STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL W. ROTHENBERGER, ) MICHAEL T. IRWIN, and VERNON )

B. POWERS, )

)

Petitioners, )

)

vs. )

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and ) DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

Case No. 02-3423

RECOMMENDED ORDER

On September 9-11, 2003, final administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: William D. Preston, Esquire

2937 Kerry Forest Parkway, Suite B-1 Tallahassee, Florida 32309-6825

For Respondent Southwest Florida Water Management District:

Steve Rushing, Esquire David C. Ryder, Esquire 2379 Broad Street

Brooksville, Florida 34609-6899 For Respondent Department of Transportation:

Robert C. Downie II, Esquire Assistant General Counsel

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.

PRELIMINARY STATEMENT

On April 3, 2002, the Department filed with the District an application for Environmental Resource Standard General Construction Permit (Standard General ERP) No. 44023532.000. The Standard General ERP application sought approval for construction and operation of the Pinellas Bayway Bridge Replacement and the associated surface water management system in Pinellas County, Florida.

On July 25, 2002, the District issued Standard General ERP No. 44023532.000 approving the Department's application. On August 4, 2002, Notice of Agency Action for Standard General ERP No. 44023532.000 was published in the Pinellas Edition of The Tampa Tribune. On August 15, 2002, a Petition for Formal Administrative Hearing (Petition) contesting the issuance of the Standard General ERP was filed.

On August 30, 2002, the District referred the Petition to DOAH. Final hearing was scheduled in Tampa for December 10- 12, 2002, and discovery commenced.

On November 25, 2002, DOT filed a Motion for Continuance of Final Hearing, which was granted. On November 26, 2002, an Order Granting Continuance and Rescheduling Hearing for March 4-6, 2003, was issued.

On March 3, 2003, Petitioners filed an agreed Motion for Continuance, which was granted, based on the District's determination that an Individual ERP was required. On March 4, 2003, an Order Granting Continuance and Placing Case in Abeyance was issued, and the parties were advised to prepare a Status Report by March 21, 2003. Also on March 3, 2003, the District received DOT's application to amend its Standard General ERP to make it an Individual ERP.

Based on the Joint Status Report filed by Petitioners on March 21, 2003, final hearing was rescheduled for September 9- 11, 2003, and the parties were required to file a prehearing stipulation.

On April 18, 2003, the District published its Notice of Applications for Individual ERP No. 43023532.000 in The St. Petersburg Times. The District issued its Notice of Proposed Agency Action on March 28, 2003, and on April 2, 2003. Notice

of Final Proposed Agency Action was published in the Pinellas Edition of The Tampa Tribune on May 4, 2003.

The Pre-Hearing Stipulation narrowed the issues to whether DOT provided reasonable assurances regarding the effect the proposed activities to be authorized under the ERP will have on: navigation, including sediment transport or shoaling; on recreation, including fishing; and on water quality. Petitioners also contended that the project authorized by the ERP is subject to the requirements and procedures of Florida Administrative Code Chapters 18-20 (Florida Aquatic Preserves) and 18-21 (Sovereignty Submerged Lands Management).

At final hearing, DOT called the following witnesses: Richard Adair, Senior Project Manager for DOT; Paul Schmidt, P.E., URS Corporation, an expert in roadway drainage and system design; Tom Pride, Biological Consultant, URS Corporation, an expert in navigation on the inland waterways in Florida in boats up to the size of 100 gross tonnage; and Mark Easley, Manager of Environmental Services, URS Corporation, an expert in environmental resource permitting, in particular, impacts to wetlands and water quality. The District called the following witnesses: Rick Perry, Environmental Scientist for the District, an expert in wetland ecology, environmental science, sovereignty submerged lands,

proprietary authorizations, wetland and surface water delineation and mitigation, environmental resource permitting, and environmental regulation (limited to areas of specialization); Robin McGill, Senior Professional Engineer with the District, an expert in environmental resource permitting, stormwater management systems, and drainage engineering; and Clark Hull, Environmental Program Director in Resource Regulation for the District, an expert in wetland ecology, water quality, delineation and mitigation and application of District rules and criteria for environmental resource permitting and environmental science. Petitioners called the following witnesses: Daniel W. Rothenberger, P.G., Terra Environmental, an expert in marine navigation; and Michael Theodore Irwin, retired, an expert in sailing, design and boat building, marine navigation, and boat handling. (Petitioners also had the transcript of the deposition of Jeremy Craft admitted in evidence in lieu of testimony.)

The Department had its exhibits numbered 2, 3-A, 3-B, 4-

A, 4-B, 5, 7-A, 7-B, 9, 10, 11, 12-A, 12-B, 14, 15, 21, 22 and

23 admitted into evidence. The District had its exhibits numbered 1 (A-U), 2, 3(A-B), and 4 admitted into evidence. Petitioners had their exhibits numbered 1, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15, 21, 22, 23, 24, 25, 27, 28, 30, 35 and 41 admitted into evidence.

After presentation of evidence, the parties requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs). The Transcript was filed on October 14, 2003, and the timely-filed PROs have been considered and used in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System.

2. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida.

3. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes.

4. The Existing Bridge connects the cities of St.

   
   

   Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements.

5. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements.

6. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of

   the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's.

7. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic.

8. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features.

9. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of

   parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge.

   1. Navigation and Shoaling

      
      

10. The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet.

11. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called

    Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation.

12. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel.

13. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them.

14. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and

    occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns.

15. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of

    145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project.

16. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat,

    is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge.

17. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements.

18. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require

    Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility.

19. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful

    erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge.

    1. Fishing and Recreation

       
       

20. People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking.

21. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the

    Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable.

22. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations.

23. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge.

    1. Water Quality

    
    

24. Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether

    such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project.

25. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond.

26. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an

    impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater.

27. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes.

28. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop.

29. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay.

30. Another boost to water quality will occur as a

    
    

    result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation

    provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements.

31. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters.

32. The Project will not degrade water quality in Boca

    
    

    Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses.

33. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case.

34. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality.

35. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect

    to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project.

36. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to

    map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters.

37. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to

    2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate

    Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2.

38. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation.

39. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR

    5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in

    calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides:

    When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement.

    
    

    While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.

    CONCLUSIONS OF LAW

    
    

40. The parties have stipulated that Petitioners have standing to participate in this proceeding. As the applicant, DOT has the ultimate burden of proof and burden of persuasion. See Florida Department of Transportation v. J.W.C., Inc., 396 So. 2d 778, 786-789 (Fla. 1st DCA 1981). However, if DOT presents a prima facie case of credible evidence of reasonable assurances and entitlement to the permit, the burden of presenting evidence can be shifted to the Petitioners, as permit challengers, to present evidence of equivalent quality

    to refute the applicant's evidence of reasonable assurances and entitlement to the permit. Id. Ward v. Okaloosa County, 11

    F.A.L.R. 4217, 4236 (DER 1989). The permit challenger's burden cannot be met by mere speculation on what "might" occur. Citizens Against Blasting, Inc. v. Dept. of Environmental Protection and Angelo's Aggregate Materials, Ltd., 23 F.A.L.R. 2463, 2001 WL 1190935 (DEP 2001); Chipola Basin Protective Group, Inc., et al. v. Dept. of Environmental Reg., et al., 11 F.A.L.R. 467, 480-481, 1988 WL 185574, at *3-7 (DER 1988). But if the challenger presents evidence of equivalent quality, the question becomes whether, taking all the evidence into consideration, the applicant has proven reasonable assurances and entitlement to the permit by a preponderance of the evidence. A "preponderance" of the evidence means the greater weight of the evidence. See Fireman's Fund Indemnity Co. v. Perry, 5 So. 2d 862 (Fla. 1942). Findings must be supported by competent and substantial evidence, i.e., evidence a reasonable mind would accept as adequate to support a conclusion. See Degroot v. Sheffield, 95 So. 2d 912 (Fla. 1957); Agrico Chemical Co. v. Dept. of Environmental Reg., 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

41. Issuance of an ERP must be based solely on

    
    

    compliance with applicable permit criteria. Council of the Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3d DCA 1983).

    Reasonable assurances contemplates a substantial likelihood that the project will be successfully implemented.

    Metropolitan Dade Co. v. Coscan Florida, Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian Trace Community Development District, 14

    1. 866, 869 (SFWMD 1992); Manasota-88, Inc. v. Agrico Chemical Co. and Dept. of Environmental Reg., 12 F.A.L.R. 1319, 1990 WL 128587 (DER 1990); Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972, 1990 WL 282370 (DER 1990).

       1. Additional Review as Application for Authority to Use Sovereign Submerged Lands Inapplicable

          
          

42. The following responsibilities have been delegated to the District pursuant to Section 253.002(1), Florida Statutes:

    the staff duties and functions related to the review of any application for authorization to use board of trustees- owned submerged lands necessary for an activity regulated under part IV of chapter

    373 for which the water management district has permitting responsibility as set forth in an operating agreement adopted pursuant to s. 373.046(4).

    * * *

    The board of trustees may also delegate to any water management district created under

    s. 373.069 the authority to take final agency action, without any action on behalf of the board, on applications for authorization to use board of trustees- owned submerged lands for any activity regulated under part IV of chapter 373 for which the water management district has permitting responsibility as set forth in an operating agreement adopted pursuant to s. 373.046(4).

    
    

43. At the direction of BOT/IITF, DEP adopted Florida Administrative Code Rule 18-21.0051(2), which has delegated certain review and decision-making authority regarding the use of sovereign submerged lands to the District, which includes the following:

    the authority to review and take final agency action on applications to use sovereign submerged lands when the application involves an activity for which that agency has permitting responsibility, as set forth in the respective operating

    agreements between the Department and the water management districts identified in subsection 62-113.100(3), F.A.C.

    
    

    The Project is not one of those activities listed in Rule 18- 21.0051(2), for which review and decision making authority has not been delegated to the District.

44. In this case, it is clear that the activities constituting the construction of the Pinellas Bayway Bridge Replacement Project that would be authorized by the permit are within the physical boundaries of the legal descriptions as contained in the perpetual easements "for public State Road right of way purposes" granted to the State Road Department (predecessor in interest to DOT) by the BOT/IITF in 1960 and 1961.

45. It also is clear from the evidence that both the District and DEP have interpreted the applicable statutes and rules as not requiring a new application for authority to use sovereign submerged lands for road expansion activities within the confines of an existing perpetual easement the original roadway construction.

46. An agency's interpretation of its own rules and regulations is entitled to great weight, and shall not be overturned unless the interpretation is clearly erroneous. Orange Park Kennel Club, Inc. v. State, Dep't of Business & Professional Regulation, 644 So. 2d 574 (Fla. 1st DCA 1994).

    See also Gregory v. Indian River County, 610 So. 2d 547, 555 (Fla. 1st DCA 1993), and Miles v. Florida A and M University, 813 So. 2d 242 (Fla. 1st DCA 2002). This is true even if that interpretation is not the sole possible interpretation, the most logical interpretation, or even the most desirable interpretation. State Board. of Optometry v. Florida Society of Opthalmology, 538 So. 2d 878, 885 (Fla. 1st DCA 1988).

47. Although the perpetual easements are within a Florida Aquatic Preserve, Florida Administrative Code Rule 18- 20.002(4) states: "These rules shall not affect previous actions of the Board concerning the issuance of any easement or lease; or any disclaimer concerning sovereignty lands." (Emphasis supplied.) Similarly, Rule 18-21.002(2) states, in part: "These rules shall not affect previous actions of the Board concerning private docks or the issuance of any easement, lease or any disclaimer concerning sovereign submerged lands." (Emphasis supplied.) For these reasons, neither Chapter 18-20 nor 18-21 apply to the Project.

48. Rule 18-21.002(4) states: "Any expansion of an existing activity shall be subject to the provision of this rule." Three witnesses testified that the Project would be an "expansion" of an existing activity. But the testimony before and after these statements indicates that the witnesses were not discussing "expansion" in terms of the rule and certainly

    offered no opinion that the Project was an expansion within the context of Chapter 18-21.

49. Case law concerning easements indicates that the burden of a right of way over a servient estate can be increased to an extent that is reasonably necessary and was contemplated at the time the easement was initially granted. Crutchfield v. F.A. Sebring Realty Co., 69 So. 2d 328 (Fla. 1954); Walters v. McCall, 450 So. 2d 1139 (Fla. 1st DCA 1984); Hall v. City of Orlando, 555 So. 2d 963 (Fla 5th DCA 1990); Hillsborough County v. Kortum, 585 So. 2d 1029 (Fla. 2d DCA 1991); Kimlow, Inc., v. Seminole Landing Association, Inc.,

    586 So. 2d 1290 (Fla. 4th DCA 1991); and Florida Power Corporation v. Silver Lake Homeowners Association, 727 So. 2d 1149 (Fla. 5th DCA 1999). It is clear from the evidence that the perpetual easements are much larger than needed for the existing two-lane bascule bridge. Ample room is available on the south side of the abutments on either end of the bridge for an additional bridge span to be added if required in the future. For that reason, the Project should not be considered an expansion of an existing activity.

    1. Rule 40D-4.301. Conditions for Issuance of Permits

       
       

50. The parties stipulated that the Project satisfies the requirements of Rule 40D-4.301(1)(b), (c), (g), (h) and (j). Beyond the stipulated requirements, Rule 40D-

    4.301(1)(a), (d), (e), (f), (i) and (k), requires DOT to provide reasonable assurance that the construction, alteration, operation and maintenance of a surface water management system:

    1. will not cause adverse water quantity impacts to receiving waters and adjacent lands;

       * * *

       1. will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District;

       2. will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of subsections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62- 302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;

          * * *

       3. will not cause adverse secondary impacts to the water resources;

       * * *

       (i) is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed;

       * * *

       (k) will comply with any applicable special basin or geographic area criteria established pursuant to this chapter.

       
       

51. Based on the stipulation by the parties that the Project will not cause adverse water quantity impacts to receiving waters and evidence and expert testimony presented

    that the Project will not cause adverse water quantity impacts to adjacent lands, DOT has given reasonable assurance that the Project satisfies the requirement of Rule 40D-4.301(1)(a).

52. Based upon the stipulation with respect to the adequate protection of sea turtles and manatees during bridge construction, the competent, substantial and unrebutted testimony that the Project will not adversely impact fish or wildlife, including any threatened or endangered species, and the fact that adverse impacts to fish and wildlife or threatened or endangered species was not listed as a material fact at issue in the Pre-Hearing Stipulation, it is concluded that the Department has provided reasonable assurance of compliance with Rule 40D-4.301(1)(d).

53. Based upon the competent, substantial and unrebutted testimony and documentary evidence introduced at hearing, DOT has demonstrated that the Project is in compliance with Rule 40D-4.301(1)(e). The Project will not degrade water quality in an Outstanding Florida Water and is expected to improve the water quality.

54. DOT has provided reasonable assurance that the Project will not cause adverse secondary impacts to water resources and, therefore, complies with Rule 40D-4.301(1)(f).

55. DOT has provided reasonable assurances that the Project complies with Rule 40D-4.301(1)(i).

56. Because the evidence established that there are no applicable special basin or geographic area criteria established, DOT has provided reasonable assurances that the Project complies with Rule 40D-4.301(1)(k).

57. Since ambient existing water quality in the vicinity of the Project meets applicable water quality standards, it is not necessary to comply with the net improvement provisions in Section 3.2.4.5 of the Basis of Review. As such, Rule 40D- 4.301(2) does not apply to the Project.

58. Pursuant to the District's delegated authority from BOT/IITF to review ERP permit applications, which include activities on sovereign submerged lands, and the unrebutted testimony that the District followed DEP training, practice and written procedures in determining that the Project's perpetual easements were sufficient to meet the District's requirements for permit issuance, it was clearly established that the Project is not subject to the requirements and procedures in Section 373.427, Florida Statutes, or in Florida Administrative Code Chapters 18-20 and 18-21, or Rules 62-

    312.065 and 62-343.075. As such, Rule 40D-4.301(4) does not apply to the Project.

    1. Rule 40D-4.302. Additional Conditions For Issuance

    
    

59. The parties stipulated that the Project satisfies the requirements of Florida Administrative Code Rule 40D-

    4.302(1)(a)(6) and (d). Beyond the stipulated requirements, Rule 40D-4.302(1)(a)1, 2, 3, 4, 5 and 7; (b) and (c), requires DOT to provide reasonable assurance that the construction, alteration, operation, maintenance, removal and abandonment of a surface water management system:

    1. Located in, on or over wetlands or other surface waters as delineated pursuant to the methodology authorized by subsection 373.421(1), F.S., will not be contrary to the public interest, or if such an activity significantly degrades or is within an Outstanding Florida Water, that the activity will be clearly in the public interest, as determined by balancing the following criteria:

       
       

       1. Whether the activity will adversely affect the public health, safety or welfare or the property of others;

       2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

       3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

       4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

       5. Whether the activity will be of a temporary or permanent nature;

          * * *

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

    2. Will not cause unacceptable cumulative impacts upon wetlands and other surface waters, as delineated pursuant to the methodology authorized by subsection 373.421(1), F.S.

    3. Located in, adjacent to or in close proximity to Class II waters or located in Class II waters or Class III waters classified by the Department as approved, restricted or conditionally restricted for shellfish harvesting pursuant to Chapter 16R-7, F.A.C., will comply with the additional criteria in subsection 3.2.5 of the Basis of Review for Environmental Resource Permit Applications adopted by reference in Rule 40D-4.091, F.A.C.

       
       

60. Because the Project is within an Outstanding Florida Water, DOT must demonstrate that the Project is clearly in the public interest, as determined by balancing the seven (7) criteria of Rule 40D-4.302(1)(a).

61. Upon balancing the stipulation by the parties that the Project will not adversely affect the public health and all the testimony and evidence presented, it is concluded that DOT has provided reasonable assurance that the Project will not adversely affect public health, safety or welfare or the property of others pursuant to Rule 40D-4.302(1)(a)1.

62. Upon balancing the stipulation of fact with respect to the provision of adequate protection for manatees and sea turtles during construction of the Project, and the competent, substantial and unrebutted testimony that the Project will not adversely impact any fish or wildlife, including endangered or threatened species, and will improve habitat for many of these

    species, and the fact that adverse impacts to fish and wildlife was not listed as a material fact at issue, it is concluded that reasonable assurance has been provided that the Project, considered in conjunction with the approved mitigation project, will not adversely affect, and will in fact benefit, the conservation of fish and wildlife, including endangered or threatened species or their habitats pursuant to Rule 40D-4.302(1)(a)2.

63. Although it is accepted that the Replacement Bridge will restrict navigability for perhaps three to five boats in the area, and although the Entrance Channel to Mud Key Channel will be narrowed, the Project will have a net positive effect on navigation in general in the area. Boats will travel freely, in good weather and bad, under the high bridge through a wider fender system and with improved visibility. More boats can avoid the Entrance Channel when traveling in Mud Key Channel because of the higher bridge, reducing traffic in the Entrance Channel. While Petitioner, Michael T. Irwin, may find his particular navigational situation less convenient, the desires of one boat owner do not outweigh what is in the public's interest. Based upon the balancing of all the evidence concerning positive and negative impacts on navigation, it is concluded that the Project on the whole is beneficial to navigation pursuant to Rule 40D-4.302(1)(a)3.

64. DOT's bridge hydraulics report supported the expert testimony that harmful erosion or shoaling will not occur. Petitioners only offered speculation as to what might occur in this regard. Such testimony is insufficient to overcome the competent and substantial evidence on this point. Therefore, based upon the balancing of all the testimony and evidence presented, it is concluded that reasonable assurance has been provided that the Project will not adversely affect the flow of water or cause harmful erosion or shoaling pursuant to Rule 40D-4.302(1)(a)3.

65. As to as Rule 40D-4.302(1)(a)4., balancing all of the evidence presented, considered in conjunction with the approved mitigation project, DOT has provided reasonable assurances that the Project will not adversely affect fishing or recreational values; to the contrary, it probably will result in improved marine productivity in the vicinity of the Project. Because water quality will be improved, and impacts to the sea grass beds within the affected surface waters will be mitigated, the Project will result in improved marine productivity. The elimination of parking currently used by those fishing from the Existing Bridge is unavoidable under any alternative for four-laning the bridge. Although fishing from the higher Replacement Bridge will have its drawbacks, overall fishing in Boca Ciega Bay will not be significantly

    affected and may improve given better water quality and increased sea grasses from the mitigation project. In terms of other recreation, the Replacement Bridge will be superior for walking and biking, be more wheelchair accessible, extend sidewalks in areas where there are none, and generally be more open to and safer for recreation.

66. As to Rule 40D-4.302(1)(a)5., the evidence shows that the Replacement Bridge will be permanent. The parties stipulated that conditions in the permit relating to controlling turbidity during construction are adequate and the evidence demonstrated that any temporary water quality degradation will be mitigated by floating turbidity barriers.

67. As to Rule 40D-4.302(1)(a)7., the evidence established that the District, in evaluating the application for the Project, appropriately considered the current condition and relative value of functions performed by areas affected by the proposed activity, including the approved mitigation project.

68. Based upon the balancing of the stipulations by the parties, the admission of Petitioners' environmental science expert that the Project is in the public interest, and all of the evidence presented concerning the seven applicable criteria, it is concluded that reasonable assurance has been

    provided that the Project will be clearly in the public interest.

69. Based upon the competent, substantial and unrebutted testimony and documentary evidence introduced at the hearing, DOT has demonstrated that the Project will not cause or contribute to a violation of water quality standards in the receiving waters, that the approved mitigation for impacts to fish and wildlife is sufficient to offset impacts anticipated as a result of the Project, and that the mitigation will be located in the same receiving waters. Therefore, reasonable assurance has been provided that the Project will not cause unacceptable cumulative impacts and complies with Rule 40D- 4.302(1)(b).

70. The parties stipulated that the activities that would be authorized by the permit are located in an area Prohibited for Shellfish Harvesting, and an area Unclassified for Shellfish Harvesting, and testimony established that the Project is located in Class III waters not in close proximity to Class II waters, being more than a mile from Class II waters. Thus, Rule 40D-4.302(1)(c) does not apply to the Project.

71. The evidence shows that the District complied with the requirements of Rule 40D-4.302(2) in determining that DOT

    had provided reasonable assurances that District permitting standards will be met.

72. The Project meets all applicable rule criteria for issuance of the Environmental Resource Permit. The Department has presented a prima facie case that it has provided the reasonable assurances necessary to obtain Individual Environmental Resource Permit No. 43023532.000. Petitioner has failed to present contrary evidence of equivalent quality showing that the Department is not entitled to the permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000.

DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida.

S

___________________________________

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003.

COPIES FURNISHED:

Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1

Tallahassee, Florida 32309-6825

Steve Rushing, Esquire David C. Ryder, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-003423

Orders for Case No: 02-003423