STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT E. VANWAGONER, )
)
Petitioner, )
)
vs. ) CASE NO. 95-3621
) DEPARTMENT OF TRANSPORTATION ) and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )
)
Respondents. )
) SAVE ANNA MARIA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 95-3622
) DEPARTMENT OF TRANSPORTATION ) and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
RECOMMENDED ORDER
Final hearing was held in Sarasota, Anna Maria, and Bradenton Beach, Florida, on December 4-14, 1995, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner Save Anna Maria, Inc.:
David M. Levin Andrew Fritsch Icard Merrill
2033 Main Street, Suite 600
Sarasota, Florida 34237 For Petitioner Robert E. VanWagoner:
Robert E. VanWagoner, pro se Post Office Box 4121
Anna Maria, Florida 34216
For Respondent Department of Transportation:
Paul Sexton Francine Ffolkes
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458 For Respondent Department of Environmental Protection:
Christine C. Stretesky Douglas MacLaughlin
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue in these cases is whether Department of Transportation is entitled to a dredge-and-fill permit from Department of Environmental Protection for the purpose of demolishing the Manatee Avenue drawbridge to Anna Maria Island and constructing a fixed-span, high-level bridge 20 feet south of the existing bridge.
PRELIMINARY STATEMENT
By Petition for Administrative Hearing dated June 13, 1995, Petitioner Robert E. VanWagoner challenged the intended action of Department of Environmental Protection to issue Department of Transportation a dredge-and-fill permit for the construction of a proposed bridge and demolition of the existing bridge. This petition commenced DOAH Case No. 95-3621.
By Petition for Formal Hearing dated July 10, 1995, Petitioner Save Anna Maria, Inc. challenged the same intended agency action. This petition commenced DOAH Case No. 95-3622.
These two cases were consolidated with Peter Ereg et al. vs. Department of Transportation and Department of Environmental Protection, DOAH Case No. 94- 4634. Petitioners Save Anna Maria, Inc. and Robert E. VanWagoner later intervened in Case No. 94- 4634.
Final hearing for the three cases started December 4, 1995. The parties asked the hearing officer to close the record at the end of the second week of the hearing in Case Nos. 95-3621 and 95-3622. The hearing officer granted the request, so that the recommended and final orders for these cases could be issued without delay.
The hearing officer concluded the final hearing in Case No. 94-4634 in January 1996. As requested by the parties, the record in Case No. 94-4634 includes the record in Case Nos. 95-3621 and 95-3622, but the record in Case Nos. 95-3621 and 95-3622 does not include the record in Case No. 94-4634.
After issuing this recommended order, the hearing officer will retain the record in Case Nos. 95-3621 and 95-3622 in order to prepare the recommended order in Case No. 94-4634. When the hearing officer has issued the recommended order in Case No. 94- 4634, he will transmit the record from the December
hearing to Department of Environmental Protection and the record from the January hearing to Department of Transportation. Department of Transportation will need to obtain a copy of the record from the December hearing to complete the record in Case No. 94-4634.
At the hearing, Petitioner Save Anna Maria, Inc. called nine witnesses and offered into evidence 32 exhibits. Petitioner Robert E. VanWagoner called four witnesses and offered into evidence 11 exhibits. Respondent Department of Transportation called 13 witnesses and offered into evidence 72 exhibits.
Respondent Department of Environmental Protection called three witnesses and offered into evidence three exhibits. All exhibits were admitted except VanWagoner Exhibit No. 1, DOT Exhibit Nos.26, 39, 93, and 94 and DEP Exhibit No.
7. Two exhibits--both road maps-- were admitted as Hearing Officer Exhibit Nos.
1 and 2.
At the hearing, the hearing officer advised the parties that he would take official notice of the American Heritage and Webster's dictionaries.
The transcript was filed December 20, 1995. Save Anna Maria, Inc. and Robert E. VanWagoner filed a combined proposed recommended order. Each respondent filed a separate proposed recommended order. Rulings on the proposed findings are in the appendix.
FINDINGS OF FACT
Existing Bridge, Application for Dredge-and-Fill Permit, and Proposed Bridge
Existing Bridge
Manatee Avenue, which is part of State Road 64, connects Bradenton on the east with Anna Maria Island on the west. The road segment between the mainland and the island is a minor urban arterial. The road spans Sarasota Pass (also known as Anna Maria Island Sound) by a drawbridge (i.e., bascule bridge) about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton. The bridge is known as the Anna Maria Island Bridge.
The Anna Maria Island Bridge was built 40 years ago. The deck of the drawbridge is 25 feet above the water. (All elevations over the water and all water depths are relative to mean water, unless otherwise stated.) The bridge spans are 48 feet long, and the bascule span is 128 feet long. The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below.
Manatee Avenue consists of two lanes on both sides of the Anna Maria Island Bridge. A shorter, two-lane bridge lies between the Anna Maria Island Bridge and the mainland. The speed limit along the approaches and on the Anna Maria Island Bridge is 50 miles per hour.
The approach roadway consists of two 12-foot traffic lanes with 8-foot gravel shoulders. There are no sidewalks or bicycle paths along the approaches to the bridge.
Bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, DOT acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters
using large cast nets." DOT Exhibit 30, page 20. These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass.
Gulf Drive, which is the major north-south road on Anna Maria Island, intersects Manatee Avenue one-half mile west of the Anna Maria Island Bridge. The intersection has a traffic signal. Gulf Drive is a two-lane arterial under state jurisdiction south of Manatee Avenue and a two-lane collector under city jurisdiction north of Manatee Avenue.
Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. The traffic signal at Gulf Drive is the major cause of traffic congestion on Manatee Avenue at the bridge. On Friday and Saturday nights, traffic at the light often backs up past the bascule. Another frequent source of traffic congestion is a minor intersection with turn and through lanes for a store/marina one-quarter mile east of the bridge. The drawbridge contributes to traffic congestion on the infrequent occasions when it opens; during peak periods, the drawbridge opens only three times an hour.
The Anna Maria Island Bridge is 3123 feet long and 37.4 feet wide. It contains two 12-feet traffic lanes, no shoulders, and two five-foot sidewalks separated from the traffic lanes by nine-inch curbs. The bridge is not lighted except for navigation lighting in its below-deck structure. The vertical clearance at mean high water with the bascule span closed is 17.5 feet.
The Anna Maria Island Bridge has an excellent safety record with a below-average number of collisions. During the three-year period from 1984-86, the bridge was the site of 24 collisions: 10 rear-end vehicular collisions, three angle/head- on vehicular collisions, five collisions with the bridge, and six other collisions.
During the same period, there were 38 collisions on the approaches to the bridge, including 17 rear-end vehicular collisions, five angle/head-on vehicular collisions, and one motorist who hit the bridge from the approach.
The rear-end collisions on the bridge involve vehicles trying to turn into a boat ramp off the west approach to the bridge and the store/marina off the east approach to the bridge. There is no evidence that the operation of the drawbridge caused any of the collisions on or near the bridge.
There was only one collision involving a vehicle and a pedestrian during the three years in question. This took place on the eastern approach. There were no collisions involving bicyclists.
The Anna Maria Island Bridge was constructed with a design load of H-
It has no posted weight restrictions. The most recent DOT inspection, which took place in 1987, indicated that the deck, superstructure, and substructure of the bridge were in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity." The channel protection was in "excellent" condition. A 1988 DOT inspection of the bascule span revealed that it was in "good" condition, meaning that there was "moderate incidence of significant early deterioration."
About 650 marine vessels monthly require operation of the drawbridge in order to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge between Tampa Bay and Sarasota Bay. This traffic consists of 83.5
percent sailboats, 14.9 percent power boats, and 1.6 percent tugboats or barges. The tugboats are typically 35 feet by 195 feet.
There have been no reported marine collisions with the bridge. Navigability is not difficult at the drawbridge with its moderate tidal range of
1.5 feet. Incoming and outgoing tides run at 0.6 and 0.1 knots, respectively. The width of the navigation channel is 90 feet at the fender system under the bascule, which easily accommodates the largest vessels that typically use the pass. The water depth is 12 feet at mean low water. The alignment of the channel is only 19 degrees from perpendicular with the bridge.
A variety of sailboats using this portion of the Intracoastal Waterway have masts that require a vertical clearance greater than 65 feet. Such sailboats include a number of Hunters and Catalinas, which are manufactured in Florida. Sailboats with masts as high as 80 feet have passed through the opened drawbridge.
During a survey conducted by DOT, one boatyard operator suggested a clearance of 70-75 feet, rather than 65 feet, because the Intracoastal Waterway was an important route due to the closing of passes and increasing use of taller-masted boats.
Application for Dredge-and-Fill Permit
By letter dated August 11, 1992, Department of Transportation (DOT) submitted an application to Department of Environmental Protection (DEP; references to DEP include its predecessor agencies, Department of Environmental Regulation and Department of Natural Resources) for a dredge-and-fill permit. The permit was to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge immediately south of the existing bridge.
By letter dated January 21, 1993, to James Wilt, the DOT district permit engineer responsible for the bridge project, a DEP administrator in the Tampa office advised that he could not recommend the project for approval. Although the letter was not final agency action, it was sent "to allow applicant time to assess fully the further commitment of financial resources for this project."
The January 21 letter suggests several alternatives that would reduce the project's impacts. The suggested alternatives include relocating the proposed bridge to deeper water to the north of the Anna Maria Island Bridge and providing details how construction would not impact productive shallow bottoms, especially extensive seagrass beds.
By letter dated February 3, 1993, Mr. Wilt informed the DEP administrator in Tampa that DEP had long known of seagrass impacts from the proposed bridge in the southern alignment. The February 3 letter complains that DEP neglected to mention the possibility that the bridge project might not be permitted in a September 1992 letter stating that the application was complete or in a December 1992 letter stating that processing of the application had begun.
The February 3 letter also complains that a DOT representative called DEP in late December "to inquire about the anticipated date of issuance of the Dredge/Fill permit. [She] was advised that a final field review of the site had to be conducted and the DOT could expect to receive a permit the 2nd or 3rd week in January, 1993."
Concluding the February 3 letter, DOT warned DEP:
Based upon the early and extensive coordination that has occurred on this project, the absence of any adverse comments during the processing of the application and the fact that DER esti- mated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable.
The portion of the February 3 letter addressing the merits of the application asserts that "DOT considers the proposed design to be the maximum minimization possible." The letter assures that the bridge contractor would be advised that he would be responsible for any damages caused by construction to shallow bottoms or seagrass beds.
On February 10, 1993, DEP issued a Notice of Permit Denial. The notice states that the proposed southern alignment would take the bridge through "the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." The notice suggests that modifications could correct the problems.
The notice reports that DEP expressed "significant concerns" about the project in January 1990, including the concern that DEP "'could not expect the applicant to be able to provide reasonable assurances that they could offset the loss of this valuable resource (seagrass beds) through mitigation.'" Thus, DEP recommended that the proposed bridge should be located at the location of the existing bridge.
The notice explains that the permit is denied because DOT failed to provide reasonable assurance that the project would not significantly degrade an Outstanding Florida Water or that the project would be clearly in the public interest. In particular, the notice finds that the project would be adverse to fish and wildlife endangered species and threatened habitats, adverse to fishing and marine productivity, permanent in nature, and adverse to the current condition and relative value of functions being performed. As to the last factor, the notice states that the project would significantly reduce nutrient assimilation due to the loss of 0.37 acres of shallow estuarine wetland and at least 2.5 acres of viable nursery area and habitat. The 0.37 acres refers to herbaceous wetlands, and the 2.5 acres refers to seagrass.
DOT advised DEP that DOT would file a petition challenging the denial of the permit. DEP agreed to extend the deadline for filing the petition.
Mr. Wilt advised the DEP Deputy Assistant Secretary in Tampa, by letter dated April 5, 1993, that an alternative northern alignment would have "significant, permanent impacts to seagrasses north of the existing bridge." The letter adds that unspecified areas under the existing and proposed bridges would support seagrass.
In the ensuing months, DOT provided DEP with additional information concerning such matters as construction techniques, seagrass mitigation, the maintenance costs for the existing bridge, and the effect of bridge height on bridge closings due to high winds. DOT revised its plans in several regards to respond to DEP's concerns.
By letter dated October 11, 1993, Mr. Wilt informed the DEP Tampa administrator that the northern alignment would impact a greater area of seagrass than the southern alignment. The letter concludes that the project is clearly in the public interest and DOT has shown that the southern alignment is superior both environmentally and economically.
By letter dated January 26, 1994, Mr. Wilt confirmed that the parties had resolved that the height of the bridge was no longer an issue and discussed the northern and southern alignments.
By letter dated June 7, 1994, the DEP Tampa administrator responded that the northern alignment would be feasible and practical and would reduce permanent and temporary impacts to seagrass, nursery habitat, and manatees.
After further negotiations, DEP approved the project with the originally proposed southern alignment and, on May 2, 1995, issued an Intent to Issue a dredge-and-fill permit for the removal of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge.
The permit allows construction of the proposed bridge and demolition of the existing bridge to impact 0.37 acres of herbaceous wetlands (mostly mangrove, marsh, and Brazilian pepper) and 0.12 acres of seagrass. The 0.12- acre finding of lost seagrass is limited to the direct displacement of seagrass by two foundations for the proposed bridge and ignores any loss due to shading, which was the basis two years earlier of the finding in the Notice of Permit Denial that 2.5 acres of seagrass would be lost.
The permit requires mitigation of the 0.37 acres of lost herbaceous wetlands and 0.12 acres of seagrass. For the seagrass, the permit requires DOT to remove 1000 plants, which would represent only a small part of the number of plants that would be actually destroyed by the two foundations of the proposed bridge.
The permit directs DOT to plant 800 seagrass plants in a 0.19-acre transplant receiving area located south of the west end of the bridge. The permit requires DOT to remove another 200 seagrass plants that would go to the City of Tampa and Florida Marine Research Institute for transplant to Hillsborough, Tampa, and Sarasota bays. The allocation of these seagrass plants reflects the fact that seagrass is not typically disturbed and is therefore not usually available for transplant except where it must be removed due to proposed activities.
The permit states that DOT shall conduct a test transplant in the transplant receiving area prior to transplanting all 800 seagrass plants. If DEP determines that the test plot is not successful, it may require an alternative mitigation plan.
The permit also orders DOT to develop an alternative mitigation plan if the transplant receiving area fails. DOT must monitor the transplant receiving area. (Specific Condition 41 requires monitoring quarterly during the first year and semi- annually for the second and third years. A Seagrass Mitigation Plan incorporated into the special conditions requires DOT to monitor the 800 seagrass plants at the time of transplant, six months later, and at the first three anniversaries of the transplantation.)
The permit sets limited monitoring criteria for the test plot and transplant receiving area. These criteria are cover and shoot density, but omit seagrass function as habitat, food, and water quality enhancement.
Regardless of the adequacy of the monitoring criteria, the permit fails to specify the "success criteria" for the test plot or the larger transplant receiving area. There is thus no indication of satisfactory levels of cover, shoot density, or habitat, food, and water-quality function.
Additionally, nothing in the permit supplies any guidelines for alternative mitigation in case the test plot or transplant receiving area fail. The permit is silent as to how to find a donor site or its required characteristics in terms of the ability to yield seagrass. The permit is silent as to the characteristics of a presumably barren or sparsely vegetated receiving site in terms of its ability to sustain seagrass. There are no parameters as to effective water depths, water transparency, or other factors crucial to seagrass.
The permit assumes that seagrass would recolonize under the existing and proposed bridges after their respective demolition and construction. The Seagrass Mitigation Plan contains a contingency plan if this recolonization fails to take place. The contingency plan would require DOT to transplant 4000 seagrass plants from an unspecified donor bed to an unspecified contingency receiving site.
If no area in Sarasota Pass were scheduled for destruction of seagrass, then DOT would have to recruit plants from a seagrass bed adjacent to the contingency receiving site. There is again no discussion of the necessary characteristics of contingency donor and receiving sites.
The permit grants DOT a 200-meter mixing zone for turbidity. However, the duration of the mixing-zone allowance ends prior to the demolition of the existing bridge, which is scheduled to take place after the construction of the proposed bridge. The mixing zone is limited to the earlier of two years or the completion of "bridge construction." (Special Condition No. 46 in SAM Exhibit No. 2. Special Condition No. 46 in DOT Exhibit No. 70 starts the two-year term from the award of the contract. Generally, the permit is compiled from SAM Exhibit No. 2, DOT Exhibit No. 70 (general and specific conditions), and DOT Exhibit No. 39 (page 2 of 23). Although DOT Exhibit No. 70 is the more reliable source of special conditions than SAM Exhibit No. 2, there are other errors in DOT Exhibit No. 70, such as the reference in Special Condition No. 45b to the waters as Class III waters when, as stated in Special Condition No. 45b in SAM Exhibit No. 2, they are Class II waters.)
The mixing zone is for the sole purpose of permitting turbidity values to exceed state water quality standards. The permit allows turbidity in the mixing zone to exceed background turbidity by 29 NTUs, but prohibits turbidity in excess of background values outside the mixing zone.
The permit also addresses manatee. Special conditions call for signage requiring idle speed for boats and cessation of the operation of construction equipment if a manatee comes within 50 feet of the operation. The conditions require that manatee injuries be reported immediately to the Florida Marine Patrol toll-free number and the contractor shall log all sitings and injuries.
Proposed Bridge
The proposed bridge would be 3372 feet long and 54 feet wide. On a 4 percent grade, the deck would be 75 feet high at the center with two 12-foot travel lanes, two 10-foot shoulders, and one six-foot wide sidewalk separated from the traffic lane by a sturdier divider than those separating the sidewalks from traffic lanes on the Anna Maria Island Bridge.
The spans of the proposed bridge would be farther apart than the spans of the Anna Maria Island Bridge. At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. In general, the proposed bridge would provide greater vertical clearance on either side of the channel than does the Anna Maria Island Bridge.
The northern edge of the proposed bridge would be 20 feet south of the southern edge of the Anna Maria Island Bridge. Construction of the proposed bridge would take about two years. Demolition of the existing bridge would be by unspecified means, probably explosives.
The proposed bridge would combine stormwater treatment with scuppers. The stormwater treatment would extend from the ends of the bridge 300 feet toward the center, leaving untreated stormwater along most of the proposed bridge. The untreated area on the proposed bridge would exceed the untreated area on the Anna Maria Island Bridge by over one-half acre. However, the additional amount of stormwater contaminants entering the water would be limited to road surface particles and road cleaners because no additional traffic would use the proposed two-lane bridge.
Anna Maria Island and Sarasota Pass
Anna Maria Island is a barrier island between Sarasota Pass to the east and the Gulf of Mexico to the west. For the most part, Anna Maria Island is less than one-half mile wide, except for a canalized area at the north end where a minor bridge connects the island to a small key. The Anna Maria Island Bridge connects the island to the mainland indirectly by way of Perico Island, a noncoastal barrier island to the east of Anna Maria Island.
Sarasota Pass is about 6000 wide at the bridge. However, when the bridge was constructed in 1957, long fingers of fill were deposited at the east and west ends of the bridge. The west finger is about 2000 feet long, and the east finger is about 1000 feet long. Thus, as a result of man-made modifications, Sarasota Pass at the bridge is a little over 3000 feet wide.
The City of Holmes Beach lies at the west end of the Anna Maria Island Bridge, although its jurisdiction probably does not extend to the 2000 feet of fill added when the bridge was built.
The City of Anna Maria lies to the north of Holmes Beach at the north end of Anna Maria Island. The Anna Maria Island Bridge is about three miles south of the north end of the island.
About two miles south of the Anna Maria Island Bridge lies the Cortez Bridge, which is also a drawbridge of the same vintage as the Anna Maria Island Bridge. The Cortez Bridge, which is shorter than the Anna Maria Island Bridge, serves Cortez Road and connects the mainland to the island at the City of
Bradenton Beach, which is the third municipality on Anna Maria Island. Bradenton Beach is a little less than two miles from the south end of the island.
The remaining major bridge on Anna Maria Island connects Gulf Drive to Longboat Key to the south. A bridge at the south end of Longboat Key runs to Lido Key, which is joined to the mainland at Sarasota by the Ringling Bridge.
The Anna Maria Island Bridge is about 9000 feet south of the confluence of Sarasota Pass and Lower Tampa Bay. Sarasota Pass connects the expansive Tampa Bay estuary to the north with the Sarasota Bay estuary to the south. Sarasota Pass and Sarasota Bay are Outstanding Florida Waters. The water in the vicinity of the Anna Maria Island Bridge is Class II water.
Seagrass
Effect of Proposed Bridge on Seagrass
Seagrass is a key component of the Sarasota Pass estuary. Seagrass is vital to water quality and provides essential habitat and food for wildlife, including wading and diving birds, fish, shellfish, and manatee. Providing nursery habitat for juvenile marine life that may in itself be important to recreational or commercial fishermen, seagrass beds are important foraging areas for such recreationally important fish as snook, spotted seatrout, and red drum or redfish.
Seagrass aids water quality by filtering suspended material from the water column and stabilizing the bottom. The resulting improvements in water transparency increase the depths to which sunlight can penetrate. Seagrass are dependent on sunlight. Thus, the deeper that water transparency, water color, and other water-quality parameters allow sunlight to penetrate, the deeper the water in which seagrass can grow.
Seagrass is not hardy and is especially sensitive to changes in the amount of light that it receives. Submerged in water, seagrass can be killed by reductions in water transparency, such as those typically accompanying nutrient loading (which can lead to phytoplankton in the water blocking light generally and epiphytes on the seagrass leaves directly interfering with the plant's absorption of light). Seagrass can also die off due to the introduction or resuspension of sediments in the water column, which may result from stormwater runoff, agricultural drainage, boat prop dredging, and construction or demolition activities.
Another source of seagrass mortality is the introduction or elevation of certain toxic substances in the water column or sediments by way of stormwater runoff, agricultural drainage, boat emissions, or construction or demolition activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also destroyed by the burrowing and feeding of fish such as rays.
Relatively small reductions in sunlight can destroy seagrass over a wide area. If, while all other factors remain constant, reductions in transparency or increases in turbidity reduce by one foot the maximum water depth at which seagrass can grow, the effects may be widespread in estuarine bottoms, which are often gently sloped.
Two factors discourage seagrass recolonization following their destruction, even assuming the elimination of the cause of the seagrass mortality in the first place. First, the species of seagrass involved in these cases spread very slowly.
Second, even a temporary loss of seagrass may change background conditions to discourage recolonization. Once the seagrass in an area is destroyed, it is possible for bottom sediments to build up, turbidity to increase, and water transparency to decrease. This process may effectively prevent seagrass recolonization
transplantation--at depths at which seagrass previously grew. If an area is so well-flushed as to remove sediments, the loss of the stabilizing bottom vegetation may result in erosion, critically deepening the water depth so that seagrass cannot capture enough light to recolonize the area.
The existing bridge is at the north end of a flourishing seagrass meadow featuring Thalassia, Halodule, and Syringodium. Important areas of seagrass exist north of the bridge, but the dense, lush seagrass meadow to the south is more prolific.
Near the existing bridge, seagrass grows in water as deep as five to six feet. The record lacks evidence of a comprehensive, detailed bathymetry, but several important facts are clear from available evidence of water depths.
First, the water in the middle of the pass under the existing or proposed bridge is too deep for seagrass. Seagrass would not grow in the middle of the pass at this location even if there were no bridge.
Second, the water is deeper under the existing bridge than it would be under the proposed bridge. The only place where the water under the Anna Maria Island Bridge is not deeper than the water under the proposed bridge is the westernmost 100 feet where the water depths are about the same. Most importantly, the depths under the Anna Maria Island Bridge are too great for seagrass growth along nearly the entire length of the bridge, even if the bridge were removed.
On the other hand, seagrass thrives upon the bottom that would be under at least 1600 feet of the proposed bridge. Suitably shallow depths exist 800 feet along either end of the proposed bridge, and seagrass occupies these areas, which amount to over two acres of seagrass.
Despite the known sensitivity of seagrass to changes in lighting, DOT provided no data or analysis regarding how much shading of this two acres of seagrass would be caused by the proposed bridge. DOT did not provide any data or analysis regarding the effect of turbidity due to construction and demolition on the seagrass under the proposed bridge. There is no reasonable assurance that seagrass would survive this construction and demolition.
If seagrass did not survive the construction and demolition, DOT supplied no reasonable assurance of recolonization given prevailing conditions, such as reduced sunlight from the new bridge and either turbidity from stirred- up, unstabilized sediments or deeper water from erosion. If seagrass did survive the construction and demolition, DOT supplied no reasonable assurance that the long-term sunlight reductions caused by the new bridge would permit the seagrass to survive. It is more likely than not that the two acres of seagrass presently growing in the area that would be covered by the proposed bridge would not survive the proposed project.
But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 40 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below.
Stormwater contaminants include a wide variety of potentially toxic materials, such as road materials, tire materials, lubrication, road cleaners, paint, building materials, and virtually anything that might be loaded onto vehicles using the bridge. Common runoff contaminants are heavy metals, hydrocarbons, oil and grease, zinc, and copper.
Stormwater pollution of the sediments along the drip line of the Anna Maria Island Bridge is more than a theoretical possibility. DOT Exhibit No. 83 shows that seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge.
The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because DOT Exhibit No. 83 reveals that dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge. Off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet adjacent to the bridge is unlikely the result of prop dredging because nearby seagrass is dense.
The general absence of seagrass along the dripline may be due to the biochemical or mechanical disturbance caused by the stormwater rushing off the bridge. To the extent of mechanical disturbance, the presence of seagrass in the adjacent 20 feet at the west end of the bridge may be due to a lack of proximity to an unblocked scupper drain at that location. To the extent the disturbance may be biochemically caused, this anomaly may reflect variations in flushing.
At least 1000 feet of seagrass (500 feet at either end) just south of the proposed bridge would receive untreated stormwater rushing through the scuppers of the proposed bridge. The width of the affected band would presumably be the same 20 feet as the width affected by the existing bridge. DOT has provided no reasonable assurance that this half acre of seagrass would survive the proposed project. To the contrary, it is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of the additional prop dredging from small boats finding it easier to bypass the channel and run under the higher bridge with wider spans.
Two foundations for the proposed bridge would occupy 0.12 acres of seagrass. However, this seagrass would be under the deck of the proposed bridge, so this area has already been taken into account under the shading analysis.
In addition to the likely permanent destruction of 2.5 acres of seagrass under and 20 feet south of the proposed bridge, it is more likely than not that construction would at least temporarily destroy additional seagrass farther to the south.
The proposed project calls for the construction of large work platforms parallel to, and south of, the new bridge and small fingerplatforms running from the work platforms toward the new bridge. The work platforms would be placed in water shallower than six feet and would cover areas vegetated by
seagrass. The platforms would be 1100 and 1200 feet long and 40 feet wide and would thus cover a little over two acres of seagrass.
The platforms would be low on the water--lower than the existing bridge--and effectively shade the seagrass below them. DOT witnesses promised the use of slatted platforms to minimize shading, but there was no showing that the slats would pass sufficient sunlight at critical water depths except when the sun is directly overhead. What seagrass survived the construction of the platforms would not survive the shading and turbidity during construction, as this area is well within the mixing zone allowed by the permit.
Absent permanent alteration of the bathymetry, introduction of persistent toxic substances, or collection of substantial amounts of sediment during construction in the area under the work platform, the likely loss of the two acres of seagrass from the work platform would not be permanent. Recolonization would probably begin once construction ended. The platforms would not remain in place during the entire period of construction. There would no need for the platforms on the south side of the proposed bridge during the demolition of the existing bridge to the north. It is also possible that the platforms would be removed as construction was finished along the bridge. However, the slow growth of the seagrass suggests that years, not months, would be required for recolonization of the two acres to the present density.
There is no reason to calculate lost seagrass from the construction of the fingerplatforms. They will span the area from the south edge of the proposed bridge to the north edge of the work platforms. Thus, they cover the area already affected by the stormwater running off the bridge. The 600 x 20 foot area proposed to be served by stormwater management system, where adjacent seagrass presumably would not be affected, might be affected by the fingerplatforms but the small size of the platforms renders the loss negligible.
Mitigation of Seagrass Impacts
DEP nonrule policy is to consider the mitigation of lost natural resources only after the applicant has minimized the effects of the proposed activity. The effect of this sensible policy is to avoid excessive reliance on the mitigation of avoidable impacts to natural resources.
Mitigation is premature in these cases. DOT has not minimized the proposed project. Minimization is the no-build alternative, as discussed below. Only after DOT proposes the no- build alternative should DEP consider the mitigation of the environmental impacts of extensive bridge repair or rehabilitation.
In any event, the seagrass mitigation offered by DOT is deficient in three respects. First, the transplant receiving site is too small. It is 0.19 acres as compared to the likely permanent loss of 2.5 acres and temporary loss of 2.0 acres. This is a dramatic departure from the normal seagrass mitigation ratio of 1:1 required by DEP. Although less important due to the gross inadequacy of the size of the transplant receiving site, there is also a major discrepancy between the densely vegetated donor area and the sparse transplantation pattern specified for the receiving area.
It was no accident that DOT badly underestimated the impact to seagrass from shading. DEP initially denied the application based on a more realistic estimate of seagrass loss. This permit reduces DEP's original estimate of lost seagrass by over 90 percent. When DOT's environmental subconsultant
estimated larger areas of seagrass to be impacted by shading, DOT's prime consultant twice ordered him in late 1988 and early 1990 to reduce these estimates, once telling him that shading is a "non- issue which is not even addressed in any agency regulations."
DOT's prime consultant thus attempted to ignore data, without which DOT could not reasonably project likely seagrass losses. The resulting analysis of seagrass impacts is not based on good data and is unpersuasive.
The second deficiency is that the primary seagrass mitigation is too speculative. The transplant receiving area is near the natural western shore of the pass. Unlawful boat use of a nearby fishing pier and bioturbation have resulted in barren patches in the transplantation area, but the recolonization process is proceeding naturally. Consistent with the slightly more colored water and somewhat poorer flushing than is found at the bridge, natural recolonization is already establishing as extensive and dense a seagrass bed as boating and bioturbation will permit.
The natural recolonization process now taking place in the transplant receiving area will revegetate more quickly and completely the portion of the bottom capable of supporting seagrass than would DOT's mitigation effort. DOT's proposed seagrass transplantation might even disrupt the natural recolonization process.
The success of the proposed seagrass transplantation is speculative at best. Compared to the mangrove mitigation in these cases, seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not been demonstrated consistently to prevent net habitat loss.
The DEP witness who reviewed DOT's application is an Environmental Specialist III who has been with DEP nearly nine years and has reviewed over 500 dredge-and-fill permits. Testifying against the permit and particularly the seagrass mitigation plan, he noted that DOT's seagrass mitigation plan promises uncertain benefits.
As was the case with the estimates of seagrass impacts, DOT and DEP failed to obtain the necessary data and perform the necessary analysis to provide reasonable assurance of the success of the mitigation provisions of the permit. Lacking comprehensive bathymetric and water-quality data, DOT cannot provide reasonable assurance that any of the mitigation proposals would work. To the contrary, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, is more likely than not to fail.
The third deficiency of the seagrass mitigation plan is its contingent nature, which is perhaps inevitable when the primary seagrass mitigation plan is widely conceded as unlikely to succeed. The importance of alternative and contingent seagrass mitigation plans is underscored by the likelihood of the failure of the main transplant receiving site and the unlikelihood that seagrass will recolonize under the existing or proposed bridge. But the alternative and contingent mitigation plans create only the illusion of assurance.
The alternative and contingent mitigation plans are worthless because they lack success criteria, detailed guidelines for identifying donor and receiving areas, and practicality. The alternative and contingent mitigation plans amount to nothing more than vague and unenforceable undertakings to find
seagrass somewhere and transplant it somewhere else. Such a difficult task demands more detail.
The mitigation in this permit is a reasonable assurance only, as stated in exhibits, of the continuation of the trend of the last half century during which Florida has lost one-third of its nearshore seagrass meadows and of the wisdom of the principle that conservation of existing beds is a more certain means by which to maintain well-functioning seagrass habitat.
Manatee
Seagrass in the immediate area of the Anna Maria Island Bridge is frequented and consumed by manatee. Although the southern edge of the existing bridge marks the limit of an extensive seagrass meadow in the area, manatee also feed in an area just north of the bridge about one-quarter of the way across the bridge starting at the western terminus.
Between 1985 and 1991, there were 432 adult manatee sightings and 44 manatee calf sightings in the vicinity of the Anna Maria Island Bridge. About two-thirds of these 476 sightings were north of the bridge and one-third south of the bridge.
Manatee use Sarasota Pass to travel between Tampa Bay and Sarasota Bay. The fill added in 1957 already constrains their passageway under the bridge by artificially narrowing the pass by about one-third. Construction at either end of the bridge would tend to concentrate the manatee even more toward the center of the bridge where they would more likely encounter boats in the main channel.
The southeast corner of Sarasota Pass just north of the east end of the bridge is an area of heavy manatee use. When a nearby marina reopened, manatee sightings decreased 58 percent from 1987 levels, but then returned to prior levels in 1989, before decreasing again in 1990. Manatee frequent a hole near the marina that was probably dredged in the 1950s.
Estimates in 1987 were that Florida's manatee population is about 1200, with equal numbers on the east and west coasts. Manatee populations are slow-breeding. Gestation runs 13-15 months with one or sometimes two calves born. The breeding cycle is 3-5 years. The natural life expectancy and reproductive life of a female are unknown. The risk of extinction heightens when the low reproductive rate and manatee mortality attributable to collisions with boats and barges are combined with the probable loss of seagrass, which provide both food and habitat for the manatee, and a two-year narrowing of an already-narrowed, heavily used manatee passageway.
Mangroves
DOT revised its initial proposal to minimize impacts on intertidal and upland wetlands. The original proposal would have displaced 0.55 acres of such wetlands. Altering slopes of the approach and eliminating a spreader swale resulted in a reduction of such displaced wetlands to 0.37 acres.
The displaced upland and intertidal wetlands comprise about as much Brazilian pepper as they do mangroves (0.126 acres versus 0.173 acres). DOT proposes to mitigate the loss of these intertidal or upland wetlands by creating a 0.652-acre intertidal salt marsh, removing an additional 0.143 acres of
Brazilian pepper, and incorporating this area into the wetland creation site, for a total of 0.795 acres of herbaceous mitigation.
The displaced herbaceous wetland vegetation is performing limited natural functions. Compared to seagrass, mangroves lend themselves to successful mitigation efforts. Except for the failure to minimize the impacts by proposing the no-build alternative, DOT has successfully mitigated the minor disruptions caused by the upland and intertidal disturbances associated with the proposed project.
Water Quality
The water-quality data in these cases are limited. The record contains little evidence of water quality at the bridge, except what may be inferred from the Outstanding Florida Waters and Class II designations. The water at this location is in the upper 25 percent of water-quality parameters for Sarasota Bay.
DOT has supplied DEP no water quality data in advance of the issuance of the permit except for temperature, salinity, secchi depth, dissolved oxygen, and conductivity. After issuance of the permit but before construction, DOT would have to supply DEP background turbidity values. This means that DEP has issued the permit without any values for such critical water-quality parameters as biological integrity, lead, cadmium, zinc, copper, oil and grease, or, as noted above, turbidity.
There are no data concerning the chemical composition of the sediments in the vicinity of the bridge. There are no data as to the extent to which these sediments may have been contaminated over the years by stormwater- borne heavy metals or oil and grease. There are no data describing the sediments by grain size and percentage of fine organic materials so as to indicate the susceptibility of bottom sediments to disturbances and the likelihood of the resuspension of contaminants into the water column.
Absent these vital data, DEP cannot determine, in advance of issuing the permit, if the proposed project would degrade ambient water quality. Crucial turbidity readings would be available only for enforcement, coming as they would after the permit had been issued.
The project would likely eliminate 2.5 acres of seagrass permanently and 2.0 acres of seagrass for an extended period of time. The loss of seagrass would impede the assimilation of nutrients and stabilization of bottom sediments. The project would eliminate benthic macroinvertebrates. The project would resuspend sediments, thereby increasing turbidity and reintroducing into the water column whatever is contained in the sediments. During the demolition of the Anna Maria Island Bridge, the project would violate turbidity standards because the mixing zone would no longer be in effect.
DEP and DOT have not analyzed these water-quality impacts attributable to the probable destruction of an extensive area of seagrass. Underestimating the seagrass losses by an order of magnitude and lacking many important measures of water quality, DOT cannot provide reasonable assurance that the proposed project would not degrade ambient water quality in the area of the bridge. To the contrary, the proposed project would likely degrade water quality.
Public Interest and Public Health, Safety, and Welfare
Why Most Residents Oppose the Proposed Bridge
A large majority of the people of Anna Maria Island do not want the proposed bridge. Referenda conducted by the three municipalities in November 1992 reveal that opponents outnumber proponents by nearly a 4:1 margin.
Some residents reject the bridge because they believe that it is only the first of two bridges, which would double the lanes onto the island and probably result in greater traffic on the island.
DOT has no present intent to build a second bridge, nor is the Metropolitan Planning Organization (MPO) seeking such a bridge at present. Some bridge opponents distrust DOT and the mainland-dominated MPO on this point, but the record does not indicate that such plans are presently under active consideration.
Most if not all residents opposing the bridge focus on the height of the proposed bridge. They worry in part that the wind speeds will be dangerously greater on a high-level bridge, so as to increase the risk of vehicles, pedestrians, and bicycles blowing off the bridge and require more frequent and earlier bridge closures due to storms.
DOT offered the testimony of Dr. Bob Sheets, formerly director the National Hurricane Center. Graciously termed the "Walter Cronkite of meteorologists" by Petitioner VanWagoner, Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge.
The vertical exchange of energy characteristic of predominantly convective storms like thunderstorms and hurricanes precludes much difference in wind speeds at the two heights in question.
The difference in wind speeds during nonconvective storms like "no- name storms" or "storms of the century" is larger, but still not great. No-name storms lack the vertical exchange of energy of hurricanes and thunderstorms, so wind speeds at 75 feet are greater than at 25 feet. A high-level bridge might encounter critical wind speeds of 45 miles per hour, at which local emergency management and law enforcement officials would close the bridge, perhaps 20 minutes earlier than they would the existing bridge.
Perceived dangers of high winds on a high-level bridge could pose a problem for a short while in terms of evacuation. But as a high-level bridge proved safe to use, the reluctance to use the bridge in approaching storms would give way to the pressing need to leave the island. Island residents understand from past experience that flooding on the island and bridge approaches means that they must evacuate without delay if they are to get off the island.
DOT has thus provided reasonable assurance that the height of the proposed bridge would not pose a threat to public safety through early bridge closures or mishaps to users of the bridge due to high wind speeds.
But residents' concerns about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the bridge because they believe that it is unsuitable for their small island community.
A high-level bridge would not permit fishing from anywhere but the extreme ends. Many of the area residents--some of whom are older persons--who walk, bicycle, or jog over the existing bridge would find the 4 percent grade and bridge height forbidding.
But the objections to the bridge height involve more than reduced access for nonmotorists. Except for one condominium permitted under prior law, nothing manmade on the island stands over 38 feet high. Bridge opponents claim that the size and appearance of the bridge would not blend well with the subdued appearance and casual ambience of their island.
Bridge opponents prefer their timeworn drawbridge that allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Though better scaled to the island community, the drawbridge provides a marked boundary between the island and the mainland. Such a boundary is less apparent from a wide expanse of new roadway across a high-level bridge, from which motorists, bicyclists, and pedestrians would have little if any view or feeling of the water separating the island from the mainland.
Most if not all residents oppose the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle
moving to the island in the first place.
Why DOT Favors the Proposed Bridge
In the Final Preliminary Engineering Report dated November 3, 1989 (DOT Exhibit No. 107), the "Environmental Determination," which was prepared seven or eight months later, asserts that DOT developed the bridge project along the southern alignment to minimize wetland impacts. Recognizing that only the no-build alternative would avoid impacts to the wetlands, the "Environmental Determination" states: "this alternative is not feasible considering the structural deficiency of the bridge, the absence of shoulders (functional obsolescence) and projected traffic increases indicating the need for two additional lanes." "Environmental Determination," page 5.
The Anna Maria Island Bridge is not structurally deficient. DOT has not imposed weight restrictions on the bridge. It has not failed any safety inspections. Although it could use some repairs, the Anna Maria Island Bridge is not unsafe.
The two-lane Anna Maria Island Bridge provides adequate capacity and will continue to do so for the reasonable future. After initially proposing a four-lane facility in response to a request for four lanes from the MPO, DOT has consistently disavowed any present intention of adding capacity to the existing road segment.
There is no evidence that a four-lane bridge is required to accommodate, at satisfactory level-of-service standards, the projected traffic for this segment of Manatee Avenue at anytime in the next 25 years. To the contrary, there is some question as to the utility of a four-lane bridge between a two-lane facility to the east and a typically congested, often constrained barrier-island road system one-half mile to the west.
DOT's assertion of functional obsolescence encompasses a number of arguments. Most of the arguments involve safety issues. Most of the safety
issues are based on the failure of the existing bridge to conform to published design standards.
Three safety-based arguments do not involve design standards. DOT presented evidence that bridge tenders are susceptible to crime: a DOT witness testified that the shelter of a bridge tender in Dade County was pockmarked by numerous bullet holes. Another DOT testified that a bridge tender was crushed by the gears of a drawbridge he was trying to fix when the power company suddenly restored power after an outage.
Both narratives are anecdotal and do not establish widespread problems with drawbridges. There is nothing to suggest that a bridge tender on Anna Maria Island Bridge must contend with drive-by shootings. Even if so, motorists and other users of the bridge might be safer if a bridge tender were available to telephone the police. The death of the bridge tender crushed by the drawbridge gears was tragic, but easily avoidable simply by shutting down the power to the bridge before working on it, as is required by common sense.
DOT also argued that island evacuation could be impeded by an open drawbridge. Evacuations are necessary, on average, about once every six years. Although the U.S. Coast Guard may order the bridge be opened at anytime, its sensible practice is to allow the bridge to remain closed while land- based traffic is evacuating the island.
Likewise, island evacuation would not require the addition of two shoulders that could be converted into travel lanes during evacuations. Successful evacuations have taken place with the existing bridge, whose two lanes can be used one- way east in emergencies. The two-lane bridge is not a bottleneck considering the two-lane facility to the east and the floodprone bridge approaches and island road system to the west.
The remaining DOT arguments of functional obsolescence involve design standards and the safety of highway and marine traffic on and under the bridge.
DOT's road-safety arguments are undermined by the fact that the Anna Maria Island Bridge has proved to be safe during 40 years' operation. The approach has had in excess of 50 percent more collisions than the bridge. The opened drawbridge accounts for traffic stoppages and backups far less often than do the traffic light to the west and store/marina to the east.
DOT primarily claims that the bridge is functionally obsolete in part due to the absence of shoulders or breakdown lanes on the bridge. Although the safety of a road segment is enhanced by the presence of breakdown lanes, the added margin of safety is not as great as DOT implies in these cases.
Countering suggestions of greater safety, the shouldered approach to the bridge has experienced 50 percent more collisions than the unshouldered bridge.
Undoubtedly, modern design standards favor a shouldered bridge, but not at any cost. In fact, design standards calling for a shouldered bridge are conditioned on various factors, including environmental, economic, social, and aesthetic concerns.
The record contains three sources of design standards for bridges: DOT's Index No. 700 or Design Criteria Related to Highway Safety, dated September 1991 (SAM Exhibit No. 123); Chapters 1 and 2 of Volume I of DOT's Plans Preparation Manual (SAM Exhibit No. 126); and the 1990 standards of the
American Association of State Highway and Transportation Officials (AASHTO) (SAM Exhibit No. 105).
The Plans Preparation Manual specifies that through lanes should be "as wide as practical, up to 12 feet." Index No. 700 specifies that clear widths for bridges with undivided travel lanes on urban arterials with design speeds of 30-50 miles per hour, such as this road segment, should be the "travel lanes plus approach shoulder widths."
The introduction to Chapter 1 of the Plans Preparation Manual states that projects are normally based on established design standards for the various elements of the project, such as width of roadway . . .. Selection of the appropriate standards is influenced by traffic volume and composition, desired levels of service, terrain features, roadside developments, environmental considerations and other individual characteristics.
Addressing the aesthetics of road projects, Chapter 1 states that the designer should consider, after functionality, how a highway will be perceived by users, ensuring that "[h]orizontal and vertical alignment should be coordinated so that a driver has an opportunity to gain a sense of the local environment."
Notes to Index No. 700 stress the conditionality of the design standards. One note states: "Values shown above shall be used on all new construction and on reconstruction projects to the extent that economic and environmental considerations and [right-of-way] limitations will allow." Another note adds for clear zones:
Standard values are to be used for all new construction projects. These values may be reduced only where individually justified to mitigate critical social, economic, and environmental impacts or to lessen right-of- way costs. Standard values are also to be used for reconstruction projects; however values down to AASHTO minimum may be used where individually justified due to critical social, economic and environmental impacts and/or excessive right-of-way costs or when existing roadside obstacles are not considered hazardous as evidenced by field review and by accident history or accident potential.
AASHTO standards call for a minimum width of the travel lanes plus three feet per side. But AASHTO standards recognize that reasonably adequate bridges . . . that meet tolerable criteria may be retained. Some of the nontechnical factors that should be considered are the esthetic value and the historical significance attached to famous structures, covered bridges, and stone arches.
The bridge approach has eight-foot gravel shoulders, although no design shoulders. However, as noted above, the design standards do not provide for bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors.
After consideration of all the factors, DOT has not proved that the applicable design standards mandate the widening of the existing bridge to add shoulders.
DOT proposes to construct a new bridge to replace an existing bridge with a good safety record, largely to add shoulders to the bridge roadway. However, the proposed project has extensive environmental impacts to the seagrass, on which the health of the Outstanding Florida Waters and estuarine system of Sarasota Pass depends. The area is heavily used by the endangered manatee. And the proposed bridge is widely rejected as unsuitable by island community that it would largely serve.
If highway safety were a real issue, DOT could always reduce the speed limit on the Anna Maria Island Bridge. There is little to justify constructing a new bridge to accommodate wide, shouldered travel lanes that permit motor vehicles to hurtle across the pass at 45 or 50 miles per hour where, a half-mile to the west, they encounter a traffic signal, barrier-island road system, and the Gulf of Mexico. The situation to the east offers little more justification for highway speeds. There, motorists encounter traffic trying to turn into a store/marina one-quarter mile from the bridge and, a relatively short distance to the east, an increasingly urbanizing area that does not lend itself to reasonable driver expectations of throughway speeds.
Another aspect to DOT's argument that the Anna Maria Island Bridge is functionally obsolete is that it does not meet current load standards for bridges. The AASHTO minimum design standard for new bridges "should be HS-20." The existing bridge is rated HS-15.
However, the same conditions attach to the load standard of a bridge as apply to the presence and width of shoulders. HS-15 is a "tolerable" criterion. There is nothing in the record suggesting that the current load limit of the Anna Maria Island Bridge is deficient or unsafe. If DOT were concerned about the load capacity of the bridge, it would have imposed weight limits on the bridge. After consideration of all the factors, the design standards no more call for a new bridge to increase the load rating to HS-20 than they call for adding shoulders to the bridge.
DOT also argues that the Anna Maria Island Bridge is functionally obsolete because it does not meet current ship- impact standards. The evidence failed to establish the bridge's ability to resist ship impacts. Also, DOT did not prove up the standards sufficiently to show that they, unlike the other design standards, apply unconditionally.
In any event, the Anna Maria Island Bridge has suffered no significant damage from marine traffic, of which only a very small fraction constitutes potentially threatening tug boats or barges. And there have not even been any accidents in the memory of one bridge tender who has worked at the bridge for 12 years. This record is not surprising given the good navigation conditions that normally prevail at the bridge.
Last, DOT argues that cost efficiency demands the removal of the Anna Maria Island Bridge, which has undergone expensive repairs in the recent past. DOT generally decides to replace rather than rehabilitate a structure when rehabilitation is projected to cost 60 percent or more of the cost of a new structure.
Cost comparisons between the proposed project and no- build alternative are deterred by the absence of any specific estimate for the proposed bridge.
Cost comparisons between the proposed bridge and no- build alternative are also deterred by the failure of DOT to prove the costs associated with the no-build option. What evidence DOT produced as to the costs of maintaining the Anna Maria Island Bridge was unpersuasive. These costs supposedly include a major rehabilitation job at an interval substantially less than 40 years. But the current drawbridge never required this major work over its 40-year life.
DOT cost estimates ignore environmental costs. Perhaps incapable even of approximation as to lost seagrass beds, degraded water quality, and reduced wildlife, including manatee, environmental costs can be partly quantified in terms of lost recreational opportunities, lost property values and business income in the event of degraded waterbodies, and increased governmental expenditures to reverse environmental degradation.
Interestingly, DOT recently completed the rehabilitation of the Cortez Bridge. Abandoning earlier plans to replace the bridge, DOT instead repaired and rehabilitated the drawbridge without widening the bridge or bascule spans.
Minimization of the Proposed Project
Failing to show the necessity of the bridge project, DOT has failed to show that it has minimized the project, which is a precondition to consideration of mitigation proposals.
Reduced to its bare essentials, DOT has proposed transportation improvements to maintain or enhance highway safety and efficiency. The no-build alternative, rather than the proposed southern alignment or the discarded northern alignment, minimizes what could otherwise be significant environmental impacts while still achieving reasonable levels of highway safety and efficiency.
Ultimate Findings
No Reasonable Assurance of No Water Quality Violations
DOT has provided no reasonable assurance that the proposed project would not reduce water quality. DOT and DEP lack data as to background values for important measures of water quality.
The omission of comprehensive, pre-permit data about water quality and sediments is exacerbated by the absence of analysis of the effects of shading on the seagrass and of the likely permanent and temporary losses of 2.5 and 2.0 acres of seagrass, respectively.
On these facts, DOT has not provided reasonable assurance that the proposed project would not degrade water quality.
No Reasonable Assurance that Proposed Bridge Is in Public Interest
Proposed Bridge Not in Public Interest
DOT has failed to prove its nonrule policy treating "welfare" as included in "health" and "safety." The American Heritage Dictionary defines "welfare" as "Health, happiness, and general well-being." As defined, "welfare" explicitly means more than "health" and implicitly means more than "safety."
DOT has failed to provide reasonable assurance that the proposed project would be clearly in the public interest. A large majority of the public most directly served by the project does not find it to be in their interest. Aside from the reactions of these island residents, the proposed project is not clearly in the public interest when the scant benefits claimed by DOT are outweighed by the project's substantial environmental and other costs.
DOT has provided reasonable assurance that the proposed project would not adversely affect the public safety, but it has failed to provide reasonable assurance that the proposed project would not adversely affect the public welfare. To the contrary, a fixed-span, high-level bridge would likely destroy acres of seagrass, jeopardize water quality, endanger the already-endangered manatee, adversely affect the estuarine resources of Sarasota Pass, and detract from the island ambience.
DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. To the contrary, the proposed project would probably destroy valuable seagrass habitat that is crucial to the welfare of manatee and other wildlife. During construction, the proposed project would directly endanger the manatee by narrowing an important manatee passageway so as to increase the chances of boat-manatee collisions and introducing dangerous construction equipment to the area.
DOT has failed to provide reasonable assurance that the proposed project would not adversely affect navigation. To the contrary, the proposed project would limit an increasingly important access point for sailboat traffic, which constitutes 83.5 percent of the traffic using the pass and requiring drawbridge openings. And the trend is toward taller-masted boats, many of which are manufactured by Florida manufacturers.
DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the fishing or recreational values or marine productivity in the vicinity of the proposed project. The likely permanent loss of 2.5 acres of seagrass would adversely affect marine productivity directly through loss of habitat and indirectly through probable reductions in water quality. The construction of the proposed bridge and removal of the existing bridge would eliminate a heavily used fishing site by area fishermen and would discourage pedestrian and bicycle use.
The proposed project is relatively permanent, but would not affect known archeological resources. The Anna Maria Island Bridge is of greater aesthetic and cultural value than historic value.
DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project would probably destroy acres of well-functioning seagrass whose health is linked to the health of the estuary and all of its inhabitants and visitors.
2. Mitigation Insufficient
DOT has not minimized the project by proposing the no- build alternative, so consideration of seagrass mitigation is premature. But even if the southern alignment represented minimization, the seagrass mitigation would be clearly insufficient to offset the environmental losses.
The seagrass mitigation in this permit is vague, unenforceable, and ultimately nonexistent. Led by a clearly insufficient seagrass mitigation ratio, the problems include a failure to collect and analyze data on the suitability and need of the main transplant receiving site for seagrass transplants, a reliance on seagrass recolonization under the existing and proposed bridges where seagrass is unlikely to grow, a failure to identify success criteria, and a failure to prepare realistic alternative and contingency seagrass mitigation plans in the likely event of the failure of the main receiving site and under-bridge sites.
CONCLUSIONS OF LAW
General
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
DOT's application for a dredge-and-fill permit was pending on June 15, 1994. Section 373.414(14)(b) provides that the statutes that apply to these cases are the now-repealed Sections 403.91-403.929.
DOT has the burden of proving its entitlement to the permit. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Water Quality
Section 403.918(1) states:
A permit may not be issued under ss. 408.91- 403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.
The department, by rule, shall establish water quality criteria for wetlands within its juris- diction, which criteria give appropriate recog- nition to the water quality of such wetlands
in their natural state.
177. Rule 62-4.242(2)(a) states:
No Department permit or water quality certifi- cation shall be issued for any proposed activity or discharge within an Outstanding Florida Waters, or which significantly degrades, either alone or
in combination with other stationary installations, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
* * *
2. The proposed activity or discharge is clearly in the public interest; and . . .
* * *
b. The existing ambient water quality within Outstanding Florida Waters will not be lowered
as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed thirty days; lowered water quality would occur only within a restricted mixing zone approved by the Department; and, water quality criteria would not be violated
outside the restricted mixing zone. The Department may allow an extension of the thirty-day time limit on construction-caused degradation for a period demonstrated by the applicant to be unavoidable
and where suitable management practices and technology approved by the Department are employed to minimize any degradation of water quality.
Rule 62-4.242(2)(c) defines "existing ambient water quality" as the better water quality from either the baseline year of when the water was designated an Outstanding Florida Water or the year prior to the application.
Rule 62-4.242(2)(b) acknowledges that it may be necessary to permit "limited activities or discharges" in Outstanding Florida Waters to allow for or enhance public use. But if the activity or discharge is not in compliance with Rule 62-4.242(2)(a)2, then Rule 62-4.242(2)(b)3 provides that there must be "no alternative to the proposed activity, including the alternative of not undertaking any change, except at an unreasonably high cost."
DOT cannot meet the two-part test for water quality. First, it has failed to provide reasonable assurance that the proposed project is clearly in the public interest.
Second, DOT has failed to provide reasonable assurance that the proposed project would not degrade the Outstanding Florida Waters in which it would be situated. It is impossible to determine existing ambient water quality because there is no evidence whatsoever of water quality during the baseline year. Even ignoring this fatal omission, DOT has failed to provide crucial
water-quality values prior to the issuance of the permit so as to permit informed analysis. The proposed project is certain to degrade certain of these values, such as biological integrity and turbidity (during demolition) and is likely to degrade many other of these values, including turbidity prior to demolition. Moreover, DOT has not shown that the no-build alternative is not an economically feasible alternative to the proposed project.
Public Interest
Section 403.918(2) provides:
A permit may be not issued under ss. 403.91- 403.929 unless the applicant provides the department with reasonable assurance that the
project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including
endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical
and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . ..
DOT has failed to provide reasonable assurance that the proposed project is clearly in the public interest. DOT has provided no reasonable assurance as to five of the six applicable criteria and has provided reasonable assurance only as to part of the sixth criterion.
DOT has failed to provide reasonable assurance that the project would not adversely affect the conservation of fish and wildlife or their habitats, the project would not adversely affect navigation, and the project would not adversely affect the fishing or recreational values or marine productivity of the area. Additionally, the project would be permanent and would impact seagrass functioning at a high level in providing crucial habitat and food for a variety of wildlife, including manatee. The project would have no bearing on archaeological or historic resources.
DOT has provided reasonable assurance that the project would not adversely affect public safety. The wind speeds on the high deck would not require significantly earlier or longer closings of the bridge in storm events, nor would the closures likely have an adverse effect on evacuations.
But DOT has not provided reasonable assurance that the project would not adversely affect the public welfare or would clearly be in the public interest in general.
Due to its misconception of the meaning of public "welfare" as included in "health" or "safety," DEP has given no consideration to the public welfare, as a separate notion, in terms of the public well-being or happiness. Likewise, DEP's consideration of "public interest" appears limited to a balancing of the seven criteria of Section 403.918(2)(a)1-7, even though these seven criteria are illustrative and not exhaustive.
In its proposed recommended order, DEP argues that "welfare" should be limited to environmental welfare, using "environment" to mean the natural environment. But DEP does not argue that DOT's assertions concerning public safety should be so limited. DEP does not ask that DOT be limited in its public- safety arguments to issues of environmental safety. In any event, the seven criteria are not so limited. The criterion concerning archaeological or historical value draws on social or cultural issues apart from the natural environment.
DEP's argument gives an unduly narrow reading to the legislative mandate to consider the "public interest." The argument renders redundant the "public interest" language in the statute. DEP argues in effect that the legislature intended to add nothing to the seven criteria when it placed the words, "public interest" in the flush language.
"Public interest" connotes wide-ranging considerations. The statute clearly emphasizes the balancing of criteria involving the natural environment. But clear legislative intent would be frustrated if DEP interprets the statute so as to preclude direct consideration of the extent to which the public interest is or is not served by a proposed project.
These are unusual cases because the proposed transportation improvements uniquely affect a reasonably well- defined group of persons. The bridge will serve more than the people of Anna Maria Island, although there is no evidence that visitors to the island are clamoring for bridge shoulders. But the public welfare or public interest requires at least consideration of the legitimate concerns of the people of Anna Maria Island.
In these cases, strong expressions of public interest and welfare include a longing by a large majority of island residents to preserve the pace of island life, the view of the water when leaving or approaching their island home, the sense of scale between that which is manmade and that which is natural, and the estuarine environment that, when fouled, can be as repugnant as it is appealing when left pristine. When considered with other relevant factors, the public welfare is adversely affected by the proposed project, which is not clearly in the public interest.
Minimization, which precedes mitigation, means the no- build alternative in which necessary bridge repairs could be undertaken with the mitigation of any environmental impacts. Because DOT has not minimized the impacts of the proposed project, it is premature to consider mitigation.
However, the mitigation provisions are ineffective anyway. DEP has in effect agreed to issue the permit first and require mitigation later. The law requires reasonable assurance in advance of the issuance of the permit. The
legislature has entrusted DEP with the responsibility of analyzing available data to determine whether an applicant has satisfied the conditions for a permit. This process must be done prior to issuing the permit. Here, DEP has unlawfully deferred the details of mitigation until after issuing the permit.
It is
RECOMMENDED that the Department of Environmental Protection enter a final order denying the Department of Transportation's application for a dredge-and- fill permit to construct a fixed- span, high-level bridge at Manatee Avenue at Sarasota Pass and demolish the Anna Maria Island Bridge.
ENTERED on February 16, 1995, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings on February 16, 1995.
APPENDIX
Rulings on DOT's Proposed Findings
1-4: adopted or adopted in substance.
5: adopted or adopted in substance, except that the waters are Class II waters.
6 (except last sentence): adopted or adopted in substance.
6 (remainder): rejected as irrelevant.
7-9 (except for second to last sentence): adopted or adopted in substance.
9 (second to last sentence): rejected as irrelevant.
10-11 (first sentence): rejected as subordinate and irrelevant.
11 (second and third sentence): rejected as unsupported by the appropriate weight of the evidence.
11 (remainder): adopted or adopted in substance, subject to conditions discussed in recommended order.
12: rejected as subordinate, except that the MPO recommended four-lane bridge for awhile and DOT has no plans to construct two more lanes.
13: rejected as irrelevant.
14-31: adopted or adopted in substance.
32: adopted or adopted in substance, except as to finding of minimization. 33-47: adopted or adopted in substance, except for the failure to minimize
the impacts by proposing the no-build alternative.
48-52: adopted or adopted in substance.
53: adopted or adopted in substance, assuming that direct impacts means direct displacement, not mortality through shading.
54: rejected as recitation of evidence.
55: rejected as irrelevant and unsupported by the appropriate weight of the evidence.
56-57 (first sentence): adopted or adopted in substance.
57 (second sentence): rejected as unsupported by the appropriate weight of the evidence.
58-59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance insofar as this is DOT's expressed
reason for the primary transplant receiving area.
61: adopted or adopted in substance.
62: rejected as subordinate and irrelevant.
63: rejected as unsupported by the appropriate weight of the evidence, except that area has been subject to disturbance historically and except that considerable recovery of seagrass has taken place through natural recolonization.
64-67: rejected as subordinate and irrelevant.
68-72 (second sentence): adopted or adopted in substance.
72 (remainder)-73: rejected as subordinate and irrelevant.
74-75: rejected as unsupported by the appropriate weight of the evidence. 76: rejected as irrelevant.
77-78: rejected as subordinate and irrelevant.
79 (first and last sentence): adopted or adopted in substance.
79 (remainder): rejected as subordinate and irrelevant. 80: adopted or adopted in substance.
81: rejected as speculative. 82-84: rejected as irrelevant.
85 (first and third sentences): adopted or adopted in substance.
(second sentence): rejected as unsupported by the appropriate weight of the evidence.
(first sentence): adopted or adopted in substance.
86 (remainder)-87: rejected as unsupported by the appropriate weight of the evidence as to the effectiveness, not existence, of these permit provisions.
88 (except last sentence): adopted or adopted in substance, except that the standards do not call unconditionally for shoulders on the bridge or 12-foot shoulders. Also, Table 2.3.4 is not for use on an arterial road.
88 (last sentence): rejected as irrelevant. 89: rejected as irrelevant.
90-91 (first sentence): adopted or adopted in substance.
(remainder): rejected as subordinate, recitation of evidence, and unsupported by the appropriate weight of the evidence.
(first sentence): rejected as irrelevant.
92 (second sentence): adopted or adopted in substance.
92 (second to last sentence): rejected as unsupported by the appropriate weight of the evidence.
(remainder): rejected as irrelevant.
(first sentence): adopted or adopted in substance as to some theoretical advantage in safety and efficiency, but rejected as to meaningful advantage in safety or efficiency.
93 (remainder): rejected as subordinate, irrelevant and unsupported by the appropriate weight of the evidence, except that proposed barrier would better protect pedestrians from traffic lanes.
94: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence.
95: rejected as unnecessary.
96: adopted or adopted in substance.
97 (except second sentence): rejected as subordinate, recitation of evidence, and irrelevant.
97 (second sentence): adopted or adopted in substance.
98: rejected as unsupported by the appropriate weight of the evidence, except that Coast Guard would not require opening of drawbridge during an evacuation.
99-100: adopted or adopted in substance, except that 10 minutes may be as much as 20 minutes--still not a significant difference.
101-04 (first sentence): adopted or adopted in substance.
105 (first two sentences): adopted or adopted in substance.
105 (remainder): rejected as unnecessary.
Rulings on Proposed Findings of DEP
1-5: rejected as subordinate, legal argument, and unnecessary.
6 (first three sentences): adopted or adopted in substance.
6 (remainder): rejected as subordinate and legal argument.
7: rejected as subordinate, recitation of evidence, and unnecessary.
8: rejected as unsupported by the appropriate weight of the evidence and legal argument. The criterion of historical or archaeological value transcends environmental issues, as used in DEP's proposed recommended order.
Rulings on Proposed Findings of SAM and VanWagoner 1-6: adopted or adopted in substance.
7: rejected as unsupported by the appropriate weight of the evidence.
This ignores turbidity and other impacts.
8-13: adopted or adopted in substance.
14: rejected as unsupported by the appropriate weight of the evidence. 15-22: adopted or adopted in substance.
23-27: rejected as subordinate.
28: rejected as unsupported by the appropriate weight of the evidence. 29: adopted or adopted in substance.
30-32: rejected as unnecessary.
33-35: adopted or adopted in substance.
36: rejected as unsupported by the appropriate weight of the evidence. 37-60: adopted or adopted in substance.
61: rejected as unsupported by the appropriate weight of the evidence.
Finding should have been for "not more than 60 days." 62-67: adopted or adopted in substance.
68-69: rejected as unnecessary.
70-76: adopted or adopted in substance.
77-79: rejected as legal argument and irrelevant. 80-83: adopted or adopted in substance.
84: rejected as unnecessary.
85 and 87: rejected as subordinate. 86: adopted or adopted in substance. 88-92: rejected as subordinate.
93-96: adopted or adopted in substance. 97: rejected as unnecessary.
98: rejected as irrelevant if pertaining to bridge approach. Rejected as unsupported by the appropriate weight of the evidence if pertaining to bridge.
99-102: rejected as subordinate.
103-08: adopted or adopted in substance.
109-17: rejected as subordinate and irrelevant. 118-19: rejected as subordinate.
120: adopted or adopted in substance. 121-22: rejected as subordinate.
123-33: adopted or adopted in substance.
134: rejected as subordinate.
135-40: adopted or adopted in substance. 141-42: rejected as subordinate.
143: adopted or adopted in substance. 144-45: rejected as subordinate.
146-49: adopted or adopted in substance.
150: rejected as unsupported by the appropriate weight of the evidence. 151: rejected as subordinate and irrelevant.
152: rejected as unsupported by the appropriate weight of the evidence and recitation of testimony.
153: rejected as unsupported by the appropriate weight of the evidence as to reality and even lasting perception.
154-58: rejected as subordinate.
159-60: adopted or adopted in substance. 161-67: rejected as subordinate.
168: adopted or adopted in substance. 169: rejected as subordinate.
170-73: adopted or adopted in substance. 174-75: rejected as irrelevant.
176-78: rejected as subordinate.
179-83: adopted or adopted in substance. 184: rejected as subordinate.
185-90: adopted or adopted in substance. 191-200: rejected as subordinate.
201: adopted or adopted in substance. 202-12: rejected as irrelevant.
213-14: adopted or adopted in substance. 215-26: rejected as subordinate.
217-18: adopted or adopted in substance.
219: adopted or adopted in substance, except that it is not a matter of aesthetic appeal but compatibility with the island ambience.
220-21: adopted or adopted in substance.
222-24: rejected as unsupported by the appropriate weight of the evidence and irrelevant.
225-34: adopted or adopted in substance. 235-36: rejected as subordinate.
237-38: rejected as irrelevant and unsupported by the appropriate weight of the evidence.
238-53: adopted or adopted in substance.
254-56: rejected as subordinate and unnecessary. 257-64: adopted or adopted in substance.
265: rejected as recitation of evidence. 266-73: adopted or adopted in substance.
274: rejected as unsupported by the appropriate weight of the evidence.
It would be more than 2 acres of seagrass. 275: adopted or adopted in substance.
276-77: rejected as recitation of evidence. 278-87: adopted or adopted in substance.
288: rejected as unnecessary.
289-301: adopted or adopted in substance. 302: rejected as subordinate.
303-09: adopted or adopted in substance.
310-13: rejected as subordinate and unnecessary. 314-22: adopted or adopted in substance.
323-25: rejected as subordinate.
326: adopted or adopted in substance. 327-30: rejected as subordinate.
331: adopted or adopted in substance. 332-37: rejected as subordinate.
338: adopted or adopted in substance. 339: rejected as subordinate.
340-42: adopted or adopted in substance. 343: rejected as subordinate.
344-47: adopted or adopted in substance. 348-49: rejected as subordinate.
350-52: rejected as unnecessary.
353-54: adopted or adopted in substance. 355-60: rejected as subordinate.
361-63: adopted or adopted in substance.
364: rejected as subordinate and recitation of testimony.
365: adopted or adopted in substance, as to boats requiring drawbridge openings.
366-68: rejected as subordinate.
369: adopted or adopted in substance. 370: rejected as recitation of evidence. 371-403: adopted or adopted in substance.
404-07: rejected as subordinate, recitation of evidence, and unnecessary. 408-56: adopted or adopted in substance.
457: rejected as unsupported by the appropriate weight of the evidence. The evidence is insufficient to base findings as to the extent of the flushing at the bridge except that it is probably at least barely adequate.
458-61: rejected as subordinate.
462-66: adopted or adopted in substance. 467: rejected as recitation of evidence. 468: rejected as subordinate.
469-76: adopted or adopted in substance. 477-81: rejected as subordinate.
482-84: adopted or adopted in substance. 485-86: rejected as subordinate.
487-89: adopted or adopted in substance.
490: adopted or adopted in substance, except that it is likely, not merely possible.
491-506: adopted or adopted in substance.
507-14: rejected as subordinate and unnecessary. 515-16: adopted or adopted in substance.
517-19: rejected as subordinate and recitation of testimony. 520-30: adopted or adopted in substance.
531-47: rejected as recitation of evidence and subordinate. 548: adopted or adopted in substance.
549: rejected as unnecessary.
550-51: adopted or adopted in substance.
552: rejected as subordinate and recitation of evidence. 553: adopted or adopted in substance.
554-55: rejected as recitation of evidence. 556: adopted or adopted in substance.
557: rejected as subordinate.
558-75: adopted or adopted in substance. 576-77: rejected as unnecessary.
578-621: adopted or adopted in substance. 622-24: rejected as subordinate.
625: rejected as repetitious. 626-29: rejected as subordinate.
630-38: adopted or adopted in substance. 639-42: rejected as recitation of evidence.
643: adopted or adopted in substance. 644-46: rejected as subordinate.
647: adopted or adopted in substance. 648: rejected as recitation of evidence. 649-50: adopted or adopted in substance.
651-52: rejected as recitation of evidence. 653: rejected as repetitious.
654-56: adopted or adopted in substance. 657: rejected as subordinate.
658-60: rejected as repetitious.
661: rejected as unsupported by the appropriate weight of the evidence. 662: rejected as subordinate.
663: adopted or adopted in substance. 664: rejected as subordinate.
665-68: rejected as unnecessary.
669-71: adopted or adopted in substance.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
David M. Levin Icard Merrill
2033 Main Street, Suite 600
Sarasota, Florida 34237
Paul Sexton
Chief, Administrative Law Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Francine Ffolkes, Assistant General Counsel Department of Transportation
Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Robert E. VanWagoner Post Office Box 4121
Anna Maria, Florida 34216
Christine C. Stretesky, Assistant General Counsel Department of Environmental Protection
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a longer period within which to submit written exceptions. You should contact the agency that will issue the final order in these cases concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in these cases.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ROBERT E. VANWAGONER
Petitioner,
vs. DOAH CASE NO. 95-3621
DEP CASE NO. OGC-95-1073
DEPARTMENT OF TRANSPORTATION and DEPARTMENT OF ENVIRONMENTAL PROTECTION
Respondents,
/ SAVE ANNA MARIA, INC.,
Petitioner,
vs. DOAH CASE NO. 95-3622
DEP CASE NO. OGC-95-1094
DEPARTMENT OF TRANSPORTATION, and DEPARTMENT OF ENVIRONMENTAL PROTECTION
Respondents,
/
FINAL ORDER
BACKGROUND
This case involves an application by the Florida Department of Transportation (DOT) to the Department of Environmental Protection (Department) for a dredge and fill permit for the purpose of demolishing the existing functional Manatee Avenue (State Road 64) drawbridge from Bradenton to Anna Maria Island, Manatee County, Florida, and constructing a fixed-span high- level
(65-foot high) bridge 20 feet south of the existing bridge. The permit application number is 412178603.
The bridge spans Sarasota Pass, also known as Anna Maria Island Sound, a Class II water body which has been designated an Outstanding Florida Water.
Sarasota Pass is part of the Gulf Intracoastal Waterway connecting Tampa Bay to the north with Sarasota Bay to the south. The bridge connects Anna Maria Island to Perico Island to the east. A shorter two-lane bridge connects Perico Island to the mainland. The existing Anna Maria Island bridge was built forty years ago. It is a two-lane bridge, and the deck of the bridge is 25 feet above the water with a vertical clearance of 17.5 feet at mean high water. The bridge spans are 48 feet long and the drawbridge section (bascule) is 128 feet long.
The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below.
The bridge is heavily used by recreational and low volume commercial fishermen. The speed limit is fifty miles per hour, and the average daily traffic across the bridge in 1988 was 14,000 to 15,000 vehicles. On Friday and Saturday nights, traffic often backs up past the drawbridge from the traffic light on the west-end intersection of Manatee Avenue and Gulf Drive. The bridge's safety record shows a below average number of collisions. About 650 marine vessels per month require operation of the drawbridge. Navigability is not difficult. The bridge is in good to fair condition, indicating early to moderate deterioration. It has no posted weight restrictions.
The project would result in the temporary loss of approximately two acres of seagrass. DOT proposes to mitigate for the expected loss of seagrass by transplanting 0.19 acres of seagrass. Additional seagrass beds are expected to recolonize at the site of the existing bridge after it is removed. Monitoring would be required to determine if such recolonization occurs. If recolonization does not occur, the planting of additional seagrass beds will be required.
Additional planting of seagrass beds will also be required if existing seagrass coverage is reduced in areas adjacent to or under the new bridge.
The Department issued an intent to issue the permit on April 2, 1995.
Petitioners Robert E. VanWagoner (VanWagoner) and Save Anna Maria Island, Inc. (SAM), separately petitioned for an administrative hearing under section 120.57. The cases were consolidated and a hearing was held on December 4-8, and 11-14, 1995, before Robert E. Meale, a hearing officer with the Division of Administrative Hearings. On February 16, 1996, the Hearing Officer submitted his Recommended Order to the Department and all other parties to this action. A copy of the Recommended Order is attached as Exhibit A DOT and the Department timely filed exceptions to the Recommended Order. No responses to the exceptions were filed. The matter then came before me as Secretary of the Department formal agency action.
The Hearing Officer concluded that DOT failed to show a need for the project and failed to show that repair of the bridge rather than replacement could be undertaken with fewer adverse environmental impacts which could be mitigated. That is, the Hearing Officer concluded that DOT failed to show that a no-build or no-project alternative would have less adverse environmental impacts. The Hearing Officer also concluded that DOT failed to provide reasonable assurance that the proposed bridge satisfied the requirements of the public interest test -- that is, that the proposed project was clearly in the public interest. This conclusion about the public interest test was based in part on a finding that the happiness of the residents of Anna Maria Island would be adversely affected, that the bridge would detract from the island ambiance,
and that the existing bridge had greater aesthetic value. Recommended Order at 36, 46-48. The Hearing Officer's conclusion about the public interest test was also based on findings that DOT had failed to provide reasonable assurance that the proposed project would not (a) adversely affect public welfare, (b) endanger the manatee, (c) adversely affect the estuarine resources of Sarasota Pass, (d) adversely affect the conservation of fish and wildlife, (e) adversely affect navigation and adversely affect fishing or recreational values or marine productivity, and (f) adversely affect the current condition and relative value of functions being performed being performed by the areas affected by the proposed activity. Recommended Order at 46-49.
The Hearing Officer also found that DOT failed to provide reasonable assurance that the project would not result in degradation of the water quality of Sarasota Pass, an Outstanding Florida Water. Recommended Order at 46.
Although the Hearing Officer concluded as a matter of law that DOT was not entitled to offer mitigation because it had not minimized adverse impacts by considering the no-build alternative, the Hearing Officer nevertheless found that the mitigation offered by DOT was not sufficient to offset the adverse environmental impacts. Recommended Order at 49, 55-56. For all of these reasons the Hearing Officer recommended that the permit be denied.
I note that when a Hearing Officer's findings of fact are supported in the record by competent substantial evidence I am bound by those findings and may neither reject them nor reweigh the evidence. Florida Department of Corrections
v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); secs. 120.57(1)(b)10, 120.68(10), Fla. Stat. (1995). Nor may I rejudge the credibility of testimony. Brown v. Criminal Justice Standards and Training Commission, 667 So. 977 (Fla. 4th DCA 1996). However, I am not bound by the Hearing Officer's conclusions of law, and I have an obligation to correct erroneous conclusions of law contained in a recommended order. See Harloff v. City of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA), review denied 583 So.2d 1035 (Fla. 1991). Nor am I bound by the Hearing Officer's conclusions on the sufficiency of proposed mitigation or whether a proposed project satisfies the requirement of the public interest test. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 954-55 (Fla. 1st DCA 1989), review denied, 562 So.2d 345 (Fla. DER 1990). see also VQH Development Inc. v. Department of Environmental Regulation, 15 F.A.L.R. 3407, 3439 (Fla. DER 1993), aff'd per curiam, 642 So.2d 755 (Fla. 2d DCA 1994); Altman v. Kavanaugh, 15
F.A.L.R. 1558, 1562 (Fla. DER 1993); Florida Power Corporation v. Dept. of Environmental Regulation, 14 F.A.L.R. 4159, 4163 (Fla. DER 1992), aff'd, 605 So.2d 149 (Fla. 1st DCA 1992); Batell v. Dept. of Environmental Regulation, 14
F.A.L.R. 1507, 1512 (Fla. DER 1992); Sarasota County v. Midnight Pass Society,
13 F.A.L.R. 1727, 1740 (Fla. DER 1991); J.T. McCormick v. City of Jacksonville,
12 F.A.L.R. 960, 978-9, (Fla. DER 1990), rev'd other grounds sub nom. Perry v. City of Jacksonville, No. 90-001, (Fla. Land and Water Adjudicatory Commission, Feb. 14, 1991)(unpublished).
For reasons discussed in detail below, I conclude as a matter of law that the Hearing Officer erred by considering the happiness of the residents of Anna Maria Island in determining whether the proposed project satisfied the requirements of the public interest test, and erred by considering the impact of the bridge design on aesthetics and island ambiance. I also conclude as a matter of law that the Hearing Officer erred by requiring consideration of the no-project alternative as part of the elimination or reduction of impacts (minimization). In addition, I conclude that the proposed mitigation is sufficient to offset the adverse impacts of the proposed project and that the
proposed project is clearly in the public interest. However, I find that the record contains competent substantial evidence supporting the Hearing Officer's findings of fact that DOT failed to provide reasonable assurances that the proposed project would not degrade the water quality of Sarasota Pass.
Therefore, I am bound by those findings of fact, and since the permit cannot be issued given those findings of fact, I must accept the Hearing Officer's recommendation that the permit be denied.
RULINGS ON EXCEPTIONS
Showing of Necessity and No-Project or No-Build Alternative
DOT Exceptions No. 1-10, 78, 99, 114-16, 136-42, 144, 155, and 167 take
exception to the Hearing Officer's Conclusion of Law No. 193, Findings No. 85- 86, 105, 126-59, and 171, and rulings on DOT's proposed findings no. 33-47, to the extent that the Hearing Officer states that an applicant is required to show a need for a project, and that the requirement to eliminate or reduce adverse environmental impacts (minimization) includes a mandatory consideration of the alternative of not building the project. For the same reasons, the Department's Exceptions No. 1, 4, 5, 9-11, 17-18, 20-21, and 28-29 dispute the Hearing
Officer's Conclusions of Law No. 179, and 193, and Findings No. 7, 9-13, 85-86,
123-34, 147-48, 151-52, 158-59, and 171.
It is well established that an applicant is not required to show a need for a proposed project. 1800 Atlantic Developers. Department of Environmental Regulation, 552 So.2d 946, 957 (Fla. 1st DCA 1989)(applicant for dredge and fill permit not required to show need for project), rev. denied, 562 So.2d 345 (Fla. 1990); Higgins v. Roberts, 9 F.A.L.R. 5045, 5049 (Fla. DER 1987) (need or necessity of project not relevant); Goodman v. City of Cape Coral, 9 F.A.L.R.
4187 (Fla. DER 1987) (no standing to challenge dredge and fill permit based on issues of need or necessity).
Nor is a showing of necessity for the project a part of the elimination or reduction (minimization) requirement. The elimination and reduction requirement is grounded in section 403.918(2)(b), Fla. Stat. (now section 373.414(1)(b), Fla. Stat.) and rules 62-312.060(10), 62- 312.300(3), and 62-312.320(1), F.A.C.
Rule 62-312.300(3) provides:
(3) The Department will, in each case, first explore project modifications that would reduce or eliminate the adverse environmental impacts of the project, and will
suggest any such modifications to the applicant either in addition to or in lieu of mitigation, as provided in Rule 62-312.060(10), F.A.C. The applicant shall consider modifications to the project proposed by the Department, whether or not a mitigation proposal has been submitted.
Should such mutual consideration of modification and mitigation not result in a permittable project the Department must deny the permit.
Rule 62-312.060(10) provides:
(10) During the processing of the permit application, the Department shall determine whether or not the application, as submitted,
meets the criteria contained in Sections 403.918(1) and (2)(a) 1.-7. and 403.919, F.S.
If the project, as designed, fails to meet the permitting criteria, the Department shall discuss with the applicant any modifications to the project that may bring the project into compliance with the permitting criteria.
The applicant shall respond to the Department, in writing, as to whether or not the identified modification to the proposed project is practicable whether the applicant will make the identified modification. The term modification shall not be construed as including the alternative of not implementing the project in some form. When the Department determines that the project, as submitted or modified, fails
to meet the criteria contained in Sections 403.918(1) and (2)(a)1.-7. and 403.919, F.S.,
the applicant may propose mitigation measures to the Department as provided in Chapter 62-312, Part III, F.A.C. Nothing herein shall imply that the Department may not deny an application for a permit, as submitted or modified, if it fails to meet the criteria in Section 403.918
(2)(a), F.S., or that mitigation must be accepted by the Department.
Rule 62-312.060(10), F.A.C. (emphasis added). Finally, rule 62-312.300(3), F.A.C., provides:
(3) The Department will, in each case, first explore project modifications that would reduce or eliminate the adverse environmental impacts of the project, and will suggest any such modifications to the applicant either in
addition to or in lieu of mitigation, as provided in Rule 62-312.060(10), F.A.C. The applicant shall consider modifications to the project proposed by the Department, whether or not a mitigation proposal has been submitted. Should such mutual consideration of modification and mitigation not result in a permittable project the Department must deny the permit.
These rule provisions do not require a showing of need or necessity for the proposed project. If anything, by expressly providing that [t]he term modification shall not be construed as including the alternative of not implementing the project in some form, rule 62-312.060(10) implies that need or necessity are not even relevant considerations. Also, the Department's elimination or reduction requirement has been described in detail in Dibbs v.
Dept. of Environmental Protection, 17 F.A.L.R. 1531 (DEP 1995), aff'd per curiam, 668 So.2d 609 (Fla. 2d DCA 1996), and in VQH Development, Inc. v. Department of Environmental Regulation, 15 F.A.L.R. 3407 (Fla. DER 1993), aff'd per curiam, 642 So.2d 755 (Fla. 2d DCA 1994). Those final orders extensively discussed the requirement for elimination or reduction but made no mention of a requirement for a showing of need or necessity. Furthermore, in Port Everglades Authority v. Department of Environmental Regulation, 1987 WL 62055, 62065 (Fla.
DER 1987), the Department expressly rejected a hearing officer's conclusion of law that a dredge and fill permit for a turning notch in the port should be denied because there was no showing of necessity for the turning notch. In so doing, the Secretary of the Department held:
There is no explicit requirement for an analysis of need in the Henderson Wetlands Protection Act. However, the legislature has included a requirement for a finding of need by an agency
as a prerequisite to obtaining a license in other legislation. The examples cited . . . in
Section 161.053(5)(a), Florida Statutes; Section 381.494(b)(c)1. [sic], 7 Florida Statutes; and Section 364.33, Florida Statutes, demonstrate that the legislature can impose requirements for demonstration of need when it deems such a showing to be appropriate. In
the light of this clear statement in other statutes, it would be improper for me to import a requirement into a statute that the legislature has clearly chosen not to include.
Port Everglades Authority v. Department of Environmental Regulation, 1987 WL 62055, 62065 (FLENV-ADMIN) (Fla. DER 1987); see also 9 F.A.L.R. 3122 and 5613
(partial publication of related orders).
Lastly, the Department's rules on elimination and reduction and the case law interpreting them were recodified on October 3, 1995, in rule 62- 330.200(3)(e). That rule incorporates by reference the elimination and reduction rules of the Southwest Florida Water Management District's Basis of Review for Environmental Resource Permit Applications (1995), which provide:
Elimination or Reduction of Impacts
The degree of impact to wetland and other surface water functions caused by a proposed system, whether the impact to these functions can be mitigated and the practicability of design modifications for the site, as well as alignment alternatives for a proposed linear system, which could eliminate or reduce impacts to these functions, are all factors in determining whether an application will be approved by the District. Design modifications to reduce or eliminate adverse impacts must be explored as described
in 3.2. 1.1. Any adverse impacts remaining after practicable design modifications have been implemented may be offset by mitigation as
described in subsections 3.3-3.3.8. An applicant may propose mitigation, or the District may suggest mitigation, to offset the adverse impacts which would cause the system to fail to meet
the conditions for issuance. To receive District approval, a system can not cause a net adverse impact on wetland functions and other surface water functions which is not offset by mitigation.
Except as provided in 3.2.1.2, if the
proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does cot meet the requirements of sections 3.2.2 through 3.2.3.7, then the District in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.
The term modification shall not be construed as including the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification
which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered practicable. A proposed modification need not remove all economic value of the property in order to be considered not practicable. Conversely, a modification need not provide the highest and best use of the property to be practicable. In determining whether a proposed modification is practicable, consideration shall be given to
the cost of the modification compared to the environmental benefit it achieves.
The District will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when:
the ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in subsection 3.2.2.3, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or
the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.
Should such mutual consideration of modification and mitigation not result
in a permittable system, the District must deny the application. Nothing herein shall imply that the District may not deny an application for a permit as submitted or modified, if it fails to meet the conditions for issuance, or that mitigation must be accepted by the District.
Rule 62-330.200(3)(e), F.A.C. (incorporating by reference section 3.2.1 through
3.2.1.3 of the Southwest Florida Water Management District's Basis of Review for Environmental Resource Permit Applications (1995)(emphasis added). This recent codification of the elimination and reduction rules and the case law construing them contains no requirement for a showing of necessity for the proposed project.
The provisions of rule 62-312.060(10) cited above clearly state that the elimination or reduction requirement does not include considering the alternative of not implementing the project in some form--i.e., the rule clearly excludes the no-project alternative. This is also expressly stated in the new codification of the rule in section 3.2.1 of the Basis of Review as quoted above and incorporated by reference in rule 62-330.200(3)(e). The no-project alternative was also rejected in the Department's final orders in Dibbs v.
Department of Environmental Protection, 17 F.A.L.R at 1551; VQH Development v. Department of Environmental Regulation, 15 F.A.L.R at 3453; and Port Everglades Authority v. Department of Environmental Regulation, 1987 WL at 62065 (FLENV- ADMIN). In Dibbs and VQH Development, not only was the no-project alternative rejected, it also was held that the applicant could not be required to consider a project that is significantly different in type or function. A requirement for consideration of a no-project alternative would always avoid the adverse impact, of course, but would obviate the need for any permit and would be a virtual ban on dredge and fill activities in all but the most extraordinary cases. Such a result would be contrary to the holding of the court in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. denied, 562 So.2d 345 (1990), that
there is no manifest statutory intent to prohibit the owner from conducting dredging and filling activity altogether . . . . Absolute prohibition of dredge and filling activity, therefore, should be the rare exception in cases of extreme damage to the environment that cannot be avoided or mitigated under any circumstances.
Id. at 954. Therefore, I conclude that there is no requirement that the no- project alternative be considered and, indeed, no authority for the Department to impose such a requirement.
For all these reasons, the exceptions of the Department and DOT noted above are granted, and the conclusions of law and findings of fact noted above are rejected to the extent that they would require an applicant to show a need for a project and consider the alternative of not building the project as part of the requirement to eliminate or reduce adverse environmental impacts (minimization). Such statements in finding of fact are really conclusions of law mislabeled as findings of fact, and I may reject them. Harloff, 575 So.2d at 1328.
Public Welfare and the Public Interest Test
DOT Exceptions No. 11-15, 108-10, and 148 disagree with the Hearing Officer's Conclusions of Law No. 186-92 aid Findings No. 112-13, 115, 121, 123- 25, and 163-65 because the Hearing Officer states that the Department should not limit its consideration to the seven factors listed in paragraph 403.91 8(2)(a) but should broadly consider other public interest factors such as public happiness, aesthetics, and other wide-ranging considerations, such as preserving the pace of island life and the sense of scale between that which is manmade and
that which is natural. For the same reasons, the Department's Exceptions No. 7- 8, 14, 17, and 23-27 object to the Hearing Officer's Conclusions of Law No.
187-89, and 192, and Findings No. 112-14, 121, 123- 25, 142, 147, 163, and 165.
These exceptions are well taken. Contrary to the assertion of the Hearing Officer that the seven factors of the public interest balancing test are merely illustrative and not exhaustive (Recommended Order at 54), the statute provides:
In determining whether a project is not contrary to the public interest or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s.267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Sec. 403.918(2)(a), Fla. Stat. This statute does not state that the Department may also balance other relevant factors. It is well established that the express mention of one thing in a statute implies the exclusion of others. PW Ventures. Inc. v. Nichols, 533 So.2d 281 (Fla. 1988). Furthermore, when the legislature has listed public interest factors to consider, and intended that the list not be exhaustive, it has expressly so stated. For example, in section 253.12(2)(a) the legislature has provided that when the Board of Trustees of the Internal Improvement Trust Fund determines whether a proposed sale or transfer of sovereign submerged lands is in the public interest the Trustees must consider whether the sale
would interfere with the conservation of fish, marine and other wildlife, or other natural resources, including beaches and shores, and would result in destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of marine habitats, grass flats suitable as nursery or
feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life, and if so, in what respect and
to what extent, and it shall consider and other factors affecting the public interests.
Sec. 253.12(2)(a), Fla. Stat. (1995)(emphasis added).
Also, in considering whether to sell sovereign submerged lands over an objection raised by members of the public, subsection 253.12(4) directs that
[i]f it appears that the sale. . . would:
Be contrary to the public interest;
Interfere with the lawful rights granted riparian owners;
Be, or result in, a serious impediment to navigation;
Interfere with the conservation of fish, marine and other wildlife, or other natural resources, including beaches and shores, to such an extent as to be contrary to the public interest; or
Result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or
feeding grounds for marine life to such an extent as to be contrary to the public interest,
the board shall withdraw the lands from sale. Prior to making the determinations above required, the board may consider any other factors affecting the public interest.
Id. 253.12(4)(emphasis added). If, as suggested by the Hearing Officer, the legislature had intended that the Department could consider and weigh other public interest considerations under paragraph 403.918(2)(a), the legislature could have so stated as it did in subsections 253.12(2) and 253.12(4).
Moreover, courts have held that in considering the public health, safety, or welfare or property of others under subparagraph 403.91 8(2)(a)1, the Department cannot consider non- environmental factors. Miller v. Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987); see also Taylor v. Cedar Key Sewage District, 590 So.2d 481 (Fla. 1st DCA 1991); Grove Island. Ltd. v. Department of Environmental Regulation, 454 So.2d 571, 574 (Fla. 1st DCA 1984); Counsel of the Lower Keys v. Charlie Toppino & Sons. Inc., 429 So.2d 67 (Fla. 3d DCA 1983).
Following Toppino and Miller and their progeny, the Department's final orders have held that the review of the public interest criteria must be limited to environmental impacts, although the context of the impacts must be broadly construed. Riverside Club Condominium v. Adventure Construction and Canvas.
Inc., 9 F.A.L.R. 6207, 6216 (Fla. DER 1987); see also Coscan Florida, Inc. v. Metropolitan Dade County, 12 F.A.L.R. 1359 (Fla. DER 1990)(could consider access for fire fighting equipment because fire would foreseeably result in water pollution), rev'd and remanded on other grounds, 609 So.2d 644 (Fla 3d DCA 1992); Clarke v. Melton, 12 F.A.L.R. 4946, 4953 ( Fla. DER 1990)(visual aspect of dock could not be considered); Burnt Store Isles Ass'n, Inc. v. Perisco, 13
F.A.L.R. 314 ( Fla. DER 1990)(only environmental impacts may be considered); Jordan v. City of Jacksonville, 11 F.A.L.R. 1908, 1916 ( Fla. DER cannot consider aesthetics of bridge); Port Everglades Authority v. Department of Environmental Regulation, 1987 62055, 62065 ( Fla. DER 1987)(cannot consider non-environmental impacts); Sullivan v. Northwest Florida Water Management District, II F.A.L.R. 1890, 1898 (Fla. DER 1985)(no jurisdiction to consider aesthetics), rev'd and remanded on other grounds, 490 So.2d 140 (Fla. 1st DCA 1986).
Finally, as for the Hearing Officer's conclusion that the happiness of the public should be considered under the public interest test, I conclude that the Hearing Officer's reliance on the dictionary definition of welfare is misplaced. It is the definition of public welfare that is at issue. Subparagraph 403.918(1)(a)1 provides that the Department consider and balance, among the other factors listed, whether the project will adversely affect the public health, safety, or welfare or the property of others (emphasis added). The leading legal dictionaries, Words and Phrases and Black's Law Dictionary, as well as the case law, define the term public welfare differently from the term welfare. Whereas the definition of the term welfare includes happiness of individuals, the term public welfare does not. Public welfare is defined as
the primary social interests of safety, health, peace, order, morals, economic interests, public convenience, general prosperity of the community and non-material and political interests.
Words and Phrases, Public Welfare (1970 ed. & Supp. 1995); Black's Law Dictionary (5th ed. 1979); Opinion of the Justices to the Senate, 128 N.E.2d 557, 561, 333 Mass. 773 (1955); Graham 7. Kingwell, 24 P.2d 488, 218 Cal. 658
(1933); Western Buse Telephone Co. v. Northwestern Bell Telephone Co., 248 N.W. 220, 188 Minn. 524 (1933); Goodall v. Brite, 54 P.2d 510, 513, 11 Cal. App.2d
540 (1936); State ex rel. City of St. Louis v. Public Service Commission of Missouri, 56 S.W.2d 398, 331 Mo. 1098 (1932); Pettis v. Alpha Chapter of Phi Beta Pi, 231 N.W. 835, 838, 115 Neb. 525 (1927); State v. Hutchinson Ice Cream Co., 147 N.W. 195, 199, 168 Iowa 1 (1914); Shaver v. Starret, 4 Ohio St. 499.
I find it particularly significant that Words and Phrases and Black's Law Dictionary each define both terms, aid each define them differently, as noted above. I also note that as a practical matter determining whether the general public was happy with a proposed project would require an expertly designed public opinion poll, a matter far beyond the expertise of the Department. I cannot agree that the legislature intended that such public opinion polls be conducted as part of the Department's environmental permitting process. Nor can I accept that the relatively small sample of people that express their views at hearings or in writing in opposition to, or support of, a proposed project would, in general, be a reliable indication of the general public's view on the proposed project.
Therefore, I accept the exceptions of the Department and DOT noted above and reject the conclusions of law and findings of fact at issue here to the extent that the Hearing Officer states that the Department should not limit its consideration to the seven factors listed in paragraph 403.91 8(2)(a) but should broadly consider other public interest factors such as public happiness, aesthetics, and other wide-ranging considerations such as preserving the pace of island life and the sense of scale between that which is manmade and that which
is natural. Such statements in finding of fact are really conclusions of law mislabeled as findings of fact, and I may reject them. Harloff, 575 So.2d at 1328.
Considerations of Public Safety in Dredge and Fill Permitting, and the Role of the Florida Transportation Code in Department Permitting Decisions
DOT's Exceptions No. 15-26 are not directed to any specific conclusions of law or findings of fact. These exceptions seem to imply that the Florida Transportation Code vests in the DOT the sole authority to determine whether a proposed road project requiring a dredge and fill permit is safely designed and in the public interest for all purposes, including the public interest test under the dredge and fill permitting statutes. I reject that implication.
Sections 403.918(2) and 373.414(1)(b) give the Department, not the DOT, the responsibility and authority to determine whether a proposed dredge and fill project satisfies the public interest test, and public safety is one of the factors that the Department is directed to consider and weigh in making such a determination. Moreover, the Department's rules on elimination or reduction of adverse impacts expressly direct it to consider safety in determining whether adverse impacts could be eliminated or reduced by alternative designs.
Furthermore, the Department has considered safety of proposed road and bridge designs in prior final orders on dredge and fill applications. See Sluggett v. Department of Transportation, 6 F.A.L.R. 556 (Fla. DER 1987)(can consider effect of wider bridge design on traffic safety); Greene v. Taylor County Commission,
14 F.A.L.R. 2177, 2181-82, 2185-86 (Fla. DER 1992)(can consider safety impact of proposed bridge on improved emergency access and safer driving conditions to Pine Island). I do, however, recognize DOT's expertise in design of roadways, including safety considerations in such designs, and I agree that DOT has the primary authority and responsibility for safety in road and bridge design. Therefore, I conclude that when the Department weighs and balances safety considerations in determining whether proposed dredging and filling as part of a DOT road project satisfies the public interest balancing test of former paragraph 403.918(2)(a) now paragraph 373.414(1)(a),DOT's opinion of the safety of the design should be given great weight and accepted by the Department absent compelling evidence of error or omission. DOT's Exceptions No. 15-26 are rejected to the extent that they are inconsistent with the above.
The Department's Exception No. 11 takes issue with the Hearing Officer's Findings No. 133-34 on the ground that the adequacy of the existing bridge for successful emergency evacuation can not be considered in the public interest test. Similarly, DOT's Exception No. 117 disputes Finding No. 127 concerning the state of repair of the existing bridge on the grounds of relevancy. As noted above, I agree in general that the need for a project is not a factor which can be considered in dredge and fill permitting. However, the findings at issue here are relevant to more than a general need. They also are relevant to public safety concerns of the existing bridge. If, as I have held above, the Department must consider the public safety of a proposed road or bridge design, then the comparative safety of the existing road or bridge and the manner in which the proposed road or bridge may increase or decrease public safety must also be relevant. For example, if DOT was proposing to build a road through wetlands to straighten out a dangerous curve in an existing road, the improvement in the public safety can and should be considered and weighed in determining whether the proposed road satisfied the public interest test as well as the requirement for elimination or reduction of adverse impacts. Therefore, I reject Department Exception No. 11 and DOT Exception No. 117.
DOT's Exception 119 disagrees with Finding No. 133 regarding policy of the
U.S. Coast Guard on leaving the drawbridge closed in an emergency evacuation. DOT asserts that the evidence does not support the finding that the bridge will remain closed in an emergency evacuation because there was no absolute commitment from the Coast Guard. I find that the record contains competent substantial evidence to support the Hearing Officer's finding (Tr. at 659). The somewhat ambivalent nature of the testimony goes to the weight of the evidence, and I am not allowed to reweigh the evidence. Florida Department of Corrections
v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Therefore, I reject DOT's Exception 119 to the extent that Finding No. 133 is relevant to a determination of public safety considerations.
The Department's Exceptions No. 12, and 16-21 take issue with the Hearing Officer's Findings No. 135-37, and 146-52. Similarly, DOT's Exception No. 120 disputes Finding No. 134.10 In various ways these findings relate in whole or in part to safety considerations of the existing bridge. The exceptions assert that safety and need are not relevant. As stated above, safety is relevant.
Need is generally not relevant, but in the context of these findings, safety and need for a new bridge are inextricably linked issues. Therefore, I reject these exceptions.
DOT's Exceptions No. 27-29, and 121-24 contest Findings No. 9, 11, and 136-
37 in that the findings consider the safety of the existing bridge, and consider the higher accident rate on the approach road as evidence of the safety of the existing bridge. DOT asserts that the only competent substantial evidence is the unrebutted testimony of the four witnesses who are registered professional engineers. DOT also asserts that the safety record of the approach road is not proof of the safety of the existing bridge. The record contains competent substantial evidence about the accident rate on the bridge and on the approach roads (Tr. 585-586). If I were to accept DOT's exception I would be reweighing the evidence. Therefore, these exceptions are rejected.
DOT Exception No. 168 contends that the Hearing Officer erred in rejecting the first sentence of DOT's proposed finding no. 11 as subordinate and irrelevant. The first sentence rejected by the Hearing Officer is related to safety considerations and therefore is relevant as noted above. The exception is granted.
Water Quality and Antidegradation
DOT's Exceptions No. 100-107, 145, and 147, as well as the Department's Exceptions No. 6 and 29-30, disagree with the Hearing Officer's Findings No. 106-11, 160, and 162. The substance of those findings is that DOT did not show that the proposed project would not degrade ambient water quality. The Department's antidegradation rule for Outstanding Florida waters, provides in part:
62-4.242 Aiidegradation Permitting Requirements; Outstanding Florida Waters...
* * *
Standards Applying to Outstanding Florida Waters
No Department permit or water quality certification shall be issued for any proposed activity or discharge within an Outstanding Florida Waters, or which
significantly degrades, either alone or in combination with other stationary installations, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
* * *
The proposed activity or discharge is clearly in the public interest; and either
A Department permit for the activity has been issued or an application for such permit was complete on the effective date of the Outstanding Florida Water designation; or,
The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed thirty days; lowered water quality would occur only within a restricted mixing zone approved by the Department; and, water quality criteria would not be violated outside the restricted mixing zone. The Department may allow an extension of the thirty-day time limit
on construction-caused degradation for a period demonstrated by the applicant to be unavoidable and where suitable management practices and technology approved by the Department are employed to minimize any degradation of water quality.
* * *
For the purpose of this section the term existing ambient water quality shall mean (based on the best scientific information available) the better water quality of either
that which could reasonably be expected to have existed for the baseline year of an Outstanding Florida Water designation.
or (2) that which existed during the year prior to the date of a permit application. It shall include dally, seasonal, and other cyclic fluctuations, taking into consideration the effects of allowable discharges for which Department permits were issued or applications for such permits were filed and complete on the effective date of designation.
Rule 62-4.242(2), F.A.C. (emphasis added).
DOT, the applicant for the permit, has the burden of convincing the Hearing Officer that the preponderance of the evidence establishes that the proposed project would not degrade the ambient water quality of Sarasota Pass in contravention of rule 62-4.242(2). Florida Department of Transportation v.
J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). Evidence was submitted establishing that the water quality at the location of the proposed bridge is in the upper 25 percent of the water quality parameters for Sarasota Bay (Recommended Order, Finding No. 106). DOT provided water quality data on temperature, salinity, secci depth, dissolved oxygen, and conductivity. No ambient background data was provided for turbidity, biological integrity, lead, cadmium, zinc, copper, or oil and grease (Recommended Order, Finding No. 107).
DOT notes, with some justification, that background turbidity data obtained prior to commencement of the construction would be of little or no value because the turbidity of the water body varies greatly with time. DOT also notes that the Department did not request water quality data in addition to that which had been submitted by DOT. However, this administrative proceeding is a de novo determination of the Department's decision on DOT's application for the permit, and DOT has the ultimate burden of persuasion on all issues raised by the petition for an administrative hearing. J.W.C., 396 So.2d at 789. Thus, even if, for the sake of argument, the Department should not as a matter of equity raise the issue of the ambient water quality baseline, the petitioner is free to do so and has done so. Paragraphs 26 and 68 of the petition expressly raised the issue of degradation of the ambient water quality in contravention of rule 62A.242(2). Therefore, DOT had the burden of showing by the preponderance of the evidence that it had provided reasonable assurance that the project would not result in degradation of the ambient water quality of Sarasota Pass. In order to make that showing, DOT had to either establish that the project would not result in any discharges to an Outstanding Florida Water, Save Our Suwannee. Inc. v. Piechocki, ER FALR 96:039 (Fla. DEP 1996), or provide sufficient evidence to establish ambient water quality by showing either the water quality that (1) could reasonably be expected to have existed for the baseline year of an Outstanding Florida Water designation, or (2) existed during the year prior to the date of a permit application. Rule 62-4.242(2)(c), F.A.C.
I cannot say as a matter of law that the evidence presented by DOT on ambient water quality was sufficient. That is a question of fact for the Hearing Officer to determine. Since the Hearing Officer's findings are based on competent substantial evidence in the record, I am bound by them. Therefore, the exceptions of DOT and the Department noted above are rejected.
Stormwater Impacts
The Department's Exceptions No. 2 and 3 contest the Hearing Officer's Finding No. 78 and part of Finding No. 84 concerning consideration of untreated stormwater from the bridge on seagrass beds. DOT Exceptions No. 49, 67-71, and
77 are similarly directed to stormwater concerns in Findings No. 51, 75-78, and
The bridge has received a permit for the management and storage of surface waters (MSSW) from the Southwest Florida Water Management District. An applicant for an MSSW permit must provide reasonable assurance that, among other things, the proposed project will not (I) cause adverse water quality impacts,
adversely impact the value of functions provided to fish and wildlife, and
adversely affect the quality of receiving waters in violation of the water quality standards set forth in chapters 62-3, 62-4, 62-302, 62-520, 62-522, and 62-550 of the Florida Administrative Code, including the antidegradation provisions of section 62-4.242(2) and (3), and 62-302.300, F.A.C. See rules 40D-4.301, 40D-4.302, and 40D40.302, F.A.C. Therefore, the issue of environmental impacts of stormwater from the proposed bridge was addressed in the MSSW permit and cannot be redetermined in this proceeding on a dredge and fill permit. Greene v. Taylor County Commission, 14 F.A.L.R. 2177, 2185 (Fla. DER 1992). Accordingly, the Hearing Officer's Findings No. 51 and 75-78 and that part of Finding No. 84 concerning stormwater impacts are not relevant to this proceeding, and the exceptions noted above are granted
Seagrass Impacts
DOT Exceptions No. 34-39, 61, 65, 72-73, and 79 take issue with the Hearing
Officer's Findings No. 25-27, 35-37, 71, 73, 79-80, and 87 on the acreage of seagrass that will be impacted by the proposed project. DOT correctly points
out that the testimony was based on admitted approximations of the acreage of seagrass that would be affected. Nevertheless, the witness had investigated the site and had some personal knowledge of the extent of the seagrass beds (Tr. at 1742) Therefore, the witness was competent to testify percent on the extent of the seagrass beds, and the nature of the approximation of the testimony goes to the weight of e evidence rather than its admissibility. The credibility of the witness and the weight to be put on the testimony is for the Hearing Officer, and I do not have the authority to reweigh the evidence or rejudge the credibility of the witness. Brown v. Criminal Justice Standards and Training Commission, 667 So. 977 (Fla. 4th DCA 1996); Davis v. Dade County School Board,
21 Fla. L. Weekly D838 (Fla. 3d DCA, April 10, 1996); Bradley, 510 So.2d at 1123; Heifetz, 475 So.2d at 1281. Therefore, the exceptions noted above are rejected.
In Exception No. 44, DOT disagrees with the statement in Finding No. 43 that the permit assumes that recolonization will occur under the proposed bridge. I agree that this finding is not supported in the record. Although the permit assumes that recolonization will occur in the location of the old, removed bridge, it does not assume recolonization in the shaded areas of the new bridge. Rather, Specific Condition 43(b) of the draft permit requires monitoring to determine if existing seagrass in areas under or adjacent to the new bridge decline. If such a decline is observed, the permit requires that additional mitigation must be carried out by DOT. In the same vein, DOT's Exception No. 45 asserts that Finding No. 44 erroneously states that the permit is silent about donor and planting sites if any additional mitigation is required. Although donor and planting sites for any required additional mitigation are not specified in the permit, Specific Condition 43(b) of the permit provides that such donor and planting sites must be approved by the Department. Therefore, Exceptions No. 44 and 45 are granted.
DOT Exception No. 54 objects to the statement in Finding No. 63 that relatively small reductions in light can destroy seagrass over a wide area. I am unable to find in the record any competent substantial evidence to support such a finding. Therefore, the exception is granted.
DOT Exceptions No. 55 and 76 dispute the statement in Findings No. 64 and
83 that the species of seagrasses at the site spread very slowly. The record contains competent substantial evidence that one of the seagrass species at the site, i.e., Thalassia, has an exceptionally slow growth rate (Tr. at 801). On the other hand, the record shows that there are two other species of seagrass at the site, Syringodium and Halodule (Tr. at 1281). I find no competent substantial evidence in the record to support a finding that Syringodium and Halodule spread very slowly. The record contains competent substantial evidence that Halodule which is planted three feet apart will completely grow together in a nine month period (TR. at 1371). Accordingly, I grain these exceptions to the extent that the findings noted above state that all species of seagrass at the site spread very slowly
DOT Exception No. 56 takes contests the statement in Finding No. 65 that even temporary loss of seagrass may alter local conditions so that recolonization will not occur. I find no evidence in the record to support such a finding. Therefore, I grant this exception.
DOT Exceptions No. 57-58 fail to identity with sufficient particularity the finding to which exception is taken. The exceptions are therefore rejected.
DOT Exception No. 59 takes objects to the statement in Finding No. 69 that along nearly the entire length of the existing bridge the water depth is too great for seagrass to recolonize. The record contains competent substantial evidence that because of the depth of water under the existing bridge, seagrass would be expected to grow in no more than one-half of the area under the existing bridge (Tr. at 1595-96). On-the other hand, I find no evidence in the record to support a finding that the water depth along nearly the entire length of the bridge is too deep to grow seagrass. Therefore, this exception is granted.
DOT Exception No. 66 objects to Finding No. 73, relating to the effect of bottom sediments on seagrass beds. The record contains competent substantial evidence that lead occurs in stormwater and adversely affects seagrass, and that no data on sediments were provided (Tr. at 249, 808). Therefore, the Hearing Officer's finding that the record is devoid of sediment analyses is relevant and supported in the record. Accordingly, this exception is rejected.
DOT Exception No. 74 disagrees with Finding No. 81 that the construction work forms will shade a little over two acres of seagrass. DOT points out that the record contains evidence that the work forms will shade only 1.27 acres of seagrass (Tr. 621-22). I find no evidence in the record to support the larger acreage found by the Hearing Officer. Therefore, this exception is granted to the extent that the acreage of seagrass shaded by the work forms is only 1.27 acres.
DOT Exception No. 75 takes exception to the statement in Finding No. 82 that seagrass that survived the construction of the platforms would not survive the shading and turbidity. I find no competent substantial evidence to support this finding. Therefore, the exception is granted.
DOT Exceptions No. 81-84 object to Findings No. 88 and 89 to the extent that they imply that DOT intentionally understated the acreage of seagrass in- acted by shading. I find no evidence in the record to support the Hearing Officer's implication. Therefore, the exceptions are granted.
DOT Exceptions No. 50-53, 60, 62-64, and 91 object to Findings No. 61-62, 70-72, and 93, which relate to seagrass impacts of the proposed project. I find that the record contains competent substantial evidence which supports these findings. See, e.g., Tr. at 458; 249; 808; 1593-96, 1598, 1600; 71; 226-27,
494, 737, 773, 796, 907, 1567-68, and 1592. These exceptions ask me to reweigh the evidence or rejudge the credibility of witnesses. I do not have that authority. Brown v. Criminal Justice Standards Commission, 667 So. 977 (Fla.
4th DCA 1996); Davis v. Dade County School Board, 21 Fla. L. Weekly D838 (Fla. 3d DCA, April 10, 1996); Bradley, 510 So.2d 1123; Heifetz, 475 So.2d 1281.
Therefore, the exceptions are rejected.
Sufficiency of Proposed Mitigation
Another group of exceptions relate to whether reasonable assurance has been provided that the proposed mitigation offsets the adverse impacts to seagrasses. It is important to bear in mind that the sufficiency of proposed mitigation is an ultimate conclusion of law that I have the final authority to determine as the Department head. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946, 955 (Fla. 1st DCA 1989), review denied, 562 So.2d 345 (Fla. 1990). Therefore, I am not bound by the Hearing Officer's finding that reasonable assurance had not been provided that the proposed mitigation would
offset the impacts to seagrass beds. I do have the authority to reweigh the evidence on the sufficiency of the mitigation.
DOT Exceptions No. 40-43 object to Findings No. 40-42. These findings state that the permit specifies limited monitoring criteria, fails to adequately specify success criteria, and lacks sufficiently specific requirements for conducting any required contingent mitigation. Although the record contains testimony on both sides of the issue, I conclude that the mitigation plan is sufficiently specific to provide reasonable assurance of success. On one hand the record contains testimony that the mitigation plan does not include an in- depth discussion of the requirements for monitoring for recolonization (Tr. at 773), does not specify a survival rate for seagrass transplants (Tr. at 322), does not provide sufficient criteria (Tr. at 1763-64), and does not require any type of invertebrate utilization analysis (Tr. at 319). On the other hand, the record contains expert testimony that the proposed mitigation provides reasonable assurance of successful establishment and recolonization of seagrass beds to offset the losses of seagrass caused by the project (Tr. at 166, 170, and 726-27). Also, Specific Conditions No. 39-44 of the draft permit (SAM Hearing Exhibit #2) provide:
A preconstruction baseline monitoring event shall be submitted to the Department for Site A, Plots 1, 2, and 3 prior to the initiation of transplanting. A series of 4 transects shall be established for each of
the plots. The sampling methodology described and utilized in attachment Appendix A, shall be utilized to determine percent cover and shoot densities. Percent cover shall be determined utilizing random I meter square quadrants along the transects. Shoot densities shall be determined utilizing 100 square centimeter quadrants along the transects.
Prior to the initiation of the full transplanting requirements, the permittee
shall transplant donor material from the impact site into plot 3 of site A as a test plot.
Subsequent to transplanting, the site shall be evaluated utilizing the above sampling methodology (comparing pre transplant baseline data with a minimum of two quarterly sampling events (including one spring/summer growing season following transplanting) to determine probable success of the larger scale transplant efforts. The initial monitoring report shall be submitted to the Department within 30 days
of the completion of the test plot transplant.
If the Department determines that the site
is not trending toward success, the Department may require an alternative mitigation plan from the applicant.
41 Seagrass mitigation monitoring shall be carried out quarterly for one year, semi-annually for years 2 and 3, and annually for years 4 and 5. Monitoring reports shall include percent cover and
shoot densities utilizing the methodologies described in Appendix A. The initial monitoring report shall be submitted within 30 days of the completion of the transplanting.
If it is determined by Department staff, based on visual inspection and /or review of
the monitoring reports, that the mitigation area is not meeting the success criteria, an alternative program shall be developed by the permittee. The alternative program shall be developed by the permittee and submitted to the Southwest District office. It shall meet the following requirements:
The new program shall be submitted within
30 days after notification by the Department of failure to meet success criteria.
The contractual bid process shall be implemented within 90 days of approval by the Department.
The monitoring and maintenance requirements established in above
specific conditions 41 and 42.
The permittee shall be required to provide a detailed seagrass contingency
mitigation plan to the Department if any of the following occur:
If seagrasses fail to recruit into the area of the old (removed) bridge as identified on transect lines in figures 3 through 7 of attached Appendix A, or
If seagrass coverage is reduced under or adjacent to the area of the new bridge structure as identified on transect lines in figures 3 through 7 of attached Appendix A.
The Department shall determine coverage comparisons for each of a and b above based on preconstruction baseline monitoring events of shoot densities and percent coverage submitted to the Department in appendix A and the subsequent monitoring events required by this permit.
The Department shall review and approve or modifythe contingency mitigation plan (which will include but not be limited to location of donor sites, planting details, planting site survey baseline monitoring plan.
The contingency seagrass mitigation plan shall be submitted within 90 days of the occurrence (or detection or trend) of a or b above.
A second preconstruction baseline seagrass monitoring event, conducted in accordance with the methodology indicated in Appendix A of permit attachments, shall be performed prior to the initiation of bridge construction. This monitoring event shall be conducted during the months of June through October.
Among other things, the mitigation plan requires (1) that the DOT submit preconstruction baseline monitoring information (Specific Condition 39), (2) that a specified sampling methodology be used to determine the required percentage of cover and shoot densities (Specific Condition No. 39), (3) that a test plot of transplants be conducted and monitored (Specific Condition 40), (4) that post-transplanting monitoring be conducted to determine if the site is trending to success (Specific Conditions No. 40 and 42), (5) that if the transplant area is not trending toward success, DOT is required to submit to the Department an alternative mitigation plan (Specific Condition No. 40), (6) that monitoring be conducted quarterly for the first year, semi-annually for the next two years, and annually for the fourth and fifth years (Specific Condition No.
41), and (7) that a detailed contingent mitigation plan involving the transplanting of up to 4,000 planting units on three-foot centers must be submitted if seagrass recolonization does not occur in the area of the removed bridge or if seagrass areas decline under or adjacent to the new bridge (Specific Condition 38, Appendix B, and Specific Condition 43). The mitigation plan also specifies that 800 transplant units be placed in site A on three foot centers (Specific Condition 38, Appendix B), that a specific methodology of transplanting be used (Specific Condition 38, Appendix B), that the transplanting be accomplished between April and August under supervision by a qualified Environmental Scientist (Specific Condition 38, Appendix B).
Therefore, Exceptions No. 40-43 are granted.
DOT Exception No. 80 takes issue with the statement in Finding No. 87 that the proposed mitigation has a sparse transplantation pattern. This is an apparent reference by the Hearing Officer to the requirement of the planting plan for spacing the transplanted plants three feet apart (Tr. 1371). The Hearing Officer seems to be implying that transplanting the seagrass on three foot centers will not provide reasonable assurance of successful recolonization of the seagrass bed. I find no evidence in the record to support such a conclusion.
DOT Exceptions No. 85-86, 89-90, 92, and 171-73 take exception to Findings
No. 90, 92, and 94 and the ruling on DOT's proposed findings no. 63, and 73-76, and 82-84 in that they characterize the mitigation as speculative and state that reasonable assurance of success of the mitigation plan was not provided. I note on one hand that the record contains testimony that ordinarily a 50 percent survival rate would probably not be sufficient (Tr. 321-22), that successful seagrass mitigation is difficult (Tr. at 796-97), that there has been little past success with seagrass mitigation (DOT Ex. 31 at p.2), and that the seagrass mitigation planned here was experimental and too indefinite (Tr. at 797, 1764). On the other hand, the record shows that a transplant survival rate of 50 percent or more is expected (Tr. 775, 777), that there have been other successful seagrass beds created with the transplant method to be used (Tr. at 190, 772), and that with survival rates of 50 percent or more a persistent seagrass meadow will be formed in about two years (Tr. at 805).
DOT Exceptions No. 87-88 take issue with Findings No. 90-91 that the mitigation site is already recolonizing as much as it can, given the existing natural conditions and human activity at that site. There is competent substantial evidence in the record that the seagrasses are naturally recolonizing on the mitigation site (Tr. at 747, 1386, 1641, 1690-91), with no apparent limitation to the continuance of that recolonization (Tr. at 1691).
There is expert testimony in the record that flushing at the site is good, but that too much flushing can be a problem with seagrass recruitment (Tr. at 1318). There is additional testimony that human disturbance could also be a problem (Tr. 3.4 at 1318), that there was a fishing pier immediately to the west of the
proposed seagrass transplanting site (Tr. at 326), and that the transplant area is dynamic with bioturbation (turbidity caused by animals living and foraging in the area) and probably some continuous boat activity (Tr. at 1334). However, I find no competent substantial evidence that natural conditions or human activities will limit the extent of recolonization. In fact, the Hearing Officer adopted Petitioner's proposed finding no. 492, which states that it has not been demonstrated why the mitigation area is now partially barren of seagrasses.
DOT Exceptions No. 93-95 disagree with the statements in Findings No. 95-97 that the mitigation (including the alternative or contingent mitigation) plan is too vague to provide any assurance that the project will not result in loss of seagrasses.
Based on my review and consideration of the above findings on seagrass impacts and the proposed mitigation plan, I determine that the proposed mitigation plan provides reasonable assurance that the proposed project's adverse impacts to seagrasses will be offset, and that the mitigation plan is therefore legally sufficient. Therefore, I accept DOT's Exceptions No. 40-43, 80, 85-90, 92-95, and 171-73.
DOT Exceptions 155-66 dispute the statements in Findings No. 171-72 that a no-build alternative must be considered, and that the proposed mitigation is insufficient, vague, unenforceable and nonexistent. For the reasons stated in Parts A, F, and G above, I reject Findings No. 171 and 172. Therefore, these exceptions are granted.
Manatee Considerations
DOT Exception No. 96 disagrees with the last sentence of Finding No. 100, which states that construction at either end of the bridge would tend to concentrate manatees in the central channel where they would more likely encounter boats and potential harm from boat collisions. It is apparent from the context of this statement that the Hearing Officer is referring to the demolition of the existing bridge. This finding is supported in the record by competent substantial evidence (Tr. at 247-49, 259, 262, 263, and 267) The exception is therefore rejected.
DOT Exceptions No. 97 and 98 dispute the statements in Finding No. 102 that in 1987 manatee population in Florida was estimated to be 1200, and that the risk of extinction is heightened by the proposed project's narrowing of the already narrowed passageway which is heavily used by manatees and boats. The record contains competent substantial evidence to support the findings (Tr. at 247-49, 259, 262, 263, and 267; SAM Hearing Exhibit No. 57). The exception is rejected.
Closure of Bridge Because of High Winds
DOT Exception No. 111 disputes the statement in Finding No. 118 that the proposed bridge may have to be closed twenty minutes earlier than the existing bridge in high wind storm events. The record contains conflicting testimony on this issue. On one hand, Dr. Sheets testified that in convective storms such as hurricanes there would be no significant change in closure times (Tr. at 1427). On the other hand, Dr. Sheets also testified that a difference of ten to twenty minutes between closures for the two bridge types could theoretically occur (Tr. at 1508). Since I do not have the authority to reweigh this evidence, I must reject this exception.
Fishing, Walking, Jogging and Biking on the Bridge
DOT Exceptions No. 112 and 113 take issue with the statements in Finding No. 122 that the proposed bridge will be too high to permit fishing except at the extreme ends, and that the four percent grade and height of the proposed bridge will make walking, jogging and biking forbidding. The record contains competent substantial evidence that the proposed bridge will be too high for fishing (Tr. at 1936, 1939), and that recreational use for walking, jogging, arid biking will be adversely affected (Tr. at 2189-90). Therefore, these exceptions are rejected K. DOT Design Standards
DOT Exceptions No. 125-31 disagree with Findings No. 138-147 on DOT design standards and the width of roadway shoulders on bridges. Similarly, the Department's Exceptions No. 13 and 14 disagree with Finding No. 141 and that part of Finding No. 142 which refers to the DOT manual. Also, the Department's Exception No. 15 disagrees with Findings No. 143, 144 and the second sentence of Finding No. 145. These findings are supported in the record by competent substantial evidence (SAM Hearing Exhibits No. 105, 123, and 126). Therefore, I reject these exceptions.
DOT Exception No. 132 disputes the statements in Finding No. 148 questioning the design speed of the new bridge. Although the statements in Finding No. 148 on distances and traffic signals are based on competent substantial evidence, the conclusion that the existing bridge could be made safer by lowering the speed is not supported in the record. Therefore, I accept this exception.
DOT Exceptions No 133 and 134 object to Finding No. 151 This finding relates to the relative ability of the existing and proposed bridges to withstand collisions with ships. Although DOT introduced testimony that the existing bridge did not meet ship impact criteria (Tr. at 2095), the Hearing Officer found that DOT failed to establish the existing bridge's ability to withstand ship collisions, and failed to sufficiently establish current design criteria for ship impacts. The Hearing Officer, as the finder of fact, is not required to believe the testimony of any witness, even if unrebutted or uncontroverted. Department of Highway Safety v. Dean, 662 So.2d 371, 372 (Fla. 5th DCA 1995); see also State v. Paul, 638 So.2d 537, 539 (Fla. 5th DCA 1994), review denied, 654 So.2d 131 (Fla. 1995). Since I am not authorized to reweigh this evidence, I must reject these exceptions.
DOT Exception No. 174 contends that the Hearing Officer erred in rejecting DOT's proposed finding no. 88. Since I am not authorized to reweigh the evidence, I must reject this exception.
Navigation
DOT Exception No. 30-31 disagrees with Finding No. 17. The record contains competent substantial evidence which supports this finding (DOT Hearing Exhibit No. 107). The exception is essentially asking me to reweigh the evidence. As I have noted above, I am not authorized to do so. Therefore, I reject this exception.
DOT Exception No. 175 asserts that the Hearing Officer erred in rejecting the last sentence of DOT's proposed finding no. 88 as irrelevant. DOT appears to assert that the approval by the U.S. Coast Guard of 65 feet as a guideline for bridge clearance on the intracoastal waterway preempts DEP from considering
adverse impacts to navigation under paragraph 403.91 8(2)(a). I do not agree. The exception is rejected.
Mixing Zone and Demolition of Existing Bridge
DOT Exception No. 46 disputes the statement in Finding No. 45 that the mixing zone is only for the period of the construction of the new bridge. I conclude that the meaning of the phrase for the duration of the bridge construction in specific condition no. 48 of the draft permit (SAM Hearing Exhibit No. 2; DOT Hearing Exhibit No. 70) includes the demolition of the existing bridge. Therefore, the mixing zone will be applicable to the demolition of the existing bridge, provided that the entire project is completed in two years, the maximum duration of the mixing zone. The exception is therefore granted.
Miscellaneous
DOT Exception No. 118 contends that the statements in Findings No. 131 and
132 relating to crime are not relevant. I agree that these findings are not relevant to this proceeding. Therefore, the exceptions are granted.
DOT Exceptions No. 32 and 33 point out minor errors in Findings No. 20 and
26. In Finding No. 20, the letter dated January 21, 1993, from the Department to James Wilt (DOT Hearing Exhibit No. 41) does not use the word especially when referring to impacts on seagrasses. In Finding No. 26, the quotation should be would not expect the applicant to be able to provide reasonable assurances rather than could not expect the applicant to be able to provide reasonable assurances accordingly, these exceptions are granted.
DOT Exception No. 135 asserts that Finding No. 152 is not relevant. I agree. The fact that ship collisions have not occurred is not relevant to or probative of the issue of whether the existing bridge would withstand such a collision. Therefore, this exception is granted.
DOT Exception No. 143 and the Department Exception No. 22 contend that Finding No. 157 is not relevant. I agree. The DOT decision on the Cortez bridge has no bearing on the matters before me in this case. The exceptions are granted.
DOT Exception No. 146 disputes Finding No. 161. This exception is rejected for the reasons stated in Parts D, E, and F above.
DOT Exception No. 169-70 disputes the Hearing Officer's ruling on DOT's proposed findings no. 11 and 57-59. These exceptions ask me to reweigh the evidence and are therefore rejected.
DOT Exceptions No. 176-77 assert that the Hearing Officer erred in ruling that DOT's proposed finding no. 92 was not relevant. The proposed finding relates to cost of maintenance of drawbridges. Although maintenance cost may be relevant to the need for a replacement bridge, need is not relevant to this proceeding. The exceptions are rejected.
DOT Exceptions No. 178-80 dispute the rulings on DOT's proposed findings no. 93, 94, and 98. These exceptions ask me to reweigh the evidence and rejudge the credibility of witnesses. The exceptions are rejected.
DOT Exceptions No. 47 and 48 dispute the statement in Finding No. 50 that the demolition of the existing bridge will be by unspecified means. DOT points out that the draft permit (SAM hearing Exhibit No. 2) specifies that means of demolition. The exceptions are granted.
Findings on Public Interest Test Criteria
DOT Exception No. 150 disagrees with the statements in Finding No. 165 that DOT failed to provide reasonable assurance that would not adversely affect public welfare and that the proposed project would likely destroy seagrass, jeopardize water quality, endanger the manatee, adversely affect the estuarine resources of Sarasota Pass, and detract from island ambiance. For the reasons noted in Parts B, F, and G above I reject the statements in Finding No. 165 on public welfare, seagrass, estuarine resources and island ambiance. For the reasons stated in Part D above, I agree with the statement that DOT failed to provide reasonable assurance that ancient water quality of Sarasota Pass would not be lowered. Therefore, the exception is granted in part as noted above.
DOT Exception No. 151 states that Finding No. 166 is not supported in the record. For the reasons stated in Parts F and G above, I reject the statements in Finding No. 166 that the project would destroy valuable seagrass habitat.
However, as noted above, the record contains competent substantial evidence in support of the statement that the proposed project would increase the risk of boat collisions to manatees. Therefore, this exception is granted in part as noted.
DOT Exception No. 152 asserts that there is no support in the record for the statement in Finding No. 167 that reasonable assurance was not provided that the proposed project would not adversely affect navigation. There is testimony in the record that some sail boats in the area would not be able to pass under the proposed bridge because of their mast height (Tr. at 224, 1806, 1808-9, and 1811). Such sail boats could, of course, sail through the existing bridge when the drawbridge is raised. Since the record contains competent substantial evidence in support of the finding, this exception is rejected.
DOT Exception No. 153 disputes Finding No. 168. Finding No. 168 states in part that a permanent loss of seagrass would adversely affect marine productivity. I reject this statement for the reasons stated in Parts F and G above. Finding No. 168 also states that DOT failed to provide reasonable assurance that the proposed project would not adversely affect fishing or recreational values. For the reasons stated in Part J above, the record contains competent substantial evidence in support of this statement.
Therefore, the exception is granted in part, as noted.
DOT Exception No. 154 disagrees with the statement in Finding No. 170 that the proposed project will adversely affect the current condition and relative value of functions being performed by the areas affected due to the loss of seagrass. I reject this finding for the reasons stated in Parts F and G, above. Therefore, this exception is granted.
Balancing of Public Interest Test Criteria
DOT's Exception No. 149 disputes the ultimate conclusion in Finding No. 164 that DOT failed to provide reasonable assurance that the proposed project was clearly in the public interest. The public interest test requires a balancing of the seven factors enumerated in paragraph 403.91 8(2)(a). As I noted previously, although I am bound by the Hearing Officer's findings of fact on
each of the seven factors (if supported in the record by competent substantial evidence), the determination of whether the proposed project satisfies the public interest test involves a weighing and balancing of the seven factors and is ultimately a conclusion of law for which I have the final responsibility and authority to determine as the head of the Department.
After a consideration of all the findings of fact, I find that on one hand the proposed project will have a slight but temporary adverse affect on the manatee, will have a slight adverse impact on navigation of sail boats, and will have a slight adverse impact on fishing and recreational values of the site.
Since the project is relatively permanent, these adverse impacts will also be permanent except for the effect on manatees. On the other hand, there is no adverse impact on public health, safety, or welfare or the property of others, no adverse impact on the current condition and relative value of functions being performed by the areas affected, no adverse impact on significant historical or archaeological resources, and no adverse impact on marine productivity. I am concerned about the potential for increased risk of manatee impacts with boats, but I note that the effect will be temporary. I also accord significant weight to DOT's expertise in determining that the proposed bridge will improve public safety and serve an important public need. When I consider and balance these factors, together with the other factors set forth in paragraph 403.918(2)(a), I conclude that the proposed project is clearly in the public interest.
Therefore, DOT's Exception No. 149 is granted.
CONCLUSION
In order for the permit to be issued, DOT has to provide reasonable assurance that the proposed project will not violate water quality standards and that it is clearly in the public interest. Section 403.918(2), Fla. Stat.
Although DOT has provided reasonable assurance that the proposed project is clearly in the public interest, DOT failed to provide reasonable assurance that the project would not, in contravention of rule 62-4.242(2), lower ambient water quality in Sarasota Pass, an Outstanding Florida Water. Therefore the permit must be denied.
ACCORDINGLY IT IS ORDERED THAT:
Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
The Department of Transportation's Permit Application No. 412178603 is DENIED.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this Order pursuant to section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, Mail Station 25, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within
30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 14th day of May 1996 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
ENDNOTES
1/ The application for this permit was submitted on August 11, 1992. Therefore, this application for a dredge and fill permit is governed by the provisions of Sections 403.91-.929, Fla. Stat. (1991 & Supp. 1992), and rule chapters 62-4 and 62-312, F.A.C. (1992). In 1993, most of the substantive
provisions of Sections 403.91-.929, Fla. Stat., were repealed and transferred to Part IV of Chapter 373, Fla. Stat. See Chapter 93-213, Sections 19-38, Laws of Florida. Chapter 93-213, Section 43, Laws of Florida, provides that the above repeal and transfer have no effect on any pending administrative or judicial proceeding. Throughout this order, references to section 403.918 shall be to the statute in effect in 1992.
2 The Recommended Order has a scrivener's error showing the date entered as February 16, 1995, rather than February 16,1996.
3/ On March 27, 1996, by letter from Paul Sexton to Christine Stretesky, DOT waived the 45 day time period in which a final order must be filed under section 120.60, Fla. Stat. The waiver extended the deadline for filing the final order to and including May 15, 1996.
4/ It is worth noting that the Hearing Officer's findings listed in (a) through
are factors to be weighed and balanced together with the other factors set forth in paragraph 403.91 8(2)(b), Fla. Stat. Therefore, a given factor may be adverse if the adverse impacts are offset by positive aspects of the other factors. See sec. 403.918(2)(b), Fla. Stat. (1991 & Supp. 1992).
5/ Although DOT's Exception No. 141 refers to Finding No. 151, it is clear from the context of the finding and the exception that the exception actually refers to Finding No. 155.
6/ Contrary to the assertion of the Hearing Officer, the elimination or reduction (minimization) requirement is not a non-rule policy. Therefore the Hearing Officer's Finding No. 85 is rejected to the extent that it states that minimization is a non-rule policy.
7/ This is an apparent reference to section 381.494(6)(b) and (c)1, Fla. Stat. (1985)
8/ See, e.g., Black's Law Dictionary (5th ed. 1979); Words And Phrases, Welfare (1970 & Supp. 1995); Webster's New International Dictionary of the English Language (2d ed. unabr. 1957); United States v. Powell, 307 F.2d 821, 827 (10th Cir. 1962).
9/ Section 334.01 provides that the Florida Transportation Code consists of chapters 334-339,341,348 and 349, together with sections 332.003-.007,
351.35,351.36,351.37, and 861.001.
10/ Although DOT's Exception No. 120 refers to Finding No. 133, it is clear from the context of the finding and the exception that the exception actually refers to Finding No. 134.
11/ Although DOT's Exception No. 133 refers to Finding No. 150, it is clear from the context of the finding and the exception that the exception actually refers to Finding No. 151.
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been furnished to the following persons on this 14th day of May 1996:
BY HAND DELIVERY TO:
The Honorable Robert E. Meale Hearing Officer
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Christine C. Stretesky, Esq. Assistant General Counsel State of Florida Department
of Environmental Protection Mail Station 35
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Ann Cole, Clerk
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 AND BY U.S. MAIL TO:
David M. Levin, Esquire Icard Merrill
2033 Main Street, Suite 600
Sarasota, Florida 34237
Robert E. Van Wagoner
P.O. Box 4121
Anna Maria, Florida 31216
Paul Sexton, Esquire Francine Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Robert G. Gough
Assistant General Counsel
| Issue Date | Proceedings |
|---|---|
| May 14, 1996 | Final Order filed. |
| May 06, 1996 | Letter to P. Schifferle from G. Blake Re: Enclosing copies of recommended order filed. |
| May 03, 1996 | Memorandum to G. Blake from P. Schifferle Re: Copy of Recommended Order filed. |
| Mar. 27, 1996 | Letter to C. Morgret from C. Stretesky Re: Response to letter dated 2/22/96; Letter to V. Wetherell from C. Morgret Re: HO's decision filed. |
| Mar. 26, 1996 | Order Publishing Ex Parte Communication sent out. |
| Mar. 21, 1996 | Letter to REM from Mrs. J. LeCroy (re: statement on issue at hand) filed. |
| Feb. 16, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 12/04-14/95. |
| Feb. 16, 1996 | Order of Consolidation sent out. (Consolidated cases are: 95-3621 & 95-3622. |
| Feb. 16, 1996 | Case No/s:95-3621 & 95-3622 unconsolidated. |
| Jul. 31, 1995 | Order of Consolidation sent out. (Consolidated cases are: 94-4634, 95-3621 & 95-3622) |
| Jul. 25, 1995 | Initial Order issued. |
| Jul. 17, 1995 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for Administrative Proceeding filed. |
| Jul. 03, 1995 | Department Of Transportation's Motion To Consolidate For Final Hearing (case nos. 95-3621 & 94-4634); Order Of Continuance And Status Report; Further Order Of Abeyance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 14, 1996 | Agency Final Order | |
| Feb. 16, 1996 | Recommended Order | DOT failed to provide reasonable assurance that bridge would not degrade Outstanding Florida Water or that project was clearly in public interest. |
