14-001644RP Florida Wildlife Federation, Inc. vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Thursday, September 11, 2014.

Summary: It is concluded that proposed rules 62-42.100, 62-42.200, and the Supplemental Regulatory Measures incorporated by reference in rule 62.-42.300(1)(d) are valid, but proposed rules 62-42.300(1)(a) and (b) are invalid because they are vague.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL STILL,

Petitioner,

vs. Case No. 14 - 1420RU

SUWANNEE RIVER WATER MANAGEMENT

DISTRICT,

Respondent,

and

NORTH FLORIDA UTILITY

COORDINATING GROUP; CLAY COUNTY

UTILITY AUTHORITY; JEA; ST.

JOHNS RIVER WATER MANAGEMENT

DISTRICT; ALACHUA COUNTY;

GILCHRIST COUNTY; SUWANNEE

COUNTY; BOARD OF COUNTY

COMMISSIONERS OF BRADFORD

COUNTY , AND COLUMBIA COUNTY,

Intervenors.

_______________________________/

PAUL STILL,

Petitioner,

vs. Case No. 14 - 142 1 R P

SUWANNEE RIVER WATER MANAGEMENT

DISTRICT,

Respondent,

and

NORTH FLORIDA UTILITY

COORDINATING GROUP; CLAY COUNTY

UTILITY AUTHORITY; JEA; ST.

JOHNS RIVER WATER MANAGEMENT

DISTRICT; ALACHUA COUNTY;

GILCHRIST COUNTY; SUWANNEE

COUNTY; BOARD OF COUNTY

COMMISSIONERS OF BRADFORD

COUNTY ; AND COLUMBIA COUNTY,

Intervenors.

_______________________________/

PAUL STILL,

Petitioner,

vs. Case No. 14 - 1443R P

SUWANNEE RIVER WATER MANAGEMENT

DISTRICT,

Respondent,

and

NORTH FLORIDA UTILITY

COORDINAT ING GROUPS; CLAY COUNTY

UTILITY AUTHORITY; JEA; ST.

JOHNS RIVER WATER MANAGEMENT

DISTRICT; ALACHUA COUNTY;

GILCHRIST COUNTY; SUWANNEE

COUNTY; BOARD OF C OUNTY

COMMISSIONERS OF BRADFORD

COUNTY ; AND COLUMBIA COUNTY,

Intervenors.

________________________ _______/

FLORIDA WILDLIFE FEDERATION,

INC., AND ICHETUCKNEE ALLIANCE,

INC.,

Petitioner s ,

vs. Case No. 14 - 1644RP

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

NORTH FLORIDA UTILITY

COORDINATING GROUPS; CLAY COUNTY

UTILITY AUTHORITY; JE A; ST.

JOHNS RIVER WATER MANAGEMENT

DISTRICT; SUWANNEE RIVER WATER

MANAGEMENT DISTRICT; ALACHUA

COUNTY; GILCHRIST COUNTY;

SUWANNEE COUNTY; BOARD OF COUNTY

COMISSIONERS OF BRADFORD COUNTY ;

AND COLUMBIA COUNTY ,

Intervenors.

____________________________ ___/

FINAL ORDER

The final hearing in these consolidated cases was held on

May 28 - 30 and June 12 - 13, 2014, in Tallahassee, Florida , before

Bram D.E. Canter, Administrative Law Judge o f the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Paul Still:

Paul Edward Still, pro se

14167 Southwest 101st Avenue

Starke, Florida 32091

For Petitioners Florida Wildlife Federation, Inc. , and

Ichetucknee Alliance, Inc.:

David G. Guest, Esquire

Monica K. Reimer, Esquire

Alisa A. Coe, Esquire

Bradley Marshall, Esquire

Earthjustice

111 South Martin Luther King, Jr. Boulevard

Tallahassee, Florida 32301 - 1451

For Respondent/Intervenor Department of Environmental

Protection:

Douglas Beason, Esquire

Jeffrey Brown, Esquire

Matthew Z. Leopold, Esquire

Benjamin Melnick, Esquire

Kristine P. Jone s, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth B oulevard

Tallahassee, Florida 32399 - 3000

For Respondent/Intervenor Suwannee River Water Management

District:

George T. Reeves, Esquire

Davis, Schnitker, Reeves and Bro wning, P.A.

P ost Office Drawer 652

Madison, Florida 32341

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Richey, Florida 34562

For Intervenors NFUCG, CCUA, and JEA:

Edward P. de la Parte, Esquire

Nicolas Q. Porter , Esquire

de la Parte & Gilbert, P.A.

101 E ast Kennedy B oulevard , Suite 2000

Tampa, Florida 33601

For Intervenor St. Johns River Water Management District:

Vance W. Kidder, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Flor ida 32177

For Intervenor Alachua County:

Sylvia E. Torres, Esquire

Alachua County AttorneyÓs Office

Post Office Box 5547

Gainesville, Florida 32627

Jennifer Springfield, Esquire

Springfield Law, P.A.

806 N orthwest 16th Avenue, Suite B

Gainesville, Flor ida 32601

For Intervenor Board of County Commissioners of Bradford

County:

William E. Sexton, Esquire

Bradford County Attorney

945 N orth Temple Avenue

Starke, Florida 32091

For Intervenor Columbia County:

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 3007

Marlin L. Feagle, Esquire

Columbia County Attorney

P ost Office Box 1653

Lake City, Florida 32056 - 1653

For Intervenor Gilchrist County:

David M. Lang, Jr., Esquire

Gilchrist Co unty Attorney

P ost Office Box 51

Trenton, Florida 32693

For Intervenor Suwannee County:

James W. Prevatt, Jr., Esq uire

Suwannee County Attorney

Prevatt Law Firm, P.L.

123 East Howard Street

Live Oak, Florida 32064

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

proposed Florida Administrative Code Rules 62 - 42.100, 62 - 42.200,

62 - 42.300, and a document incorporated by reference (Ðthe

Proposed RulesÑ) are in valid exercises of delegated legislative

authority; whether the Depart ment of Environmental Protection

(ÐDEPÑ) complied with statutory requirements regarding

preparation of a statement of estimated regulatory costs

(ÐSERCÑ) for the Proposed Rules; and whether the approval by the

Governing Board of the Suwan n ee River Water Ma nagement District

(ÐSRWMDÑ) of a document entitled ÐRecovery S trategy : Lower

Santa Fe River BasinÑ (ÐRecovery StrategyÑ) is invalid because

it required rulemaking.

PRELIMINARY STATEMENT

On March 7, 2014, DEP published a Notice of Proposed Rule

in the Flor ida Administrative Register to adopt the Proposed

Rules, which would establish minimum flows for the Lower Santa

Fe and Ichetucknee Rivers and their associated priority springs

(Ðthe MFL water bodiesÑ), and create supplemental regulatory

criteria for the r eview of applications for consumptive use

permits in the area. The notice also informed the public that a

SERC had been prepared regarding the Proposed Rules and was

available for review.

On March 11, 2014, SRWMD approve d the R ecovery S trategy

that had be en developed for the MFL water bodies. On March 24,

2014, Paul Still filed a petition to challenge SRWMDÓs action in

a pproving the R ecovery Strategy, claiming that it constituted an

unpromulgated rule. The petition was assigned DOAH Case No.

14 - 1420RU.

Also on March 24, 2014, Paul Still filed a petition to

challenge the DepartmentÓs SERC. This second petition was

assigned DOAH Case No. 14 - 1421RP.

On March 27, 2014, Paul Still filed a petition to challenge

the Proposed Rules. This third petition was ass igned DOAH Case

No. 14 - 1443RP.

On April 8, 2014, DEP published a Notice of

Change/Withdrawal to explain that it had made changes to the

Supplemental Regulatory Measures adopted by reference in rule

62 - 42.300. This notice also informed the public that a re vised

SERC was available for review.

On April 11, 2014, Florida Wildlife Federation , Inc.

(ÐFWFÑ) , filed a petition to challenge the Proposed Rules. The

petition was assigned DOAH Case No. 14 - 1644RP.

Petitioner Still Ós petitions in DOAH Case Nos. 14 - 1421R P

and 14 - 1443RP were dismissed on motion from Respondents, but he

was granted leave to amend. FWF was also granted leave to amend

its petition, including leave to add Ichetucknee Alliance, Inc.

(Ðthe AllianceÑ) , as a party. In an Order dated May 21, 2014 ,

the motion to add the Alliance was deemed to be the AllianceÓs

timely rule challenge petition.

The four cases were consolidated for hearing, but they are

distinct. All Petitioners challenged the Proposed Rules, but

only Petitioner Still challenged the p roposed minimum flows in

the Proposed Rules . Only Petitioner Still challenged the SERC

and SRWMD Ós approval of the Recovery Strategy.

Petitions to intervene in support of the Proposed Rules

were filed by St . Johns River Water Management District

(ÐSJRWMDÑ ), North Florida Utility Coordinating Group (ÐNFUCGÑ),

Clay County Utility Authority (ÐCCUAÑ), JEA, Alachua County,

Bradford County, Columbia County, Gilchrist County, and Suwannee

County, all of which were granted.

Before the final hearing, Intervenors NF UCG, CCUA, and JEA

(referred to collectively as ÐJEAÑ) moved for Summary Final

Order dismissing the petitions of FWF and the Alliance for

lacking associational standing. On the first day of the

hearing, the motion was granted with respect to FWF, but deni ed

with respect to the Alliance.

At the final hearing, Petitioner Still testified on his own

behalf and presented the testimony of Russell Kiger , a

hydrologist employed by SRWMD ; Warren Zwanka, a senior

hydrologist for SRWMD; Janet Llewellyn, Administrator of DEPÓs

O ffice of Water Policy, who was accepted as an expert witness in

the fields of aquatic ecology, aquatic and wetland systems,

water quality protection and management, and regional water

supply planning; Carlos Herd, the Director of SRWMDÓs Water

S upply Division; John Good, Chief Professional Engineer for

SRWMD who was accepted as an expert in the fields of civil

engineering, water resource engineering, and the development of

minimum flows and levels; Clay Coarsey, a Professional Engineer

employed b y SRWMD; and Jack Grubbs, a hydrologist employed by

SRWMD. Still Exhibits 1A, 1B, 2A, 3, 3A, 13A, and 15 were

admitted into the record.

The Alliance presented the testimony of John Jopling,

President of the Alliance; Ken Weber, a private consultant who

wa s accepted as an expert in hydrogeology; Russell Kiger ; and

Janet Llewellyn. The testimony of Patrick Tara was presented

through the admission into evidence of the transcript of his

deposition.

Respondents placed on the record a stipulation that a

substan tial number of the AllianceÓs members make regular use of

the MFL waterbodies for recreation and other relevant purposes.

However, to accommodate 17 members who had traveled to

Tallahassee to provide this kind of testimony for standing

purposes, the Admin istrative Law Judge placed them under oath

and allowed them an opportunity to make summary statements

regarding their uses of the MFL waterbodies. They were

Lucinda Marritt, Bob Palmer, Lynn Polk, Yolanda Jopling,

Loye Barnard, Jill Lingard, Dave Morris, Robert Baker,

James Tatum, Marrillee Malwitz - Jipson, Charles Maxwell,

Sue Karcher, Laura Dailey, Leslie Gamble, John Moran,

Jim Stevenson, and Lars Anderson.

Alliance Exhibits 2 - 3, 49, 51, 60A, 62, 163, 167, 172C,

175, 191A, 195, and 196 were admitted into the record.

FWF made a proffer of FWF Ex. 60A, which shows FWF

membership by county, and a n oral proffer regarding the witness

testimony it was prepared to present for standing purposes.

DEP presented the testimony of Janet Llewellyn. DEP

Exhibits 1.9 an d 3.7 were admitted into the record.

SRWMD presented the testimony of Carlos Herd; J ohn Good;

Russell Kiger; and Warren Zwanka. SRWMD Exhibits 1 - 3 were

admitted into the record.

JEA presented the testimony of Ken Weber. JEA Exhibits 26,

36, 37, and 39 we re admitted into the record.

The Proposed Rules, SERC, and related rulemaking documents

were officially recognized by the Administrative Law Judge.

The nine - volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed final order s that were

considered by the Administrative Law Judge in the preparation of

this Final Order.

FINDINGS OF FACT

A. The Parties

1. The Alliance is a Florida not - for - profit corporation

with its principal place of business at 203 Northeast First

Street, Ga inesville, Florida. Its mission is to ensure the

restoration, preservation, and protection for future generations

of the ecosystems along the Ichetucknee River, including its

associated springs.

2. The Alliance has approximately 40 members. Seventeen

me mbers appeared at the final hearing and testified that they

regularly use the Ichetucknee River and its associated priority

springs for recreation, wildlife observation, and other

purposes. Seventeen members is a substantial number of the

total membership of the Alliance.

3. Petitioner Still is a natural person who owns 117 acres

of land in Bradford County. He uses the land primarily for

timber production. He does not have a consumptive (water) use

permit. H e has used the Lower Santa Fe River and assoc iated

springs for recreation since 1979 and continues to visit the

river and springs for this purpose.

4. Petitioner FWF is a Florida not - for - profit corporation

with its principal place of business at 2545 Blairstone Drive,

Tallahassee, Florida. The miss ion of FWF includes the

preservation, management, and improvement of FloridaÓs water

resources and wildlife habitat.

5. In the partiesÓ Pre - Hearing Stipulation, FWF identified

Manley Fuller, its President, as its witness for organizational

standing. It a lso listed Ðstanding witnesses as needed,Ñ but

did not name them. At his deposition, Mr. Fuller stated that he

did not know how many FWF members use the MFL water bodies.

6. At the beginning of the final hearing, FWF made a n oral

proffer that it was prep ared to call Ð10 members who are using

the water bodies.Ñ Later, FWF stated that some members were

unwilling or unable to come to Tallahassee, but suggested that

10 or 15 might (now) be talked into coming to the final hearing

or testifying by video.

7. F WF also proffered a membership list, showing the

number of members by county. It shows that FWF has a total of

11,788 members. In the six counties in the vicinity of the MFL

water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwa n nee,

and Union) there are 457 FWF members. Ten, 15, or 20 members is

not a substantial number of FWFÓs 11,788 total members, nor is

it a substantial number of its 457 members who live in the

vicinity of the MFL waterbodies.

8. Respondent DEP is a state agency with powers and duties

under chapter 373, Florida Statutes, including the power and

duty under section 373.042(1), which it shares with the water

management districts, to establish minimum flows for surface

watercourses and minimum levels for groundwater (ÐMFLsÑ) a nd

rec overy strateg ies when MFLs will not be achieved.

9. Respondent/Intervenor SRWMD is a regional water

management district with powers and duties under chapter 373,

including powers and duties related to MFLs. The MFL

waterbodies are located within SRWMD.

1 0. Intervenor SJRWMD is the water management district

adjacent to SRWMD. A portion of SJRWMD is included within the

planning area created for the MFL waterbodies.

11. Intervenor NFUCG is a regional trade organization

representing interests of public wat er supply utilities in North

Florida that hold consumptive use permits and are subject to the

Proposed Rules. Intervenors CCUA and JEA are two members of

NFUCG.

12. Intervenors Alachua County, Gilchrist County, Suwannee

County, Bradford County, and Colum bia County are political

subdivisions of the State in geographic proximity to the MFL

water bodies. These Counties have the duty to plan for and

protect the MFL water bodies as part of their local government

comprehensive planning responsibilities under chapter 163,

Florida Statutes .

B. Minimum Flows and Recovery Strategies

13 . The water management districts and the DEP are

required to establish minimum flows for surface water courses.

£ 373.042(1), Fla. Stat. Minimum flows are Ðthe limit at which

fur ther withdrawals would be significantly harmful to the water

resources or ecology of the area.Ñ £ 373.042(1)(a), Fla. Stat.

14 . If the existing flow in a water body is below its

established minimum flow, DEP or the district is required to

develop a Ðreco very strategyÑ designed to Ð [ a ] chieve recovery to

the established minimum flow or level as soon as practicable.Ñ

§ 373.0421(2), Fla. Stat.

15 . MFLs and recovery strategies are required to be

included in a water management districtÓs regional water supply

plan. § 373.709(2)(c) and (g), Fla. Stat. Water management

districts must develop regional water supply plans in regions

where they determine existing sources of water are not adequate

to supply water for all existing and future users and to sustain

wate r resources and related natural systems. § 373.709(1), Fla.

Stat.

16 . SRWMD does not have a regional water supply plan. It

is working on a draft plan that is expected to be completed in

late 2015.

C. The MFL Water Bodies

1 7 . The Lower Santa Fe River r uns for approximately 30

miles from Santa Fe River Rise Spring to its confluence with the

Suwannee River. The Lower Santa Fe is fed primarily by

groundwater discharge from the Upper Floridan a quifer including

the baseflow provided by several major springs . The Lower Santa

Fe River system, including its tributary, the Ichetucknee River

(below State Road 27), is classified as an Outstanding Florida

Water, a designation conferred on waters Ðwith exceptional

recreational or ecological significance.Ñ See Fla. Admin. C ode

R . 62 - 302.700(3).

1 8 . The Ichetucknee River runs for six miles from the Head

Spring to its confluence with the Lower Santa Fe. Its flow is

derived almost entirely from springflow.

19 . The ecological, recreational, and economic value s of

the Santa Fe and Ichetucknee Rivers are widely recognized. Both

rivers flow through lands preserved for public use as part of

the S tate P ark S ystem.

2 0 . SRWMD published a Water Supply Assessment in 2010 to

determine whether water demands could be met for th e 2010 - 2030

planning period without adversely affecting natural resources.

The North Florida Groundwater Flow Model was used to evaluate

groundwater withdrawals and their effect on aquifer levels and

the flows in springs and rivers.

2 1 . The 2010 assessme nt concluded that groundwater levels

of the Upper Floridan Aquifer in the eastern and northeastern

portions of the District were in decline. The DistrictÓs

analysis of river and streamflows also found declining trends.

It was concluded that existing wate r sources would not be able

to meet projected water demands over the planning period. As a

result, the Lower Santa Fe River Basin (including the

Ichetucknee River) was designated as a water supply planning

region and SRWMD began to develop minimum flows f or these water

bodies.

2 2 . Because groundwater withdrawals within the adjacent

SJRWMD were also affecting the MFL waterbodies 1/ , DEP, SRWMD, and

SJRWMD entered into an interagency agreement in 2011 to work

together on water supply issues and the developme nt of a joint

regional groundwater model.

D. Development of the Minimum Flows

2 3 . The procedural difficulties faced in establishing

minimum flows affected by water uses in two water management

districts eventually lead to the LegislatureÓs creation of

se ction 373.042(4) in 2013, which authorizes DEP to adopt

relevant rules which can be applied by the water management

districts without the need for their own rulemaking. In June

2013, SRWMD requested that DEP adopt minimum flows for the MFL

waterbodies pur suant to the new law.

2 4 . A gage 2/ for the Lower Santa Fe River near Fort White,

and a gage for the Ichetucknee River on US 27 were selected for

establishment of the respective minimum flows. The minimum

flows were determined by first establishing a hydr ologic

baseline condition at the two gages. Then, SRWMD determined a

departure from the baseline that would cause significant harm to

the water resources and ecology of the area.

2 5 . The minimum flows are expressed as stage duration

curves rather than a single number, in order to account for the

changes in flow that occur naturally due to seasonal, climatic,

and other factors affecting rainfall.

2 6 . Once the minimum flows were determined, SRWMD

evaluated whether they are being met. It concluded that the

minimum flows are not being met. Therefore, in accordance with

section 37 3.0421(2), a recovery strategy had to be prepared and

implemented.

E. The Recovery Strategy

2 7 . A recovery strategy is a plan for achieving a return

to adopted MFLs and will gene rally include plans for developing

new water supplies and implementing conservation and efficiency

measures. See § 373 .0421(2), Fla. Stat. The practice of the

water management districts has been to also adopt regulatory

measures that are used in the revi ew of consumptive use permits

as part of a recovery strategy. See , e.g. , Fla. Admin. C ode R .

40D - 80.074.

2 8 . That practice was followed for the MFL water bodies.

The Recovery Strategy includes planning, water conservation,

water supply development, a nd water resource development

components. Th ese components comprise the non - regulatory

portion of the Recovery Strategy. Section 6.0 of the Recovery

Strategy, entitled ÐSupplemental Regulatory Measures,Ñ is the

regulatory portion and is incorporated by r eference in proposed

rule 62 - 42.300(1)(d).

29 . The Recovery Strategy is to be implemented in two

phases and the objectives of each phase are described in

Table 4 - 1 of the Recovery Strategy. Phase I includes adoption

of supplemental regulatory measures, w ork with user groups to

implement water conservation measures, completion of an improved

regional groundwater model, and identification and investigation

of water supply projects.

3 0 . In Phase II of the Recovery Strategy, DEP plans to use

the new regional model to develop long - term regulatory measures

to address regional impacts to the MFLs water bodies. In

addition, SRWMD and SJRWMD would develop and implement

additional water resource and supply projects.

F. The Proposed Rules

3 1 . The Proposed Rules would create three sections in a

new chapter 62 - 42 of the Florida Administrative Code. Rules 62 -

42.100 and 62 - 42.200 set forth the scope and definitions:

62 - 42.100 Scope

(1) The purpose of this chapter is to set

forth Department - adopted minimum flows and

levels (MFLS) and the regulatory provisions

of any required recovery or prevention

strategy as provided in Section 373.042(4),

F.S.

(2) The Department recognizes that recovery

and prevention strategies may contain both

regulatory and non - regulatory p rovisions.

The non - regulatory provisions are not

included in this rule, and will be included

in the applicable regional water supply

plans approved by the appropriate districts

pursuant to Section 373.0421(2) and Section

373.709, F.S.

[Rulemaking authorit y and law implemented

omitted.]

62 - 42.200 Definitions

When used in this chapter, the following

words shall have the indicated meanings

unless the rule indicates otherwise:

(1) Flow Duration Curve means a plot of

magnitude of flow versus percent of tim e the

magnitude of flow is equaled or exceeded.

(2) Flow Duration Frequency means the

percentage of time that a given flow is

equaled or exceeded.

[Rulemaking authority and law implemented

omitted.]

3 2 . Rule 62 - 42.300 is where the proposed minimum flow s are

set forth. The minimum flows for the Lower Santa Fe River are

established in rule 62 - 42.300(1)(a); the minimum flows for the

Ichetucknee River are established in rule 62 - 42.300(1)(b); and

the minimum flows for 16 priority springs are established in

rule 62 - 42.300(1)(c).

3 3 . The minimum flows for the Santa Fe and Ichetucknee

Rivers are expressed as water flow in cubic feet per second

(ÐcfsÑ) at various points on a flow duration curve.

3 4 . The minimum flows for ten named springs associated

with the S anta Fe River and six named springs associated with

the Ichetucknee River are set forth as a Ðpercent reduction from

the median baseline flow contribution of the spring to the flowÑ

at a particular river gage. This approach, which ties spring

flow to rive r flow, was used by DEP because there is minimal

flow data for the springs.

3 5 . Rule 62 - 42.300(1)(d) adopts by reference

ÐSupplemental Regulatory Measures,Ñ which is Section

6.0 of the Recovery Strategy.

3 6 . Rule 62 - 42.300(1)(e) states that DEP, in coord ination

with SRWMD and SJRWMD, shall reevaluate these minimum flows

after completion of the North Florida Southeast Georgia Regional

Groundwater Flow Model, which is currently under development.

The rule also states that DEP will ÐstrikeÑ rules

62 - 42.300( 1)(a) through (d) and adopt new rules no later than

three years after completion of the final peer review report

regarding the new groundwater model, or by December 31, 2019,

whichever date is earlier.

3 7 . The Supplemental Regulatory Measures adopted by

r eference in rule 62 - 42.300(1)(d) are intended to provide

additional criteria for review of consumptive use permit

applications during Phase I . These measures would be applied to

water uses within the North Florida Regional Water Supply

Planning Area.

3 8 . For the purposes of the issues raised in these

consolidated cases, it is necessary to discuss three categories

of permit applications and how they would be treated under the

Supplemental Regulatory Measures in Phase I : (1) A new permit

application that s hows a Ðpotential impactÑ to the MFL water

bodies must eliminate or offset the potential impact; (2) An

application to renew a permit, which does not seek to increase

the amount of water used, would be renewed for five years no

matter what impact it is hav ing on the MFL water bodies;

however, if the impact is eliminated or offset, the renewal

would not be limited to five years; and (3) An application to

renew a permit which seeks an increased quantity of water would

have to eliminate or offset the potential impact to the MFL

water bodies associated only with the increase . This category

of permits is limited to a five - year renewal unless the existing

impacts are also eliminated or offset. See § 6.5(a) - (d) of the

Recovery Strategy.

39 . Section 6.5(e) states that e xisting permits that do

not expire during Phase I a re considered consistent with the

Recovery Strategy and are not subject to modification during the

term of their permits.

4 0 . Many permits are issued for a 20 - year period, so Phase

I would not capt ure all existing permits because they would not

all expire during Phase I . 3 / DEP stated that existing permits

may be affected by the regulatory measures DEP plans to adopt

for Phase II.

4 1 . Section 6.5(f) of the Supplemental Regulatory Measures

states th at permittees are not responsible for impacts to the

MFL water bodies caused by water users in Georgia, or for more

than the permitteeÓs Ðproportionate share of impacts.Ñ The

record evidence established that the effect of Georgia water

users on the MFL wa ter bodies is small.

4 2 . Section 6.6(b) requires permits for agricultural use

in the counties surrounding the MFL water bodies to include a

condition requiring participation in the Mobile Irrigation Lab

(MIL) program. The purpose of SRWMDÓs MIL program is to improve

the efficiency of irrigation systems. SRWMD provides cost -

sharing in this program.

G. Whether DEP M ust Adopt the Entire Recovery Strategy by

Rule

4 3 . Petitioners contend that proposed rules 62 - 42.100(1)

and (2) enlarge, modify, or contrav ene sections 373.042(4) and

373.0421(2) because these statutes require DEP to adopt all of a

recovery strategy by rule, not just the regulatory portion of a

recovery strategy. Respondents contend that it was consistent

with the law for DEP t o adopt only t he regulatory portion of the

Recovery Strategy by rule and have SRWMD approve the non -

regulatory portion and implement it through a regional water

supply plan .

4 4 . It has been the practice of the water management

districts to adopt by rule only the regula tory portion of a

recovery strategy and to implement the non - regulatory portion as

a component of their regional water supply plans.

4 5 . This is primarily a legal issue and is addressed in

the Conclusions of Law where it is concluded that DEP is not

requi red to adopt the entire R ecovery Strategy by rule.

H. Whether SRWMD Must Adopt the Recovery Strategy By Rule

4 6 . Petitioner Still challenged SRWMDÓs approval of the

Recovery Strategy as violating the rulemaking requirements of

section 120.54. However, Petitioner Still presented no evidence

in support of his claim that the Recovery Strategy contains

statements that meet the definition of a rule, but were not

adopted as rules.

I. Whether the Non - Regulatory Portion of the Recovery

Strategy Will Prevent Re covery

4 7 . The Alliance claims that there are flaws in the non -

regulatory portion of the Recovery Strategy that was approved by

SRWMD , primarily related to the estimate of flow deficits in the

MFL water bodies and the corresponding amount of water that m ust

be returned to the system to achieve the minimum flows.

4 8 . The re is unrefuted record evidence indicating that

SRWMD did not account for consumptive use permits issued in the

last three or four years. Therefore, the Recovery Strategy

probably under es timate s the flow deficits in the Lower Santa Fe

and Ichetucknee Rivers and the amount of water needed t o achieve

the minimum flows . 4 / However, as explained in the Conclusions of

Law, the Alliance cannot challenge the non - regulatory portion of

the Recovery Strategy in this proceeding .

49 . The Recovery Strategy, including the non - regulatory

portion approved by SRWMD , is in Phase I . SRWMD can revise the

Recovery Strategy at any time, and in Phase II can do so with

the improved analysis made possible with th e new regional model.

As explained in the Conclusions of Law, the non - regulatory

portion does not have to achieve recovery in Phase I .

J. Whether the Minimum Flows are Based on the Best

Information Available

5 0 . Petitioner Still contends that the mini mum flows are

not based on the best information available as required by

section 373.042(1)(b). He claims that the wrong method was used

to estimate streamflow, the modeling was based on a false

assumption about the relationship between groundwater levels and

river flows, the relationship between withdrawals and flows was

not properly accounted for, withdrawals and other anthropogenic

impacts were not properly distinguished, tailwater effects were

not properly accounted for, and the wrong period of record was

used.

5 1 . Petitioner StillÓs arguments in this respect are based

largely on his own opinions about the quality and significance

of the technical data that was used and how it affects the

modeling results used in establish ing the minimum flows.

Petiti oner Still does not have the requisite expertise to

express these opinions and he did not get expert witnesses at

the final hearing to agree with his claims. Petitioner Still

does not have an expertise in modeling to express an opinion

about the ability o f the model to use particular data or how the

model accounts for various surface and groundwater phenomena.

5 2 . Petitioner Still failed to prove that the minimum

flows are not based on the best available information.

K. Whether the Proposed Rules Are Vag ue

5 3 . Petitioner Still contends the Proposed Rules are

invalid because they use terms that are vague. Some of the

terms which Petitioner Still objects to are the same or similar

to terms commonly used in other environmental regulations, such

as Ðbest av ailable information,Ñ Ðimpact,Ñ Ðoffset,Ñ and

Ðeliminate.Ñ The term Ðpotential impactÑ is not materially

different than the term Ðimpact.Ñ

5 4 . The term Ðbest available modeling toolsÑ is not vague.

It reflects the recognition that, like best available

i nformation, hydrologic models and technical information are

continually being created and updated.

5 5 . Petitioner Still contends that the definitions of

ÐFlow Duration CurveÑ and ÐFlow Duration FrequencyÑ in proposed

rules 62 - 42.200(1) and (2), respective ly, are vague because they

do not state whether ÐsyntheticÑ data may be used in the

production of the flow duration curve, or that they are based on

a specific period of record.

5 6 . Synthetic data are numeric inputs used to account for

missing data and ar e created by extrapolating from existing

data. As an example, they can be used to satisfy a modelÓs need

to have a water flow entry for every month in a multi - year

period being analyzed when there is no actual data available for

some of the months. The u se of synthetic data is a regular and

accepted practice in modeling and does not have to be mentioned

in the rule.

5 7 . Flow duration curves and flow duration frequencies are

calculated from data covering specific periods of record.

Although the definitio ns of these two terms in proposed rule

62 - 42.200 could contain more information than is provided, the

proposed definitions are not inaccurate. They are not vague.

5 8 . Petitioner Still contends that proposed rule

62 - 42.300(1)(a) is vague because it establ ishes the minimum

flows for the Santa Fe River at a location without precisely

identifying the location. The record shows that the reference

in proposed rule 62 - 42.300(1)(a) to Ðthe Santa Fe River near Ft.

White, FLÑ is the actual name of the United State s Geological

Survey flow gage that has been in use for many years.

59 . Furthermore, proposed rule 62 - 42.300(1)(c), which

establishes the minimum flows for the priority springs, refers

to Ðthe respective river gages listed in paragraphs

62 - 42.300 (1) (a) and (b).Ñ Therefore, it is made clear that the

reference to Ðthe Santa Fe River near Ft. White, FLÑ in proposed

rule 62 - 42.300(1)(a) is a reference to a river gage. The rule

is not vague.

6 0 . Petitioner Still asserts that the minimum flows in

proposed 62 - 4 2.300(1) are vague because they do not identify the

period of record that was used in deriving the flow duration

curves which are used in the rule. He compared the wording in

the proposed rule to SRWMDÓs existing rule 40B - 8.061(1), which

identifies the te chnical report from which the flow duration

curve in that rule was derived.

6 1 . A general description of flow duration curves is found

in ÐMinimum Flows and Levels for the Lower Santa Fe and

Ichetucknee River and Priority SpringsÑ dated November 22, 2013

(ÐMFL Technical DocumentÑ) , at page 3 - 6:

They show the percent of time specified

discharges were equaled or exceeded for a

continuous record in a given period . For

example, during the period 1932 to 2010, the

daily mean flow of the Santa Fe River near

For t White (Figure 3 - 2) was at least 767

cfs, 90 percent of the time. The curves are

influenced by the period of record used in

their creation, but for comparison purposes

between different scenarios over a fixed

time period they are extremely useful.

[Empha sis added . ]

However, proposed rule 62 - 4 2.300(1) does not give the period of

record for the flow duration curves that will be used to

determine compliance with the minimum flows for the Lower Santa

Fe and Ichetucknee Rivers.

6 2 . Respondents argued that id entifying the period of

record is unnecessary because anyone interested in knowing the

period of record or anything else pertaining to how the flow

duration curves were produced could refer to the MFL Technical

Document .

6 3 . This is not a situation where a specific number and

unit, such as 100 cfs, has been established as a criterion based

on technical analys e s that can be found in documents. In such a

case, the technical documents are not needed to determine

compliance with the criterion; they simply exp lain why the

criterion was selected. In the case of a flow duration curve,

however, the period of record for the data to be used must be

known to determine compliance.

6 4 . For example, proposed rule 62 - 42.300(1)(a)1. would

establish the following criteri on: Ð3,101 cubic feet per second

(cfs) for a flow duration frequency of five pe rc ent.Ñ Five

percent of what? Five percent of what data set? Data from what

time period? Must the same synthetic data be used?

65. The rule does not inform p ersons subject to the rule

what data SRWMD will use to determine compliance. They would

not know how to calculate flow duration frequencies without

reviewing the MFL Technical Document. Because the minimum flows

are not completely identified in the rule , they are vagu e.

L. Whether a Minimum Flow Should be Established for Each

Priority Spring

6 6 . Petitioner Still contends that the Proposed Rules are

invalid because minimum flows are not established for each

priority spring, which causes them to be unprotected. He cl aims

that e ach spring needs its own minimum flow Ðthat takes into

account the surface and ground water inputs to its flow.Ñ

6 7 . DEP and SRWMD presented evidence that establishing

minimum flows for each spring was impracticable because there

w ere insuffic ient data for the springs. Petitioner Still did

not refute this evidence.

M. Whether the Proposed Rules Allow Further Degradation of

the MFL Water Bodies

6 8 . The Alliance contends that the Proposed Rules must

reduce permitted withdrawals in Phase I and must require

monitoring of water use by agricultural water users, but it did

not present evidence that these alternative regulatory measures

are practicable in SRWMD in Phase I .

69 . The Alliance did not show there are permitting

mechanism s that have been used by other water management

districts as part of the first phase of a recovery strategy that

are practicable for use in SRWMD and would be more effective.

The only evidence presented on the subject of what regulatory

measures other water management di stricts have adopted as part

of a recovery strategy pertained to the Southwest Florida Water

Management District (ÐSWFWMDÑ). That evidence showed that

SWFWMD took a similar approach of allowing existing permitted

uses to continue their water withdrawals w hile new water

supplies and conservation mechanisms were developed.

7 0 . The Alliance contends that the Supplemental Regulatory

Measures do not prevent further degradation because there are

projected to be numerous , new agricultural water use s in Phase

I . However, under section 6.5(b), new water uses will not be

allowed to adversely impact the MFL water bodies. The Alliance

makes a similar argument regarding existing agricultural water

users who will request an increase in water. Under section

6.5(c), in creases in water use will not be allowed to adversely

impact the MFL water bodies.

N . Whether the SERC and Revised SERC are Good Faith

Estimate s and Whether the Proposed Rules Impose the

Lowest Cost Regulatory Alternative s

7 1 . Petitioner Still failed to meet his burden under

section 120.56(2) of going forward with evidence to support his

allegations that DEPÓs original SERC or the revised SERC w ere

not good faith estimate s of regulatory costs associated with the

Proposed Rules. The record evidence shows they are good faith

estimates.

72. He also failed to meet his burden under section

120.56(2) of going forward with evidence to support his

allegations that the objectives of the law being implemented

c ould be substantially accomplished by a less costly r egulatory

alternative .

CONCLUSIONS OF LAW

A. Standing

7 3 . Any person substantially affected by an existing or

proposed rule may seek an administrative determination of the

invalidity of the rule. See § 120.56(1)(a), Fla. Stat.

7 4 . The burden is on th e petitioner to prove standing.

DepÓt of Health and Rehab . Servs . v. Alice P. , 367 So. 2d 1045,

1052 (Fla. 1st DCA 1979).

7 5 . Generally, to establish standing a party must show the

challenged agency action will result in a real or immediate

injury in fac t and the alleged interest is within the zone of

interest to be protected or regulated. See Jacoby v. Fla. Bd.

of Med . , 917 So. 2d 358, 360 (Fla. 1st DCA 2005).

7 6 . A less demanding test for standing is applicable in

rule challenge cases than in licensin g cases. See Fla. DepÓt of

Prof. Reg. v. Fla. Dental Hygienists AssÓn , 612 So. 2d 646, 651 -

52 (Fla. 1st DCA 1993). In a rule challenge, the alleged injury

does not have to be immediate. See NAACP v. Fla. Bd. of

Regents , 863 So. 2d 294, 300 (Fla. 2003).

7 7 . Petitioner Still is substantially affected by the

Proposed Rules and has standing as a petitioner.

7 8 . No IntervenorÓs standing to participate in these

consolidated cases was contested. The partiesÓ stipulated facts

show the Intervenors are substant ially affected by the Proposed

Rules. The Intervenors have standing to participate as parties.

79 . For an association to establish its standing, it must

demonstrate that a substantial number of its members are

substantially affected by the rule, that the subject matter of

the rule is within the associationÓs general scope of interest

and activity, and that the relief requested is appropriate for

the association to receive for its members. Fla. Home Builders

AssÓn v. Dep ' t of Labor & Emp . Sec . , 412 So. 2d 351, 353 - 54

(Fla. 1982).

8 0 . The Alliance satisfied the requirements for

association standing.

8 1 . FWF was dismissed as a party at the beginning of the

final hearing, following legal argument and a n oral proffer by

FWF, because FWF was not prepared to p rove that a substantial

number of its members are substantially affected by the Proposed

Rules. FWF was recently dismissed as a party for a similar

reason in the case of Fl orida Wildlife Federation, Inc. v.

CRP/HLV Highlands Ranch, LLC. , Case No. 12 - 3219 (Fla. DOAH

Apr. 11, 2013; Fla. DEP Jun. 13, 2013) (Nineteen members is not a

substantial number of FWF's members) . It is apparent FWF

believes that because its mission is to protect natural

resources, and the challenged agency action affects natural

resour ces, FWFÓs standing should be satisfied by proof of these

facts. However, the courts have not applied a Ðmission testÑ

for associational standing. The test for associational standing

is to prove that a substantial number of the associationÓs

members woul d have standing as individuals to contest the agency

action.

8 2 . Referring to the holdings in cases that have dealt

with association standing, JEA suggested in its Motion for

Summary Final Order that a substantial number of FWFÓs total

membership of 11,78 8 would be over a thousand persons. The

inconveniences to parties and court s associated with producing

at trial or hearing a thousand witnesses or even a few hundred

witnesses are obvious. 5 / It is unlikely the courts intended by

their decisions in these cases to require large associations to

prove standing through the testimony of hundreds of witnesses. 6 /

8 3 . The membership list proffered by FWF shows there are

457 FWF members who reside in the six counties surrounding the

MFL waterbodies. This ÐlocalÑ membership may be a reasonable

focus in the Ðsubstantial numberÑ analysis for an association

with statewide, nationwide, or worldwide membership. However,

FWFÓs proffer showed it was not prepared to prove that a

substantial number of its members living in the vicinity of the

MFL water bodies are substantially affected by the Proposed

Rules. It failed to prove its standing. 7 /

B. General Rule Challenge Principles

8 4 . A proposed rule is not presumed to be valid or

invalid. § 120.56(2)(c), Fla. Stat. A person challenging a

proposed rule must state "with particularity" the reasons that

the proposed rule is an invalid exercise of delegated

legislative authority. § 120.56(2), Fla. Stat. At hearing, the

petitioner has the burden of going forward with evide nce to

support the allegations in the petition. Id . If the challenger

meets this burden, the burden of persuasion shifts to the agency

to prove by a preponderance of the evidence that the proposed

rule is not an invalid exercise of delegated legislative

authority "as to the objections raised." Id .

8 5 . The validity of a rule does not turn on whether it

represents the best means to accomplish the agency's purposes.

See Bd. of Trs . of Int . Impust Fund v. Levy , 656 So. 2d

1359, 1364 (Fla. 1st DCA 1995) .

8 6 . To the extent that an agency's rule is based on an

interpretation of a statute that the agency administers, broad

discretion and deference is accorded the agency's interpretation

and it should be upheld when it is within the range of

permissible int erpretations. See Bd. of Podiatric Med. v. Fla.

Med. AssÓn , 779 So. 2d 658, 660 (Fla. 1st DCA 2001) .

8 7 . An agency's interpretation of its own rules is also

entitled to great weight and should not be overturned unless it

is clearly erroneous . Falk v. Be ard , 614 So. 2d 1086, 1089

(Fla. 1993).

8 8 . Deference to the agency's interpretation is especially

appropriate when the agency has made scientific determinations

within its area of special expertise. See Island Harbor Bch.

Club, Ltd. v. DepÓt of Nat . Res . , 495 So. 2d 209, 223 (Fla. 1st

DCA 1986).

C. Whether DEP must Adopt by Rule the Entire Recovery

Strategy

89 . Petitioners contend that rules 62 - 42.100(1) and (2)

enlarge, modify, or contravene sections 373.042(4) and

373.0421(2) because these statutes require DEP to adopt all of a

recovery strategy by rule, not just the Ðregulatory provisionsÑ

of a recovery strategy.

9 0 . The statutes do not expressly prohibit DEP from

adopting less than all of a Recovery Strategy by rule, but

Petitioners argue that the wording of the statutes shows a plain

meaning that the entire Recovery Strategy must be adopted by

rule. Section 373.042(4) states:

A water management district shall provide

the department with technical information

and staff support for the development of a

reservation, minimum flow or level, or

recovery or prevention strategy to be

adopted by the department by rule.

9 1 . The principal object of this sentence is the

require ment for water management district s to provide

information and support to DEP. The principal object is not to

require rulemaking. The required assistance is for things Ðto

be adopted by the department by rule.Ñ S tanding alone, the

wording does not foreclose DEPÓs interpretation that the

required assistance is for whatever DEP inten ds to adopt by

rule.

9 2 . Section 373.0421(2) states Ðthe department or

governing board, as part of the regional water supply plan

described in s. 373. 709 , shall expeditiously implement a

recovery or prevention strategy.Ñ Standing alone, this wording

als o fail s to give a definitive answer to the question.

9 3 . However, sections 373.042(4) and 373.0421(2) do not

stand alone. Their meaning is affected by the provisions of

section 373. 709 , which pertains to regional water supply plan s .

Such plan s are requi red to include MFLs and recovery strategies.

See § 373. 709 (2)(c) and (g), Fla. Stat.

9 4 . Section 373. 709 (5) provides that the approval of a

regional water supply plan by the water management district is

not subject to the rulemaking requirements of chapt er 120. See

§ 373. 709 (5), Fla. Stat. This likely indicates the

LegislatureÓs acknowledgement that a regional water supply plan,

which is to contain ÐprojectionsÑ and Ðalternatives,Ñ does not

fit the definition of a rule. However, section 373. 709 (7)

stat es that the plan may not be used in the review of permits

Ðunless the plan or an applicable portion thereof has been

adopted by rule.Ñ In other words, a plan is not subject to

rulemaking except for that portion of the plan that will be used

in the review of permits. The portion that will be used to

review permits (thus meeting the definition of a rule) must be

adopted pursuant to rulemaking requirements.

9 5 . Based on the distinctions made in section 373. 709 , it

has been the practice of the water manageme nt districts to only

adopt the regulatory portion of a recovery strategy by rule, and

to implement the non - regulatory portion as a component of their

regional water supply plans.

9 6 . When sections 373.042(4), 373.0421(2), and 373. 709 are

read together and harmonized, DEPÓs interpretation that it is

not required to adopt the non - regulatory p ortion of the Recovery

Strategy by rule is a reasonable interpretation.

D. Whether the Non - Regulatory Portion of the Recovery

Strategy is Reviewable in this Proceeding

9 7 . Section 373. 709 ( 5 ) provides that approval of a

regional water supply plan is not subject to rulemaking, but

that Ðany portion of an approved plan which affects the

substantial interests of a party shall be subject to s.

120.569.Ñ Section 120.569 pro vides for administrative hearings

to contest agency action. The Alliance did not file a petition

to challenge SRWMDÓs approval of the Recovery Strategy pursuant

to section 120.569.

9 8 . The Alliance contends that section 373. 709 ( 5 ) is

inapplicable because SRWMD has not adopted a regional water

supply plan , so the Recovery Strategy approved by SRWMD is not

part of a regional water supply plan . Whether section

373. 709 ( 5 ) is applicable is debatable b ecause MFLs and recovery

strategies are required components of a regional water supply

plan. However, regardless of whether 373. 709 ( 5 ) is applicable

to SRWMDÓs approval of the Recovery Strategy, section 120.569 is

applicable. Section 373. 709 ( 5 ) did not create a remedy for

challenging a water management districtÓ s action which affects a

personÓs substantial interests; it simply identified the remedy

that is available.

99 . Under chapter 120, all agency action, whether by rule

or order, is reviewable upon timely petition by a substantially

affected person. If SRWM DÓs approval of the non - regulatory

portion of the Recovery Strategy affected the AllianceÓs

substantial interests, the Alliance could have challenged the

approval pursuant to section 120.569 and moved to consolidate

that case with its challenge to the Prop osed Rules.

10 0 . T he Alliance did not file a petition to contest

SRWMDÓs action . Therefore, the Administrative Law Judge cannot

con sider whether the non - regulatory portion of the Recovery

Strategy is consistent with the law implemented.

E. Whether the P roposed Rules Contravene the Statutes or

are Arbitrary Because they Allow Further Degradation of

the MFL Water Bodies

10 1 . Section 120.52(8)(c) provides that a rule is an

invalid exercise of delegated legislative authority if it

enlarges, modifies, or co ntravenes the law implemented.

10 2 . S ection 120.52(8)(e) provides that a rule is invalid

if it is arbitrary or capricious. A rule is ÐarbitraryÑ if Ðit

is not supported by logic or the necessary factsÑ and it is

ÐcapriciousÑ if Ðit is adopted without tho ught or reason or is

irrational.Ñ Id. If there is any evidence to show a rational

basis for the rule, the rule is not arbitrary or capricious.

Levy at 1362 . A rule is not arbitrary or capricious if it is a

product of a process involving the thoughtful balancing of

various factors. Id . at 1363.

10 3 . The flush left paragraph of section 373.0421(2)

states :

The recovery or prevention strategy shall

include phasing or a timetable which will

allow for the provision of sufficient water

supplies for all existi ng and projected

reasonable - beneficial uses, including

development of additional water supplies and

implementation of conservation and other

efficiency measures concurrent with, to the

extent practical, and to offset, reductions

in permitted withdrawals, c onsistent with

the provisions of this chapter.

1 0 4 . It is significant that the law requires that a water

bodyÓs recovery be accomplished in phases. It logically follows

that recovery does not have to be accomplished in the first

phase.

1 0 5 . It is also s ignificant that the express legislative

objective for phasing is to avoid the reduction of permitted

withdrawals until such reductions can be offset by new water

supplies and/or conservation and other efficiency measures, Ðto

the extent practicable.Ñ

1 0 6 . The Alliance argues that the Proposed Rules must

Ðtake up the slackÑ caused by flaws in the non - regulatory

portion of the Recovery Strategy by immediately reducing

permitted withdrawals . That is not a legal argument. Section

373.0421(2) requires a recov ery strategy, as a whole, to achieve

recovery and it would be contrary to the law for DEP to attempt

to achieve recovery solely by reducing permitted withdrawals.

In addition, the non - regulatory portion of the Regulatory

Strategy is also in Phase I . It i s not required to achieve full

recovery of the minimum flows. Although it sets targets for

full recovery, those targets can be revised at any time to

account for improved information.

1 0 7 . The Alliance argues that the Proposed Rules

contravene the law be cause they seek only to Ðhold the lineÑ on

impacts rather than make p rogress toward recovery. However,

t here is no wording in the statutes that indicates preventing

further impacts is not a n acceptable objective for Phase I

regulatory measures .

1 0 8 . The Alliance claims the Proposed Rules will not hold

the line on degradation because of the consumptive use permits

that have been issued since 2010 and the projected new permits

that will be issued or renewed with increases. The Proposed

Rules cannot hold th e line until they go into effect. When the

Proposed Rules go into effect, they w ill prevent new water uses

and increases in water use from harm ing the MFL water bodies.

1 09 . The Alliance did not prove there would be no progress

toward recovery in Phase I when the Recovery Strategy is

considered as a whole . The Alliance did not prove that the

Supplemental Regulatory Measures prevent recovery .

11 0 . The Alliance failed to prove that the Proposed Rules

contravene the law implemented or that they are arbitra ry or

capricious.

F . Whether the Proposed Rules Contravene the Law

Implemented Because they Exempt Impacts Caused by

Georgia Water Users.

11 1 . Section 6.5(f) of the Supplemental Regulatory

Measures states:

Nothing contained in this Section shall be

con strued to require a permittee in Florida

to be responsible for recovery from impacts

to an MFL water body from water users in

Georgia, or in any case to be responsible

for more than its proportionate share of

impacts to an MFL water body that fails to

mee t the established minimum flow or level.

The Alliance described this as an ÐexemptionÑ that contravenes

section 373.042 because the statute does not provide for such an

exemption.

11 2 . The AllianceÓs argument seems to be based on the

belief that section 6.5(f) would prevent recovery because if the

impact of Georgia water users is not offset , the flows in the

MFL water bodies would remain below the minimum flows . However,

t o have th at effect, section 6.5(f) would have to state that

Florida water users ar e only responsible for their proportionate

share of the water deficit below the minimum flow . Instead, t he

section uses the phrase Ðproportionate share of impacts to an

MFL water body.Ñ

1 1 3 . Even under the AllianceÓs apparent interpretation of

the secti on, it would not contravene the law implemented because

the law allows recovery to be achieved in phases .

G. Summary

11 4 . It is obvious that the Alliance wants DEP and the

SRWMD to be more aggressive in Phase I , but its claim that the

Supplemental Regula tory Measures contravene the law implemented

is not based on section 373.0421(2), which is the only place

where the Legislature describes a recovery strategy . Section

373.0421(2) does not show a legislative intent that recovery

strategies should be aggres sive in the first phase. It clearly

does not show a legislative intent for recovery strategies to be

aggressive in reducing permitted withdrawals in the first phase.

1 1 5 . Section 373.0421(2) also states that recovery is to

be achieved Ðas soon as practic able, Ñ but the Alliance presented

no evidence on the subject of what is practicable.

11 6 . DEP probably ha s discretion to do more under the law

being implemented, but the Alliance did not prove that the law

requires DEP to do more.

H . Whether the Proposed Rules Are Vague

1 1 7 . Section 120.52(8)(d) provides that a rule is an

invalid exercise of delegated legislative authority if it is

vague, fails to establish adequate standards for agency

decisions, or vests Ðunbridled discretionÑ in the agency.

1 1 8 . Vagu eness requires a determination that the rule

forbids or requires the performance of an act in terms that are

so vague that persons of common intelligence must guess at its

meaning and differ as to its application. S . Fla. Water Mgmt.

Dist. v. Charlotte Cn ty. , 774 So. 2d 903, 915 (Fla. 2d DCA

2001).

1 19 . The field of environmental regulation has been

acknowledged in several court decisions as one requiring rules

that allow flexibility in dealing with the Ðinfinite varietyÑ of

situations that can occur. Se e Avatar Dev. Corp. v. State , 723

So. 2d 199 , 207 (Fla. 1998). F lexibility to administer a

legislatively articulated policy is essential to meet the

complexities of our modern society. Albrecht v. DepÓt of Envtl.

Reg . , 353 So. 2d 883 (Fla. 1st DCA 1977), cert. denied , 359 So.

2d 1210 (Fla. 1978) ; Brewster Phosphates v. State, DepÓt of

Envtl. Reg . , 444 So. 2d 483 (Fla. 1st DCA), rev. denied , 450 So.

2d 485 (Fla. 1984).

12 0 . General terms such as ÐharmfulÑ or ÐsignificantÑ

pollution are a practical necessi ty in regulating complex

subjects. Cross Key Waterways v. Askew , 351 So. 2d 1062, 1069

(Fla. 1st DCA 1977), approved , 372 So. 2d 913 (Fla. 1978) ;

Watson v. City of St. Petersburg , 489 So. 2d 138 (Fla. 2d DCA),

rev. denied , 494 So. 2d 1153 (Fla. 1986).

12 1 . The evidence demonstrated that, except with respect

to the description of the flow duration curves in proposed rules

62 - 42.300 (1) (a) and (b), the terms in the Proposed Rules which

Petitioner Still contends are vague reflect the need for

scientific judgm ent in making permitting decisions that involve

the complexities inherent in natural systems. Dr. Still did not

prove these terms are vague.

12 2 . By omitting the period of record for the flow

duration curve and the synthetic data used to generate the cur ve

or, alternatively, a reference to the technical report where the

information can be found, the minimum flows in proposed rule

62 - 42.300(1) are not adequately described. They are vague.

I. Unpromulgated Rule Challenge

1 2 3 . Any person substantially affected by an agency

statement may seek an administrative determination that the

statement violates the rulemaking requirements of section

120.54(1)(a).

1 2 4 . Petitioner Still failed to prove that the Recovery

Strategy approved by SRWMD violates section 1 20.54(1)(a). The

Recovery Strategy includes the Supplemental Regulatory Measures,

which meet the definition of a rule, but they were adopted by

DEP in conformance with section 120.54(1)(a).

1 2 5 . Petitioner Still failed to prove that the non -

regulatory po rtion of the Recovery Strategy included statements

that required rulemaking.

J . Whether the Proposed Rules Are Invalid Because DEP did

not Respond to Petitioner StillÓs Second LC RA

12 6 . A proposed rule is invalid under section 120.52(8)(f)

if it imposes regulatory costs which could be reduced by

adoption of less costly alternatives that substantially

accomplish the statutory objectives.

12 7 . Upon submission of a LCRA pursuant to section

120.541(1)(a), the agency must revise its prior statement and

eithe r adopt the alternative or provide a statement of the

reasons for rejecting the alternative in favor of the proposed

rule.

12 8 . A rule is invalid under section 120.52(8)(a) if the

agency has materially failed to follow the applicable rulemaking

procedures or requirements.

1 29 . Section 120.541(1)(e) states that an agencyÓs failure

to respond to a LCRA is a material failure to follow the

applicable rulemaking procedures or requirements .

13 0 . On April 8, 2014, DEP published a Notice of Change

regarding sect ions 6.5(c)ii and 6.5(d)ii of the Supplemental

R egulatory Measures. In the Notice of Change, DEP gave notice

that it had prepared an Ðupdated revisedÑ SERC pursuant to

section 120.541.

13 1 . Following the Notice of Change, Petitioner Still

submitted to DE P a second LCRA. DEP rejected the second LCRA as

untimely.

13 2 . Section 120.541(1)(a) states that a substantially

affected person may submit a LCRA within 21 days Ðafter

publication of the notice required under s. 120.54(3)(a).Ñ

Respondents argue there is no provision for a LCRA to be

submitted in response to a Notice of Change and , because the

second LCRA was submitted more than 21 days after publication of

the Notice of Proposed Rule , it was untimely.

13 3 . This issue has not previously been addressed by the

courts. The issue is not as clear as Respondents suggest

because , although there is no express provision for a second

LCRA, the effect of not allowing a LCRA to be submitted in

response to a Notice of Change is that the legislative intent to

preve nt agencies from imposing unnecessary regulatory costs

would seem to be thwarted and may even be sabotaged by an

agency Ós practice of waiting to put costly regulations in a

Notice of Change. However, the issue need not be resolved here

because a rule may not be declared invalid based on the

rejection of a LCRA unless Ðthe substantial interests of the

person challenging the rule are materially affected by the

rejection.Ñ See § 120.541(1)(g) .

134. Petitioner Still did not demonstrate that he was

materially affected by the rejection of his second LCRA . He has

no water use permit that could be affected by the Supplemental

Regulatory Measures that were changed. His statement that he

expects to apply for a permit at some indefinite point in the

future is a ma tter of speculation. Furthermore, the subject

rules could be replaced by other rules in Phase II of the

Recovery Strategy before Petitioner Still applies for a permit.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is det ermined that:

1. Proposed rule 62 - 42.100 is a valid exercise of

delegated legislative authority;

2. Proposed rule 62 - 42.200 is a valid exercise of

delegated legislative authority;

3. Proposed rules 62 - 42.300(1)(a) and (b) are invalid

exercises of delega ted legislative authority; and

4. Proposed rules 62 - 42.300(1)( c ) , (d), and (e) and the

Supplemental Regulatory Measures incorporated by reference in

proposed rule 62 - 42.300(1)(d) are valid exercises of delegated

legislative authority .

DONE AND ORDERED thi s 11th day of September, 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 Administrative Hearings

this 11th day of September, 2014.

ENDNOTES

1/ The boundaries of the water management districts were

established based on t he watersheds of major surface waters.

Surface watershed boundaries do not accurately describe

groundwater resources or groundwater flow.

2/ This is not a misspelling. Hydrologists have replaced the

word ÐgaugeÑ with ÐgageÑ for reasons not in the recor d.

3 / DEPÓs SERC states that 230 permits are due to be renewed

during 2014 - 2018, representing about 67 million gallons per day

as an average daily rate. It is estimated that 72 of these

permitted uses (about 29 percent) may be having an adverse

effect o n the MFL water bodies. Alliance Ex. 3, Table 2 - 1.

4 / T he re was considerable dispute about whether a pattern

(graphed data) of declining groundwater levels documented in the

2010 Water Assessment will continue through Phase I . The

Alliance did not prov e that the factors which affected

groundwater levels in the past will remain unchanged and,

therefore that the pattern of decline will remain unchanged in

Phase I . However, th e issue is not whether a past pattern of

groundwater decline will look the same in five years. The issue

is whether estimated groundwater levels will be lower than has

been estimated .

5 / A witness may name other members who go canoeing together on

an affected river or attend an annual festival at the river.

However, FWF did not pr offer such testimony.

6 / This discussion assumes that opposing parties will not agree

to affidavits, signature petitions, or any other out - of - court

statement s to establish that a substantial number of an

associationÓs members are substantially affected.

7 / FWF was represented by the same attorneys as the Alliance and

its issues were identical to those of the Alliance. Therefore,

its interests in the case were preserved despite its dismissal

for lack of standing.

COPIES FURNISHED:

Paul Edward Still

14167 Southwest 101st Avenue

Starke, Florida 32091

(eServed)

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Richey, Florida 34562

(eServed)

George T. Reeves, Esquire

Davis, Schnitker, Reeves and Browning, P.A.

Post Office Drawer 652

Madison, Florida 32341

(eServed)

Edward P. de la Parte, Esquire

Nicolas Q. Porter, Esquire

de la Parte and Gilbert, P.A.

Suite 2000

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

David G. Guest, Esquire

Monica K. Reimer, E squire

Alisa Coe, Esquire

Bradley Marshall, Esquire

Earthjustice

111 South Martin Luther King, Jr. Boulevard

Tallahassee, Florida 32301

(eServed)

Vance W. Kidder, Esquire

St. Johns River Water Management

District

4049 Reid Street

Palatka, Florida 3217 7 - 2529

(eServed)

Sylvia Torres, Esquire

Alachua County

Post Office Box 5547

Gainesville, Florida 32627

(eServed)

Jennifer B. Springfield, Esquire

Springfield Law, P.A.

806 Northwest 16th Avenue , Suite B

Gainesville, Florida 32608

(eServed)

David M . Lang , Jr. , Esquire

Gilchrist County Attorney

Post Office Box 51

Trenton, Florida 32693

(eServed)

James W. Prevatt, Esquire

Suwannee County Attorney

Prevatt Law Firm, P.L.

123 East Howart Street

Live Oak, Florida 32064

(eServed)

William E . Sexton, Cou nty Attorney

Bradford County, Florida

945 North Temple Avenue

Starke, Florida 32091

(eServed)

Sidney F. Ansbacher, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 3007

(eServed)

Marlin M. Feagle, Esquire

Columbia County Attorney

Post Office Box 1653

Lake City, Florida 32056 - 1653

Douglas Beason, Esquire

Jeffrey Brown, Esquire

Benjamin Melnick, Esquire

Kristine P. Jones, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealt h Boulevard

Tallahassee, Florida 32399

(eServed)

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServe d)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ann Shortelle, Executive Director

Suwannee River Water Management District

9225 County Road 49

Live Oak, F lorida 32060

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of admini strative appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Ap peal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.