18-005114RP City Of Sanibel, Town Of Fort Myers Beach, And City Of Cape Coral vs. South Florida Water Management District Status: Closed DOAH Final Order on Friday, March 8, 2019.

Summary: The Petitioners and Intervenors proved standing to bring the proposed rule challenge. The District proved that the proposed MFL for the Caloosahatchee River was not an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SANIBEL, TOWN OF FORT

MYERS BEACH, AND CITY OF CAPE

CORAL,

Petitioners,

and

VILLAGE OF ESTERO, CITY OF FORT

MYERS, CITY OF BONITA SPRINGS,

AND CAPTIVA ISLAND PROPERTY

OWNERS ASSOCATION , INC., d/b/a

CAPTIVA COMMUNITY PANEL,

Intervenors,

vs. Case No. 18 - 5114RP

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice a final hearing was held in t his matter

on October 29 and 30, 2018, in Fort Myers, Florida, before

Francine M. Ffolkes, an Administrative Law Judge with the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner s City of Sanibel and City of Cape Coral :

Chris R. Tanner, Esquire

Amy Wells Brennan, Esquire

Laura Jacobs Donaldson, Esquire

Manson Bolves Donaldson Varn, P.A.

109 North Brush Street, Suite 300

Tampa, Florida 33602

For Petitioner Town of Fort Myers Beach:

John S. Turner, Esquire

Peterson Law Group

Post Office Box 670

Fort Myers, Florida 33902 - 0670

For Intervenors Village of Estero and City of Bonita

Springs:

Derek Patrick Rooney, Esquire

Gray Robinson, P.A.

1404 Dean Street, Suite 300

Fort Myers, Florida 33901

For Intervenor City of Fort Myers:

Grant W. Alley, Esquire

City of Fort Myers

Post Office Box 2217

Fort Myers, Florida 33919

For Intervenor Captiva Island Property Owners Association,

Inc., d/b/a Captiva Community Panel:

Ralf Gu nars Brookes, Esquire

Ralf Brookes Attorney

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33904

For Respondent: Jennifer Brown, Esquire

Laura Renee Cole, Esquire

Laura E. Scala - Olympio, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE S

The issues to be determined in this pro ceeding are :

(1) whether the challengers have standing; and (2) whether

P roposed R ule 40E - 8.221(2) is an invalid exercise of delegated

legislative authority.

PRELIMINARY STATEMENT

On July 23, 2018, the Respondent, South Florida Water

Management District ( District) , published a notice of proposed

rule to amend Florida Administrative Code Rule 40E - 8.221(2)

(Proposed Rule). The Proposed Rule revises the minimum flow

(MFL) for the Caloosahatchee River. The District ' s governing

board held a public hearing on September 13, 2018, to adopt

the Proposed Rule. The Proposed Rule increase s the MFL at

the Caloosahatchee River ' s S - 79 structure (the S - 79 structure

or S - 79) and revise s the compliance criteria.

On September 24, 2018, the Petitioners, City of Sanibel

(San ibel), Town of Fort Myers Beach (Town), and City of Cape

Coral (Cape Coral), timely filed a joint petition challenging the

Proposed Rule. On October 19, 2018, the Petitioners amended

their challenge. On October 8, 2018, the Intervenors, City of

Fort Myer s (Fort Myers), City of Bonita Springs (Bonita Springs),

and Village of Estero (Estero), filed petitions to intervene,

which were granted on October 22, 2018. On October 15, 2018, the

Intervenor, Captiva Island Property Owners Association, Inc. ,

d/b/a Cap tiva Community Panel (CCP), filed an amended petition to

intervene, which was granted on October 22, 2018. On October 16,

2018, Captiva Erosion Protection District filed its amended

petition to intervene, which was denied on October 22, 2018.

The Petition ers filed a joint motion for summary final order

on October 15, 2018, which was denied without prejudice at the

start of the final hearing. On October 16, 2018, the District

filed a motion for summary final order, which was denied without

prejudice at the start of the final hearing. The Joint Pre -

hearing Stipulation was filed on October 29, 2018.

At the final hearing, Joint Exhibits J - 1 through J - 16 were

admitted into evidence. Intervenor Bonita Springs presented the

testimony of Arleen Hunter for the pu rpose of establishing

standing. Bonita Springs ' Exhibits BS - 1 through BS - 5 were

received into evidence. Intervenor Estero presented the

testimony of Kyle Coleman for the purpose of establishing

standing. Estero ' s Exhibits E - 1 through E - 3 were admitted i nto

evidence. Intervenor CCP presented the testimony of David Mintz

for the purpose of establishing standing. CCP ' s Exhibits CCP - 1

through CCP - 4 were received into evidence. Intervenor Fort Myers

presented the testimony of Brian Dodson and Richard Thomp son for

the purpose of establishing standing. Fort Myers ' Composite

Exhibit 1 was received into evidence.

The District presented the fact testimony of Don Medellin

and Jason Godin and the expert testimony of Cassondra

Armstrong, Ph.D.; Peter H. Doering, P h.D.; Amanda Kahn, Ph.D.;

Detong Sun, Ph.D.; and Fawen Zheng, Ph.D. In lieu of his

appearance at the final hearing, the parties agreed to introduce

the deposition transcript of District expert Christopher

Buzzelli, Ph.D. The District ' s Exhibits 2, 10, 18 , 25, 38, 50,

63, 82, 83, 84, 85, 92, and 94 were received into evidence.

The Petitioners Sanibel and Cape Coral presented the expert

witness testimony of Anthony Janicki, Ph.D. , and Peter

Doering, Ph.D. (adverse) , and fact witness testimony of Donald

Mede llin (adverse). Petitioners ' Exhibits 1, 3, 42, 48, 63, 72,

and 78 were received into evidence.

The two - volume Transcript of the final hearing was filed

with DOAH on November 16, 2018 . The parties submitted proposed

final orders that were considered in t he preparation of this

Final Order.

References to Florida Statutes are to the 2018 version,

unless otherwise stated.

FINDING S OF FACT

Based on the parties ' stipulations and the evidence adduced

at the final hearing, the following findings of fact are made:

The Parties

1. The District is a government entity existing and

operating pursuant to chapter 373, Florida Statutes, as a multi -

purpose water management district. The District has the power

and duty to adopt MFLs consistent with the provisions of part I

of chapter 373.

2. Sanibel is a barrier island sanctuary in Lee County and

a duly - formed municipality with a population of more than 6,000 .

Sanibel is situated at the mouth of the Caloosahatchee River,

within the Caloosahatchee ' s greater estuarine are a. Sanibel is

known primarily for its natural beauty, including clear blue

waters, shell beaches, world - class sport fisheries, and wildlife

refuges. That is why tourists come from around the globe to

visit Sanibel, and why Sanibel ' s residents move and re main there.

3. Sanibel actively participated in the rulemaking process

for the Proposed Rule from its inception. Sanibel submitted two

technical comment letters to the District during the development

of the Proposed Rule. Sanibel ' s n atural r esources d ir ector,

James Evans, attended numerous public and technical meetings

associated with the development of the Proposed Rule, speaking on

the record at each of the public meetings prior to the adoption

hearing by the District ' s governing board.

4. The Town, l ocated on Estero Island in Lee County, is

also a barrier island community and duly - formed municipality with

a population of more than 6,000 . The Town is situated just south

of the mouth of the Caloosahatchee River and on the southeastern

edge of the Caloo sahatchee River ' s greater estuarine area. The

Town is known primarily for its natural beauty, including clear

blue waters, shell beaches, world - class sport fisheries, and

wildlife refuges.

5. Cape Coral is a duly - formed municipality in Lee County

and is the largest city between Tampa and Miami, with a

population in excess of 150,000. Cape Coral is bordered on the

south by the Caloosahatchee River and has over 400 miles of

navigable canals and waterways, all of which are within the

Caloosahatchee River ' s greater estuarine area. In addition, Cape

Coral has an assigned load reduction allocation under the Basin

Management Action Plan (BMAP) for the Caloosahatchee River

Estuary (CRE) due to it being designated as impaired for

dissolved oxygen and nutrients. Maintaining sufficient flow in

the Caloosahatchee River would have a direct impact on Cape

Coral ' s ability to meet its assigned load reduction allocation.

6. In addition to living on or near the water, a

substantial number of the residents of Sanibel, Cap e Coral, and

the Town engage in water - based recreational activities such as

swimming, fishing, boating, kayaking, paddle boarding, bird

watching, and nature observation in and around the Caloosahatchee

River ' s greater estuarine area.

7. Fort Myers is a du ly - formed municipality in Lee County

and has a population of approximately 80,000. Fort Myers is

bordered by the C R E throughout its entire jurisdictional

boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers

Yacht Basin), which includes a moor ing field and an anchorage

field in the Caloosahatchee River. Fort Myers presented

testimony that commercial crabbing and recreational fishing have

declined and that it has suffered economic harm due to water

qual ity issues.

8. Fort Myers owns the submer ged land in the Caloosahatchee

River from Marker 39 to Marker 58, and islands in the river. One

such island will be used as a park for recreational activities

such as canoeing, kayaking, and hiking for visitors to enjoy the

Caloosahatchee River. Fort Mye rs also owns and operates piers

and a public boat ramp within the Caloosahatchee River.

9. Fort Myers ' dock master has observed declines in

seagrasses in the Caloosahatchee River during his 19 - year career

working at the Ft. Myers Yacht Basin. Fort Myers has adopted a

Harbor Management Plan for the management of its mooring and

anchorage fields in the Caloosahatchee River. Fort Myers has

also been assigned a load reduction allocation under the BMAP for

the CRE, and is responsible for a certain amount of pollution

reduction over time.

10. Bonita Springs is a municipality of more than 50,000 in

Lee County. The borders of Bonita Springs include portions of

Estero Bay, which , along with San Carlos Bay and the

Caloosahatchee River , is part of the greater Low er Charlotte

Harbor Estuary. Bonita Springs includes wildlife refuges, such

as the Estero Bay Aquatic Preserve and Lovers Key State Park and

Recreation Area.

11. While Bonita Springs ' strategic priorities include

environmental protection and water qualit y, it does not have

environmental staff or test water quality. Bonita Springs

participates in Estero Bay Management and the Charlotte Harbor

National Estuary Program (CHNEP). Bonita Springs provides

financial assistance to the Caloosahatchee Citizen Sea Grass

Gardening Project. Concerns regarding harm to the CR E and tape

grasses are shared by a significant number of residents in Bonita

Springs and Estero, including injury to the quality of life and

recreational uses such as swimming, boating, and kayakin g in the

waterways.

12. Estero is a municipality of more than 30,000 in Lee

County. Estero borders the eastern portion of Estero Bay.

Estero includes wildlife refuges, such as Estero Bay Aquatic

Preserve and Koreshan State Park. While Estero has enviro nmental

policies, it does not have environmental staff or test water

quality. Estero makes financial contributions to CHNEP. Estero

is concerned that the Proposed Rule will affect its water

quality, which could affect its residents ' quality of life.

Est ero believes it could be harmed by poor water quality because

its residents are portable retirees who can move away, or

tourists who can choose not to visit.

13. Captiva Island is situated at the mouth of the

Caloosahatchee River, within the Caloosahatche e ' s greater

estuarine area. CCP is a Florida not - for - profit corporation

representing property owners, businesses, and the community of

Captiva Island. Captiva Island is part of unincorporated Lee

County and is located north of Sanibel. CCP has 200 finan cial

contributors comprised of property owners, businesses, and

residents on Captiva Island.

14. CCP ' s mission includes protection of clean off - shore

water, diverse and healthy marine life, and robust native

vegetation along with the protection of mangrov e fringe and water

quality. CCP works with Lee County on provisions of the County ' s

comprehensive plan, which include the quality of adjacent waters.

15. CCP relied on the expertise of James Evans, the

d irector of n atural r esources for Sanibel, and on th e Sanibel -

Captiva Conservation Foundation (SCCF). CCP was advised that the

Proposed Rule was not sufficient to protect the environment and

Vallisneria americana ( Vallisneria ) or tape grass during the dry

season.

Caloosahatchee River and Estuary

16. The w atershed of the Caloosahatchee River covers

approximately 861,058 acres. The watershed consists of four

sub - watersheds, three of which are upstream of the S - 79

structure. The Tidal Caloosahatchee Basin sub - watershed

(estuarine system) is downstream of th e S - 79 structure. The S - 79

structure captures all the upstream discharges of fresh water

that go into the estuarine system through the S - 79 structure.

Major tidal tributaries of the Tidal Caloosahatchee Basin are the

Orange River and Telegraph Creek, whi ch drain into the upper

estuary downstream of the S - 79 structure. Fresh water inflows

from these and other tributaries also contribute fresh water into

the estuarine system.

17. The Caloosahatchee River was originally a natural

watercourse running from i ts origin at Lake Flirt to San Carlos

Bay. It is currently defined as the " surface waters that flow

through the S - 79 structure, combined with tributary contributions

below S - 79 that collectively flow southwest to San Carlos Bay. "

Fla. Admin. Code. R. 40E - 8.021(2).

18. Man - made alterations to the Caloosahatchee River began

as early as 1884, but major alterations began in the 1930s with

the authorization and construction of the C - 43 Canal. The C - 43

Canal runs 41.6 miles from Lake Okeechobee at Moore Haven , i.e.,

from the S - 77 structure, to Olga, i.e., the S - 79 structure. The

C - 43 Canal serves as a conveyance feature to drain water from the

three sub - watersheds located upstream of the S - 79 structure and

convey regulatory discharges of water from Lake Okeec hobee.

19. In 1957 , the United States Army Corps of Engineers

(USACOE) prepared a report focused on drainage, flood control,

and navigation needs of the Caloosahatchee River Basin, and one

recommendation was construction of the S - 79 structure. The key

ob jectives of the S - 79 structure were to eliminate undesirable

salinity in the lower Caloosahatchee River, prevent the rapid

depletion of water supplies, and raise the prevailing dry weather

water table levels.

20. The S - 79 structure was constructed in 1965 . It is a

lock and dam structure that is also known as the Franklin Lock

and Dam. The S - 79 structure captures all upstream fresh water

discharges that go into the CRE.

21. The S - 79 structure demarcates the head of the CRE,

which extends 26 miles downstr eam to Shell Point, where it

empties into San Carlos Bay in the southern portion of the

greater Lower Charlotte Harbor Estuary. Most of this surface

water flow takes a southerly route, flowing to the Gulf of Mexico

under the Sanibel Causeway that crosses San Carlos Bay. When

fresh water inflows are high, tidal action pushes some of this

water back up into Matlacha Pass and Pine Island Sound.

Additionally, some water exits to the south and flows into Estero

Bay through Matanzas Pass.

22. Salinity exhibit s a strong gradient in the CRE.

Changes in the watershed upstream of the S - 79 structure have

profoundly influenced the delivery of fresh water to the CRE.

Runoff is now more variable with higher wet season flows and

lower dry season discharges. Large vo lumes of fresh water during

the wet season can flush salt water from the tidally - influenced

sections of the water body , resulting in low salinity conditions

throughout most of the CRE. In contrast, fresh water inflow at

the S - 79 structure can stop entirel y during the dry season,

especially during significant drought events. This results in

saline intrusion that can extend upstream to the S - 79 structure.

Fluctuations of this magnitude at the head and mouth of the

system cause mortality of organisms at bot h ends of the salinity

gradient.

23. Downstream of the S - 79 structure, the CRE was

significantly altered by multiple dredging activities, including

the removal of extensive shoals and oyster bars. Seven

automobile bridges, a railroad trestle , and the San ibel Causeway

were built between the 1880s and 1960s. A large canal network

was built along the northern shoreline of the CRE in Cape Coral.

To provide navigational access from the canal network to deeper

water, multiple access channels were dredged with in the CRE.

24. Alterations to the delivery of fresh water combined

with structural changes to the tidally - influenced sections of the

water body ha ve had lasting ecological consequences. These

include the loss of extensive shoals and oyster bars, loss of a

flourishing bay scallop fishery, and significant decline in

seagrass cover in deeper areas.

M FL s

25. A n MFL is the limit at which further withdrawals would

be significantly harmful to the water resources or ecology of the

area. The District ' s rules d efine significant harm as the

" temporary loss of water resource functions, which results from a

change in surface or ground water hydrology, that takes more than

two years to recover, but which is considered less severe than

serious harm. " Fla. Admin. Cod e R. 40E - 8.021(31). The rule

further specifies that a water body ' s specific water resource

functions addressed by an MFL are defined in the MFL technical

support document. Id.

26. MFLs are calculated using the best information

available. The regulatory agency is required to consider changes

and structural alterations to watersheds, and the constraints

such changes or alterations placed on the hydrology of an

affected watershed. Certain waterbodies may not serve their

historical hydrologic functions and recovery of these waterbodies

to historical hydrologic conditions may not be economically or

technically feasible. Accordingly, the regulatory agencies may

determine that setting a n MFL for such a water body based on its

historical condition is not appro priate.

Caloosahatchee MFL

27. For the CRE, MFL criteria were designed to protect the

estuary from significant harm due to insufficient fresh water

inflows and were not guidelines for restoration of estuarine

functions to conditions that existed in the pa st. The MFL

criteria consider three aspects of the flow in terms of potential

significant harm to the estuary: (1) the magnitude of the flow

or the volume of fresh water entering the estuary; (2) the

duration of time that flows can be below the recommend ed level

before causing significant harm; and (3) the return frequency, or

the number of times the MFL can be violated over a number of

years before it results in significant harm, recognizing that

natural climatic variability will be expected to cause fre sh

water inflows to fall below recommended levels at some natural

frequency.

28. The CRE MFL initially adopted in 2001 was primarily

based on the salinity tolerance of one valued ecosystem component

(VEC). The VEC was Vallisneria americana or tape grass, a fresh

water aquatic plant that tolerates low levels of salinity. A

major assumption of this approach was that flow and salinity

conditions that protect Vallisneria would also protect other key

organisms in the estuary.

29. The 2001 CRE MFL was based o n a regression model for

estimating the relationship between surface salinity measured at

the Ft. Myers monitoring station located in the Ft. Myers Yacht

Basin and discharge at the S - 79 structure. Although the District

monitors surface and bottom salinity at multiple stations in the

CRE, the Ft. Myers monitoring station is located centrally in the

CRE and at the historical downstream extent of the Vallisneria

habitat.

30. The Ft. Myers monitoring station also has the most

comprehensive period of record of monitoring data available. The

fixed data sondes that monitor surface and bottom salinity are

located at 20 percent and 80 percent of total river depth

measured at mean low water. The data sondes continuously measure

temperature and specific conductivit y and , depending on the

manufacturer , contains programs that calculate salinity. Those

calculations are based on standards recognized and used worldwide

by estuarine, marine , and oceanographic scientists. 1 /

31. The regression model only implicitly includ ed

inflows from the Tidal Caloosahatchee Basin sub - watershed

downstream of the S - 79 structure. To address this, during the

2003 re - evaluation , a linear reservoir model of Tidal

Caloosahatchee Basin inflows was developed.

32. The regression model results showed that a total inflow

from S - 79 plus the Tidal Caloosahatchee Basin of about 500 cubic

feet per second ( cfs ) was required to produce a salinity of 10 at

the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of

300 cfs measured at the S - 79 structur e would produce a salinity

of 10 at the Ft. Myers monitoring station only with additional

inflow from the downstream Tidal Caloosahatchee Basin sub -

watershed. However, that additional inflow estimate was highly

uncertain. The conclusion was that actual f low measurements over

a period of time w ere needed in order to perform more robust

calibrations for the new models that were being developed.

The Re - evaluation

33. The District ' s re - evaluation effort began in 2010 after

the Conservancy of Southwest Flori da filed a petition requesting

review of the Caloosahatchee MFL. At the time, the governing

board denied the petition but directed staff to undertake

additional research and monitoring to ensure a future revision

would be supported by the best information available.

34. The first step was to review the September 2000 Final

Peer Review Report (PRR) for the initial adoption. The 2000 PRR

identified several items the District should consider, including

a hydrodynamic salinity model, a numerical population m odel for

Vallisneria , quantification of habitat value for Vallisneria , and

documentation of the effects of minimum flows on downstream

estuarine biota. The 2000 PRR documented concerns that the

current MFL was based solely on the salinity tolerance of

Val lisneria and recommended using multiple indicator species. To

address those recommendations, the District conducted studies to

evaluate multiple ecological indicators, such as zooplankton,

aquatic vegetation, oysters, benthic communities, and blue crabs,

in the Caloosahatchee from the S - 79 structure to beyond Shell

Point.

35. In addition, the District collected flow data from the

Tidal Caloosahatchee Basin sub - watershed for at least five years

to develop watershed, flow, and hydrodynamic models that could

properly simulate inflows and salinity responses.

36. When the initial research was complete in 2016, the

District published the Draft Science Document containing 11

component studies. In September 2016, the District held a two -

day Science Symposium to present the 11 component studies and

gather public comment. In response to public comment, the

District performed additional evaluations, modeling, and updated

the component studies to produce a Draft Technical Document.

37. A Peer Review Panel reviewed the Draft Technical

Document, which included the Draft Science Document. The Peer

Review Panel has over 150 years of combined relevant scientific

experience. The Peer Review Panel toured the CRE by air and

water. The District also held a Peer Review Ses sion to engage

the public and obtain feedback.

38. The Peer Review Panel ' s 2017 report (PRP report) stated

that the District had " crafted a well - executed and well -

documented set of field and laboratory studies and modeling

effort " to re - evaluate the CRE M FL. The PRP report supported

the 11 component studies, the modeling, the evaluations, and the

i nitial proposed rule language.

39. The Final Technical Document published in January 2018

incorporated five different models and additional science,

examining the entire watershed and the criteria itself. The

Final Science Document was Appendix A to the Final Technical

Document and contained the scientific research and analysis that

was done for the 11 component studies, the modeling, and the

additional scienti fic analyses performed in response to public

and stakeholder input.

40. The District initiated rule development in

December 2017. Rule development workshops were held in February

and June 2018 and a stakeholder technical meeting was held in

May 2018. Th e District validated the comments after each

workshop and meeting, and revised the proposed rule language.

41. The District published its Notice of Proposed Rule on

July 23, 2018. 2 / At its September 13, 2018, meeting, the

District ' s governing board held a public hearing on the Proposed

Rule. The mayors of Sanibel, Cape Coral, and the Town publicly

commented at the hearing. After considering public comments, the

governing board adopted the Proposed Rule.

42. The District documented and responded to each public

comment, memorializing the information in the Final Technical

Document. Later, after the rule workshops and May 2018 technical

meeting, the District prepared and presented a ll of the updated

information , including public comment , at the September 2018

adoption hearing. Thus, the District ' s re - evaluation process was

open and transparent.

The Re - evaluated Caloosahatchee MFL

43. The science supporting the re - evaluation involved a

comprehensive assessment of the effects of diminished dry season

fresh water inflows on the CRE. The dry season was chosen for

two reasons. First, because it is well - established that the

upstream migration of salt combined with reduced fresh water

inflow alters the health and productivity of estuarine habitats.

Second, be cause the dry seasons are the times when the current

MFL criteria are likely to be exceeded or violated. The 11

component studies targeted specific concerns regarding physical

and ecological characteristics. Together they offered a holistic

understanding of the negative effects of diminished fresh water

inflow on estuarine ecology.

44. The re - evaluated MFL criteria were developed using a

resource - based approach. The approach combined the VEC approach

and the habitat overlap concept. The habitat overlap approach is

based on the idea that estuaries serve a nursery function and

salinity determines the distribution of species within an

estuary, including distribution during different life stages.

45. The combined approach studied the minimum flow

requireme nts of the various indicator species in terms of

magnitude, duration, and return frequency , resulting in the

following three aspects of the flow: (1) for magnitude, a 30 - day

moving average flow of 400 cfs measured at the S - 79 structure;

(2) for duration, an MFL exceedance occurs during a 365 - day

period when the 30 - day moving average flow at S - 79 is below

400 cfs and the 30 - day moving average salinity exceeds 10 at the

Ft. Myers salinity monitoring station; and (3) for return

frequency, an MFL violation occ urs when an exceedance occurs more

than once in a five - year period.

46. The magnitude component is based on the salinity

requirements of Vallisneria , along with results from the 11

studies modeling salinity and considering the salinity

requirements of the other VECs. The duration component is based

mainly on the estimates of rate of loss of Vallisneria shoots

when salinity rises above 10 and the recovery rate of the shoots

when salinities fall back below 10. Return frequency was

determined based on long - term rainfall records rather than flow

measurements from the S - 79 structure, which the PRP report felt

was well justified.

47. In addition to the component studies, the re - evaluated

MFL criteria and existing recovery strategy were evaluated using

a suite of hydrologic and ecological models simulating long - term

fresh water inflow to the CRE associated with varying management

options, the resulting salinity in the CRE, and the ecological

response of indicator species that are sensitive to low fresh

water inf lows. Five models were utilized. Three models

simulated fresh water inflows to the CRE : two for S - 79 flows ;

and one for Tidal Caloosahatchee Basin sub - watershed flows. The

other two models were a three - dimensional hydrodynamic salinity

model and a Vall isneria model.

48. Tidal Caloosahatchee Basin sub - watershed has a number

of tributaries that drain fresh water into the CRE. The flow at

several of the tributaries was monitored for a five - year period.

The measured flow was used to calibrate a watershed model and

conduct a long - term simulation. The results showed an average

fresh water inflow for all seasons of approximately 430 cfs. The

average fresh water inflow during the dry season was 245 cfs

while the wet season average fresh water inflow was 613 cfs.

Fresh water inflow from the Tidal Caloosahatchee Basin sub -

watershed was approximately 20 percent of total fresh water

inflow to the CRE while 80 percent was released through the S - 79

structure.

Petitioners ' and Intervenors ' Objections

A. 400 cfs I s T oo L ow

49. Sanibel relied on a memorandum prepared by Dr. David

Tomasko (Tomasko report) concerning his company ' s review of the

January 2018 Final Technical Document supporting the Proposed

Rule. The Tomasko report, dated October 23, 2018, was in the

form of a " technical memorandum " outlining " preliminary

findings. " The Tomasko report was admitted as a joint exhibit ;

however, Dr. Tomasko did not testify at the final hearing.

50. The Tomasko report is hearsay that was not used to

supplement or explain competent direct evidence. Although

hearsay is admissible in this proceeding, it cannot be the sole

basis for a finding of fact. 3 / See § 120.57(1)(c), Fla. Stat.

51. The District ' s expert witnesses, who testified at the

final hearing, explained that te n of the 11 component studies

identified average indicator flows at S - 79 ranging from 237 to

545 cfs with standard deviations ranging from plus or minus 57 to

plus or minus 774 cfs. 4 / The District ' s experts performed three

different evaluations of those f low results. They identified the

mean of all the means, calculated the median of the means, and

performed a probability density function.

52. The flow results for each of the three evaluations were

381 cfs, 400 cfs, and 365 cfs, with standard deviations that

ranged from plus or minus 277 cfs to plus or minus 706 cfs. The

District ' s experts testified that the three flow results are

indistinguishable from a statistical point of view. The District

chose 400 cfs because it was the highest flow result , and ,

therefore , th e most protective of the three.

53. The Petitioners and Intervenors failed to present

evidence that showed any deficiencies in the District ' s component

studies, hydrologic, hydrodynamic, or statistical modeling, or

analysis of compliance data .

54. The preponderance of the evidence established that the

District used the best available science to calculate the MFL

criteria. The District did not act arbitrarily or capriciously

when it chose 400 cfs as the magnitude component of the MFL

criteria .

B. Inclusion of S alinity in the MFL C riteria

55. The preponderance of the evidence also established that

Vallisneria continues to be a particularly useful indicator of

environmental conditions in the CRE. It supports essential

ecological goods and ser vices, is sensitive to salinity

fluctuations at the ecosystem scale, and has value to a variety

of stakeholders.

56. The location of Vallisneria habitat in the upper CRE

and its negative response to increased salinity made it an

excellent candidate as an ecological indicator for fresh water

inflow. A combination of field monitoring, mesocosm studies, and

modeling results allowed the application of Vallisneria responses

as a platform to quantify the effects of high salinity duration

in the upper CRE.

57. Component Study Eight reviewed the development and

initial application of a simulation model for Vallisneria in the

CRE. The Vallisneria model was used to evaluate the salinity

conditions that led to net annual mortality , or , i n other words,

the duration of high salinity exposure that led to decreased

Vallisneria shoots versus the duration of low salinity conditions

required for recovery.

58. Component Study Seven included an analysis of the

relationship between the number of consecutive days where

salini ty at the Ft. Myers monitoring station was greater than 10

and the percentage of initial Vallisneria shoots remaining at the

end of each high salinity period.

59. To further evaluate the duration element associated

with the MFL criteria, the field monitor ing data contained in

Component Study Seven was evaluated with the mesocosm and

modeling results. All three sources were analyzed similarly to

derive a combined curve showing high salinity exposure duration

that is significantly harmful to Vallisneria .

60 . The model also provided information that was used to

quantify the duration of low salinity conditions required for

Vallisneria to recover a relative fraction of shoots after high

salinity exposure. Merging the exposure and recovery evaluations

facilita ted a determination of the unfavorable salinity duration

that could significantly harm Vallisneria habitat.

61. With significant harm defined as the environmental harm

from which two years are required to recover, the determination

was that Vallisneria sh ould experience no more than 55

consecutive days of salinity greater than 10. However,

stakeholders expressed concerns regarding the percentage loss of

Vallisneria habitat after 55 days of high salinity exposure. In

response, the District conducted furth er analysis of modeling

results and revised the duration component to accept the

stakeholder recommendation, now expressed in the Proposed Rule,

of a 30 - day moving average salinity greater than 1 0.

6 2. The Petitioners and Intervenors argued that by

expres sing the MFL as a " flow plus salinity component " the

Proposed Rule enlarges, modifies, or contravenes the specific

provisions of law implemented.

63. However, the duration component is part of compliance

and represents the duration of time that flows can be below the

recommended level before causing significant harm to the

indicator species Vallisneria .

64. The MFL in the Proposed Rule is a 30 - day moving average

flow of 400 cfs measured at the S - 79 structure. Flow is both

measured and operationally contr olled at the S - 79 structure.

However, as previously found, there are other sources of fresh

water entering the CRE downstream of the S - 79 structure. The

District does not control and cannot control these downstream

sources, which modeling reveals contrib ute approximately 20

percent of total fresh water inflow to the CRE.

65. By including salinity, the District can account for

fresh water inflows coming from the tidal basin when there are

low or no flows at S - 79 since the significant harm threshold in

the CRE is directly related to salinity tolerance of the

indicator species Vallisneria . The District ' s experts also

testified that salinity can be used as a flow component because

it is not affected by chemical or biological processes and is an

indicator of how much fresh water is entering the system. 5 /

66. Salinity is included in the duration component of the

MFL criteria and is an exceedance criterion because the science

established that the salinity gradient is crucial to the overall

health of the CRE. I ncluding salinity in the duration component

of the MFL criteria achieves the purpose of the statutory mandate

to set MFLs that are designed to avoid significant harm to the

water resources and ecology of the area.

C. No U nit of M easurement for S alinity

67 . The Petitioners and Intervenors argued that the

Proposed Rule is vague because the language does not contain any

units for salinity.

68. The UNESCO calculation is the standard equation used by

the estuarine and marine science community to convert speci fic

conductivity and temperature data to salinity. The District ' s

experts testified that the UNESCO calculation reports salinity as

a ratio, which is a dimensionless number and has no units. The

District uses the UNESCO calculation and performs the conve rsion

in a spreadsheet that it maintains. In some instances, certain

brands of data sondes are programmed to perform the calculation

and provide the salinity number.

69. The preponderance of the evidence established that use

of the practical salinity uni t (PSU) is not technically correct.

PSU is a misnomer, a pseudo - unit equivalent to a unitless

salinity number. The Petitioners ' and Intervenors ' expert

witness, Dr. Anthony Janicki, conceded there is no difference

between reporting salinity as unitless o r as PSU. And although

technically incorrect, he suggested that placing the word

" practical " or putting " PSU " in the Proposed Rule would reduce

confusion and vagueness.

70. However, since the preponderance of the evidence

established that use of PSU is n ot technically correct, the use

of a pseudo - unit would actually cause confusion instead of reduce

confusion.

71. The Petitioners and Intervenors also argued that the

Proposed Rule is vague because the language does not state that

the method of measuring s alinity is specific conductivity, or

that the equation used to convert specific conductivity and

temperature data to salinity is the standard developed by UNESCO.

The Petitioners and Intervenors essentially argued that members

of the public and those who may be regulated by the Proposed Rule

are left to guess about the method or methods used to measure

salinity.

72. Because the Proposed Rule identifies and locates by

latitude and longitude coordinates the Ft. Myers salinity

monitoring station as the locat ion where salinity would be

measured for compliance, the Proposed Rule language is not vague.

The Proposed Rule is not vague because it does not describe the

data sondes, what parameters are measured by the data sondes, and

how those parameters are conver ted to a salinity number.

D. Salinity M onitoring L ocation and M ean L ow W ater

73. The Petitioners and Intervenors argued that the

Proposed Rule is vague for failing to define the phrase " 20% of

the total river depth at mean low water, " and is arbitrary or

capricious for failing to include more than one salinity

monitoring station.

74. Total river depth or the water column depth is a

standardized measurement that is made from the surface down to

the bottom of the river bed. Mean low water is commonly

unde rstood in the oceanographic and coastal sciences community as

the average of all low tides over the time period defined as the

national tidal datum epic. The District ' s expert witness,

Dr. Cassondra Armstrong, testified that mean low water can be

determin ed by using two documents prepared by the National

Oceanographic and Atmospheric Administration (NOAA), i.e., the

NOAA tide charts and glossary.

75. The District ' s expert witnesses testified that " 20% of

the total river depth at mean low water " is the loc ation of the

data sonde at the Ft. Myers monitoring station that measures

surface salinity. This is also the depth at which Vallisneria is

located in the CRE. Since, the Proposed Rule language simply

identifies the location of the existing data sonde at the

Ft. Myers salinity monitoring station, the language is not vague.

76. The preponderance of the evidence established that the

Ft. Myers salinity monitoring station has two salinity data

sondes, the one at 20 percent of the total river depth and the

oth er at 80 percent. The data sonde at 20 percent of the total

river depth was identified in the Proposed Rule for the following

reasons. First, this is the depth where Vallisneria grows and is

representative of the salinity exposure for Vallisneria . Secon d,

it guarantees the data sonde is always submerged and able to

record data. Third, it has the most comprehensive period of

record of monitoring data available.

77. As previously found, Vallisneria continues to be a

particularly useful indicator of envir onmental conditions in the

CRE. The location of Vallisneria habitat in the upper CRE and

its negative response to increased salinity made it an excellent

candidate as an ecological indicator for fresh water inflow.

78. Because the preponderance of the ev idence established

that Vallisneria continues to be a particularly useful indicator

of environmental conditions in the CRE, the choice of the

Ft. Myers monitoring station is not arbitrary or capricious.

E. Water Resource Functions vs. Environmental Values

79. The District ' s MFL rule specifies that a water body ' s

specific water resource functions addressed by an MFL are defined

in the MFL technical support document. See Fla. Admin. Code R.

40E - 8.021(31). The Final Technical Document identified the

releva nt water resource functions of the CRE as fish and wildlife

habitats, estuarine resources, water supply, recreation,

navigation, and flood control.

80. The Petitioners and Intervenors argued that the

environmental values listed in Florida Administrative C ode

C hapter 62 - 40, also known as the Water Resource Implementation

Rule, were not adequately addressed in the Final Technical

Document.

81. A proposed rule challenge is not the proper forum to

determine whether a proposed rule is consistent with the Water

Resource Implementation Rule. Such a determination is within the

exclusive jurisdiction of the Department of Environmental

Protection under section 373.114(2), Florida Statutes.

82. Consistency of the District ' s Proposed Rule with the

Water Resource Imp lementation Rule of the Department of

Environmental Protection is not a basis in this proceeding for a

finding that the Proposed Rule is an invalid exercise of

delegated legislative authority.

F. Other I ssues

83. The Petitioners and Intervenors raised ot her issues

during the hearing, although not specifically argued in their

proposed final order. Since those issues were identified as

disputed issues in the Joint Pre - hearing Stipulation, they are

addressed below.

1 . Elimination of S ingle - day E xceedance C riterion

84. During the rulemaking process, Sanibel and SCCF sent

the District a letter requesting justification for eliminating

the single - day exceedance salinity criterion in the current rule.

85. The District staff evaluated the available

Caloosahatch ee River MFL compliance record, dating back to when

the MFL was adopted in September 2001. The District maintains a

historical record of MFL monitoring data and reviewed it to

determine if the single - day exceedance salinity criterion was

exceeded before t he 30 - day moving average criterion. The

compliance record showed five exceedance events of the single - day

salinity criterion have occurred.

86. However, the compliance record also showed that the 30 -

day moving average salinity criterion had already been exceeded

before the five events occurred. In other words, the single - day

criterion was never exceeded before the 30 - day moving average

criterion.

87. Based on this evaluation , the District eliminated the

single - day exceedance salinity criterion because i t did not

provide any additional resource protection. The District ' s

decision was not arbitrary or capricious.

2. Not U sing the L atest M odel

88. Evaluation of recommended MFL criteria and a recovery

strategy for the CRE w ere greatly aided by integration of a suite

of hydrologic and ecological models simulating (1) long - term

fresh water inflow associated with varying management options,

(2) the resulting salinity in the estuary, and (3) ecological

response of indicator species that are sensitive to low fr esh

water inflows.

89. Five models were specifically utilized, including three

models for simulations of fresh water inflows to the CRE, a

three - dimensional hydrodynamic salinity model, and a Vallisneria

model. The three models simulating fresh water inf lows included

(1) the South Florida Water Management Model (SFWMM) to simulate

fresh water discharges at S - 79, which includes regional

operations of Lake Okeechobee and incorporates Caloosahatchee

River irrigation demands ; (2) the C - 43 Reservoir Model, whi ch

uses the SFWMM - simulated daily S - 79 flow as input and simulates

the management benefit of the C - 43 Reservoir ; and (3) the

Watershed (WaSh) Model to simulate tidal tributary inflow from

the Tidal Caloosahatchee Basin sub - watershed.

90. The Caloosahatche e Hydrodynamic/Salinity Model was

based on the Curvilinear Hydrodynamic Three - dimensional Model

(CH3D) modeling framework with the functionality of simulating

the spatial salinity structure across the entire estuary. The

Vallisneria Model took the CH3D mo deled salinity as input to

simulate Vallisneria growth at critical locations in the estuary.

91. The District did review the more recent Environmental

Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee

Total Maximum Daily Load (TMDL) and bei ng used by the Department

of Environmental Protection. The District ' s expert witness,

Dr. Detong Sun, testified that until 2014 , the hydrodynamic part

of the EFDC model was not working well. He testified that in

2016, the District still had concerns and suggested the use of

the District ' s continuous monitoring data from seven locations

across the CRE rather than grab samples for model calibration.

Dr. Sun ' s opinion was that the EFDC model has improved in recent

years , but was still behind the CH3D model in terms of

performance.

92. The District ' s expert witness, Dr. Amanda Kahn,

testified that the water quality component of the EFDC model was

not appropriate for this re - evaluation because the MFL is about

water quantity, not water quality. The water qua lity component

of the EFDC model addresses nutrient loadings , not minimum flows.

Dr. Kahn also testified that in setting MFL criteria for the CRE,

salinity was not a water quality component. Salinity was used as

a water quantity component because it does not change with

biological processes and can be a measure of how much fresh water

is coming into the system.

93. Based on a preponderance of the evidence, the

District ' s decision not to use the EFDC model was not arbitrary

or capricious.

3. Seasonality

94. The Petitioners and Intervenors argued that the

District is required to set a n MFL that varies by season.

9 5. For the CRE, the District set MFL criteria that protect

the system from low flow that would occur in either the wet or

dry season. As previ ously found, the re - evaluation studies

focused on the dry season for two reasons : f irst, because it is

well - established that the upstream migration of salt combined

with reduced fresh water inflow alters the health and

productivity of estuarine habitats ; and s econd, because the dry

seasons are the times when the current MFL criteria are likely to

be exceeded or violated.

96. The MFL statute states that " when appropriate,

[MFLs] may be calculated to reflect seasonal variations. "

§ 373.042(1)(b), Fla. Stat . The preponderance of the evidence

showed that for the CRE, it was not necessary to set a n MFL that

varied by season.

Improper Purpose

97. The Petitioners , Sanibel, Cape Coral, and the Town, did

not participate in this proceeding primarily to harass or to

cause unnecessary delay or for frivolous purpose or to needlessly

increase the cost of litigation. The Petitioners did not

participate in this proceeding for an improper purpose.

98. The Intervenors, Fort Myers, Estero, Bonita Springs,

and CCP, did no t participate in this proceeding primarily to

harass or to cause unnecessary delay or for frivolous purpose or

to needlessly increase the cost of litigation. The Intervenors

did not participate in this proceeding for an improper purpose.

CONCLUSIONS OF LA W

Jurisdiction

99. Under section 120.56, Florida Statutes, DOAH has

jurisdiction over challenges to a proposed rule to determine

whether it is an " invalid exercise of delegated legislative

authority " as defined in section 120.52(8).

100. DOAH is not the proper forum for determining whether a

proposed rule is consistent with the Water Resource

Implementation Rule. Such a determination is within the

exclusive jurisdiction of the Department of Environmental

Protection under section 373.114(2).

Standing

101. Any person substantially affected by a proposed rule

may seek an administrative determination of the invalidity of the

rule on the ground that the rule is an invalid exercise of

delegated legislative authority. See § 120.56(1)(a), Fla. Stat.

102. A pet itioner has the burden of proving its standing by

a preponderance of the evidence. See § 120.56(2)(a), Fla. Stat.

103. Generally, to establish standing, a party must show

the challenged agency action will result in a real and immediate

injury in fact , an d 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).

104. A less demanding test for standing is applicable in

rule challenge cases than in licensing c ases. See Fla. Dep ' t of

Prof ' l Reg., Bd. of Dentistry v. Fla. Dental Hygienists Ass ' n ,

612 So. 2d 646, 651 - 52 (Fla. 1st DCA 1993).

105. The nature of the interests that can furnish the basis

for standing to challenge a proposed rule are those that would be

protected or regulated by the proposed rule. See Abbott Labs . v .

Mylan Pharms., Inc. , 15 So. 3d 642 (Fla. 1st DCA 2009).

106. A n MFL is the limit at which further withdrawals would

be significantly harmful to the water resources or ecology of the

area . The CRE ' s relevant water resources were identified as fish

and wildlife habitats, estuarine resources, water supply,

recreation, navigation, and flood control.

107. The Petitioners and Intervenors established that the

nature of the interests they ident ified as concerns through

testimony and evidence are those that would be protected or

regulated by the Proposed Rule.

108. The Petitioners, Sanibel, Cape Coral, and the Town,

are substantially affected by the Proposed Rule and, therefore,

have standing to challenge it. 6 /

109. The Intervenors, Fort Myers, Bonita Springs, Estero,

and CCP, are substantially affected by the Proposed Rule and ,

therefore, have standing to challenge it.

110. In addition, CCP established associational standing to

challenge the P roposed Rule. See Fla. Home Builders Ass 'n v.

Dep ' t of Labor & Emp . Sec. , 412 So. 2d 351 (Fla. 1982).

General Rule Challenge Principles

111. A person challenging a proposed rule must state with

particularity the reasons that the proposed rule is an inval id

exercise of delegated legislative authority. See § 120.56(2),

Fla. Stat. The challenger has the burden of going forward with

evidence to support the allegations in the petition. Id. If the

challenger meets this burden, the burden of persuasion shift s 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.

112. A proposed rule is not presumed to be valid or

invalid. See § 120.56 (2)(c), Fla. Stat.

113. 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).

Whether the Proposed Rul e Enlarges the Law Implemented

114. A proposed rule is an invalid exercise of delegated

legislative authority under section 120.52(8)(c) if it enlarges,

modifies, or contravenes the specific provisions of law

implemented. The question to be determined is whether the rule

gives effect to a specific law and whether the rule implements or

interprets the law ' s specific powers and duties. See Bd. of Trs.

of Int. Impust Fund v. Day Cruise Ass ' n , 794 So. 2d 696, 704

(Fla. 1st DCA 2001).

115. Section 373.04 2 authorizes Florida water management

districts to establish MFLs for priority surface waters and

aquifers within their jurisdictions. The goal of an MFL is to

prevent significant harm from occurring to the water body from

consumptive use withdrawals. Si gnificant harm is defined as the

" temporary loss of water resource functions, which results from a

change in surface or ground water hydrology, that takes more than

two years to recover, but which is considered less severe than

serious harm. " Fla. Admin. Code R. 40E - 8.021(31). MFL rules

contain specific criteria based on existing best available

information. MFL criteria are periodically re - evaluated and

revised as needed based on new information and changing water

resource conditions.

116. The Petitione rs and Intervenors argued that by

expressing the MFL as a " flow plus salinity component " the

Proposed Rule enlarges, modifies, or contravenes the specific

provisions of law implemented. However, the duration component

is part of compliance and represents the duration of time that

flows can be below the recommended level before causing

significant harm.

117. As previously found, salinity is included in the

duration component of the MFL criteria and is an exceedance

criterion because the science established that the salinity

gradient is crucial to the overall health of the CRE. Including

salinity in the duration component of the MFL criteria achieves

the purpose of the statutory mandate to set MFLs that are

designed to avoid significant harm to the water re sources and

ecology of the area.

118. The District proved that the Proposed Rule does not

enlarge, modify, or contravene the specific provisions of law

implemented.

Whether the Proposed Rule is Vague

119. The concept of " vagueness , " described in cases su ch

as Cole Vision Corporation v. Department of Business and

Professional Regulation , 668 So. 2d 404, 410 (Fla. 1st DCA 1997),

is that a man of common intelligence is unable to read the rule

and understand what he is supposed to do to comply with it, or

wha t he must avoid doing in order not to violate the rule.

120. The preponderance of the evidence at hearing

established that the Proposed Rule sensibly sets forth the MFL

criteria in sufficient detail for scientists and the public to

fully understand its re quirements and restrictions. As the court

stated in Wissel v. State of Florida , 691 So. 2d 507 (Fla. 2d DCA

1997), it is not necessary for the agency to include in its rule

" every step, aspect or procedure " of the scientific process at

issue. It is doubt ful that a rule could ever include sufficient

detail to make an untrained layman completely conversant on the

subject of salinity or mean low water measurements. It is

certain that the MFL statute does not require the District to

undertake such a seminar in its rule. See Wissel v. State of

Fla. , 691 So. 2d at 507, 508 ( " We hold that procedures that are

implicit and incidental . . . do not require further

codification. " ).

121. The Proposed Rule identifies and locates by latitude

and longitude coordinates the existing Ft. Myers salinity

monitoring station as the location where salinity would be

measured for compliance. In addition, the preponderance of the

evidence established that use of PSU to report salinity is

technically not correct. The use of such a pseudo - unit would

actually cause confusion instead of reduce confusion.

122. The District ' s expert witnesses testified that " 20% of

the total river depth at mean low water " is the location of the

data sonde at the Ft. Myers monitoring station that measu res

surface salinity. This is also the depth at which Vallisneria is

located in the CRE. Since, the Proposed Rule language simply

identifies the location of the existing data sonde at the

Ft. Myers salinity monitoring station, the language is not vague.

1 23. Thus, the District proved that t he Proposed Rule is

not vague.

Whether the Proposed Rule is Arbitrary or Capricious

124. A rule is arbitrary if it is not supported by fact or

logic and capricious if it has been adopted with no thought or

reason. Se e § 120.52(8)(e), Fla. Stat.

125. If an agency rule " is justifiable under any analysis

that a reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious. " Dravo Basic Materia ls Co., Inc. v. State , Dep ' t

of Trans p . , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). A rule

is not arbitrary or capricious if there is any evidence to show a

rational basis for the rule. See Fla. League of Cities, Inc. v.

Dep ' t of Envtl. Reg. , 603 So. 2d 1363, 1367 (Fla. 1st DCA 1992).

126. In this case, not only is there a rational basis for

the Proposed Rule, but the District proved by a preponderance of

the evidence that it did not adopt the Proposed Rule without

thought or reason and that it used the best available science to

calculate the MFL criteria.

127. The preponderance of the evidence established that

Vallisneria continues to be a particularly useful indicator of

environmental conditions in the CRE. The District ' s choice of

the Ft. Myers sali nity monitoring station as the location at

which to measure compliance i s supported by the f acts and logic,

and i s reasonable.

128. In addition, the preponderance of the evidence

established that the District ' s decisions to eliminate the

single - day exceed ance salinity criterion, to not use the EFDC

model, and to not set seasonal MFL criteria were not arbitrary or

capricious.

129. Thus, the District proved that the Proposed Rule is

not arbitrary or capricious.

Improper Purpose

130. The District seeks atto rney ' s fees and costs as the

prevailing party in this proposed rule challenge proceeding.

131. Section 120.595(2) states , in relevant part:

If the agency prevails in the proceedings,

the appellate court or administrative law

judge shall award reasonable c osts and

reasonable attorney ' s fees against a party if

the appellate court or administrative law

judge determines that a party participated in

the proceedings for an improper purpose as

defined by paragraph (1)(e).

132. Section 120.595(1)(e) states that " ' [i]mproper

purpose ' means participation in a proceeding pursuant to

s. 120.57(1) primarily to harass or to cause unnecessary delay or

for frivolous purpose or to needlessly increase the cost of

litigation, licensing, or securing the approval of an activi ty. "

133. The Petitioners , Sanibel, Cape Coral, and the Town,

did not participate in this proceeding for an improper purpose.

134. The Intervenors, Fort Myers, Estero, Bonita Springs,

and CCP, did not participate in this proceeding for an improper

purpos e.

O RDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. The Petitioners and Intervenors are substantially

affected by the Proposed Rule and , therefore, have standing to

challenge it.

2. The Proposed Rule 40E - 8.221( 2) is a valid exercise of

delegated legislative authority , and the p etition is dismissed .

3. The District's request for attorney's fees and costs is

denied, because t he Petitioners and Intervenors did not

participate in this proceeding for an improper pur pose.

DONE AND ORDERED this 8 th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 8 th day of March , 2019 .

ENDNOTE S

1/ The District ' s lead scientist for the Caloosahatchee MF L,

Dr. Christopher Buzelli, testified that:

Salinity is defined as the nonvolatile,

nonorganic ionic content of water. Now in the

case of saltwater, the dominant ion is

chloride. So the secondary ion is sodium.

So chloride is about almost 80 percent an d

sodium is 18 to 19 percent, thus the

word salt and salinity. There are other ions,

but salinity is defined historically, again,

as the chlorinity or the chloride ion content

of the water. That was the functional

definition until the 1970 ' s into the ear ly

80 ' s where a group of scientists

oceanographers, in an international UNESCO

program, came up with a relationship that ' s

based on the conductivity of the water.

Pets . Ex . 72, p . 12.

2 / The Notice of Proposed Rule provided:

THE FULL TEXT OF THE PROPOS ED RULE IS:

40E - 8.221 Minimum Flows and Levels (MFLs):

Surface Waters.

The MFLs contained in this Part identify the

point at which further withdrawals would cause

significant harm to the water resources, or

ecology, of the area as applicable, pursuant

t o Sections 373.042 and 373.0421, F.S. It is

the District ' s intent to correct or prevent

the violation of these MFLs through management

of the water resources and implementation of a

recovery strategy.

(1) No change.

(2) Caloosahatchee River. The MFL for the

Caloosahatchee River is the 30 - day moving

average flow of 400 cubic feet per second

(cfs) at S - 79. A minimum mean monthly flow of

300 CFS is necessary to maintain sufficient

salinities at S - 79 in order to prevent a MFL

exceedance. A MFL exceedance occurs during a

365 - day period, when:

(a) A MFL exceedance occurs during a 365 - day

period when the 30 - day moving average flow at

S - 79 is below 400 cfs and the 30 - day moving

average salinity exceeds 10 at the Ft. Myers

salinity monitoring station (locat ed at

latitude 26° 38 ' 57.84 " N , longitude 81° 52 '

5.68 " W). Salinity at the Ft. Myers salinity

monitoring station shall be measured at 20% of

the total river depth at mean low water. A

30 - day average salinity concentration exceeds

10 parts per thousand at the Ft. Myers

salinity station (measured at 20% of the total

river depth from the water surface at a

location of latitude 263907.260, longitude

815209.296); or

(b) A MFL violation occurs when a MFL

exceedance occurs more than once in a 5 - year

period A single, daily average salinity

exceeds a concentration of 20 parts per

thousand at the Ft. Myers salinity station.

Exceedance of either paragraph (a) or (b), for

two consecutive years is a violation of the

MFL .

(3) through (5) No change.

Rulemaking Au thority §§ 9, 10 P.L. 83 - 358,

373.042, 373.044, 373.113, 373.119, 373.129,

373.136, 373.171 FS. Law Implemented 373.016,

373.036, 373.042, 373.0421, 373.175, 373.216,

373.219, 373.223, 373.246, 373.709 FS.

History Î New 9 - 10 - 01, Amended 4 - 1 - 03, 12 - 12 -

06. , __ ____.

3 / Even so, Sanibel argued in the proposed final order that the

Tomasko report concluded the proposed MFL of 400 cfs will not

produce salinity values of 10 or lower at the Ft. Myers monitoring

station, which is necessary to protect Vallisneria . Ho wever, the

Tomasko report actually stated that Dr. Tomasko ' s company did not

attempt to independently develop or model " flow vs. salinity "

relationships for the CRE. The Tomasko report simply summarized

findings from the Final Technical Document and concl uded with a

list of four recommendations. Those recommendations were focused

on seeking explanations from the District as to how an MFL of

400 cfs was expected to produce the target salinity of 10 during

average dry season conditions. The Tomasko report only focused on

the two component studies related to Vallisneria and did not

address the District ' s resource - based approach where the 11 study

components included evaluation of multiple indicator species.

4 / Component Study One used the Curvilinear Hydro dynamic

Three - dimensional model for the Caloosahatchee River . This tool

was used to explore changes in circulation and salinity caused by

structural alterations. It did not provide estimates of inflows

relative to estuarine response variables.

Componen t Study Two evaluated the variable annual

relationship between water volume and salinity by quantifying the

amount of fresh water from S - 79 required to reach a surface

salinity of 10 at the Ft. Myers salinity monitoring station. An

exponential decay equat ion was used which contained 21 years of

salinity data collected at the Ft. Myers salinity monitoring

station. The average monthly inflow at S - 79 required to produce

an average monthly salinity of 10 at the Ft. Myers station was

445 cfs plus or minus a st andard deviation of 218 cfs.

Component Study Three evaluated the effects of low flow on

water quality parameters for dissolved oxygen and chlorophyll a ,

within the CRE ' s water column. These parameters provide a measure

of phytoplankton or algal biomass i n the water column. Long - term

monitoring of these chlorophyll a indicated that concentrations

greater than the water quality standard was associated with an

average inflow at S - 79 of 469 cfs plus or minus a standard

deviation of 689 cfs. Modeling of chlo rophyll a concentrations

produced an average inflow result of 269 cfs plus or minus 493

cfs.

Component Study Four analyzed zooplankton response to fresh

water inflows within the CRE, evaluating real time sample data

from May 2008 to April 2010 at 14 stat ions between San Carlos Bay

and the S - 79 structure. Zooplankton assemblages, consisting of

fish larvae, provide an essential food web link whose position in

the estuary fluctuates with inflow. The zooplankton assemblages

are a source for commercial and r ecreational fisheries. A

statistical regression was used to evaluate how low flow volumes

affected habitat compression and impingement of zooplankton at the

S - 79 structure. Impingement was possible if average inflow from

the S - 79 structure fell below 412 cfs plus or minus a standard

deviation of 165 cfs.

Component Study Five evaluated the relationship between flow

and movement of ichthyoplankton (juvenile fish) to prevent

impingement or flushing out to sea. Ichthyoplankton communities

are key componen ts of food webs in the upper reaches of most

estuaries. This study utilized the salinity preference of

ichthyoplankton to estimate the habitat area with reduced inflow.

Abundance of ichthyoplankton was greatest when the 30 - day inflows

at S - 79 averaged be tween 151 and 600 cfs. Salinity preference was

less than 10 and abundance was centered near Beautiful Island in

the Upper CRE. This abundance and salinity preference w ere

associated with an average inflow from S - 79 of 237.5 cfs plus or

minus a standard d eviation of 255.5 cfs.

Component Study Six evaluated benthic macrofauna organisms

that serve as a food source for mobile organisms. The abundance,

diversity, and composition of the macrofaunal community were

determined relative to observed fluctuations in salinity. Average

inflow on the days when the salinity range was greater than the

tolerance range of the macrofaunal community was 501 cfs plus or

minus a standard deviation of 525 cfs.

Component Study Seven utilized quantitative monitoring of

Vallis neria from 1993 to 1999 and from 2007 to 2013. A change

point analysis was used to evaluate long - term monitoring data and

develop an empirical relationship between mortality of Vallisneria

shoots and changes in salinity. The average inflow for dry season

days, where the salinity at Ft. Myers ranged from 9 to 10 during

the years when Vallisneria was abundant, was 545 cfs plus or minus

a standard deviation of 774 cfs .

Component Study Eight developed a simulation model to

evaluate Vallisneria survival and biomass over a long period of

time. The model was populated with results from mesocosm studies

and was calibrated to field data and environmental variables. The

study highlighted Vallisneria response to different environmental

variables, including light, salinity, and temperature. A salinity

of 12 at the Ft. Myers station and an average inflow of 342 cfs

plus or minus a standard deviation of 180 cfs were identified as

the salinity and inflows where Vallisneria experienced net

mortality.

Component Study Nine evaluated the ideal salinity envelope

for oysters. Salinity conditions from the 2006 to 2014 dry

seasons were categorized relative to oyster habitat criteria and

related to fresh water inflow. The salinity conditions from the

Cape Coral and Shell P oint monitoring stations were used. When

daily salinity was 20 to 25, i.e., within the appropriate range

for oysters, daily inflow at S - 79 averaged 296 cfs plus or minus a

standard deviation of 410 cfs.

Component Study Ten analyzed the influence of hydr ologic

variables, including fresh water inflows, on blue crabs. Blue

crabs are a historically important commercial fishery for Lee

County and a resource function of the Caloosahatchee River .

Twenty - eight years of blue crab catch data from the Florida

Wil dlife Research Institute, rainfall data, and daily discharge

data for S - 79 were used. Average inflow was estimated using

rainfall and S - 79 discharge relationships. The average inflow was

400 cfs plus or minus a standard deviation of 57 cfs.

Component S tudy Eleven evaluated the salinity range under dry

season flows for the shallow habitat of the federally endangered

smalltooth sawfish. The CRE is presently an important sawfish

nursery. Juvenile sawfish habitat can be characterized as

nearshore environm ents of less than one meter in depth, where

salinities range from 12 to 27. This study quantified sawfish

habitat with variable inflow to the CRE in the dry season using a

combination of bathymetric analyses and hydrodynamic modeling.

Inflows of 150 to 3 00 cfs positioned the 12 and 27 salinities in

the shallowest part of the estuary. Specifically, the area of

sawfish habitat was greatest (5.7 km2) when inflow through

the S - 79 structure was 270 cfs in the dry season. Under reduced

inflow, the habitat mig rated into the channel above Beautiful

Island where it was compressed against the S - 79 structure. Higher

inflows pushed the location of salinity 27 out of the estuary.

5 / The District ' s principal scientist, Don Medellin, testified

that the District ' s sc ientific evaluation determined that a flow

of 400 cfs is needed to essentially prevent significant harm from

occurring to the indicator species. When asked why the Proposed

Rule also included a 30 - day moving average salinity component, he

testified that t he salinity component is a " downstream check " or

" surrogate for flow, " and that if the flows at the S - 79 structure

are not met, there may not be a need to discharge additional fresh

water through the S - 79 structure. He explained:

The idea is to do a dow nstream check of the

salinity values in the event that flows at

S - 79 are not met. The idea is to make sure

that we ' re, as part of Î like I indicated

earlier, as part of the recovery strategy that

we ' re not wasting water. It ' s a downstream

check. So if t he salinity is still . . .

below 10, then the MFL is still met. The

threshold is still met.

Tr. 140.

Dr. Buzzelli also testified:

That ' s what we call the combined flow

exceedance. That also included a salinity

trigger. And so to answer your questio n, I

believe was yes, it is possible for either

flow or salinity to lead to an MFL violation.

That ' s why [they are] both in there.

* * *

So if you ' re going to have an inflow, one must

also account for an indicator inside the water

body that repr esents that flow variable. And

in our case that indicator is called salinity

which is a conservative property of the water

that is not affected by chemical or biological

processes, only mixing between salt and fresh.

Thus, the inclusion of both an inflow and a

salinity component to the rule. On top of

that . . . the hydrodynamics of the estuary

mandate inclusion of both of those variables.

Pets . Ex . 72, p p. 33 - 35.

6 / The parties stipulated to the Petitioners, Sanibel, Cape

Coral, and Town ' s , standing in this proceeding. Although parties

can stipulate to facts that may or may not result in the legal

conclusion that a party has standing, the actual legal conclusion

is within the exclusive authority of the relevant tribunal. See

Grand Dunes, Ltd. v. Wal ton Cnty. , 714 So. 2d 473, 475 (Fla. 1st

DCA 1998)( " In the administrative context, standing is equated with

jurisdiction of the subject matter of litigation and is held

subject to the same rules, one of which is that jurisdiction of

the subject matter, thu s standing to bring suit, cannot be

conferred by consent. " ).

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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 Appellat e

Procedure. Such proceedings are commenced by filing the original

notice of administrative 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,

accompan ied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.