.

9005 Eagles Ridge Drive

Tallahassee, Florida 32312 - 4046

For Respondent Sugar Cane Growers Cooperative of Florida:

Gary V. Perko, Esquire

Mohammad O. Jazil, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

For Respondent Sugar Farms Co - o p:

Silvia Morell Alderman, Esquire

Thomas A. Range, Esquire

Akerman Senterfitt

106 East College Av enue, Suite 1200

Tallahassee, Florida 32301 - 7741

Matthew Coglianese, Esquire

Gabriel Nieto, Esquire

Rasco , Klock , Reininger , Perez, Esquenazi,

Vigil, & Nieto

283 Catalonia Avenue, Suite 200

Coral Gables, Florida 33134 - 6714

For Respondent United Stat es Sugar Corporation:

Luna E. Phillips, Esquire

Rick J. Burgess, Esquire

Gunster , Yoakley & Stewart, P.A.

450 East Las Olas Boulevard, Suite 1400

Fort Lauderdale, Florida 33301 - 4206

Irene Kennedy Quincey, Esquire

Pavese Law Firm

4524 Gun Club Road, Suit e 203

West Palm Beach, Florida 33415 - 2815

For Respondent South Florida Water Management District:

Jeffrey A. Collier, Esquire

Kirk L. Burns, Esquire

Douglas H. MacLaughlin, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

Wes t Palm Beach, Florida 33406 - 3007

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

Respondents, United States Sugar Corporation (ÐUSSCÑ), Sugar

Farms Co - op (ÐSFCÑ), and Sugar Cane Growers Cooperative of

Florida (ÐSCGCÑ) (collecti vely Ðthe ApplicantsÑ) are entitled to

the Everglades Works of the District permits (ÐWOD PermitsÑ),

issued to them by the South Florida Water Management District

(ÐDistrictÑ).

PRELIMINARY STATEMENT

On June 28, 2012, the District gave notice of its intent to

renew USSC WOD Permit No. 50 - 00018 - E and SFC WOD Permit No. 50 -

00047 - E. On July 3, 2012, the District gave notice of its intent

to renew SCGC WOD Permit No. 50 - 00031 - E. On July 27, 2012,

Florida Audubon Society ("Audubon") filed three petitions for

he aring challenging the WOD Permits. Audubon later filed amended

petitions, which the District referred to DOAH. The three

petitions were consolidated and assigned DOAH Case No. 12 - 2811.

The Applicants and the District filed motions to dismiss or

to strike AudubonÓs amended petitions. Those motions were

denied.

At the commencement of the final hearing on April 24, 2013,

the Administrative Law Judge determined that the partiesÓ dispute

regarding the meaning and intent of section 373.4592(4)(f) 4. ,

Florida St atutes, should be resolved before further evidence was

presented. The parties were ordered to file briefs and present

oral argument on the issue. In conjunction with this O rder,

official recognition was taken of certain orders issued in United

States v. South Florida Water Management District , Case No. 88 -

1886 (S.D. Fla.) and Miccosukee Tribe of Indians of Florida v.

United States , Case No. 04 - 21448 (S.D. Fla.); Everglades Forever

Act (1994); Everglades Forever Act (2003); Everglades Forever Act

(1994 and 2003 Combined); Rule 40 C.F.R. § 131.44; Florida

Administrative Code Rule 62 - 302.540 (2012); Everglades Protection

Area Tributary Basins Long Term Plan for Achieving Water Quality

Goals, dated October 27, 2003; Permit (0279499 - 001 - EM), dated

November 16, 2007; Technical Support Document for the STA - 1W

TBEL, dated October 12, 2007; Permit (0311207), dated

September 10, 2012; 2012 Consent Order (OGC 12 - 1149), dated

August 15, 2012; and 33 U.S.C. § 1342( l )(1).

On June 6, 2013, the Administrative Law Judge rul ed that

section 373.4592(4)(f) 4. did not require the Applicants to

implement additional water quality measures unless state water

quality standards are being violated in the Everglades Protection

Area and the stormwater treatment areas are not adequate to

eliminate the violations.

The final hearing was resumed on October 17, 2013. Joint

Exhibits J - 001 through J - 007 and Joint Respondent Exhibits JR - 001

through JR - 006, JR - 008 through JR - 013, JR - 017, and JR - 019 through

JR - 025 were admitted into evidence.

Audu bon presented the testimony of Thomas W. Simpson, Ph.D.

and Melodie Naja, Ph.D. Audubon Exhibits P - 004, PXA - 34, PXA - 35,

PXA - 36, P - 171.134, P - 171.135, P - 171.159, P - 171.161, P - 171.174,

P - 171.210, P - 171.211, P - 171.213, P - 171.223, P - 171.248, P - 171.249,

P - 171 .319, P - 171.327, P - 171.379, P - 171.400, P - 171.406, P - 171.412,

P - 171.413, P - 171.423, P - 171.430, P - 171.436, and P - 200 were

admitted into evidence.

The District presented the testimony of Ernest Barnett, the

DistrictÓs Assistant Executive Director, and Pamela Wade, P.E.,

Chief of the DistrictÓs Everglades Regulation Bureau. District

Exhibits D - 001, D - 003 through D - 005, D - 014 through D - 017, and D -

025 through D - 043 were admitted into evidence.

The Applicants jointly presented the testimony of Paul J.

Whalen. Jo int - Applicants Exhibits JA - 002, JA - 048, JA - 049, JA -

053, and JA - 065 through JA - 132 were admitted into evidence. SCGC

presented the testimony of James M. Shine, Jr., SCGCÓs Vice

President of Agriculture , and Kathy Lockhart, SCGCÓs Manager of

Environmental A ffairs, and SCGC Exhibits SCGC - 001, SCGC - 001.B and

SCGC - 001.B.X were admitted into evidence. USSC presented the

testimony of Kenneth McDuffie, USSCÓs Senior Vice President for

Agricultural Operations, and USSC Exhibits USSC - 001, USSC - 001.C.1

and USSC - 001. C.2X were admitted into evidence. SFC presented the

testimony of Luis Girado, SFCÓs Environmental Manager, and SFC

Exhibits SFC - 001, SFC - 03848.AX, SFC - 03853.AX, SFC - 03854.AX, SFC -

03858.AX, SFC - 03859.AX, SFC - 03863.AX, SFC - 03864.AX, SFC -

03871.000001X - .00000 12X, SFC - 03876.AX Î 03876.IX, SFC -

03876.000007X Î 03876.000018X, SFC - 03985.AX, SFC - 03986.AX, SFC -

04004.AX, SFC - 04005.AX , and SFC - 04096.AX were admitted into

evidence. Certain lease documents (Exhibits SCGC - 001.BX, USSC -

001.C.2X, SFC - 03848.AX, SFC - 03853.AX, SF C - 03854.AX, SFC - 03858.AX,

SFC - 03859.AX, SFC - 03863.AX, SFC - 03864.AX, SFC - 03871.000001X -

.0000012X, SFC - 03876.AX Î 03876.IX, SFC - 03985.AX, SFC - 03986.AX,

SFC - 04004.AX, SFC - 04005.AX, and SFC - 04096.AX), which the

Applicants consider confidential, were admitted und er seal

without objection. The Applicants also adopted the testimony of

each otherÓs witnesses and those of the District.

The seven - volume T ranscript of the final hearing and the

T ranscripts of the April 30 and October 1, 2013 , case management

conferences were filed with DOAH. The parties filed proposed

recommended orders that were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

The Parties

1. Audubon is a not - for - profit organization dedicated to

restoring and conserving natural ecosystems, focusing on birds

and their habitats.

2. Audubon has a substantial interest in the protection of

the Everglades and other ecosystems in the area. AudubonÓs

interest is affected by the proposed agency action because the

WOD Permits authorize agricultural discharges that affect these

ecosystems.

3. The District is a Florida public corporation with the

authority and duty to administer regulatory programs in c hapter

373, and Florida Administrative Code Title 40E, including a

program for regulati ng discharges from the Everglades

Agricultural Area (ÐEAAÑ) into works of the District.

4. The EAA is located south of Lake Okeechobee and

comprises about 570,000 acres. The majority of EAA agriculture

is sugarcane, with some row crops, such as radishes, leafy

vegetables, and corn, and turf sod. During fallow periods, rice

is also grown.

5. The Applicants are owners and lessees of agricultural

lands in the EAA.

Background

6. Some essential background for this case is set forth in

rule 40E - 63.011:

(1) The Everglades is a unique national

resource. It has a high diversity of

species, and provides habitat for large

populations of wading birds and several

threatened and endangered species, including

wood storks, snail kites, bald eagles,

Florida panthers, and American crocodiles.

Large portions of the northern and eastern

Everglades have been drained and converted to

agricultural or urban land uses. Only 50% of

the original Everglades ecosystem remains

today. The remainder is the largest and most

importa nt freshwater sub - tropical peatland in

North America. The remaining components of

the historic Everglades are located in the

Water Conservation Areas (WCAs) and

Everglades National Park (ENP). ENP and

Loxahatchee National Wildlife Refuge (WCA 1)

are Outst anding Florida Waters, a designation

which requires special protection for the

resource.

(2) Large portions of the Everglades

ecosystem have evolved in response to low

ambient concentrations of nutrients and

seasonal fluctuations of water levels. Prior

to creation of the Everglades Agricultural

Area (EAA), nitrogen and phosphorus were

mainly supplied to large areas only in

rainfall. Phosphorus is the primary limiting

nutrient throughout the remaining Everglades.

Sawgrass has lower phosphorus requiremen ts

than other species of Everglades vegetation.

(3) A substantial portion of EAA nutrients

is transported to the remaining Everglades

either in dissolved or in particulate form in

surface waters. The introduction of

phosphorus from EAA drainage water ha s

resulted in ecological changes in substantial

areas of Everglades marsh. These changes are

cultural eutrophication, which is an increase

in the supply of nutrients available in the

marsh. The increased supply of phosphorus in

Everglades marshes has res ulted in documented

impacts in several trophic levels, including

microbial, periphyton, and macrophyte. The

areal extent of these impacts is increasing.

7. In 1988, the United States sued the District and the

Florida Department of Environmental Regulati on, now the

Department of Environmental Protection (ÐDEPÑ), in federal court,

alleging that the agencies failed to enforce FloridaÓs water

quality standard for nutrients in waters of Loxahatchee Wildlife

Refuge and Everglades National Park. The principal pollutant of

concern was phosphorus. Audubon, USSC, and certain members of

SCGC and SFC intervened in the federal case. In February 1992,

the parties resolved their dispute through a settlement agreement

approved by the federal court (Ðthe Consent Decree Ñ).

8. The Consent Decree required the District and DEP to take

action to meet water quality standards by December 31, 2002. At

that time, the nutrient water quality standard was a narrative

standard, prohibiting the discharge of nutrients so as to cause

Ðan imbalance in natural populations of aquatic flora and fauna.Ñ

9. The Consent Decree directed the District to construct

34,700 acres of stormwater treatment areas (ÐSTAsÑ) so that

nutrient - laden surface water discharged from the EAA could be

treated b efore discharge to the Everglades Protection Area

(ÐEvPAÑ), which includes Loxahatchee Wildlife Refuge, Everglades

National Park, and the Water Conservation Areas. STAs are large

freshwater wetlands which remove phosphorus from the water column

through ph ysical, chemical, and biological processes such as

sedimentation, precipitation, plant growth, and microbial

activity. The first STAs were constructed and in operation in

1993.

10. The Applicants operate in the S - 5A Basin within the

EAA. Their surface w ater is conveyed to STA - 1W for treatment

before being discharged to the EvPA.

11. The Consent Decree required the District to initiate a

regulatory program by 1992 to requir e permits for discharges from

internal drainage systems (farms) in the EAA. The r egulatory

program was to be based on agricultural best management practices

(ÐBMPsÑ). The goal of the program, as stated in the Consent

Decree, was to reduce phosphorus loads from the EAA by 25 percent

over the base period (1979 - 1988).

12. In 1992, the D istrict promulgated rule chap ter 40E - 63,

which required EAA farmers to obtain WOD permits and to implement

agricultural BMP plans. The BMP plans address fertilizer use and

water management. Permittees must also implement a water quality

monitoring plan.

13. The rules require reduction of the total phosphorus

loads discharged from the EAA Basin, as a whole, by 25 percent

from historic levels. See Fla. Admin. C ode R . 40E - 63.101. If

the EAA, as a whole, is in compliance, individual permittees are

not requ ired to make changes to their operations. See Fla.

Admin. C ode R . 40E - 63.145(3)(d). If the 25 percent reduction

requirement is not met, the rule contemplates that individual

permittees in the EAA would have to reduce nutrient loads in

their discharges. See Fla. Admin. C ode R . 40E - 63.145(3)(e). 1/

14. The Consent Decree also required the District to obtain

permits from the Department for discharges from the STAs to the

EvPA and to conduct research and adopt rules to Ðnumerically

interpretÑ the narrative s tandard.

15. In 1994, the Florida Legislature enacted the Everglades

Forever Act (Ðthe ActÑ), chapter 94 - 115, Laws of Florida, which

is codified in section 373.4592. The Legislature authorized the

district to proceed expeditiously with implementation of the

Everglades Program. See § 373.4592(1)(b), Fla. Stat. The

ÐEverglades ProgramÑ means the program of projects, regulations,

and research described in the Act, including the Everglades

Construction Project. The Everglades Construction Project

involved the construction of 40,452 acres of STAs, which is 5,350

acres more than was required by the federal Consent Decree.

16. The Act acknowledged the BMP regulatory program for the

EAA that the District had established in rule chapter 40E - 63, and

stated:

Prio r to the expiration of existing permits,

and during each 5 - year term of subsequent

permits as provided for in this section,

those rules shall be amended to implement a

comprehensive program of research, testing,

and implementation of BMPs that will address

all water quality standards within the EAA

and Everglades protection Area.

See § 373.4592(4)(f)2., Fla. Stat.

17. The Act required DEP to issue permits to the District

to construct, operate, and maintain the STAs. See

§ 373.4592(9)(e), Fla. Stat.

18. The Act required development of a numeric water quality

phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e),

Fla. Stat. The Act set the goal of achieving the phosphorus

standard in all parts of the EvPA by December 31, 2006.

19. In June 1995, modifications were made to the Consent

Decree. The deadline for achieving water quality standards in

the EvPA was changed from December 31, 2002, to December 31,

2006. The STAs were increased from 34,700 acres to 40,452 acres.

20. The chronological dev elopments outlined above indicate

the intent of the Legislature and the parties to the Consent

Decree to conform state law and the Consent Decree to each other.

21. In 2001, DEP initiated rulemaking that lead to its

adoption of the Phosphorus Rule, rule 6 2 - 302.540, in 2003. The

rule set a numeric phosphorus criterion for the EvPA of 10 parts

per billion (ÐppbÑ), applied through a four - part test in which

attainment is determined separately for ÐunimpactedÑ and

Ðimpacted areasÑ of the EvPA. See Fla. Admin C ode R . 62 -

302.540(4).

22. In conjunction with this rulemaking, the DEP and

District developed the Everglades Protection Area Tributary

Basins Long Term Plan for Achieving Water Quality Goals (ÐLong -

Term PlanÑ) in March 2003. The Long - Term Plan provided remedial

measures and strategies divided into pre - 2006 projects and post -

2006 projects. The pre - 2006 projects included structural and

operational modifications to the existing STAs, implementation of

agricultural and urban BMPs in areas outside the EAA or C - 139

basins, and construction of several restoration projects

congressionally mandated by the Comprehensive Everglades

Restoration Plan.

23. Modeling of treatment capabilities of the STAs after

implementation of the pre - 2006 projects predicted that the 10 ppb

standard for phosphorus could be achieved, but not consistently.

Therefore, the Long - Term Plan required the District to identify

and evaluate methods to improve phosphorus reductions, and if the

phosphorus criterion was not achieved by December 31, 2006, to

implement post - 2006 modifications and improvements. The post -

2006 strategies include projects to expand and improve the STAs.

They do not include changes to the BMP program.

24. In 2003, the Legislature substantially amended the Act.

It incor porated the Long - Term Plan into the Act, finding that it

Ðprovides the best available phosphorus reduction technology

based on a combination of the BMPs and STAs.Ñ § 373.4592(3)(b),

Fla. Stat. The Long - Term Plan contemplates maintenance of the

BMP progra m in the EAA, with refinements derived from BMP

research.

Recent Conditions and Events

25. As previously stated, chapter 40E - 63 requires the total

phosphorus load f rom the EAA to be reduced by not less than 25

percent from historic levels. Since full imp lementation of the

BMP regulatory program, annual phosphorus loads have been reduced

by approximately 50 percent.

26. Despite the efforts and projects undertaken, the

phosphorus standard was not being achieved as of December 31,

2006, in all parts of the EvPA.

27. In 2007, the DEP issued a permit to the District for

discharges from the STAs to the EvPA (referred to as the

ÐEverglades Forever ActÑ or ÐEFA permitÑ) . The permit required

the District to design and construct several regional water

management projects, including structural enhancements to STA - 1W ,

and the construction of 6,800 acres of additional STAs. The

permit and its compliance schedules provided interim relief

through 2016 from the water quality based effluent limitation

(WQBEL) necessary to achieve the 10 ppb phosphorus standard. The

2007 EFA permit was not challenged by Audubon or any other

entity.

28. The District, DEP, and the United States Environmental

Protection Agency began working together in 2010 to develop new

strategies for ac hieving compliance with the phosphorus standard

in the EvPA. The agencies determined that compliance could be

achieved by expanding the STAs by 7,300 acres (6,500 acres would

be added to STA - 1W) and constructing flow equalization basins to

store up to 110 ,000 acre feet of stormwater runoff. These basins

are designed to attenuate peak flows into the STAs in order to

improve the processes that remove phosphorus.

29. In September 2012, DEP issued the District a new EFA

permit, which authorized continued ope ration of the DistrictÓs

S - 5A pump station, STA - 1W, and the related conveyance systems by

which stormwater runoff from the S - 5A Basin is ultimately

discharged to the EvPA. The permit was issued with a Consent

Order, requiring the District to expand STA - 1 W by 6,500 acres of

effective treatment area in accordance with a timeline and the

DistrictÓs Restoration Strategies. The 2012 EFA Permit and

Consent Order were not challenged by Audubon or any other entity.

30. In 2013, the Legislature amended the Act a gain. The

ActÓs reference to the Long - Term Plan was revised to include the

DistrictÓs Restoration Strategies Regional Water Quality Plan,

which called for expanding the STAs and constructing flow

equalization basins. See § 373.4592(2)(j), Fla. Stat. The

Legislature added a finding that Ðimplementation of BMPs, funded

by the owners and users of land in the EAA, effectively reduces

nutrients in waters flowing into the Everglades Protection Area.Ñ

See § 373.4592(1)(g), Fla. Stat.

31. The 2013 amendments i ndicated the LegislatureÓs intent

to codify into law the strategies developed by the District and

other regulatory agencies to achieve water quality standards in

the EvPA. Those strategies do not materially change the BMP

program in the EAA.

32. T he Act and the rules of the District create programs

for achieving restoration of the EvPA that rely heavily on the

STA s . Over the years, the STAs have repeatedly been enlarged and

enhanced. In contrast, the requirement for farmers in the EAA to

reduce their ph osphorus loading by 25 percent has not changed in

21 years. It is beyond the scope of this proceeding to question

the wisdom of the programs that have been established by statute

and rule.

Whether Additional Water Quality Measures Are Required

33. A prin cipal dispute in this case is whether the WOD

Permits must include additional water quality measures to be

implemented by the Applicants. Section 373.4592(4)(f)4. p rovides

that, as of December 31, 2006, all EAA permits shall include

Ð additional water qual ity measures, taking into account the water

quality treatment actually provided by the STAs and the

effectiveness of the BMPs. Ñ

34. Audubon asserts that the requirement for additional

water quality measures has been triggered. The District does not

inter pret the statute as requiring additional water quality

measures under current circumstances. The interpretation of the

statute is primarily a disputed issue of law and is addressed in

the Conclusions of Law. There, it is concluded that additional

water q uality measures are not required.

Whether the BMP Plans are Adequate

3 5 . Audubon contends that the WOD Permits should be denied

because the ApplicantÓs existing BMP p lans are not ÐtailoredÑ to

particular soils, crops, and other conditions. This contentio n

is based on section 373.4592(4)(f)2.c., which states in relevant

part:

BMPs as required for varying crops and soil

types shall be included in permit conditions

in the 5 - year permits issued pursuant to this

section.

3 6 . Audubon showed that the Applicant s have similar BMP

plans for the thousands of acres covered in the three WOD

Permits, and contends that this similarity proves that BMPs are

not being tailored to specific farm conditions. However, soils

and crops are similar throughout the EAA. The soil s of the EAA

are almost entirely muck soils and the primary crop is sugarcane

with some corn or other vegetable rotated in. The Applicants use

many of the same BMPs because they have similar soils and grow

similar crops.

3 7 . There are three main categori es of BMPs implemented in

the EAA: nutrient and sediment control BMPs, particulate matter

and sediment control BMPs, and water management BMPs. See Fla.

Admin. C ode R . 40E - 63.136, Appendix A2. The BMPs proposed by the

Applicants are based on research in the EAA and recommendations

specifically for EAA soils and the crops grown there.

38. T he Applications do not identify the specific BMPs that

will be implemented, but only the number of BMPs that will be

selected from each of the BMP categories (i.e., se diment

control). The Applicants must use BMPs on the DistrictÓs list of

approved BMPs unless an alternative BMP is requested and

approved . The lack of greater detail was explained as

necessitated by the need for flexibility during the life of the

permit to adapt BMPs to varied crops and conditions.

3 9 . Audubon does not believe the BMP plans are tailored

enough , but t here is no rule criterion for determining how

tailored BMP plans must be, except they must achieve the overall

goal of reducing phosphorus l oading in discharges from the EAA by

at least 25 percent. This goal i s being achieved. 2/

40. Audubon did not show that any particular BMP being used

by an Applicant was the wrong BMP for a particular soil and crop ,

or identify the BMP that Audubon believ es should be used.

41. Audubon failed to prove that the ApplicantsÓ BMP plans

do not meet applicable requirements.

Whether the Applications Are Complete

4 2 . Audubon contends that the WOD Permits must be denied

because the Applications are incomplete. M any of AudubonÓs

completeness issues deal with minor discrepancies of a type that

are more appropriately resolved between the District and

applicants, not violations of criteria that are likely to affect

a third partyÓs interest in environmental protection .

4 3 . Rule 40E - 63.130 lists the requirements for a permit

application for activities in the EAA Basin. An Application

Guidebook is incorporated into chapter 40E - 63, which contains

instructions for completing the application.

4 4 . For applications to rene w a permit, the practice of the

District is to not require the resubmittal of information that

was previously submitted to the District and which has not

changed. The Application Guidebook explains this practice.

4 5 . The Applicants supplemented their app lications at the

final hearing to provide information that Audubon claimed was

omitted from the Applications. 3/

4 6 . Audubon contends that the Applications are incomplete

because some application forms are not dated and other forms are

not signed by approp riate entities. The District explained its

rule interpretation and practices associated with the forms.

Additional signatures and dates were submitted at the final

hearing. Audubon failed to demonstrate that the Applications are

incomplete based on the identity of the persons who signed

application forms or the lack of dates.

4 7 . Audubon contends the Applications are incomplete

because copies of contracts or agreements are not included as

required by rule 40E - 63.132(3). Audubon failed to prove that

con tracts and agreements exist that were not included.

4 8 . Audubon contends the Applications are incomplete

because they do not contain a completed Form 0779, entitled

ÐApplication For A Works Of The District Permit,Ñ as required by

rule 40E - 63.132(5). In s ome cases, the information for Form 0779

had been previously submitted and was unchanged, so the District

did not require it to be resubmitted for the permit renewal.

Additional information was provided at the final hearing.

Audubon failed to prove that the Applications are incomplete

based on missing information on Form 0779.

4 9 . Audubon contends that the Applications are incomplete

because documentation regarding leased parcels was missing.

Pursuant to rule 40E - 63.130(1)(a), individual permit applicat ions

must be submitted by the owner of the land on which a structure

is located and any entity responsible for operating the

structure, and the permit application must include the owners of

all parcels which discharge water tributary to the structure.

App lications may be submitted by a lessee if the lessee has the

legal and financial capability of implementing the BMP Plan and

other permit conditions.

50. The District explained that when applications are

submitted by a lessee who will be the permittee or co - permittee,

the District requires the lessee to be a responsible party for

the entire term of the permit, which is five years. If the

lessee is a not a co - permittee, the District does not require

information about the lease and does not require the less eeÓs

signature. If the lessee is a co - permittee, but the lease

expires during the term of the permit, the District requires the

applicant to modify the permit when the lease expires. Audubon

failed to prove that the Applications are incomplete based on

l ease information

51 . Audubon contends that the Applications are incomplete

because they fail to show that the Applicants participated in an

education and training program as required by rule 40E -

63.136(1)(g). The preponderance of the evidence shows that the

Applicants participated in education and training programs .

52 . Audubon failed to prove that the Applications are

incomplete for any of the reasons raised in its petition for

hearing or advanced at the final hearing.

Water Quality Standards in the EAA

5 3 . Audubon presented some evidence of algal accumulations

in ditches and canals, but the evidence was in sufficient to prove

the Applicants are violating water quality standards applicable

in the EAA.

Summary

5 4 . Audubon failed to carry its burden to pr ove that the

Applicants are not entitled to the WOD Permits.

CONCLUSIONS OF LAW

5 5 . Audubon has standing to challenge the issuance of the

WOD Permits.

5 6 . Section 120.569(2)(p) is applicable to this case and

places the ultimate burden of persuasion on Au dubon to prove that

the Applicants are not entitled to the WOD Permits.

5 7 . The Applicants are entitled to the WOD permits if they

provide reasonable assurance that they will comply with

applicable permitting criteria. The term Ðreasonable assuranceÑ

mea ns "a substantial likelihood that the project will be

successfully implemented." Metro. Dade Cnty. v. Coscan Fla.,

Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

5 8 . This is a de novo proceeding to formulate agency

action. Parties may present evidence at the final hearing that

was not previously submitted to or considered by an agency. See

J.W.C. Co., Inc. v. Fla. DepÓt of Transp. , 396 So. 2d 778 (Fla.

1st DCA 1981).

5 9 . Audubon contends that the WOD Permits violate section

373.4592(4)(f)4. because the permits did not include additional

water quality measures. This issue was the subject of an Order

issued on June 6, 2013, but because of its importance to the

recommendation made below, the ruling is explained again here.

60 . Section 373.4592(4)(f) is en titled, ÐEAA best management

practices.Ñ It calls for the development, implementation, and

monitoring of BMPs to be used by permittees in the EAA.

Subparagraph 3. provides that permittees who are in full

compliance with their permits issued under c hapter s 40E - 61 and

40E - 63 will not be required to implement additional water quality

measures before December 31, 2006. Subparagraph 4. then states:

As of December 31, 2006, all permits,

including those issued prior to that date,

shall require implementation o f additional

water quality measures, taking into account

the water quality treatment actually provided

by the STAs and the effectiveness of the BMPs.

As of that date, no permitteeÓs discharge

shall cause or contribute to any violation of

water quality sta ndards in the Everglades

Protection Area.

The term Ðadditional water quality measuresÑ is not defined.

61 . The 1992 Consent Decree addressed the development of

BMPs, the construction of STAs, and the establishment of a

deadline for compliance with water quality standards in the EvPA,

which became fundamental elements of the 1994 Act. The Consent

Decree established STAs as Ðthe primary strategy to remove

nutrients from agricultural runoff.Ñ The strategy for reducing

nutrient loading from agricultural act ivities in the EAA was to

implement BMPs, which is generally the same approach that is used

for all agriculture in Florida , no matter where situated.

62 . The Consent Decree provided for what was to happen if

the phosphorus criterion was not achieved by th e deadline:

[N]otwithstanding the implementation of these

control programs, if the concentration limits

and levels are violated, then the State

Parties will implement additional remedies,

such as any necessary expansion of STAs, more

intensive management o f STAs, a more stringent

EAA regulatory program, or a combination of

the above.

Implementing Ða more stringent EAA regulatory programÑ was an

option. It was not automatic. The Consent Decree allowed the

remedy to be expansion or enhancement of the STAs, without any

change in regulation of permittees in the EAA.

6 3 . Audubon argues that, because the phosphorus standard is

not being achieved in all areas of the EvPA, subparagraph 4.

requires these WOD Permits to include additional water quality

measures th at will result in elimination of the violation (or

perhaps account for the ApplicantsÓ share). Audubon does not

identify the water quality measures it believes should be imposed.

6 4 . AudubonÓs interpretation of s ection 373.4592(4)(f)4.

makes the Act inco nsistent with the Consent Decree because the

Consent Decree did not require Ða more stringent EAA regulatory

programÑ if the phosphorus standard was not met by the deadline.

6 5 . AudubonÓs interpretation is also inconsistent with the

2003 amendments to the Act which contemplate compliance with the

phosphorus standard after 2006. The 2003 and 2013 amendments,

especially the provisions incorporating the Long - Term Plan, are

inconsistent with AudubonÓs interpretation of subparagraph 4. as

requiring farm permit s to independently achieve compliance with

the phosphorus standard in the EvPA on a faster schedule than the

DistrictÓs discharges from the STAs.

6 6 . The District interprets the phrase Ðtaking into account

the water quality treatment actually provided by the STAsÑ in

subparagraph 4. as directing the District to consider the

additional treatment that will be achieved by approved projects,

such as the projects described in the 2012 EFA permit and C onsent

O rder. Therefore, additional water quality measures a re not

required unless existing and approved STA projects (along with BMP

plans) are not adequate to eliminate a water quality violation.

67. The adequacy of the existing and approved plans to

eliminate water quality violations in the EvPa, as established in

the 2012 EFA permit and Consent Order, w as not challenged by

Audubon and cannot be collaterally attacked here.

6 8 . Because t he projects described in the 2012 EFA permit

and consent order are designed to achieve compliance with the

phosphorus standard in the EvPA, no additional water quality

measures are required in the WOD Permits . After these projects

are completed, EAA discharges will not cause or contribute to a

violation of water quality standards.

6 9 . The DistrictÓs interpretation of subparagrap h 4.

harmonizes the 1992 Consent Decree, the 1994 Act, the 2003 and

2013 amendments to the Act, and the 2012 EFA permit and C onsent

O rder.

70 . Audubon contends that the reference in s ubparagraph 4.

to water quality treatment Ðactually provided Ñ by the STA s means

that only the current level of treatment provided by the STAs can

be considered -- not the improved level of treatment that will be

achieved under the terms of the 2012 EFA permit and C onsent

O rder. Audubon urges this interpretation because it bel ieves it

provides additional protection for the EvPA beyond the protection

provided by the rules of the District and the orders of DEP.

However, it is not the DistrictÓs interpretation of subparagraph

4 . that stands in AudubonÓs way; it is the Act, as a w hole.

AudubonÓs interpretation would create an internally inconsistent

element of an otherwise integrated regulatory program.

71 . It would cause an absurd result if subparagraph 4.

required permittees in the EAA to implement ad hoc and piecemeal

water qu ality measures, farm by farm, when there is a

comprehensive plan already approved for accomplishing the

objective.

7 2 . The interpretation of section 373.4295 urged by Audubon

is not the only possible interpretation of the section. The

DistrictÓs interpre tation is a reasonable one and it better

harmonizes with the Act , as a whole. A statute should be

construed in its entirety and as a harmonious whole. Palm Beach

Cnty . Canvassing Bd. v. Harris , 772 So. 2d 1273, 1287 (Fla.

2000); Vrchota Corp. v. Kelly , 4 2 So. 3d 319, 322 (Fla. 4th DCA

2010)(ÐIf some of the words of the statute, when viewed as one

part of the whole statute or statutory scheme, would lead to an

unreasonable conclusion or a manifest incongruity, then the words

need not be given a literal int erpretation.Ñ)

7 3 . An agencyÓs interpretation of its own statutes and

rules is entitled to great deference and must not be overturned

unless clearly erroneous or otherwise unsupported by competent,

substantial evidence. See DepÓt of Envtl. Reg. v. Goldrin g , 477

So. 2d 532, 534 (Fla. 1985).

7 4 . Audubon contends that the WOD Permits are inconsistent

with the overall objectives of the District and will be harmful

to the water resources of the District . This argument fail s

because (1) the DistrictÓs objectiv e to reduce phosphorus loading

from the EAA by at least 25 percent is being achieved; (2) the

DistrictÓs objective to prevent harm to the canals of the EAA was

not shown to be violated ; and (3) the DistrictÓs strategies for

preventing harm to the EvPA have been authorized in the

unchallenged 2012 EFA permit and Consent Order.

7 5 . Audubon failed to meet its burden to prove that the

Applicants are not entitled to the WOD Permits.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that South Florida Water Management District

issue Permit Nos. 50 - 00031 - E, 50 - 00018 - E, and 50 - 00047 - E.

DONE AND ENTERED this 10th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E . CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Adminis trative Hearings

this 10th day of February , 2014.

ENDNOTE S

1/ Petitioner has not challenged this rule or any other District

rule regulating agricultural activities in the EAA.

2/ AudubonÓs case is essentially an attempt to circumvent the

effect of th is goal ( and rule 40E - 63.145 , which governs

compliance and non - compliance with the goal) on the Everglades

Program .

3 / S C GCÓs motion to supplement the record is granted.

COPIES FURNISHED:

Luna E. Phillips, Esquire

Rick J. Burgess, Esquire

Gunster, Yoa kley and Stewart, P.A.

Suite 1400

450 East Las Olas Boulevard

Fort Lauderdale, Florida 33301 - 4206

Gary V . Perko, Esquire

Mohammad O. Jazil, Esquire

Hopping Green and Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Irene Kennedy Quincey, Esquire

Pavese Law Firm

4524 Gun Club Road , Suite 203

West Palm Beach, Florida 33415 - 2815

Anna Holt Upton, Esquire

Anna H. Upton, P.L.

9005 Eagles Ridge Drive

Tallahassee, Florida 32312 - 4046

Jeffrey A. Collier, Esquire

Kirk L. Burns, Esquire

Douglas H . MacLaughlin, Sr., Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

Silvia Morell Alderman, Esquire

Thomas A. Range, Esquire

Akerman Senterfitt

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301 - 7741

Matthew Coglianese, Esquire

Gabriel Nieto, Esquire

Rasco, Klock, Reininger, Perez,

Esquenazi, Vigil, and Nieto

283 Catalonia Avenue , Suite 200

Coral Gables, Florida 33134 - 6714

Thomas E. Bishop, Esquire

Michael G. Tann er, Esquire

Charles H. Hardage, Esquire

Tanner Bishop

One Independent Drive , Suite 1700

Jacksonville, Florida 32202 - 5015

Melissa L. Meeker, Executive Director

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

wil l issue the Final Order in this case.