The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
Findings Of Fact Respondent, South Florida Water Management District (District) is a multipurpose water management agency of the State of Florida. Its duties include the operation and maintenance of a vast network of canals which provide flood control and other benefits to Palm Beach County. Pertinent to this proceeding, the District is the owner in fee of a 600' right of way which contains a canal known as C- The tidewater reach of C-18 extends east from a control structure (S-46) near State Road 706 downstream for a distance of 8,375' (1.6 miles) to the southwest fork of the Loxahatchee River. Of this distance, 7,322' lie upstream from a small bridge, which crosses the C-18 at Loxahatchee River Drive (the bridge) and 1,053' downstream. The canal is approximately 200' wide, with 200' of overbank right of way on its north and south sides. The River Trails Development Petitioner, River Trails, Ltd (River Trails) is the developer of a 28 acre condominium community in Palm Beach County known as River Walk. The River Walk development, comprised of 347 townhouse units, is contiguous to 2,500' of the south overbank right of way of the C-18, approximately midway between S-46 and the southwest fork of the Loxahatchee River. On December 9, 1983, River Trails filed an application with the District for a right of way occupancy permit to selectively clear and regrade the C-18 right of way and to construct a marina facility within the right of way consisting of a temporary parking area, boat ramp and 3 docking facilities with a combined capacity of 97 boats. The District approved River Trails' application and issued it a permit on January 12, 1984. That permit provided: WORK PROPOSED WILL BE COMPLETED ON OR BEFORE 1-31, 1985, otherwise, this permit is voided and all rights thereunder are automatically cancelled unless an extension to the construction period is applied for and granted. Upon receipt of the District's permit, River Trails began to selectively clear the bank of the canal of exotic vegetation, primarily Brazilian pepper, and to regrade the bank to a more gentle slope than its existing 12'-14' vertical drop on the west and 2'-3' vertical drop on the east. In the process, 28 mangrove trees were damaged or destroyed.1 To settle a dispute which arose between Palm Beach County and River Trails over the destruction of the mangroves, River Trails agreed to plant additional mangroves and spartina grass along the southeasterly shoreline of the C-18. To consummate that agreement, River Trails requested that the District modify its permit to allow the selective planting of mangroves and spartina grass along the shoreline and in a tidal slough, to alter the bank slope to provide a wider intertidal zone to accommodate the plantings, and to move the proposed docks further out from the bank of the canal. The District granted River Trails' requested modification on June 25, 1984 subject to the following special conditions: Construction of the boat dock facilities as originally permitted and modified hereunder is subject to the issuance of a permit from the DER. Prior to commencement of construction, the applicant shall submit a DER permit for the boat docking facilities. Any future modification of the boat docking facilities by the applicant must have the approval of the governing board prior to construction. Rule 40E 6.301(c), Florida Administrative Code, requires an applicant to give reasonable assurances that the proposed use of the works of the district "does not degrade the quality of the receiving body and meets the standards of the Florida Department of Environmental Regulation for the receiving body. The board may waive the strict enforcement of this provision." Neither issuance of the original permit nor this modification shall be construed as a waiver of this provision as it applies to the per- mitting activity of the DER relative to this project. Department of Environmental Regulation Permitting On December 22, 1983, River Trails applied with the Department of Environmental Regulation (DER) for a permit and water quality certification to construct its boat ramp and 97 slip marina. During the processing of that application, River Trails requested two waivers of the 90 day time period prescribed by Sections 120.60(2) and 403.0876, Florida Statutes, (180 days total) in order to conduct a hydrographic survey of the area in order to respond to water quality concerns raised by DER. River Trails did not submit a hydrographic survey to DER, nor did it offer such a survey in this proceeding. On December 20, 1984, DER advised River Trails that its proposed boat ramp was exempt from permitting requirements. Thereafter, on December 21, 1984, DER issued its "intent to deny" the balance of River Trail's application predicated on its conclusion that the project was expected to have a long and short term adverse impact on the water quality and biological resources of the C-18 canal and the adjacent Outstanding Florida Waters of the Loxahatchee River. Specifically, DER found that degradation of water quality in the project's Class II waters and the adjacent Outstanding Florida Waters would likely occur due to: Shading from docks and walkways that would likely prohibit recolonization of shoreline vegetation. Marinas can be expected to lower water quality by the accumulation of marina source contaminants, including heavy metals, greases, oils, detergent ,and litter. Increased boat traffic (97+ boats), and their associated wakes will result in increased shoreline erosion. This additional erosion can prohibit the recolonization of shoreline vegetation beneficial to water quality. The cumulative impact of this project and other similar projects within the C-18 canal would be expected to degrade water quality. Prop wash from outboard motor boats in shallow littoral shelf areas will cause turbidity problems and adversely impact existing benthic communities. DER further found the proposed activity contrary to the public interest provisions of Chapter 253, Florida Statutes, since the proposed marina would substantially interfere with the conservation of the Florida Manatee and the destruction of natural marine habitat. River Trails declined to pursue its DER application for the 97 slip facility any further. Instead, it filed an application with DER for a docking facility of less than 1,000 square feet, accommodating 37 boats, to qualify for the exemption provided by Section 403.812(2)(b), Florida Statutes. Following a successful rule challenge in April 1985, River Trails received its statutory exemption. The District's emerging management policy. Shortly after the District approved River Trail's modification on June 25, 1984, it began to receive a great deal of negative comment from the public, DNR, DER, and the United States Fish and Wildlife Service. These comments, of which the District was not previously aware, included concerns for the Loxahatchee River, the Florida manatee, and negative biological and water quality assessments. Accordingly, the District's Governing Board requested that its staff investigate and evaluate various management options for the overall development of the 18 right of way. During the ensuing months the District's staff solicited input from DER, DNR, the Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service; investigated the C-18; and formulated its recommendations for the future management of the canal. On January 10, 1985, the District's staff submitted its management plan to the Governing Board. The plan recommended that the intertidal zone be widened a minimum of 10 and planted in mangrove and spartina to combat erosion of the canal banks by boat wakes; that the canal banks be regraded to a minimum of one vertical on four horizontal slope and stabilized with a combination of grasses, native trees and shrubs; and that the overbank right of way be cleared of exotic species and replanted with native trees and shrubs. In keeping with the main goal of habitat improvement, staff recommended that the cumulative linear extent of areas provided for bankfishing and viewing be limited to 10 percent of the shoreline and that no structure be located waterward of the mean high water line. Subsequent to its January 10, 1985, meeting the District has pursued its management plan for the alteration of the shoreline and berms of C-18. Since that time two permits have been issued to large developers who agreed to reslope and revegetate, at their expense, the banks of the C-18 in accordance with the District's plan, and in exchange for the esthetic view accorded by C-18. No dockage, boat ramps, or other structures have been permitted. River Trails' permit expires Following DER's denial of its application for a permit to construct the 97 slip marina, River Trails requested that the District modify its permit to reflect a 37 slip facility and extend the permit for one year. River Trails subsequently withdrew its request to modify the permit. On January 10, 1985, the District entered an order denying River Trails' request for a one year extension of its permit. The District's denial was predicated on its perceived environmental sensitivity of the C-18 canal and the Loxahatchee River system, and its conclusion that the project was contrary to the restoration concept of the District's developing management plan for the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85-2272. On July 16, 1985 River Trails reapplied to the District for approval of its modified proposal for a boat ramp and 37 slip marina. The District denied River Trail's request on September 12, 1985. Reasons for denial included adverse water quality impacts, endangerment of the manatee population, increased bank erosion and increased liability risks to the District associated with increased boat usage of the C-18. River Trails filed a timely request for hearing, and the matter was referred to the Division of Administrative Hearings and assigned Case No. 85- 3678. Impacts of the River Trails Development Because of its location and physical characteristics, boating activity in the C-18 has not been extensive. The canal joins the Loxahatchee River on its western shore, opposite the popular boating areas in the intercoastal waterway and Atlantic Ocean adjacent to the River's eastern shore. Access to the canal is restricted by a bridge with a 6' clearance, and its western expanse is blocked by S-46. Accordingly, boating activity within this 1.6 mile stretch of 18 has been generally limited to fishing trips to S-46, sightseeing, and occasional water skiing. River Trails' facility will increase boating within the C-18 well beyond the 37 slip capacity of its dock facility. River Trails proposes to provide upland storage for the boats of a all condominium unit owners, and expects a majority of owners to utilize the slips or boat ramp. Accordingly, use of the facility will not be limited to 37 boats but, rather, will reach into the hundreds. The District's management plan for the C-18 is designed to restructure the canal's present configuration to provide natural habitat, reduced erosion and scenic beauty. As originally designed, the C-18 had 1 on 2 side slopes throughout its reach, however, erosion of the bank downstream from S-46 has resulted in nearly vertical, unstable side slopes above mean high water along 40 percent of its length. The overbank right of way is heavily vegetated with exotic species. With the exception of several areas near the downstream end of the canal, mangroves are not well established along the existing shoreline due to the shading effect of overhanging Brazilian pepper and a rather narrow unstable intertidal zone. Currently, little use of the overbank right of way is made by the public due to its dense vegetation, and any view of the canal is severely impeded. Under the District's management plan the intertidal zone would be expanded and planted in mangroves and spartina to combat erosion from boat wakes and to provide natural habitat; existing vertical banks would be recontoured to a more gentle slope and stabilized with grasses and native trees; and the overbanks would be cleared of exotics so that native trees could prosper. To date the District has been successful in carrying out its plan; however, the survival of the mangrove seedlings and spartina is dependent on minimal disturbance. The introduction of the boats from River Trails would increase erosion and prevent the recolonization of shoreline vegetation beneficial to water quality, marine habitat, and canal bank stabilization. Furthermore, existing and proposed development along the C-18 right of way can be reasonably expected to exacerbate the erosion problem if River Trails' permit is granted. River Trails' proposed marina also raises the specter of adverse impacts to water quality, wildlife and habitat. The C-18 is classified as a Class II surface water body, and supports a diversity of aquatic life. Commonly observed species include snook, mullet, mangrove snapper, pinfish, needlefish and filter feeding organisms such as oysters. The endangered Florida Manatee, Trichechus manatus, is also observed in the C-18 and downstream in the Loxahatchee River. The Loxahatchee River is classified as outstanding Florida waters (OFW) and critical habitat for the Florida manatee. The river, as well as C-18 up to the S-46 control structure, has also been included by the Department of Natural Resources (DNR) within the Loxahatchee River Zone of the Florida Manatee Sanctuary Act.3 Due to the restricted access from C-18 into the Loxahatchee River, boats located at River Trails' development will likely be approximately 23' in length and powered by outboard motors. Such watercraft, through their introduction of oils and greases, contribute to a degradation of water quality however, neither party addressed the potential impacts to water quality which would be occasioned by the total number of boats that would utilize the boat ramp and boat slips at the proposed facility. By failing to address this issue, and limiting its proof to the impacts from a maximum of 97 boats, River Trails has failed to give reasonable assurances that its proposed project will not cause or contribute to a violation of Class II water quality standards. The impact of River Trails' project upon the Florida manatee is less clear than its impact upon the C-18. Although designated part of the manatee sanctuary, C-18 presently offers little in the way of food source for the manatee with the exception of some plant materials near S-46. The grass Fla. within the Loxahatchee River and the intercoastal waterway are the manatee's primary food source and congregating areas; however, as the mangrove and spartina plantings along the intertidal zone of the canal mature, the manatee may more often. venture into the canal. Whatever their frequency within the narrow confines of the C-18, the numbers of boats that would be introduced by River Trails would drive the manatee from the area. These boats would not, however, pose a significant threat to the manatee or its habitat within the Loxahatchee River since its navigation channels are well marked to avoid grass flats. Indeed, there has been no boat related manatee mortality in the Loxahatchee River area since 1977. The District's concern regarding increased liability risk is unpersuasive. Pursuant to rule the District requires that an applicant for a permit to occupy right of way provide the District with insurance coverage satisfactory to the District, There is no suggestion that the insurance coverage tendered by River Trails, and accepted by the District, was inadequate or otherwise unsatisfactory. The District's decision to deny River Trail's application was not inconsistent with its existing practice. While the District has permitted docks and boat ramps in other canals, there was no showing that those canals abutted a sanctuary or were under redevelopment to improve the works of the District.
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact On July 16, 1985, the Respondent MHI filed an application for a dredge and fill permit with the Respondent, Department of Environmental Regulation (DER). That original application was modified on October 9, 1985. The dredge and fill project as now proposed, would be constructed within the newly developing "Ashebourne" subdivision located in Clay County, Florida. The Respondent, MHI, is the developer of that subdivision. The property owner adjacent to the proposed dredge and fill activity is the R. L. Johnson Construction Company. R. L. Johnson Construction Company does not object to the issuance of the dredge and fill permit and has affirmatively consented to it. It is not a party to these proceedings. The project as now proposed and described in the amended application envisions the placement of a ductile iron sewer main or collection system pipe within waters of the State of Florida, specifically, beneath the creek bed of Indigo Branch Creek, which is a tributary to Doctors Lake in Clay County, Florida. The sewer main involved will be placed three feet beneath the bottom grade of the Indigo Branch Creek creek bed. The proposed project also involves the placement of approximately 270 cubic yards of fill soil onto residential Lots 17 and 18 within the Ashebourne subdivision. That fill would be placed within a forested wetland which is within the limits of the DER's jurisdiction. Additionally, the project involves the construction of a storm water outfall pipe concrete endwall. That endwall, however, is not truly in dispute in this case by the Petitioners and indeed, is located landward of the DER's jurisdiction in any event. The Applicant proposed grading the 270 cubic yards of fill to be placed on Lots 17 and 18 to a "four-to-one" slope and sodding that fill so as to prevent erosion of the fill dirt into the surrounding wetlands. No historical or archaeological sites have been identified in the area of the placement of the fill dirt, nor in the area of the proposed excavation and placement of the pipe beneath Indigo Branch Creek. The proposed sewer main will be made of ductile iron which will last for many years, and will contain no positive pressure head in relation to the pressure of the waters of Indigo Branch Creek lying immediately above it. Thus, any leak occurring in that sewer main will result in ground or surface water entering the main, as opposed to wastewater from within the main leaking out into surface or groundwaters of the State. In initiating this project and prosecuting the application, MHI retained the services of England, Thims & Miller, Inc., a consulting engineering firm who performed the site planning and civil engineering work for the proposed project. Mr. Miller, of that firm, was qualified and accepted as an expert in the design of wastewater collection systems and surface water hydrology. He established that the flow of the Indigo Branch Creek will not be impeded by the construction of the subaqueous sewer main crossing beneath the creek due to the temporary nature of the construction and the use of various mitigation techniques which are designed to enable the flow of the creek to continue unimpeded during the construction. Erosion of the Indigo Branch Creek channel will not likely occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of change to the existing stream flow, as well as the planned compacting and sodding of the earthen berm adjacent to the Indigo Branch Creek following placement of the pipe beneath the creek and through the berm. Additionally, the height of the berm will be increased by the Respondent/Applicant as part of its proposed construction. In view of the planned compacting and sodding of the earthen berm adjacent to the creek, there has been shown to be no reasonable likelihood of erosion of the earthen berm into waters of the State. Parenthetically it should be noted that the earthen berm itself is upland and without the jurisdiction of the DER. Assuming arguendo, however, that the Petitioners' primary concern involving the berm's erosion into the creek or the recreational stormwater pond on its opposite side, as a source of pollution, is jurisdictionally valid, the stabilization of the berm attendant to the proposed project will alleviate any siltation and erosion which might result to the Class III waters involved. Mr. Jeremy Tyler is a dredge and fill supervisor for the DER. He and an employee under his supervision made several visits to the project site in order to prepare the biological and water quality assessment for the Department, and to assist in the formulation of a recommendation to the District Manager of the Department regarding this permit application. It was thus established that Indigo Branch Creek and Doctors Lake, to which it is a tributary, are Class III waters of the State, as is the recreation and stormwater pond upon which some of the Petitioners reside, which has an outlet to Doctors Lake. The Indigo Branch Creek lies between the Ashebourne Subdivision and the Pecan Cove Subdivision which is located north and east of it. The creek is channelized and the vegetation adjacent to it has been altered in the past. The native vegetation has previously been removed from the side of the creek where lies the Pecan Cove Subdivision. On the Ashebourne Subdivision side of the creek there is a linear strip of jurisdictional vegetation running the length of the creek. The Creek and Doctors Lake, as waters of the State, extend landward of the mean high water line into an area dominated by red maple, ironwood, water oak and sweet gum. There will be a cleared area of approximately 20 feet in width where the pipe crossing of Indigo Creek would be made. There will be some clearing of vegetation on Lots 17 and 18 where the fill is to be placed. Prior to the hearing, MHI agreed to mitigate the loss in wetland vegetation by modifying the originally applied-for amount of fill to be placed on those two lots, and by agreeing to allow the area of the creek crossing to re-vegetate with native vegetation in an undisturbed fashion. Mr. Tyler, who was accepted as an expert witness in the area of evaluation of water quality impacts of dredge and fill activities, established that water quality standards for Class III waters of the State embodied in Rule 17-3, Florida Administrative Code, as it relates-to Indigo Branch Creek and Doctors Lake would not be violated by the proposed dredge and fill activity involved in placing the pipe beneath the creek. In this connection, the Applicant has agreed to condition the permit upon the use of various safeguards against siltation and turbidity, such as turbidity curtains and screens during the construction process and until the restabilization of the upland around the project site has occurred through compaction and sodding. Because of this, any deleterious effects on water quality would involve turbidity and would be transitory in nature because of the turbidity safeguards that will be installed, and because of the stabilization of the banks and berm surrounding the area of the creek where the dredge and fill activity will occur. With regard to the filled area mentioned above, deleterious effects on the wetlands involved will be minimized by the grading of the fill to a 4:1 slope and the sodding of it to prevent erosion and siltation in the waters of the State involved in those wetlands. The concrete endwall installation involved as the third element of the dredge and fill activity proposed will serve to prevent erosion and resultant turbidity entering Doctors Lake by retaining the soil on each side and above the storm drainage outfall pipe. Thus the endwall will actually serve to prevent violations of water quality standards, even assuming arguendo that the installation of that concrete endwall on the outfall pipe is within the landward extent of the state waters involved with Doctors Lake, and within DER's jurisdiction, which was not proven. Mr. Tyler established that the public's health, safety and welfare and property of others will not be adversely affected by the dredge and fill activities proposed because of their temporary nature and effect, and their location downstream on the Creek in relation to the residential lots which abut the creek, and for the further reason that the only adjacent property owner, R. L. Johnston Construction Company, consented to the placement of the wastewater collection system and pipe on or beneath its property. The proposed dredge and fill activities will not adversely affect navigation and the flow of water or cause harmful erosion. Navigation will clearly not be impacted since the proposed pipe crossing will be three feet below the grade elevation of the bottom of the Creek. The flow of the Creek will not be impeded by the construction of the pipe crossing due to the temporary nature of the construction activity and the use of mitigation techniques (diversion of the creek flow) to enable the flow to continue around the project site during construction. Erosion of the creek channel is not expected to occur as a result of the pipe crossing due to the temporary nature of the construction and the lack of permanent change to the existing stream flow. Likewise, the compacting and sodding of the earthen berm adjacent to the creek following placement of the pipe beneath it, together with the proposed increase in the height of the berm will further serve to prevent erosion of the berm and the siltation effects that might have on the creek's channel. The proposed dredge and fill activities were shown not to adversely affect conservation of fish and wildlife or their habitat, nor will fishing or recreational values or marine productivity be adversely affected. Given the mitigation techniques to be used to minimize turbidity, any adverse impacts associated with the dredge and fill activities will be of a temporary, transitory nature and will not pose any significant deleterious effect to waters of the State. Likewise, the proposed dredge and fill activities will only minimally affect the current condition and relative value of functions being performed by the jurisdictional waters and wetlands of Indigo Branch Creek, Doctors Lake and the pond. In short, it has not been established that the transitory, temporary impacts of the proposed dredge and fill activities will be of a type or magnitude so as to be contrary to the public interest. No causal relationship has been established between the proposed dredge and fill activity involved in placing the pipe beneath the creek and the feared erosion of the earthen berm located adjacent to waters of the State. In that connection, the Respondents stipulated to the Petitioners' standing on the limited issue of erosion of the berm into the pond.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered granting the subject dredge and fill permit upon the above-referenced conditions, and that the petition filed herein be dismissed. DONE and ENTERED this 18th day of April, 1986, in Tallahassee, Florida. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. COPIES FURNISHED: Charlotte M. Keppeler 3563 Sheldon Road Orange Park, FL 32073 Douglas M. Wyckoff, Esq. Deborah Getzoff, Esq. Office of General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Lawrence E. Bradley 3563 Sheldon Road Orange Park, FL 32073 Phillip Helseth, Jr. 3569 Sheldon Road Orange Park, FL 32073 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Jeffrey E. Miller 3558 Lawrence Road Orange Park, FL 32073e Philip S. Parsons Post Office Box 391 Tallahassee, FL 32302 Gerard M. Pellegrini 3542 Sheldon Road Orange Park, FL 32073 E. Owen McCuller, Jr., Esq. ROGERS, TOWERS, BAILEY, JONES and GAY 1300 Gulf Life Drive, Ste. 800 Jacksonville, FL 32207 APPENDIX Petitioners' Proposed Findings of Fact and Conclusions of Law: Paragraph 1 is rejected as constituting recitation of testimony, evidence and argument. Paragraph 2 is rejected as constituting recitation of testimony and evidence and argument concerning the weight and credibility to be ascribed thereto. Respondent Montgomery Homes, Inc.'s Proposed Findings of Fact: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Respondent Department of Environmental Regulation's Proposed Findings of Fact: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 7 is accepted. Paragraph 8 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 9 is accepted. Paragraph 10 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 11 is accepted. Paragraph 12 is rejected as constituting discussion of testimony and not a proposed finding of fact. Paragraph 13 is accepted.
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.
Recommendation 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
Findings Of Fact Introduction On an undisclosed date, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing various services on State Job No. 90030- 3539. Such bids were due on or before June 24, 1987. In general terms, the project required the successful bidder to perform various maintenance services on the Old Seven Mile Bridge between Pigeon Key and Knight Key just southwest of Marathon in Monroe County, Florida. The parties have stipulated that the project involves the following classes of work: Bridge painting 82 percent Restoration of spalled areas 6 percent Miscellaneous concrete and steel 9 percent Maintenance of traffic 3 percent In response to this offer, three contractors submitted timely bids. These included petitioner, Midwest Industrial Painting of Florida, Inc. (Midwest), intervenor-respondent, Cone Constructors, Inc. (CCI), and J. D. Abrams, Inc. Their respective bids were $1,746,390, $1,122,000 and $2,149,345. The parties have stipulated that the bids of both CCI and Midwest are below the DOT budget estimate and preliminary estimate for the project. On August 3, 1987 DOT posted its intent to award the project to CCI, which submitted the lowest dollar bid. Thereafter, petitioner timely filed a protest challenging the award of the contract to CCI. In its formal protest, Midwest contended that CCI was ineligible to submit a bid since it was not prequalified by DOT to perform bridge painting, a service required for this job. The filing of the protest prompted the instant proceeding. The Project The Old Seven Mile Bridge, once a vital link in the Florida Keys highway network, was replaced in the early 1980s with a new Seven Mile Bridge. Since its replacement, the old bridge has had very little, if any, traffic and is no longer in service as a state highway. Indeed, its center span has been removed, and it is used primarily as two fishing piers by avid anglers and for access to Pigeon Key where a University of Miami research facility is located. The legislature recently mandated that the old bridge be turned over to the Department of Natural Resources (DNR). So that DNR receives the bridge in good condition, DOT intends to perform all necessary maintenance and rehabilitation prior to its turnover. The project has been identified as State Job 90030-3539. The job includes painting the exposed structural steel, doing "corrective measures" to portions of the structural members, and other miscellaneous work. The project will be funded wholly with state funds, and is not considered a critical job. Although at hearing DOT personnel considered the structural work to be the most important aspect of the project, and the painting to be incidental, DOT did not prepare the bid specifications in this manner. Rather, it elected to prepare the specifications listing bridge painting as normal work. By categorizing the work in this manner, DOT did not contravene any statute, rule or standard. Had DOT categorized painting as "specialty" or incidental work on the project, painting would have been considered an incidental aspect of the job, and bidders would not have to be prequalified in bridge painting. However, DOT did not assert its specifications were in "error," or that this might serve as a ground to reject all bids. Indeed, there is no evidence that any bidder was confused or had any doubt as to the services required under the contract. Prequalification Requirements DOT requires that, on projects exceeding a cost of $250,000, bidders obtain a certificate of qualification setting forth the areas (classes) in which they are qualified to perform work. This is commonly known as prequalification. One of these classes of competency is bridge painting, which constituted approximately 82 percent of the work to be done on Old Seven Mile Bridge. The parties have stipulated that CCI's certificate of qualification did not include bridge painting as an area in which it had been qualified. Despite several post-June 24 requests by DOT to furnish additional information, CCI had not yet supplied such data at the time of hearing as would enable it to qualify. On the other hand, Midwest was conditionally qualified in this area, but, because of certain DOT reservations, its certificate was due to expire on June 15, 1987. However, Midwest requested a Section 120.57(1) hearing to contest this expiration date, and Midwest has, with DOT's acquiescence, continued to use its certificate for bidding purposes until an adjudication of the claim is made. Without a certificate of qualification, DOT rules provide that a contractor not be given bid documents that would enable it to submit a bid. Further, DOT witnesses confirmed that no bidder has ever been authorized to become prequalified after it had submitted a bid, nor has a nonqualified bidder been awarded a contract. The agency does have a "policy" of allowing contractors who are qualified in the major work class of minor bridge work (but who are not qualified in bridge painting) to receive bid documents on certain major projects. Even so, this policy, however applied in the past, has never been used on a project such as this, and DOT officials confirmed that this was the first time bid documents had been erroneously sent to a nonqualified bidder. DOT's Reaction to the Bids Through "inadvertence" or "error," DOT furnished bid documents to CCI. Thereafter, CCI, Midwest and a third contractor submitted bid proposals. When the bids were opened, DOT discovered that the lowest dollar bidder (CCI) had not been prequalified on bridge painting. The bids were then routed to the DOT technical review committee, a five person committee that reviews projects where the bids do not conform with award criteria. This committee made no recommendation and was "uncommitted." The matter was then reviewed by the DOT awards committee which unanimously recommended that the contract be awarded to CCI even though it had not prequalified on one segment of the work. In proposing that the contract be awarded to CCI, DOT acknowledges that this is not its normal practice. Indeed, it concedes that this is probably the first occasion that it has proposed to award a contract to a nonqualified bidder. However, it considers the project "unique" in the sense that the bridge will be turned over to DNR immediately after the work is completed. In addition, by using CCI, it can save around $624,000 in state funds which can be used to claim almost another $6 million in matching federal funds for other state work. Finally, DOT is fully satisfied that CCI is capable of performing the work on the project, particularly since it considers the structural repairs the most important aspect of the job. If CCI's bid is rejected, DOT's preference is to reject all bids and relet the project. The agency's nonrule policy is that, for projects valued at more than $250,000, a contract will be awarded if the lowest bid is no more than seven percent above DOT's estimate of the project's value. In this case, both CCI and Midwest submitted bids below DOT's budget and preliminary estimates. The Bidders Midwest, which is located in Tarpon Springs, Florida, has been in the bridge painting business for many years, and has worked on DOT projects since 1974. This is the first occasion the firm has filed a protest. The firm is capable of performing the required work. Although its certificate of qualification was supposed to expire on June 15, or before the June 24 bid opening day, Midwest challenged this action and the certificate continues to be used for bidding purposes. The apparent low bidder (CCI) is located in Tampa, Florida and has been engaged in a number of DOT projects since it was formed approximately five years ago. It is now working on three other DOT bridge projects. The firm was prequalified in the bridge painting class in 1983 and 1984, but for some reason, allowed its qualification to lapse. Its present certificate is valid until April 30, 1988 and qualifies CCI to bid on several types of major bridge projects. CCI stands by its bid proposal, and is fully confident the work can be done for $600,000 less than proposed by Midwest. The firm has access to the necessary equipment and manpower to perform the job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting the bid of Cone Constructors, Inc. on the ground it was unqualified and non-responsive, and instead awarding the contract on State Job 90030-3539 to Midwest Industrial Painting of Florida, Inc., which submitted the lowest responsive bid. DONE AND ORDERED this 15th day of September, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.
Findings Of Fact Mariposa Road appears on the plat of Ramrod Shores Marina Section subdivision (the Subdivision), which was filed in the official records of Monroe County in 1960; and on revisions of the original plan, one of which was filed in 1963, and the more recent of which was filed in 1969. On February 9, 1960, Monroe County accepted the dedication of Mariposa Road, and the County has owned it since. Mariposa Road borders the Subdivision on the east, separating it from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road runs from State Road 4 northerly through a tidal mangrove community along the water's edge to the northern edge of the Subdivision. Midway, Angelfish Road meets is perpendicularly. Cape Sable Corporation, the original developer of the Subdivision, trucked in oolitic limestone fill to construct Mariposa and Angelfish Roads, and to repair the roads after occasional washouts. In 1968 or 1969, Sayward Wing drove a Studebaker north on Mariposa Road from its intersection with State Road In 1969, James Lewis drove south on Mariposa Road. In his Lincoln, he was unable to drive up onto State Road 4 where Mariposa Road dead ends into it, but the found the road passable otherwise. By October of 1974, all fill placed on Mariposa Road south of Angelfish road had washed out. In October of 1974, or shortly before, a bulldozer cleared the road site south of Angelfish Road. In this stretch, the centerline of the marl roadbed was three to four tenths of a foot above the national geodetic vertical datum. In 1975, and again the following year, Monroe County placed fill on Mariposa Road. In June of 1976, there was fill on the site and a road ran north from Angelfish Road but there was no fill in Mariposa Road's roadbed south of Angelfish Road. In August of 1976, there was a standing water in the Mariposa roadbed between State Road 4 and Angelfish Road. By January of 1977, and possibly as early as November of 1976, rock fill had been spread in the roadbed from State Road 4 to north of Angelfish Road, however, and the roadway was complete. By October of 1977, 96 cubic yards of fill had been placed in the roadbed, but water stood on both sides of the roadway. About 278 cubic yards of fill had been placed on Angelfish Road. On the day of the hearing, fill had been placed in the Mariposa roadbed to a height two or three feet above adjacent ground, making the road two or three feet higher than it had been in January of 1977. The road was higher and wider than it had been in October of 1977. The area landward of Mariposa Road and north of Angelfish Road was dry, while much of the area immediately landward of Mariposa Road and south of Angelfish Road was wet. Sometimes water stands a foot deep west of Mariposa Road. Wetland vegetation predominated on lot 11 in block 4 and most of lots 12, 13 and 14 in block 2 of the Subdivision, all of which lie west of Mariposa Road. The tidal mangrove community intersected by Mariposa Road still supports wading birds and various marine for organisms, including killifish, needlefish and jelly fish. The mangroves' root systems stabilize the shoreline and filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by red and spider mangroves supports various microorganisms which constitute an early link in the food chain culminating in commercial fisheries. Mariposa Road separates plan matter on the west side of the road from the waters of Torch Ramrod Channel. In October of 1977, the rock which was used to build Mariposa Road was loosely packed. Water from Torch Ramrod Channel percolated through the road even when it was not high enough to move across the road in a sheet, which sometimes happened. There were also low lying places in the road through which tidal waters flowed to the landward side of Mariposa Road. With the addition of fill since then, water reaches wetlands west of the road only by percolation or capillary action, or in the form of rainfall. The wetlands are impounded and unable to drain into the channel. Significantly less frequent tidal inundation coupled with constant evapotranspiration will increase the salinity of the remaining water, which makes survival of the existing mangroves doubtful. These mangroves, which do not attain any great size because of the limiting effect of the caprock in the area, exhibited no signs of stress in October of 1977. On the day of the hearing, however, a biologist visited the site and concluded that the mangroves were suffering from stress and might die off altogether in as little two years, as a result of the interference with tidal action caused by the rock fill. Removal of the fill would ten to restore the mangroves west of Mariposa Road to health and would permit decaying plant matter and related microorganisms on the landward side of Mariposa Road to contribute to the ecosystem of Torch Ramrod Channel; several of the Subdivision lots would be opened to waters of the State. In October of 1977, respondent admitted repeatedly causing fill to be deposited in the Mariposa roadbed. Petitioner has never issued a permit authorizing respondent to place fill on Mariposa Road, not has respondent applied to petitioner for such a permit. Monroe County never authorized respondent place fill material or anything else on Mariposa Road. Petitioner's exhibit No. 7). Before March 8, 1979, petitioner reasonably expended six hundred four dollars and seventy-nine cents ($604.79) in investigating the source of the fill. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the amended notice of violation. That respondent pay petitioner six hundred four dollars and seventy- nine cents ($604.79). That respondent, within twenty days of entry of the final order, file an application for a permit or submit a proposed restoration plan and compliance schedule to petitioner for approval. DONE AND ORDERED this 9th day of August 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040
The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").
Findings Of Fact DOT is the state agency responsible for coordinating the planning, construction, and maintenance of a safe, viable, and balanced state transportation system. DOT relies on qualified contractors and professional consultants to provide services for Florida’s transportation needs. Section 287.055(3), Florida Statues, requires that any firm or individual desiring to provide professional services to a governmental agency must first be certified by the agency as qualified, pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. Each agency is also required to evaluate professional services, including capabilities, adequacy of personnel, past record, and experience of the firm or individual. Section 337.105 and Florida Administrative Code Chapter 14-75 also governs the qualifications of professional consultants and other contractual services providers to DOT. Section 337.105 authorizes DOT to deny or suspend an application for qualification based upon a determination of "good cause," which includes, but is not limited to, nine illustrative examples specified in section 337.105(1)(a)–(i). DOT may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. BPA is a multidiscipline engineering firm specializing primarily in transportation related engineering services, including bridge design, roadway design, civil works, construction engineering inspection ("CEI"), and program and construction management. At the time of the hearing, BPA had approximately 38 employees. BPA was formed by Joaquin "Jake" Perez, P.E., and John Bolton, P.E., in 1997 to provide transportation-related engineering services. BPA’s CEI qualifications are independent from, and do not necessarily mirror, BPA’s design qualifications. In some instances, BPA was qualified to serve as a CEI for categories of structures that the firm was not qualified to design. This is because BPA was internally divided into two core groups: design and CEI. Since inception, BPA’s design group was and continues to be headed by Mr. Perez, and the CEI group headed by Mr. Bolton. The operations of BPA’s CEI and design groups were completely segregated within the firm. CEI personnel did not work on design projects, and design personnel did not work on CEI projects. As President, Mr. Perez was involved in pursuing contracts for CEI services, but CEI services were provided only by CEI personnel. In or about 1999 or 2000, BPA first became qualified to respond to DOT’s request for qualifications to provide professional services to DOT. Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified it to provide design services. BPA remained qualified with the Department on an annual basis for both CEI and design work for nearly 20 years until July 2019. At that time, DOT issued a NOID removing BPA from consideration for award of professional service contracts with DOT for 2019- 2020. DOT issued the NOID based solely upon a report issued by OSHA and the investigation of NTSB regarding the collapse of the FIU Bridge project on March 15, 2018. THE FIU PEDESTRIAN BRIDGE PROJECT In 2014, DOT entered into a Local Agency Program ("LAP") Agreement with FIU for its pedestrian bridge project, a Category II, complex bridge, that would be constructed along Southwest 109th Avenue and Southwest 8th Street in the City of Sweetwater, Florida (the "project"). As the supervising agency of the LAP program, DOT was responsible for supervising and authorizing work by the local agency. The design of a Category II structure required an independent peer review by a firm with no other involvement in the project, which was prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc. ("FIGG"), the Engineer of Record ("EOR") for the project, hired Louis Berger to review FIGG’s plans for bridge foundation, substructure (end bents and center tower), and superstructure. Those plans included construction sequencing (including construction sequence drawings), the covered main span pre-casting, transport of main span, and placement of the main span between end bent 1 (south pier) and the pylon pier. The plans also included the post-tensioning stressing and destressing sequences. As the Local Agency, FIU was in responsible charge of the day-to-day activities, including project safety issues. Alfredo Reyna, P.E., was the Department’s LAP Coordinator for the project. Mr. Reyna is a licensed professional engineer, although he is not a structural engineer. In January 2016, FIU entered into a design-build contract1 with Munilla Construction Management, LLC ("MCM"), to design the bridge and to perform all work and furnish all materials, equipment, supplies, and labor necessary to construct the project. The bridge was designed by FIGG, a member of the MCM design-build team and the EOR. FIGG is a reputable designer who has been recognized internationally for its work. FIGG has experience in designing complex bridges, such as the Sunshine Skyway Bridge near Tampa, Florida. On September 23, 2016, FIU entered into a Standard Professional Services Agreement with BPA for CEI services (the "CEI Contract"). At the 1 The interaction of the local agency, contractor, designer, EOR, DOT, and the CEI is different between a "conventional" and a "design build" bridge project. In a conventional project, the designer is hired by DOT or owner to create a new bridge. The design goes through a review process at DOT and a final set of plans goes to bid for a contractor. By the time the contractor is selected, the EOR has completed the plans. The EOR is essentially "on call" for the construction phase of the project because the design work is complete. The CEI begins its work when the contractor begins construction. If there is a question in the field, the CEI makes a request for information from the EOR. DOT supplies design and construction managers throughout the process. In contrast, for a "design build" project, the owner has a conceptual plan for the project. The designer and contractor bid for the job based on the preliminary conceptual plan. The Designer/EOR and contractor work hand in hand from the beginning of the project and are in constant communication. The CEI begins work when the contractor starts work on the project. The CEI facilitates the resolution of any issues between the EOR/designer and the contractor who continue to plan throughout the duration of the project. Like a conventional build project, DOT has construction managers and design project managers involved from the beginning of the project. If concrete cracking occurs, it is the CEI's obligation to document the cracking and speak to people in the process who can assess and address the cracking. For a conventional build bridge, if cracking is observed, the CEI documents it, copies DOT, and sends it to the EOR for assessment. The EOR provides an assessment by conducting a site visit. The EOR then prepares an Engineering Assessment Report (EAR) for the project team. In a design build bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The EOR, who is already on the job site, assesses the cracks and works with the contractor to devise a solution. time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as the liaison between the project owner (FIU) and the contractor (MCM). The CEI handles quality control, materials, schedules, payments, documents the entire process, and monitors the project. Jose Morales, P.E., worked under John Bolton as the Senior Project Engineer for the project. Mr. Morales first obtained his professional engineer’s license in 2006. He had approximately 12 years of CEI experience at the time of the collapse. Although he was the Senior Project Engineer for the project, Mr. Morales had little-to-no design experience. Mr. Morales was first involved in the early stages of pursuing the CEI Contract for the project. After the project was awarded, BPA was not involved in the design phase, but was later brought back into the fold beginning in October 2016, when BPA received the Notice to Procced and fully staffed its CEI scope of services when construction was scheduled to begin in or about March of 2017. The "Scope of Services" section (Exhibit B) to the CEI Contract required BPA to be prequalified with the Department in the following work categories: Work Type 10.1--Roadway CEI; Work Type 10.4--Minor Bridge and Miscellaneous Structures CEI; and Work Type 10.5.1--Major Bridge CEI- -Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were considered to be the "major" type of work while 10.5.1 was considered to be the "minor" type of work. As expressly permitted by the Standard Professional Services Agreement, BPA satisfied the 10.5.1 prequalification requirement through its sub-consultant, The Corradino Group, Inc. ("Corradino"). BPA’s scope of services for the project did not include any design responsibilities. BPA performed constructability review of the plans as part of its CEI scope of work, but it did not review the plans or drawings on a technical level. The FIU bridge was a Complex Category II structure as defined by the Department’s Design Manual. The structure had a unique, complex design that was meant to be a signature, architectural feature for the area. The relevant construction sequence for the main span (Span 1) of the FIU bridge consisted of: casting the main span superstructure in the casting yard; installing post-tension bars in the diagonal and vertical members of the structure; stressing of the main-span post-tensioning while the main span is in the casting yard; removing the temporary formwork and supports; transporting the main span from the casting yard using a self- propelled modular transporter and placing the structure in a "simply supported" condition on the south pier and pylon pier; and de-tensioning truss members 2 and 11. Generally, cracks in concrete are common and are not, in and of themselves, a cause for concern. On a design-build job, when cracks manifest themselves in a concrete element, the CEI must document the cracking and report it to the design-build team, which includes the EOR. Depending on the nature of the cracks, the CEI may request an EAR from the EOR. This process is set out in section 400, subsection 400-21, of DOT’s Standard Specifications for Road and Bridge Construction (the "Standard Specifications"). DOT's Construction Project Administration Manual ("CPAM") includes the procedures to be followed by a CEI in addressing cracks in concrete. The CPAM requires that the CEI identify and document its observations and convey the information to the EOR for a final disposition as to the potential danger of the crack or the need for further evaluation. The FIU Bridge Cracking and Inspections by BPA On or about February 6, 2018, while Span 1 of the bridge was still in the casting yard, BPA became aware of certain cracks that had developed in the structure. Mr. Morales personally inspected the structure after the tendons on truss members 2 and 11 were stressed, and he noted that cracks had developed in other locations on the bridge. The cracks observed were very small, approximately 0.004 of an inch wide. On February 13, 2018, BPA submitted Crack Report #1 to MCM, FIU, and Corradino, documenting the cracks that had developed in the concrete truss members after completing the post-tensioning operations in the casting yard. Despite the small size of the cracks, BPA requested that the EOR provide an assessment of the cracks. FIGG, the EOR, responded to BPA’s request by stating that the current condition observed was temporary in nature and that the cracks were not an issue. BPA exercised independent professional judgment when it exceeded the requirements of section 400 of the Standard Specifications and the CPAM by documenting and reporting these initial cracks. In late February 2018, before the placement of the main bridge span on the permanent pylon and south pier supports, cracks were observed in certain truss members. BPA prepared and submitted Crack Report #2 to FIU and MCM on February 28, 2018, documenting the size and location of these cracks and requested that FIGG evaluate the cracks and provide a disposition. In its report, BPA called attention to certain cracks that were significant in size. As CEI, BPA was not qualified to determine whether these larger cracks posed an imminent danger of collapse. Further, BPA’s design team was not involved in the design of the bridge and was not qualified to evaluate these cracks from a design engineering perspective due to the category and complexity of the bridge. At this point, the cracks were not "structural" as defined by Section 400 of the Standard Specifications. Cracks more than one-half inch in depth are deemed "structural" and trigger the obligation of the CEI to notify the EOR. Nevertheless, BPA, again, exercised its independent professional judgment above and beyond the requirements of the Standard Specifications and CPAM by requesting that the report be forwarded to the EOR and requesting that the EOR provide a response and disposition of the cracks. On March 7, 2018, FIGG replied to Crack Report #2, stating, in part, that the cracks appeared small, that they were not concerned about these types of cracks in the particular region shown in the report, and that MCM would need to seal the cracks in accordance with the Department’s specifications. As the EOR, FIGG did not have any structural concerns regarding the cracks in Crack Report #2. On March 7, 2018, FIGG representatives were on site and observed the cracks referenced in Crack Report #2. After observing the cracks, FIGG did not delay the bridge movement that was scheduled to take place three days later on March 10th. As of March 8, 2018, BPA had no concerns regarding the integrity of the structure or public safety because the EOR had looked at the cracks in- person and assured the project team that the cracks were not a safety issue or structurally significant. These assurances came two to three days prior to the bridge being moved over Southwest 8th Street and placed on the permanent pylon and pier supports. The bridge movement was not delayed due to the cracks observed by the EOR. On March 10, 2018, Span 1 was moved from the casting yard and placed on the permanent pylon and south pier supports. After the placement and de-tensioning of diagonal members 2 and 11, cracks began to appear at the construction joint of diagonal 11, the deck, and at the top of diaphragm II. At approximately 11:00 a.m. on March 13, 2018, two days before the collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending further monitoring and documenting of the cracks to determine whether they were active or dormant, and requesting that BPA be informed of the outcome of the EOR’s EAR and course of action. At 5:18 p.m. on March 13, 2018, the EOR responded to MCM with additional recommendations and stated "[a]gain, we have evaluated this further and confirmed that this is not a safety issue." Because BPA’s design team was not involved in the project, no BPA design personnel were aware of the documented cracking on the structure until sometime after Crack Report #3 was generated. At that time, Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3. Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales that the CEI team had elevated the issue to the EOR. At all times in the documented communication relating to the cracks, the EOR and members of the FIGG design team represented to BPA that the cracks were not a safety concern, without reservation. Starting on March 13, 2018, FIGG directed MCM to implement an initial, temporary measure to address observed cracking in the member 11/12 nodal region. At that time, BPA was not aware of this communication between the EOR and the contractor. To restore the temporary support conditions when the structure was in the casting yard, MCM placed shims between diaphragm II and the pylon on March 13, 2018. FIGG also directed re-tensioning the post-tensioning rods in truss member 11 to begin on March 15, 2018. The re-tensioning operation was made as a "rushed request" to the post-tensioning subcontractor by MCM on March 14, 2018. "FIGG recommends to stress these PT bars as soon as possible but again, this is not a safety concern." MARCH 15, 2018, AND THE BRIDGE COLLAPSE Rather than waiting for the EAR, BPA once again exercised its independent, professional judgment and went above and beyond the requirements of the Standard Specifications, CPAM, and Contract Documents when it further escalated the issue of the cracks by calling for a meeting with the EOR. On the morning of March 15, 2018, a meeting requested by BPA and coordinated by MCM, was held in Miami, Florida. Representatives of FIGG, MCM, DOT, FIU, and BPA were present. At the March 15th meeting, BPA first became aware of the EOR’s instruction to MCM to proceed with a second temporary measure. This subsequent temporary measure was to reinstate the post-tensioning compression force back in member 11 as per the previous construction phase. As explained by the EOR, both temporary measures (shims and re- tensioning) were intended to restore the temporary support conditions when the structure was in the casting yard. Prior to the start of the meeting, the EOR, other FIGG engineers, and DOT’s LAP Coordinator inspected the bridge and the cracks in the nodal region of members 11/12. Only FIGG had structural engineers at the meeting. No other engineers present at the meeting had a background in structural engineering, including those in attendance on behalf of BPA. The meeting was called for purposes of discussing the concrete cracking on Span 1, and specifically the concrete cracking in nodal connection between truss members 11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that the cracks in the bridge were lengthening and growing daily. Though not formally invited, Mr. Reyna attended this meeting in his capacity as DOT’s consultant/Assistant LAP Coordinator. At the March 15th meeting, the EOR presented FIGG's assessment of the cracking after having reviewed the three BPA crack reports and having personally inspected the cracks on at least the following two occasions: (1) prior to the bridge being moved from the casting yard over Southwest 8th Street; and (2) on the morning of the March 15th meeting. The EOR’s presentation consisted of a lengthy and comprehensive PowerPoint slide presentation on the conditions of the bridge, structural analysis by calculations and 3D modeling of the loads and forces the area of member 11/12 nodal region cracks, and an evaluation of the safety of the span over Southwest 8th Street for workers and the public. Throughout the March 15th meeting, BPA exercised its independent professional judgment by actively participating in the EOR’s presentation, questioning and challenging the EOR. For example, BPA: inquired as to whether temporary shoring was needed; sought clarification regarding the mechanism being used to capture the load from the node and whether it would have to be integrated with the pylon diaphragm; requested clarification on the amount of transferred post- tensioning assumed for the nodal shear stability analysis; inquired as to whether there were any restrictions on load; inquired as to whether there would be a crack monitoring plan; requested a copy of the EOR’s presentation; inquired as to whether it had been peer reviewed and commented that it wanted more eyes on the presentation calculations; and BPA requested a copy of the stressing procedure that was being recommended by the EOR. Throughout the presentation, and during the question and answer phase of the meeting, the EOR assured BPA and the other attendees that the structure was safe. These assurances were based on statements made by the EOR as well as its calculations and modeling, which were part of its slide presentation at the meeting. In the presentation on the slide entitled "Safety," FIGG stated that "…[it] had conducted sufficient supplemental/independent computations to conclude that there is not any concern with safety of the span suspended over the road." At the end of the presentation, the EOR concluded the meeting with "[b]ased on conservative calculations, it is concluded that the design meets LRFD strength requirements for this temporary condition and therefore there is no safety concern relative to the observed cracks and minor spalls." During the meeting, the EOR stated that some cracking similar to the ones on the structure, were expected. The EOR further stated during the meeting that the top deck spalls could not be replicated, but that the spalled areas were minor and they should be repaired during the next phase of work when the pylon concrete was to be placed. No engineer at the meeting, including DOT's representative, Mr. Reyna, requested or recommended a complete road closure to protect the public safety or that the bridge be shut down. BPA had no reason to request a full road closure of Southwest 8th Street. There was no preplanned complete road closure, there was no maintenance of traffic ("MOT") deficiency, and, based on the EOR’s presentation, BPA was reasonably satisfied that no safety issues required a road closure. Towards the end of the meeting on March 15th, MCM informed BPA that a specialty contractor, Structural Technologies ("VSL"), was already onsite to conduct the re-tensioning operation. Without BPA’s knowledge, VSL had already mobilized on site to perform the remedial re-tensioning. BPA was not involved in pre-coordination for the re-tensioning operation. Therefore, BPA’s sub-consultant, Corradino, was not onsite to participate in monitoring of the re-tensioning procedure. Corradino’s role, as BPA's sub-contractor, was that of a 10.5.1 CEI (Major Bridge CEI--Concrete). Corradino was responsible for monitoring and documenting the post-tensioning operations. The post-tensioning operation after placement of the span had already occurred and therefore, Corradino was not on-site on March 15, 2018. Based on the safety assurances and conservative calculations presented by the FIGG EOR that the structure was safe, BPA, and the other professional engineers present at the meeting, including those representing FIU and DOT, followed the recommendations of the FIGG EOR to bring the main span condition back to its pre-existing state when the span was in the casting yard. BPA did not have the expertise or the contractual duty to perform its own analysis of the cracking on this complex bridge and override, or even call into question, FIGG’s unequivocal assessment that the bridge was safe. During the restressing operation of member 11, the roadway below the bridge had two westbound lanes closed as per the blanket, two-lane, closure permit issued by DOT. This blanket, two-lane, closure permit was obtained by MCM to provide workspace underneath the bridge to conduct the remedial action. MCM obtained the blanket, two-lane, closure permit from the Department the morning of March 15, 2018, before conducting the remedial action. A CEI’s authority to request a partial or complete road closure is defined by the contract plans and roadway closure permits, which is implemented using the procedures outlined by the CPAM and the CEI Scope of Services of the CEI Contract. A CEI is authorized to request the contractor to either partially or fully close a road if there is an MOT deficiency, as contemplated by CPAM Section 9.1.8--"Recommended Action to Shut Down a Project Due to MOT Deficiencies." Lastly, a CEI has authority to request a partial or full road closure if it is aware of a safety issue. None of these conditions existed on the project in the days leading up to the collapse in light of the EOR’s comprehensive presentation regarding the cracking conditions of the bridge, strength in the area of member 11/12 nodal region, safety of the span over Southwest 8th Street, and repeated, unequivocal reassurances that the structure did not pose a safety concern. Ultimately, BPA’s authority to request a partial or complete road closure on the project was a collective effort with the Department and FIU. BPA did not have the authority or ability to act on its own to close the road. The FIU Pedestrian Bridge collapsed during the re-tensioning of the truss member 11 post-tensioning rods on the afternoon of March 15, 2018. Six people died as a result of the FIU bridge collapse, including one bridge worker and five vehicle occupants. Ten people were critically injured as a result of the FIU bridge collapse, including two BPA employees, Mr. Morales and Carlos Chapman. Mr. Chapman was on the canopy of the bridge during the re- tensioning operation, observing the work being performed by VSL and communicating the progress to Mr. Morales who was on the deck of the bridge. Because of the representations made by the EOR, neither Mr. Chapman nor Mr. Morales was concerned for his own safety or well-being when they went on the bridge on the day it collapsed. BPA’s role, responsibilities, and scope of work on the FIU Bridge project as the CEI was that of a contract administrator, not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. BPA had no basis, ability, or contractual obligation, to perform its own analysis of this complex structure sufficient to override the FIGG EOR’s unequivocal safety assessment and recommendations. BPA performed its CEI duties and utilized its independent professional judgement when it documented and monitored the cracks and requested an immediate structural evaluation by the FIGG EOR. Ultimately, the bridge collapse was caused by a fundamental design error. THE OSHA AND NTSB INVESTIGATIONS Shortly after the collapse, both OSHA and NTSB began investigating the causes of the collapse. OHSA completed its investigation and released a written report of its findings in June 2019.2 The June 2019 OSHA report was 2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies Concerning the FIU Bridge Collapse ("Motion"). The Motion was opposed by BPA on the basis that the first OSHA report was not final because a second report was issued, and is hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the issued without prior review or comments from all party members who willingly cooperated with and were involved in the investigation, including NTSB and BPA. OSHA released an amended report on the collapse of the FIU Bridge project in July 2019; however, none of the amendments in the report pertained to the actions of BPA on the FIU Bridge project. NTSB completed its investigation and issued its report in October 2019. Significantly, no evidence was presented at the final hearing regarding from whom either agency conducted the investigations or drafted the reports, the qualifications or expertise of the investigators, the methodology used in the investigations, or the ability of any of the participants in the investigation to rebut the findings or conclusions. BPA willingly participated in both the OSHA and NTSB investigations, working with investigators and providing them with information, photographs, and details on the FIU Bridge project. Both OSHA and NTSB also conducted interviews of BPA personnel involved with the FIU Bridge project as part of their investigations. In its report, OSHA found that BPA failed to classify the concrete cracks, which were structural in nature, in accordance with DOT requirements. OSHA determined that BPA, as CEI, was expected to exercise its own independent professional judgment in accordance with their contract with FIU and DOT requirements. With intimate knowledge of extensive initial OSHA report and the NTSB report. Accordingly, references to the report in this Recommended Order are based upon the official recognition. As noted in the Order on the Motion, official recognition of the OSHA and NTSB reports, however, does not make the statements contained therein automatically admissible. "The distinction between noticing the contents of a record and noticing the truth of the contents resembles the distinction in the hearsay doctrine between offering an out-of-court statement simply to show it was said, and offering it for the truth of the matter asserted." C. Ehrhardt, Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and Procedure: Evidence § 6337). Although the existence of the report and its findings were officially recognized, the greater weight of the evidence supports that the contents were not accurate as to the exercise of independent judgment of BPA. cracking on the bridge, BPA failed to recognize the bridge was in danger of collapsing, and did not recommend to FIU, MCM, or others to close the street and shore the bridge, regardless of the opinion held by the EOR. As a result, OSHA imposed a monetary fine on BPA for its conduct and failure to take appropriate action in the days leading up to the collapse of the main bridge span. In its October 2019 report (issued after the NOID to BPA in this case), NTSB found that beginning with the cracking identified on February 24, 2018, the distress in the main bridge span was active, continued to grow, and was well documented by all parties involved in the design, construction, and oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took responsibility for declaring that the cracks were beyond any level of acceptability and did not meet DOT standards. Further, NTSB concluded that under the terms and conditions of the CEI Contract, BPA had the authority to direct or authorize partial or complete road closures as necessary, acting in concert with DOT and FIU; however, none acted to close the road under the bridge, contributing to the severity of the impact of the bridge collapse. BPA POST-COLLAPSE ACTIVITIES AND 2018 APPLICATION FOR QUALIFICATION On May 3, 2018, BPA submitted its Request for Qualification for the July 1, 2018, through June 30, 2019, fiscal year ("2018 Application"). BPA’s 2018 Application was for the same Work Groups that would eventually be included in the 2019 Request for Qualification. Each work category is tied to a distinct job function. There is no relationship or similarity between CEI services (Work Group 10) and the other work groups. On June 27, 2018, DOT accepted BPA’s Request for Qualification in all work categories. In processing the application, the Department did not ask BPA any questions regarding its involvement in the project, offer any criticisms of BPA in response to the application, request to interview any BPA employees, or raise any concerns at all regarding BPA’s participation in the project. From the date of the collapse on March 15, 2018, to December 2018, DOT awarded two contracts to BPA directly for CEI and design services, respectively. During the same period, DOT allowed BPA to participate as a qualified sub-consultant on one CEI contract, three design contracts, and one traffic task work order contract. During the 2018-2019 fiscal year, before DOT attempted to suspend BPA’s qualifications, BPA was able to win several jobs in both the prime and sub-consultant role, including projects in which BPA would be providing CEI services. In October 2018, approximately seven months after the collapse, BPA applied to change its CEI qualifier from John Bolton to Jose Morales because John Bolton wanted to retire. DOT approved the request and did not object or raise any concerns with respect to Jose Morales serving as BPA’s qualifier for CEI services. On December 19, 2018, nine months after the collapse, DOT expressed concern for the first time about BPA’s role in the bridge project, staffing of current DOT projects, quality assurance/quality control ("QA/QC") plans, and professional liability insurance. DOT sent BPA a "Qualifications Letter of Concern," stating that it had "serious concerns regarding [BPA]’s involvement as the Construction Engineering Inspection consultant on the Florida International University (FIU) pedestrian bridge project[.]" DOT requested in its letter, among other things, "a detailed explanation of the firm’s actions on the FIU pedestrian bridge project and… any controls or changes in personnel, policies or practices that [BPA] has implemented subsequent to the collapse." On December 21, 2018, BPA responded to the Letter of Concern addressing each concern raised by the Department, in detail, including providing a copy of its Certificate of Liability Insurance demonstrating that there was no lapse in professional liability insurance coverage. On February 12, 2019, DOT responded to BPA’s correspondence dated December 21, 2018, requesting additional detail from BPA relative to its revised QA/QC plan and punctuated the correspondence by stating that DOT would refuse to process any further qualification requests from BPA, including ministerial prequalification name changes, until the matter was addressed to the Department’s satisfaction. Around this time, BPA submitted a request to change its name with DOT to reflect its business name with the Division of Corporations. BPA requested that DOT update this information on its website, but DOT refused to process the request due to its concerns with BPA’s qualifications. On February 20, 2019, BPA provided further detail regarding the specific policies and procedures that have been implemented to its CEI services. Specifically, BPA provided extensive detail regarding its revised QA/QC plan, which included a section dedicated to Category II type bridge structures and included a copy of the revised QA/QC program for DOT review. DOT never responded or requested any additional information in this regard. On March 15, 2019, one year to the day after the collapse, DOT issued a Notice of Intent to Suspend BPA’s existing certificate of qualifications. DOT attempted to suspend BPA’s qualifications in all Work Groups and declare BPA non-responsible for a period of one year for good cause. DOT further claimed that BPA "failed to adequately address the Department’s concerns regarding the firm’s performance of the contract, and the [BPA] staff directly involved with the FIU project who continue to work on other Department structural contracts." No further explanation was provided as to how BPA failed to address these concerns. BPA timely responded to the Notice of Intent to Suspend by way of a Notice of Contest, requesting an administrative hearing on the issues raised therein. Despite the Notice of Contest, DOT suspended BPA’s qualification, and sent written notice to its various offices stating, among other things, that BPA had been removed from DOT’s prequalification list. Ultimately, DOT reinstated BPA’s qualifications, but never formally withdrew the Notice of Intent to Suspend. However, in reinstating BPA’s qualifications, DOT neglected to reinstate BPA’s Small Business Enterprise ("SBE") designation, which negatively affected BPA’s ability to obtain points for SBE participation. The points add value in scoring competing responses to Requests for Proposals for DOT contracts. BPA repeatedly requested that this be corrected. BPA’s requests went largely ignored for nearly two months. On April 2, 2019, after BPA had an in-person meeting with Courtney Drummond, DOT's Assistant Secretary of Engineering and Operations, BPA submitted a qualifications modifications package to replace Jose Morales, P.E., with John Bolton, P.E., as the qualifier for the CEI Work Group to address Mr. Drummond's and DOT’s concerns about BPA staff involved on the FIU project working on other DOT contracts. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA provided specific facts in support of BPA’s proper performance of the CEI Contract. As an accommodation to DOT, BPA further proposed a solution to DOT's concern about the staff involved in the FIU project. BPA stated that it was "willing to immediately remove the BPA staff directly involved in the FIU Bridge project from working on any Department contracts or qualifying the company for CEI services" and resubmitted its qualifications application with those changes. 2019 BPA REQUEST FOR QUALIFICATION REJECTION On May 7, 2019, BPA submitted its 2019 Request for Qualification to the Department early due to the lack of response from DOT on BPA's April 5, 2019, correspondence. BPA sought qualifications for design work and CEI services in the same work categories it was qualified in for the prior fiscal year. On June 10, 2019, BPA’s counsel met with DOT representatives in Tallahassee to discuss several outstanding issues relative to BPA’s current qualification, the upcoming renewal, and DOT’s failure to reinstate BPA’s SBE designation. DOT responded by promising to correct the "mistake" that same day. Inexplicably, it took another two weeks and several reminders from BPA for DOT to finally correct the SBE designation. BPA’s 2018-2019 qualifications expired on June 30, 2019. The next day, on July 1, 2019, DOT untimely responded to BPA’s Request for Qualification with a letter titled "Incomplete Renewal Applications for Pre- Qualification." DOT's letter raised the same concerns regarding BPA’s involvement in the bridge project and, again, requested "a detailed explanation of BPA’s actions on the FIU pedestrian bridge project and…any controls or changes in personnel, policies or practices that BPA has implemented subsequent to the collapse." This is the same request that had been previously made by DOT in its December 19, 2018, Qualifications Letter of Concern, February 12, 2019, Qualifications Letter of Concern, March 15, 2019, Notice of Intent to Suspend, and April 26, 2019, denial of BPA’s Submittal for Modification. BPA had already provided the information requested several months prior to DOT's July 1, 2019, correspondence. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for Qualification directed to BPA’s 2019 Request for Qualification. In issuing its denial of BPA’s Request for Qualification, DOT relied solely on the findings and conclusions of the June 2019 OSHA Report as they relate to the CEI services provided by BPA on the project and referenced the pending NTSB investigation. The Department’s Notice of Intent to Deny was executed by William Watts, the Department’s Chief Engineer. Mr. Watts admitted at final hearing that he does not have the training or experience necessary to evaluate a CEI’s performance on a CEI contract. Moreover, neither Mr. Watts nor DOT retained or consulted with any individuals with CEI expertise prior to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to Deny, Mr. Watts was completely unfamiliar with the following: the terms of BPA’s CEI Contract; BPA’s Request for Qualification; BPA’s past performance on CEI or any other Department contract; and BPA’s professional reputation. Mr. Watts did not evaluate BPA under the criteria required by Florida Statutes and the Florida Administrative Code prior to denying BPA’s Request for Qualification for good cause. Mr. Watts did not receive any analysis from the Department’s prequalification staff regarding their evaluation of BPA’s application under the statutory criteria. Mr. Watts admitted that he was aware that BPA documented the cracking on the bridge, reported the cracking to the design-build firm, and requested an EAR from the EOR--actions which were all in accordance with BPA's obligations as CEI pursuant to the CPAM and its contractual obligations with FIU. Mr. Watts’ only reason for issuing the Notice of Intent to Deny, as Chief Engineer for DOT, was because BPA was under investigation by OSHA and the NTSB, and OSHA’s release of its June 2019 Report. However, Mr. Watts did not know the author of the June 2019 OSHA Report, whether the author of the report was qualified to evaluate the performance of a CEI under Florida Statutes and the Florida Administrative Code, or whether the author of the OSHA report did anything to evaluate BPA’s performance relative to any other CEI, at the same time, and/or in the same community. DOT did not investigate the structure or organization of BPA to determine whether the issues raised in the OSHA report, regarding BPA’s performance of the CEI Contract, would reflect negatively on other groups or divisions within BPA that provided services exclusively under other non-CEI work categories (design services). Prior to issuance of the NOID, Mr. Watts did not undertake a review of BPA’s past performance or professional reputation--both of which were beyond reproach. DOT evaluates its consultants’ performance on all projects approximately every six to eight months. These evaluations produce a score that ranges from one to five, five being the highest possible score. A perfect score of five is uncommon and a score of four is outstanding. In the five years prior to the final hearing, DOT evaluated BPA’s performance on projects involving both design and CEI services. Specifically, DOT scored BPA’s performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design), 5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3 (CEI). During that period, BPA averaged a score of outstanding to nearly- outstanding on all projects, including outstanding and nearly-outstanding scores for inspection services on bridge rehabilitation projects, which involved cracking concrete elements. In May of 2019, prior to denying BPA’s request for qualifications for the fiscal year July 1, 2019, through June 20, 2020, Mr. Drummond personally presented BPA with an award from the American Council of Engineering Companies ("ACEC"), for excellence in major urban reconstruction. Specifically, the award was for CEI services on the State Road 7 project, and the ACEC recognized two-and-a-half-years of excellence in CEI services from late-2016/early-2017 through 2019. DOT's District Construction Engineer, District 6 Secretary, and Headquarters were intimately involved in the selection and vetting process that, ultimately, resulted in BPA receiving the award. In September 2019, after denying its request and three months after the release of the June 2019 OSHA Report, DOT voted that BPA receive another award for excellence in CEI services. As a member of the selection committee, DOT chose BPA to receive an award from the Florida Transportation Builders Association ("FTBA"), for excellence on the Baker’s Haulover Bridge rehabilitation project. By this award, FTBA and DOT recognized BPA’s excellence in CEI services, which spanned from one year before the collapse to one year after the collapse. The Experts 3 Gustavo Quesada, P.E. At the Final Hearing, BPA presented the expert testimony of Gustavo Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that Mr. Quesada is a qualified expert on the standard of care for a CEI and his opinions in that regard are based on competent substantial evidence. As explained by Mr. Quesada, the role of a CEI with respect to cracks in concrete is to identify the cracks and make sure they do not go unseen or undetected and that an EOR is engaged for purposes of addressing the cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete, a CEI is required to document the observation and make a disposition on the cracks based on Section 400 of the Standard Specifications. Moving forward, the CEI is also required to monitor any changes in the cracks. A CEI is not responsible for making a determination as to whether a crack is potentially dangerous. This is a determination for the EOR, who has an understanding of the structure, its design, and how the structure is expected to behave. A CEI is not charged with making judgment calls on the design of a structure or whether its integrity has been jeopardized. BPA documented, monitored, and reported the cracks on the project in compliance with the industry standards for CEIs working on Complex Category II Bridges, as well as the relevant sections of the CPAM and Section 400 of the Standard Specifications. BPA’s Senior Project Engineer, Mr. Morales, exercised his independent professional judgment in elevating 3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the "good cause" DOT had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact witness, rather than an expert. the issue of the cracks to the EOR even before he was required to do so under the CPAM and Section 400 of the Standard Specifications. At the meeting called by BPA on the morning of March 15, 2018, BPA exercised its independent professional judgment and complied with the applicable standard of care when Mr. Morales asked the EOR a series of questions in response to the EOR’s presentation and evaluation of the cracks on the bridge. According to Mr. Quesada, professional engineers are expected to rely on other engineers with superior or specialized knowledge when exercising their independent professional judgment. BPA’s role, responsibilities, and scope of work on the project as the CEI was largely that of a contract administrator, and a liaison between FIU and MCM--not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. Robert V. Robertson, P.E. DOT presented the testimony of Robert V. Roberson as an expert on the standard of care for CEIs. Mr. Robertson has served as DOT's State Structure’s Design Engineer for 13 years. Mr. Robertson has been a professional engineer for 35 years. Although preliminarily accepted by the undersigned as an expert in this field, it became apparent through cross-examination that Mr. Robertson has no significant CEI experience. Mr. Robertson has not worked in the CEI industry in the last 26 years, nor has he ever graded a CEI’s performance. Mr. Robertson was not involved in the Department’s evaluation of BPA’s performance of the CEI Contract. Accordingly, Mr. Robertson's testimony was of limited value. Mr. Robertson acknowledged that the FIU bridge was a complex concrete bridge structure that required a separate design qualification and that BPA did have such qualification. Mr. Robertson admitted that BPA’s contract with FIU did not require BPA to be qualified to inspect complex concrete bridges because BPA was allowed to satisfy that particular qualification requirement of the contract through a sub-consultant (Corradino). Mr. Robertson testified that any licensed engineer with a college degree in engineering should have known, based on the photographs in Crack Report #3, that the cracks were dangerous and should have acted to stop work on the project and close the road. However, DOT's LAP representative at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a licensed professional engineer with a college degree in engineering, failed to raise any concerns at the March 15th meeting or act to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge. Mr. Robertson opined that the re-tensioning operation of the bridge should have been peer reviewed. In his opinion, BPA failed to use sufficient independent judgment. BPA, as the CEI, should have recognized the bridge was in danger and known to stop traffic and shut down the road. However, Mr. Roberston admitted that he did only a cursory review of the PowerPoint presentation provided on the morning of March 15, 2018, in which FIGG, as the EOR, stated it had no safety concerns. Mr. Robertson stated that he performed no analysis on anything other than BPA's CEI work relative to the FIU bridge. He had no information about BPA's design group or its qualification in any work category. However, he suggested the denial of BPA's application for qualification across the board, in all work categories because he questioned "the culture at BPA." Significantly, concerns regarding "the culture" of BPA was not cited by DOT as a basis for the NOID. Most significantly, Mr. Robertson testified that six months prior to the issuance of the NOID, he had a conversation with Mr. Drummond during which Mr. Drummond recommended that the qualification of all parties involved with the FIU Pedestrian Bridge project should be suspended. Importantly, this was prior to the issuance of either the OSHA or NTSB reports and seemingly with no analysis of the role of any party to the possible prevention of the bridge collapse, injuries, or loss of life. Ultimate Findings of Fact DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise its independent professional judgment by not acting to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge in light of the documented cracking on the structure in the days leading up to the collapse. The evidence shows that BPA documented, monitored, and reported the cracks pursuant to the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA involved the EOR in evaluating the cracks even before it was required by the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA was assured time and again by the EOR that the bridge did not pose a danger to the travelling public and that the structure was safe. At the meeting on the morning of March 15, 2018, BPA inquired as to whether temporary shoring was needed, and the suggestion was rejected by the EOR who had inspected the cracks on the structure just moments before the meeting. There is no evidence that BPA deviated from the standard of care for CEIs on design-build projects or that BPA failed to exercise its independent professional judgment. To the contrary, BPA met all of its obligations pursuant to contract and state regulation. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge pending a peer review of the re-tensioning plan proposed by the EOR at the March 15th meeting. At the March 15th meeting, BPA was reasonably convinced by the EOR that the structure was safe and that the re-tensioning plan was a temporary measure that should be implemented as soon as possible. BPA had already engaged the EOR to prepare an EAR to address the cracking observed on the bridge, which would have included signed and sealed calculations and a repair protocol that would have been implemented in a later phase of construction. On March 15, 2018, the cracks were not a safety concern such that BPA should have overridden the EOR’s directive to MCM and required that the re-tensioning operation be postponed pending a peer- review of the re-tensioning plan. There is no evidence in the record that BPA deviated from the standard of care for CEIs on design-build projects or allegedly failed to exercise its independent professional judgment by allowing the re-tensioning procedure to proceed as directed by the EOR. Conversely, the evidence supports a finding that BPA acted appropriately in relying on the recommendations of the EOR who was uniquely qualified to evaluate the safety of the structure and who had specialized knowledge of its design. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge until the Corradino Group could arrive on the project site to observe the re-tensioning operation proposed by the EOR during the meeting on March 15, 2018. Corradino’s role on the project was to monitor and document post-tensioning operations. By the time the meeting was over, MCM’s specialty contractor, VSL, was mobilized and prepared to proceed with the re-tensioning operation. BPA was not involved in the pre- coordination of this work. Ultimately, the bridge collapsed due to an inherent design error in the plans and not due to Corradino’s absence from the re- tensioning operations. The findings of the OSHA report and the pendency of the NTSB investigation, standing alone, were insufficient "good cause" for DOT to deny BPA’s 2019 Request for Qualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)
