STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS JACQUELINE M. LANE; APALACHICOLA BAY AND RIVER KEEPER, INC.; SAVE OUR BAYS, AIR AND CANALS, INC.; FLORIDA PUBLIC INTEREST RESEARCH GROUP, CITIZEN LOBBY, INC.; SANTA ROSA SOUND COALITION; FRIENDS OF SAINT SEBASTIAN RIVER; LINDA YOUNG; AND SAVE OUR SUWANNEE, INC., Petitioners, vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent, and FLORIDA ELECTRIC POWER COORDINATING GROUP, INC.; FLORIDA PULP AND PAPER ASSOCIATION ENVIRONMENTAL AFFAIRS, INC.; FLORIDA MANUFACTURING AND CHEMICAL COUNCIL, INC.; AND FLORIDA WATER ENVIRONMENT ASSOCIATION, INC., Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case Nos. 01-1332RP 01-1462RP 01-1463RP 01-1464RP 01-1465RP 01-1466RP 01-1467RP 01-1797RP FINAL ORDER Pursuant to notice, a final hearing was held in these consolidated cases in accordance with Sections 120.56, 120.569, and 120.57(1), Florida Statutes, on September 4 through 7, 10 through 14, 17, and 19 through 21, 2001, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings. APPEARANCES For Petitioner Jacqueline M. Lane: Jacqueline M. Lane, pro se 10738 Lillian Highway Pensacola, Florida 32506 For Petitioners Apalachicola Bay And River Keeper, Inc.; Save Our Bays, Air and Canals, Inc.; Florida Public Interest Research Group, Citizen Lobby, Inc.; Santa Rosa Sound Coalition; Friends of Saint Sebastian River; Linda Young; and Save Our Suwannee, Inc.: Steven A. Medina, Esquire Steven A. Medina, P.A. Post Office Box 247 Fort Walton Beach, Florida 32549-0247 Jerrel Phillips, Esquire Post Office Box 14463 Tallahassee, Florida 32317-4463 For Respondent Department of Environmental Protection: David A. Crowley, Esquire Winston K. Borkowski, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-2400 For Intervenors Florida Electric Power Coordinating Group, Inc.; Florida Manufacturing and Chemical Council, INC.; AND Florida Water Environment Association, INC.: James S. Alves, Esquire Kevin B. Covington, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301 For Intervenor Florida Pulp and Paper Association Environmental Affairs, Inc.: Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 STATEMENT OF THE ISSUES Whether proposed Rule Chapter 62-303, Florida Administrative Code, which describes how the Department of Environmental Protection will exercise its authority under Section 403.067, Florida Statutes, to identify and list those surface waters in the state that are impaired for purposes of the state's total maximum daily load (commonly referred to as "TMDL") program, is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners. PRELIMINARY STATEMENT On April 10, 2001, Petitioner Jacqueline M. Lane filed a rule challenge Petition with the Division of Administrative Hearings (Division), in which she stated the following under the 3 heading, "Disputed Issues of Material Fact, Statement of Facts that Warrant Reversal, and Statement of Specific Proposed Rules which Require Reversal": 8. Chapter 120.57(1)(e)2. F.S. requires that an agency must demonstrate that the unadopted rule: "b. Does not enlarge, modify, or contravene the specific provisions of law implemented; c. Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency; d. Is not arbitrary or capricious." Language in the proposed rule 62-303 which is in contravention to the above statute and will most likely result in Perdido Bay being taken off the [state's 305(b)] list [of "impaired water bodies" is] as follows: A) 62-303.100(5) "waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations [. . . .]" B) 62-303.600(2) "If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress toward attainment of water quality standards . . . ." These statements violate the provisions of the above F.S. 120.57, in that [they] vest unbridled discretion in the DEP, and [are] arbitrary and capricious. There is nothing in state law 403.067 which says anything about reasonable assurance. The Florida Statute in 403.067(3) and (4) clearly states that attainments of applicable water quality 4 standards shall be confirmed by testing and shall be the standard for the decision on whether or not to do a TMDL. Statements in the proposed rule should be changed to read "after implementation of technology, waters shall be removed from the list or not put on the verified list if testing confirms that all water quality standards are being met." 9. The following part of proposed rule 62303 [is] in contravention of Florida Statute 403.067 as follows: (A) 62-303.430(4) requires identification of a specific factor or a specific pollutant before being put on the verified list. F.S. 403.067(3)(c) says "If water quality nonattainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior to a total maximum daily load being developed for those criteria. . . ." I would interpret this statement to mean that further study would be required to identify the pollutant, not that the water segment would not be put on the verified list because the pollutant was unknown. Petitioner Lane's Petition was docketed as DOAH Case No. 011332RP. A final hearing on the Petition was subsequently scheduled for May 11, 2001. On April 13, 2001, Petitioners Linda Young; Save Our Bays, Air and Canals, Inc.; Florida Public Interest Research Group, Citizen Lobby, Inc.; Santa Rosa Sound Coalition; Friends of Saint Sebastian River; and Apalachicola Bay and River Keeper, Inc., filed separate Petitions with the Division, each challenging proposed Rule Chapter 62-303, Florida Administrative 5 Code, on identical grounds, including the proposed rule chapter's alleged inconsistency with federal law. These Petitions were docketed as DOAH Case Nos. 01-1462RP through 011467RP. On April 20, 2001, the previously-assigned Administrative Law Judge, Judge Charles A. Stampelos, issued an Order consolidating DOAH Case Nos. 01-1332RP and 01-1462RP through 011467RP pursuant to Rule 28-106.108, Florida Administrative Code, and he also issued a Notice of Hearing scheduling the final hearing in these consolidated cases for May 16 and 17, 2001. On that same date, April 20, 2001, Intervenor Florida Pulp and Paper Association Environmental Affairs, Inc. (FPPAEA) filed a Petition requesting leave to intervene in DOAH Case No. 011332RP and Intervenor Florida Electric Power Coordinating Group, Inc. (FCG) filed a Petition requesting leave to intervene in DOAH Case Nos. 01-1332RP and 01-1462RP through 01-1467RP. April 23, 2001, Judge Stampelos entered an Order granting Intervenors FPPAEA and FCG the intervenor status they had requested and providing that such "[i]ntervention [was to] be in subordination to and in recognition of the main proceeding." On April 24, 2001, Intervenor FPPAEA filed a Petition requesting leave to intervene in DOAH Case Nos. 01-1462RP through 01-1467RP. On May 9, 2001, Judge Stampelos entered an On Order granting Intervenor FPPAEA the intervenor status it had 6 requested in DOAH Case Nos. 01-1462RP through 01-1467RP and providing that such "[i]ntervention [was to] be in subordination to and in recognition of the main proceeding." On April 27, 2001, the Department of Environmental Protection (Department) filed a Motion requesting the entry of an order "dismissing the Petition filed by Jacqueline M. Lane, striking portions thereof, or in the alternative, for a more definite statement." On May 10, 2001, Judge Stampelos entered an Order on the Department's Motion, which provided, in pertinent part, as follows: It appears from a reading of Lane's Petition, and particularly paragraph 8, that Lane has specifically challenged proposed changes to proposed rule 62-303.100(5) and 62-303.600(2). On the other hand, it is unclear from reading paragraph 9 of the Petition whether Lane has specifically challenged any portion of proposed rule 62303.430(4). To the extent Lane wishes to challenge a particular portion of this subsection then Lane can do so by filing an amended petition within 10 days of this Order. The undersigned agrees with the Department's position that Section 120.57(1)(e)2, Florida Statutes, does not apply in this rule challenge proceeding. This subsection applies only in administrative proceedings in which agency action determines the substantial interests of a party and is based on an unadopted rule. See Section 120.56(4)(e), Florida Statutes. The procedural aspects of this rule challenge are governed by Sections 120.569 and 120.57(1), Florida Statutes. See Section 120.56(1)(e), Florida Statutes. However, 7 the general procedures and special provisions for challenging the validity of a proposed rule are set forth in Section 120.56(1) and (2), Florida Statutes. See also Sections 120.52(8) and 120.54, Florida Statutes. Accordingly, Lane's reference in her Petition to Section 120.57(1)(e)2, Florida Statutes, is stricken. Finally the undersigned does not have the authority to propose changes to the Department's proposed rules nor affirmatively make any changes in a final order. However, any comments mentioned by Lane in her Petition may be considered, if relevant to support her rule challenge. In response to the Order, Petitioner Lane, on May 21, 2001, filed an Amended Petition, in which she identified the "portions of proposed Rule [Chapter] 62-303 which [she claimed] are an invalid exercise of F.S. 403.067," stating as follows: 7. Section 62-303.100(5) says: " waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA." Similarly, Section 62-303.600(2) says: " If, as a result of the factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list 8 is scheduled to be submitted to EPA, the segment shall not be listed on the verified list." Both of these sections exceed the authority of F.S. 403.067(4). F.S. 403.067(4) says: " If the department determines, based on the total maximum daily load assessment methodology described in subsection (3), that water quality standards are not being achieved and that technology-based effluent limitations and other pollution control programs under local, state, or federal authority, including Everglades restoration activities pursuant to s. 373.4592 and the National Estuary Program, which are designed to restore such waters for the pollutant of concern are not sufficient to result in attainment of applicable surface water quality standards, it shall confirm that determination by issuing a subsequent, updated list of those water bodies or segments for which total maximum daily loads will be calculated." This "updated list" that is referred to in the above quote from F.S. 403.067(4) is the verified list of proposed rule 62-303. There is no language in statute 403.067 which says the water segment will not be on the verified list if the water segment is expected to meet water quality standards in the future or reasonable progress is being made toward meeting water quality standards. F.S. 403.067(2) is very clear about what water segments should have total maximum daily loads established-- those water segments which do not meet water quality standards. Using language which says that use of some future, unspecified technology would allow the water segment to remain off the verified list is capricious, vague, and vests too much discretion in the DEP. 8. Section 62-303.430(4) is also an invalid interpretation of Statu[t]e 403.067. 9 Proposed rule 62-303.430(4) requires identification of a specific factor or a specific pollutant before being put on the verified list. F.S. 403.067(3)(c) says: "If water quality nonattainment is based on narrative or biological criteria, the specific factors concerning particular pollutants shall be identified prior (underline for emphasis) to a total maximum daily load being developed for those criteria . . . " I would interpret this to mean that further study would be required to identify the pollutant, not that the water segment would not be put on the verified list because the pollutant was unknown." On May 1, 2001, at the request of the parties, Judge Stampelos rescheduled the final hearing in DOAH Case Nos. 011332RP and 01-1462RP through 01-1467RP for August 27 through 31 and September 4 through 7 and 10 through 14, 2001. On August 6, 2001, the final hearing was again rescheduled, this time for September 4 through 7, 10 through 14, and 17 through 21, 2001. On May 2, 2001, Intervenor FCG filed a Motion for Partial Summary Final Order and Motion to Strike in DOAH Case Nos. 011462RP through 01-1466RP requesting the entry of an order "disposing of the issues concerning consistency with federal laws as set forth in the . . . rule challenge petitions filed [in these cases] on the grounds that inconsistency with federal law cannot be a basis for declaring this proposed rule invalid in this forum." The Department and Intervenor FPPAEA joined in On the Motion on May 8, 2001, and May 9, 2001, respectively. May 9, 2001, the Petitioners in DOAH Case Nos. 01-1462RP through 10 01-1466RP filed a Response to the Motion. Oral argument on the Motion before Judge Stampelos was held by telephone conference call on May 17, 2001. On May 22, 2001, Judge Stampelos issued an Order on the Motion, which provided as follows: After hearing argument of counsel, FCG's Motion is treated as a Motion to Strike and is hereby granted for the reasons stated below. Legal Discussion Petitioners are challenging several portions of Proposed Rule Chapter 62-303 ("identification of impaired surface waters") which establishes the Department's "methodology to identify surface waters of the state that will be included on the state's planning list of waters that will be assessed pursuant to subsections 403.067(2) and (3)" and "also establishes a methodology to identify impaired waters that will be included on the state's verified list of impaired waters, for which the Department will calculate Total Maximum Daily Loads (TMDLs), pursuant to subsection 403.067(4) . . . ." Proposed Rule 62303.100(1). The Department is required to promulgate a TMDL methodology rule pursuant to Section 403.067(3)(b), Florida Statutes. Petitioners claim that several portions of the Proposed Rules are inconsistent with various provisions of the Clean Water Act (CWA), 33 U.S.C. Section 1251 et seq. and regulations promulgated by the Environmental Protection Agency (EPA), including 40 C.F.R. Section 130.7(b)(5) et seq.[1]. The Department and the Intervenors argue that any alleged inconsistency with the CWA and the cited federal regulations, cannot serve as a basis for declaring the proposed rules invalid in this rule challenge. The undersigned agrees. 11 Pursuant to Section 120.56(1)(a), Florida Statutes, any person substantially affected by an agency's 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." This phrase is defined in Section 120.52(8), Florida Statutes, as an "action that goes beyond the powers, functions, and duties delegated by the Legislature." Section 120.52(8) lists seven circumstances in which a rule is an invalid exercise of delegated legislative authority. In addition to the seven numerated grounds for challenging a rule, Section 120.52(8) provides a set of general standards to be used in determining the validity of a rule in all cases. See also Section 120.536(1), Florida Statutes. These standards are contained in the closing paragraph of Section 120.52(8). "Rulemaking is a legislative function, and as such, it is within the exclusive authority of the Legislature under the separation of powers provision of the Florida Constitution. . . . An administrative rule is valid only if adopted under a proper delegation of legislative authority. . . . It follows that the Legislature is free to define the standard for determining whether a rule is supported by legislative authority." Southwest Florida Water Management District v. Save the Manatee Club, Inc., 773 So. 2d 594, 598 (Fla. 1st DCA 2000) (citations omitted). Challenges to proposed rules in hearings held under Section 120.56, Florida Statutes, "shall be conducted in the same manner provided by ss. 120.569 and 120.57, except that the administrative law judge's order shall be final agency action." Section 120.56(1)(e), Florida Statutes. "The 12 administrative law judge may declare the proposed rule wholly or partially invalid." Section 120.56(2)(b), Florida Statutes. "Administrative bodies [such as the Department and the Division of Administrative Hearings] have no common law powers. They are creatures of the Legislature and what powers they have are limited to the statutes that create them." State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628, 636 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974)(citations omitted). See also Miller v. State, Department of Environmental Regulation, 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987). It has also been held that any reasonable doubt about the lawful existence of a particular power being ex[ercis]ed by an administrative agency is to be resolved against its exercise. Greenberg, 297 So. 2d at 636. In 1999, the Legislature revised several provisions of Chapter 120, Florida Statutes, pertaining to the rulemaking authority of agencies. "The new law gives the agencies authority to 'implement or interpret' specific powers and duties contained in the enabling statute." Southwest Florida Water Management District, 773 So. 2d at 599. "[I]t is clear that the authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute. Otherwise, the rule is not a valid exercise of delegated legislative authority." Id. In essence, in 1999, the Legislature narrowed the authority of an agency to adopt rules. Also in 1999, the Legislature enacted Section 403.031(21) defining "total maximum daily load" and Section 403.067, pertaining to the "establishment and implementation of total maximum daily loads." Sections 403.031(21) and 403.067, Florida Statutes. See also Chapter 99-223, Sections 2 and 3, 13 Laws of Florida and Chapter 99-53, Sections 9 and 10, Laws of Florida. In part, in the Legislative findings and intent portion of Section 403.067(1), "the Legislature declare[d] that the waters of the state are among its most basic resources and that the development of a total maximum daily load program for state waters as required by s. 303(d) of the Clean Water Act, Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. will promote improvements in water quality throughout the state through the coordinating control of point and nonpoint sources of pollution." Section 403.067(1), Florida Statutes. In enacting Section 403.067, the Legislature was aware of the requirements of the CWA and, in particular, 33 U.S.C. Section 1313(d) (a/k/a Section 303(d)), having referred to this subsection in Section 403.067. See, e.g., Section 403.067(2)(c), (9), and (11), Florida Statutes. See also Chapter 99-353, "Title," Laws of Florida ("creating s. 403.067, F.S.; authorizing the Department of Environmental Protection to adopt a process of listing surface waters not meeting water quality standards and for the process of establishing, allocating, and implementing total maximum daily loads applicable to such listed waters; providing specific authority for the department to implement s. 1313, 33 U.S.C.; providing legislative findings and intent; providing for a listing of surface waters; providing for an assessment; providing for an adopted list; providing for removal from the list; providing for calculation of total maximum daily load; providing for implementation; providing for rules; providing for application; providing for construction; providing for evaluation;") (emphasis added). Two legislative staff analyses also indicate a particular awareness of the import of the CWA. See House of Representatives as Revised by the Committee on Water & Resource Management Final 14 Analysis, CS/HB2067, June 14, 1999, Storage Name-h2067slz.wrm and Senate Staff Analysis and Economic Impact Statement, CS/SB2282, March 22, 1999.[2] The Legislature authorized and clearly mandated that the Department "adopt by rule a methodology for determining those waters which are impaired." Section 403.067(3)(b), Florida Statutes. In plain language, the Legislature also stated: "(9) Application.-- The provisions of this section are intended to supplement existing law, and nothing in this section shall be construed as altering any applicable state water quality standards or as restricting the authority otherwise granted to the department or a water management district under this chapter or chapter 373. The exclusive means of state implementation of s. 303 (d) of the Clean Water Act Pub. L. No. 92-500, 33 U.S.C. ss. 1251 et seq. shall be in accordance with the identification, assessment, calculation and allocation, and implementation provisions of this section." Section 403.067(9), Florida Statutes (emphasis added). With respect to "implementation of additional programs," the Legislature also provided: "The department shall not implement, without prior legislative approval, any additional regulatory authority pursuant to s. 303(d) of the Clean Water Act or 40 C.F.R. part 130, if such implementation would result in water quality discharge regulation of activities not currently subject to regulation." Section 403.067(11), Florida Statutes. Implementation of the CWA involves federalstate cooperation. The EPA and the Department have separate, yet often, intertwined, statutory duties and responsibilities. To this end, it appears that the CWA, and in particular 33 U.S.C. 15 Section 1313(d), gives the states a primary role to develop and implement the TMDL program, and material here, the methodology for determining waters which are impaired.[3] In this manner, consideration of the Proposed Rules presents a different situation from the consideration of the federal and state statutory scheme and proposed rules at issue in Flowers v. State of Florida, Department of Health and Rehabilitative Services, Case No. 89-1581RP, 1989 WL 644426, at *9 and *10 (Fla. Div. Admin. Hrgs. June 9, 1989), aff'd, 559 So. 2d 1142 (Fla. 1st DCA 1990). Absent an express statement of congressional will that the states are "required" to implement 33 U.S.C. Section 1313(d) in a particular manner when developing a methodology as proposed here, and the Florida Legislature requiring the Department to implement the CWA in a different manner from that which is stated in Section 403.067, it would be inappropriate for an administrative law judge in this rule challenge proceeding to consider the validity of the Proposed Rules in light of the CWA and EPA regulations, and in a manner inconsistent with Section 403.067 and other Florida Statutes being implemented. See generally Curtis v. Taylor, 648 F.2d 946, 948 (5th Cir. 1980). In summary, the Legislature, mindful of the requirements of the CWA, has implemented the cited provisions of the CWA in a particular manner and has mandated that the Department, in turn, implement the CWA, and adopt rules solely in accordance with Section 403.067, Florida Statutes. Thus, given the nature of this rule challenge proceeding and the statutory authority vested in the Department and the undersigned, it would be inappropriate to consider the validity of the Proposed Rules in light of the federal law and regulations cited by Petitioners. 16 Accordingly, it is, therefore, ORDERED that FEPCG's Motion to Strike is granted and Petitioners' references to the CWA and the Code of Federal Regulations, as more particularly described in paragraph (ii), pages 9 and 10 of the Motion to Strike, are stricken. On May 7, 2001, Petitioner Save Our Suwannee, Inc., filed a Petition with the Division challenging proposed Rule Chapter 62303, Florida Administrative Code, on the same grounds that the Petitioners in DOAH Case Nos. 01-1462RP through 01-1466RP had relied upon in their Petitions. Petitioner Save Our Suwannee, On Inc.'s Petition was docketed as DOAH Case No. 01-1797RP. May 15, 2001, Petitioner Save Our Suwannee, Inc., filed a Request to Consolidate DOAH Case No. 01-1797RP with DOAH Case Nos. 01-1332RP and 01-1462RP through 01-1466RP. On May 16, 2001, Judge Stampelos entered an Order consolidating these cases. On May 15, 2001, the Department filed a Notice advising that "the Environmental Regulation Commission, at its rule adoption hearing held April 26, 2001, [had] adopted certain amendments to the proposed rules being challenged in these consolidated cases" and that a "Notice of Change ha[d] been published in the May 11, 2001 issue of Florida Administrative Weekly." On May 17, 2001, Intervenor Florida Manufacturing and 17 Chemical Council, Inc. (FMCC) filed a Petition to Intervene in DOAH Case Nos. 01-1332RP, 01-1462RP through 01-1466RP, and 011797RP. On May 18, 2001, Judge Stampelos entered an Order granting Intervenor FMCC the intervenor status it had requested and providing that such "[i]ntervention [was to] be in subordination to and in recognition of the main proceeding." Intervenors FPPAEA and FCG, on May 18, 2001, and May 23, 2001, respectively, filed Petitions to Intervene in DOAH Case No. 01-1797RP. Intervenor FPPAEA's Petition to Intervene was Intervenor FCG's granted by Judge Stampelos on May 18, 2001. Petition to Intervene was granted by Judge Stampelos on May 24, 2001. Both Orders provided that the "[i]ntervention [granted therein was to] be in subordination to and in recognition of the main proceeding." On May 29, 2001, Intervenor FCG filed a Motion Strike Federal References from Save Our Suwannee's Petition. Department joined in the Motion on May 31, 2001. The On June 6, 2001, Judge Stampelos issued an Order granting the Motion. On May 31, 2001, Intervenor Florida Water Environment Association, Inc. (FWEA) filed a Petition to Intervene in DOAH Case Nos. 01-1332RP, 01-1462RP through 01-1466RP, and 01-1797RP. On June 1, 2001, Judge Stampelos entered an Order granting Intervenor FWEA the intervenor status it had requested and 18 providing that such "[i]ntervention [was to] be in subordination to and in recognition of the main proceeding." On June 25, 2001, Petitioners Linda Young; Save Our Bays, Air and Canals, Inc.; Florida Public Interest Research Group, Citizen Lobby, Inc.; Santa Rosa Sound Coalition; Friends of Saint Sebastian River; Apalachicola Bay and River Keeper, Inc.; and Save Our Suwannee, Inc. (hereinafter referred to collectively as the "Joint Petitioners") filed a Motion requesting permission to file an Amended Petition "in conformity with" the rulings of Judge Stampelos announced in his Orders of May 22, 2001, and June 6, 2001, granting FCG's Motions to Strike. Joint Petitioners' Motion to Amend was accompanied by the Amended Petition they sought to file.4 In their Amended Petition, Joint Petitioners alleged that proposed Rule Chapter 62-303, Florida Administrative Code, suffered from the following "[f]acial [l]egal [f]laws" and "[e]vidence-[r]elated [l]egal flaws: Facial Legal Flaws 27. The proposed rule as a whole is invalid based on the flush left language in Section 120.52(8), Florida Statutes, by substituting a two-step process (i.e., development of "planning" and "verified" lists) for the three-step process imposed by the Legislature in subsections (2)-(4) of Section 403.067, Florida Statutes, (i.e., informal listing, assessing, and confirming), which effectively creates a formal rule barring listing even on a 19 "planning list" submitted to EPA except in accordance with assessment pursuant to methodology prescribed by DEP in the rule, even though the assessment methodology only should apply at the assessment and confirmation steps; and by providing for heightened non-statutory requirements at the latter (i.e., confirmation, or approved list) step (see Part III of Proposed [Rule Chapter] 62-303), in conflict with the confirmation process imposed by the Legislature in subsection (4) of Section 403.067. 28. Further, assuming arguendo DOAH correctly ruled on May 22, 2001, that "it would be inappropriate to consider the validity of the Proposed Rules in light of the federal law and regulations cited by Petitioners," DEP likewise lacks specific authority to characterize in the proposed rule what the CWA or the implementing federal regulations describe or allow. If DOAH is correct in its ruling then it follows that DEP has no power, duty, or authority to make any such characterizations in its proposed rule. Accordingly, based on DOAH's ruling, all such characterizations must be stricken from the proposed rule. See Proposed Fla. Admin. Code Rs. 62303.100(1) and (2),.150(1) and (2),.200(21). Evidence-Related Legal Flaws 29. In violation of the rulemaking methodology mandate in Section 403.067(3)(b), Florida Statutes, the proposed rule would reject or otherwise wrongly reduce the utility of "objective and credible data, studies and reports" material to assessing impairment, and conversely, give credence or definitiveness to other data, studies and reports in determining lack of impairment that do not rise to the level of "objective and credible" or are not sufficient to demonstrate lack of impairment. This defect is overarching and 20 pervasive throughout the rule, see Proposed Fla. Admin. Code Rs. 62-303.100, .150, .200, .300, .310, .320, .330, .340, .350, .351, .352, .353, .360, .370, .380, .400, .410, .420, .430, .440, .450, .460, .470, .480, and .720, including, but not limited to, through the instances of invalidity alleged further below. This wrongful data treatment will adversely impact assessment for impairment in virtually all water resource categories, including estuaries and other marine waters (62-303.200(5), .353), fresh water streams (62-303.150[sic](18), .351) and lakes (62-303.150[sic](7), .352), shellfish harvesting waters (62-303.370, .470), swimming waters (62-303.300(1), .360, .460), drinking water sources (62-303.380, .480), and fisheries (62-303.370, .470) and wildlife habitat; and for virtually all pollution assessment categories, including bioassessment (62-303.200(1), .330, .430), metals (62-303.200(2), .320(8), and .420(4)), nutrients (62-303.350-.353, .450), and toxicity (62-303.340, .440). See also Part III of Proposed Fla. Admin. Code R. 62303, .430(4), .700(1), .710(1). 30. 62-303.100 of the proposed rule would create unauthorized exceptions to the objective and credible data requirement for mixing zones and other "moderating provisions," as well as natural and manmade conditions that can contribute to and exacerbate the impairment associated with point and non-point sources of pollution. See also 62-303.150[sic](23). 31. 62-303.100(5) of the proposed rule states that "[p]ursuant to section 403.067, F.S., impaired waters shall not be listed on the verified list if reasonable assurance is provided that, as a result of existing or proposed technology-based limitations and other pollution control programs under local, state, or federal authority, they will attain water quality standards in the future and reasonable progress towards 21 attainment of water quality standards will be made by the time the next 303(d) list is scheduled to be submitted to EPA." As discussed further below, the proposed rule provides no standards for determining the meaning of "reasonable progress," nor does it provide any limitation on the future date by which an otherwise impaired water will be expected to attain water quality standards. Further, there is no statutory basis in Section 403.067, Florida Statutes, to avoid listing waters based on a supposition that the impairment will be somewhat improved prior to the filing of the next 303(d) list with EPA. 32. Several sections of the proposed rule contain language that serves to improperly limit the number of samples or duration of samples that can be considered by DEP for TMDL assessment although the samples present objective and credible evidence of impairment. These samples are limited either temporally or by number. See 62303.300, .310, .320, .330, .340, .350, .351, .352, .353, .360, .370, .380, .400, .410, .420, .430, .440, .450, .460, .470, .480, and .720. 33. 62-303.320 creates a system whereby the addition of a water segment onto the planning list is determined by the number of exceedances of water quality criteria. In order for a water segment to be included on the planning list the number of exceedances must be greater than the number allowed in Table 1 of the rule. The determination of potential impairment by means of binomial distribution, a procedure that does not account for the severity of exceedances of water quality criterion, past history of exceedances, and nature of the pollutants is not an appropriate means of determining the impairment of a water segment. 34. 62-303.320(6) states that "[o]utliers identified through statistical procedures 22 shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded."[5] 62303.320(6), if adopted, would improperly permit DEP to exclude from consideration pollution created by point and nonpoint sources. The phrase "outliers identified through statistical procedures" also is vague and provides the DEP with an extreme and inappropriate amount of agency discretion not provided for in 403.067, Florida Statutes. 35. 62-303.330(2) states that "[b]ecause of the complexity of bioassessment procedures, persons conducting the bioassessment will, in addition to meeting the quality assurance requirements of Chapter 62-160, F.A.C., be required to pass a Department sanctioned field audit before their bioassessment data will be considered valid for use under this rule." Inasmuch as the proposed rule does not specify the requirements of the "Department sanctioned field audit" it is meaningless and lacks objectivity and credibility. See also paragraph 42 below. It provides no notice to the public of the requirements of the field audit. There must be assurances that the Department will apply one set of requirements to all people conducting these tests, that these requirements will be applied on a statewide basis, that the Department will have the resources to prevent any logjam regarding conducting field audits, and that these criteria will not exclude individuals who by reason of education or experience are capable of obtaining objective and credible data of use in whole or in part in assessing the biological health or other indicia of impairment in relation to any or all state waters. 36. Proposed rule 62-303.360(3) improperly states that "[a]dvisories, warnings, and closures based on red tides, rip tides, 23 sewage spills, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when assessing recreation use support. However, the Department shall note for the record that data were excluded and explain why they were excluded." Similarly, proposed rule 62-303.460(1) improperly states that ". . . [i]f the segment is listed on the planning list based on bathing area closures, advisories, or warnings issued by a local health department or county government, closures, advisories, or warnings based on red tides, rip tides, sewer line breaks, sharks, medical wastes, hurricanes, or other factors not related to chronic discharges of pollutants shall not be included when verifying primary contact and recreation use support." Red tides, sewage spills, and medical wastes can be in whole or in part related to point and nonpoint sources that can each present important indicia of impairment, as can acute discharges or pollutants. Further, the definition of "spill" in 62-303.200(16) of the proposed rule as ". . . a short-term, unpermitted discharge to surface waters, not to include sanitary sewer overflows or chronic discharges from leaking wastewater collection systems" would improperly exclude from consideration by including in the definition of spill many point and non-point sources that provide indicia of impairment. Further, "[a]dvisories, warnings, and closures" and other indicia of interference with swimming areas and other potentially harmful human contact with pollution will be improperly excluded, minimized, or discounted from consideration under proposed [Rules] 62-303.300(1), .360, and .460. 37. Parts III and IV of the proposed rule, as well as other sections of the proposed rule including 62-303.150[sic](6), (11), and (21), .370, and .380 contain language that wrongly relies in whole or in part on the 24 "Planning List" and the requirements set forth in proposed rule 62-303.320. 38. 62-303.420(2) creates a system whereby the addition of a water segment onto the verified list is determined by the number of exceedances of water quality criteri[a]. In order for a water segment to be included on the verified list the number of exceedances must be greater than the number allowed in Table 2 of the rule. The determination of potential impairment by means of binomial distribution, a procedure that does not account for the severity of exceedances of water quality criteri[a], past history of exceedances, and nature of the pollutants is not an appropriate means of determining the impairment of a water segment. 39. Proposed rule 62-303.420(5) states that "[o]utliers identified through statistical procedures, water quality criteria exceedances due solely to violations of specific effluent limitations contained in state permits authorizing discharges to surface waters, water quality criteria exceedances within permitted mixing zones for those parameters for which the mixing zones are in effect and water quality data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded."[6] Similarly, proposed rule 62-303.440(3) improperly states that "[t]oxicity data collected following contaminant spills, discharges due to upsets or bypasses from permitted facilities, or rainfall in excess of the 25-year, 24-hour storm, shall be excluded from the assessment. However, the Department shall note for the record that the data were excluded and explain why they were excluded." These provisions would 25 improperly undercut the assessment of waters of the state that are impaired as a result of point and nonpoint discharges, as well as be vague and fraught with potential for abuse in application. Further, because violations of permit limits and other specified conditions would not count in the assessing of whether a water body is impaired, water bodies could be excluded that are in fact impaired, including in cases where one or more pollution emitting facilities have not been brought into compliance and yet have been allowed to continue operating. Holding or receiving a permit that is in turn violated does not make the affected water body any less impaired. Similarly, to effectively overlook the environmental effects associated with not effectively planning to meet the needs generated by large rainfall events that are a recurring part of the complex hydrodynamics of the Florida environment is inappropriate. Devastating damage to water quality and associated biota constituting impairment can arise from major storm events. Further, "outliers identified through statistical procedures" is vague and fraught with potential for abusive neglect. 40. The enabling statute does not authorize DEP's proposed prioritization rule, 62303.500. Further, proposed rule 62303.500(4)(a) states that "All segments not designated high or low priority shall be medium priority and shall be prioritized based on the following factors: (a) the presence of Outstanding Florida Waters." The designation of Outstanding Florida Waters as medium priority directly conflicts with Section 403.061(27), Florida Statutes, and 62-302.700(1), which states that "(1) It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in Rule 62-4.242(2) and (3), F.A.C., is to be permitted in 26 Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering." Similarly, proposed rule 62-303.500(4)(c) prioritizes based on "administrative needs of the TMDL program, including meeting a TMDL development schedule agreed to with EPA, basin priorities related to following the Department's watershed management approach, and the number of administratively continued permits in the basin." Priority designation of a water segment should be based upon the level of impairment of the water segment not based upon the level of funding that the Department of Environmental Protection receives each year from the Legislature. It is the Department's obligation to apprise the Legislature of the funding needs associated with the environmental problems facing the State of Florida in order to obtain the funding necessary to carry out its statutory mandate, and it is the Legislature's responsibility to meet these funding needs. 41. Proposed rule 62-303.600 is not authorized by the enabling statute. 62303.600(1) states that "[u]pon determining that a water body is impaired, the Department shall evaluate whether existing or proposed technology-based effluent limitations and other pollution control programs under local, state, or federal authority are sufficient to result in the attainment of applicable water quality standards." Similarly, 62-303.600(2) states that "[i]f, as a result of factors set forth in (1), the water segment is expected to attain water quality standards in the future and is expected to make reasonable progress towards attainment of water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA, the segment shall not be listed on the verified list. The Department shall document the basis for its decision, noting any proposed 27 pollution control mechanisms and expected improvements in water quality that provide reasonable assurance that the water segment will attain applicable water quality standards." Neither provision of 62-303.600 justifies lack of consideration of the impaired status of an impaired water segment. 1f pollution control mechanisms are already in effect, and the water segment is still impaired, it is clear that those mechanisms have not provided the needed protection. Further, prevention of impairment is not rightly considered when it does not remove the impairment in real time contemporaneously with the impairment. Further, major delays are commonly associated with pollution control overhauls going into effect and remediating the environment, including in situations where one or more older facility has an existing permit. In that case, the addition of pollution control mechanisms to the permit typically will require (1) identifying the pollution control mechanisms sufficient to provide remediation, (2) if possible, reopening the permit to include those mechanisms or imposing the proposed changes as part of a renewal when a[n] administrative continuance is typically in place, (3) allowing for administrative challenges to permit changes, (4) issuance of the new permit, and (5) implementation. Each step[] involves significant uncertainty. Further, to expect those steps to be completed prior to submission of the next 303(d) list to EPA is unrealistic. Further, the proposed rule provides no meaningful standards for determining the meaning of "reasonable progress." In any event, the "reasonable progress" talisman is totally unsupported by the statute. There is no statutory basis in Section 403.067, Florida Statutes, for allowing waters to avoid listing based on a supposition that the impairment will be corrected or make "reasonable progress" prior to the filing of the next 303(d) list with EPA. Further, 28 there are no meaningful standards set forth to determine how the Department shall decide whether a water segment is "expected to attain water quality standards by the time the next 303(d) list is scheduled to be submitted to EPA. . . ." The fact that the Department must document the proposed pollution control mechanisms and the expected improvements only underscores the uncertainty of this process. If pollution control mechanisms are only proposed or potential they have not been included in the applicable permit. The fact that there is an expectation of improved water quality serves to underscore the point that as of the time the decision is being made impairment exists. 42. Further, the proposed rule and associated rulemaking process also have a host of other procedural and practical defects that work to the disadvantage of large segments of the affected citizenry. Section 120.54(2)(b), Florida Statutes, states that "[a]ll rules should be drafted in readable language. The language is readable if: 1. It avoids the use of obscure words and unnecessarily long or complicated constructions; and 2. It avoids the use of unnecessary technical or specialized language that is understood only by members of particular trades or professions." Proposed rule 62-303, when considered in its entirety, is in violation of Section 120.54(2)(b), Florida Statutes. Similarly, under Chapter 75 of 2001, Section 9, paragraph (i) of subsection (1) of section 120.54, Florida Statutes, "A rule may incorporate material by reference but only as the material exists on the date the rule is adopted." The proposed rule would be in part based on standard operating procedures and other processes and documents that do not now exist, are not incorporated by reference in the proposed rule, or are not meaningfully available to members of the public now and/or during the rulemaking 29 workshop process related to the proposed rule including: "STORET," a database that is not incorporated by reference in the rules and that does not now function adequately, that malfunctioned continually during the entire workshop process associated with this rule, and that is reasonably expected to have continuing major problems for retrieving and managing data associated with the TMDL process and with evaluating the effects of the proposed rule on specific water bodies (see 62-303.320(2), (7)(b), .700(1)); and dependency on establishment of water segment designations by a process that is left without meaningful standards under the proposed rule (62303.200(24)). See also Proposed Fla. Admin. Code Rs. 62-303.320(7)(b), and. 470(l)(b). Joint Petitioners, in their Amended Petition, requested the following relief: A. [A]n administrative determination that DEP's proposed rule 62-303 is an invalid exercise of delegated legislative authority in that (1) DEP has materially failed to follow the applicable rulemaking procedures or requirements set forth in Chapter 120, Section 120.52(8)(a); (2) DEP has exceeded its grant of rulemaking authority, Section 120.52(8)(b), Florida Statutes; (3) DEP has enlarged, modified, and contravened the specific provisions of law allegedly implemented, Section 120.52(8)(c); (4) that the proposed rule is vague and fails to establish adequate standards for agency decisions, Section 120.52(8)(d); (5) that the proposed rule vests unbridled discretion in the agency, Section 120.52(8)(d); (6) that DEP has acted arbitrarily and capriciously, Section 120.52(8)(e); (7) that DEP has acted not based upon competent substantial evidence, Section 120.52(