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.
The Issue The issues in this case are whether the Department of Transportation abused its discretion in deciding to replace an existing drawbridge with a fixed-span, high-level bridge and whether the Department of Transportation violated the statutory requirement of public hearings with effective public participation prior to selecting, siting, and designing the fixed-span, high-level bridge. Prior to referring this matter to the Division of Administrative Hearings, the Department of Transportation determined as a matter of law that Petitioners lacked standing to challenge the Florida Transportation Plan. The Department of Transportation therefore declined to refer to the Division Petitioners' challenge to the Florida Transportation Plan. For this reason, the recommended order does not address the issue whether the Florida Transportation Plan appropriately includes the proposed bridge or whether the Department of Transportation correctly determined that Petitioners lacked standing to raise this issue.
Findings Of Fact Parties Intervenor Save Anna Maria Island, Inc. (SAM) is a not- for-profit corporation organized to inform the residents of Anna Maria Island about the proposal of the Department of Transportation (DOT) to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The general purpose of SAM is to preserve the environment and character of Anna Maria Island by persuading DOT not to proceed with the proposed project and encouraging local officials to join SAM in opposing the project. Some members of SAM live in Sunbow Bay and West Bay Cove, which are condominiums near the proposed project. Most members of SAM and at least some Petitioners reside on Anna Maria Island. Intervenor Robert E. VanWagoner lives on Anna Maria Island. Petitioners, Intervenor VanWagoner, and members of SAM use the Anna Maria Island Bridge, driving motor vehicles across the bridge on errands to the mainland, fishing from the bridge, and walking, jogging, and bicycling on the bridge. Due to their proximity to the bridge and Sarasota Pass, Petitioners and Intervenors have a heightened interest in the environmental, cultural, and aesthetic ramifications of the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. Petitioners and Intervenors would be uniquely impacted by any abuse by DOT in the exercise of its planning discretion in deciding to build the fixed-span, high-level bridge. Petitioners and Intervenors have participated in the transportation- planning process culminating in DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Petitioners and Intervenors would be expected beneficiaries of additional public hearings or enhanced public participation concerning the proposed project. Petitioners and Intervenors would be uniquely impacted by any violation by DOT of statutes requiring public hearings with effective public participation. Anna Maria Island Bridge and Proposed 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, which is also known as Anna Maria Island Sound, by the Anna Maria Island Bridge about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton. The Anna Maria Island Bridge is a drawbridge or bascule bridge that was built 37 years ago. The deck of the drawbridge is 25 feet above the water at mean water, and the vertical clearance with a closed bascule is 17.5 feet at mean high 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. 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. 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. Gulf Drive is the major north-south road on Anna Maria Island, intersecting Manatee Avenue one-half mile west of the Anna Maria Island Bridge. At least partly designated as State Road 789, 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. There is little if any opportunity to expand the capacity of Gulf Drive or other roads on the largely developed island; though heavily travelled during peak periods, most if not all of these roads are constrained. Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. A 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. Compared to the Anna Maria Island Bridge, the proposed bridge would be a little longer, at 3372 feet long, and half again as wide, at 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 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 three times longer than the spans of the Anna Maria Island Bridge. The tripling of widths between supports under the bridge would open up the view under the bridge and facilitate the bypassing of the channel by small boats cutting under the bridge. At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. At 800 feet from either shore, the slightly asymmetrical bridge would be 40 feet high at the west end and 45 feet high on the east end, according to the bridge profile in the Final Bridge Concept Report. 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, following completion of the construction of the new bridge. 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 feet wide at the Anna Maria Island Bridge. However, when the bridge was constructed, the contractor deposited long fingers of fill 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 artificial constrictions, Sarasota Pass at the existing 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 include 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. The estuarine waters of Sarasota Pass connect 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 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. Seagrass beds provide nursery habitat for juvenile marine life of considerable importance at maturity to recreational or commercial fishermen and are important foraging areas for 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 is dependent on sunlight. Thus, the deeper that sunlight can penetrate due to water transparency, water color, and other water-quality parameters, 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 (references to "construction" include demolition). 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 activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also be destroyed by the burrowing and feeding of marine life 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 this case 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, bottom sediments may build up, turbidity may increase, and water transparency may decrease. This process may effectively prevent seagrass recolonization at depths at which seagrass previously grew, regardless whether recolonization is through natural means or artificial transplantation. 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 Anna Maria Island 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 Anna Maria Island Bridge, seagrass grows in water as deep as 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 about two acres of seagrass. Despite the known sensitivity of seagrass to changes in lighting, DOT and its consultants never considered how much the proposed bridge would shade these two acres of seagrass. There was no analysis of such factors as the area or duration of the shadow that would be cast at different times of the year by the proposed bridge or the variation in the shadow from the low east and west ends of the proposed bridge to the 40- and 45-foot heights where the seagrass ends. Thus, there is also no evidence of any analysis of the effect of such shading on the seagrass presently growing in the area that would be covered by the proposed bridge. 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 be destroyed by the proposed project. If, as is probable, the seagrass did not survive disturbances from construction, including temporary turbidity, recolonization is unlikely due to shading from the new bridge and either long- term turbidity from stirred-up, destabilized sediments or deeper water from erosion. In the unlikely event the seagrass survived the construction, shading from the new bridge would likely kill it anyway and prevent recolonization. But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 37 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below. The new bridge would add even more untreated stormwater to Sarasota Pass. 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. Seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge. (Increased water depths account for seagrass conditions north of the bridge.) The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge, and off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet immediately south of the bridge is unlikely the result of prop dredging because adjacent seagrass is dense. The general absence of seagrass along the south dripline may be attributable 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 of the new bridge) 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. It is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of additional seagrass losses from prop dredging caused by small boats bypassing the channel and running between the new bridge's widely spaced supports. 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 in 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 about 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, again, there was no showing that the slats would pass sufficient sunlight at critical water depths for sufficient periods of time. 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 dredge-and-fill permit tentatively approved by the Department of Environmental Protection (DEP; references to DEP include the predecessor agency, the Department of Environmental Regulation (DER), except where references to DER are necessary for clarity). The likely loss of the two acres of seagrass from the work platform would not be permanent absent permanent alteration of the bathymetry, introduction of persistent contaminants, or collection of substantial amounts of sediment during construction in the area under the work platform. Recolonization would probably begin upon completion of the project. The platforms would not remain in place during the entire two-year period of construction. There would be 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 considerable time would be required for the 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- by 20- foot area proposed to be served by the 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 unnecessary to consider for purposes of this recommended order. DOT has proposed mitigation to compensate for some seagrass losses. But DOT did not account for the permanent loss of 2.5 acres of seagrass and temporary loss of 2.0 acres of seagrass. The proposed mitigation is ineffective for a number of reasons. The seagrass transplant receiving area proposed for mitigation 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. 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 in the transplant receiving area 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. Seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not consistently prevented 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. Unsupported by comprehensive bathymetric and water-quality data, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, more likely than not would fail. The overall seagrass mitigation plan is excessively contingent. 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 are illusory. The alternative and contingent mitigation plans 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. One of the two crucial functions of seagrass in the immediate area of the Anna Maria Island Bridge is that it is consumed by manatee. Manatee are especially prevalent in an area just north of the bridge. 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 during the construction of the Anna Maria Island Bridge already constrains the manatee passageway under the Anna Maria Island 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. 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 permanent and temporary loss of seagrass, two-year constriction of the already-reduced passageway at the bridge, and permanent dispersal of small boats through shallow seagrass beds where manatee are likely to feed. The other crucial function of seagrass is in maintaining water quality through the assimilation of nutrients and stabilization of bottom sediments. The water-quality data in this case are limited. DOT never determined the extent to which sediments at the existing bridge may have been contaminated over the years by stormwater-borne heavy metals or oil and grease. DOT never analyzed these sediments by grain size and percentage of fine organic materials. Instead, DOT proceeded with the proposed project in Outstanding Florida Waters without knowledge of these sediments in terms of their chemical composition or susceptibility to resuspension into the water column. IV Planning and Hearing Process DOT's Project Development and Environmental Guidelines Pursuant to its Project Development and Environmental (PD&E) Guidelines, DOT conducts a PD&E study at the start of the planning process for projects of the scope of the proposed bridge. The PD&E manual, which "fully reflects the Department's policy for projected development . . .," assists project managers and district engineers by informing them of various requirements imposed by law on transportation projects and identifying the documentation required in the various stages of the transportation-planning process. Section 2-1 of the PD&E manual describes the Advance Notification process as the means by which DOT advises other federal, state, and local agencies of proposed projects. Chapter 25 of the PD&E manual explains DEP's role in determining whether a proposed project is consistent with the Coastal Zone Management Act. Section 25-2.4 warns that an agency finding of consistency may be changed. Section 3-1 divides proposed projects into three types in terms of environmental impact. Projects with the least impact qualify for a categoric exclusion. Projects with a categoric exclusion include actions that "do not have a significant impact on any natural, cultural, recreational, historic, or other resources [or] do not involve significant air, noise, or water quality impacts[.]" Section 18-2.4 states that a project qualifying for a categoric exclusion "may have an involvement with wetlands so long as this involvement is determined not to be significant." The next class of proposed projects are those subjected to an environmental assessment. For such projects, "the significance of the environmental impact is not clearly established." The environmental assessment is prepared "whenever there is a need to determine the appropriate class of environmental determination required." The last class of proposed projects are those subjected to an environmental impact statement. Such projects "significantly affect the human environment " Projects with a categoric exclusion typically require less public involvement and environmental review than projects requiring an environmental assessment or environmental impact statement. However, Section 8-2.7.2.3 provides: "A public hearing must be held to comply with Chapter 339 F.S. regardless of funding [federal or state] . . . [w]hen a project is controversial in nature." Section 8-2.8 describes public hearings: A public hearing is the official public forum used by the Department through which citizens and government officials express their concerns, opinions, and comments regarding a project. It is by no means the only opportunity whereby citizens have access to the Department about the project, but it is the official point in the project development process where information developed to date [is] shared with the community and the community can go on record officially concerning the project. Much of what is shared with the community has been developed with citizen and local government input during early stages of project development. Section 8-2.8.1 requires a DOT representative to appear at each public hearing to discuss briefly all alternates studied and the advantages of each. The DOT representative must outline the social, economic, and environmental impacts of the project. Revised Section 9-2.1 explains that the Project Concept Report marks the start of the "project development process." This report identifies the activities required to conduct the PD&E study. Section 9.1 describes the engineering reports to be developed during the planning process: The preliminary engineering report is prepared by the District or consultant during the early stages of project development .... After the public hearing has been held and a recommended alternative has been selected the final engineering report is prepared. The final engineering report is submitted after the recommended alternative has been approved by the Federal Highway Administration. . . . Section 9-2.2.1 explains that the Final Engineering Report must follow a sufficient amount of engineering so as to consider types of bridges. Section 10-2.4 identifies the Permit Coordination Package, which DOT sends to all agencies from which it must obtain a permit. The package evaluates the impacts of the project upon permittable areas, addressing such issues as the "elimination of habitat" and "destruction of vegetation." The package also contains a discussion of proposed mitigation. Section 10-2.5 directs DOT to submit permit applications when the "design of the project is 65 to 70 percent complete." Section 13-1 addresses nonfederally funded projects, which the proposed project eventually proved to be. The manual sets forth a number of policies and objectives which DOT "must address to comply with the [Florida Transportation Plan.]" These include provisions to "prohibit the destruction of endangered species and protect their habitats," "promote rehabilitation and reuse of existing facilities, structure and buildings as an alternative to new construction," and "encourage citizen participation at all levels of policy development, planning, and operations." These provisions guide DOT in the preparation of the Florida Transportation Plan and do not apply to individual transportation projects, such as the proposed bridge. Section 13-1 states: "It shall be the policy of the Department to develop environmental studies on all major transportation projects regardless of funding to comply with state and federal laws." Section 13-1 requires DOT to prepare a state environmental impact study on "all major transportation projects" in which state monies are used. Section 13-2.2 defines a "major transportation project" as, among other things, "Replacement of an existing bridge that could have substantial adverse effect on land use, community development patterns, community cohesion or natural ecological systems." If a project is a "major transportation project," DOT must prepare and circulate an Advance Notification Package and conduct a hearing, which must be announced by letters to all owners or property within 300 feet of the centerline of the alternates under consideration. Section 13-2.5 imposes upon DOT the same public hearing procedures as set forth in Chapter 8 of the PD&E manual. Proposed Project 1. 1987-89 In 1987, DOT started a bridge replacement program to identify bridges for possible replacement or widening. According to Robert Crim, DOT's project manager for the proposed bridge, one objective of the bridge program was to eliminate drawbridges. A statewide consultant, Sverdrup Corporation, studied numerous bridges of all types for inclusion in the program and ultimately recommended that DOT widen or replace some, but not all, of them. DOT submitted the Anna Maria Island Bridge to Sverdrup for possible inclusion in the bridge-replacement study program. But before doing so, DOT obtained the approval of the local Metropolitan Planning Organization (MPO) for replacing the bridge. On the recommendation of Sverdrup to include the Anna Maria Island Bridge in the bridge-replacement study program, DOT included the replacement bridge in its five-year work program in 1988 and each subsequent year. DOT conducts annual public hearings on the work program. At the public hearing, DOT's representatives discuss each project, and members of the public may comment on projects. On March 29, 1988, Sverdrup issued a Project Concept Report, which is intended to identify the ideal transportation solution. The Project Concept Report starts the PD&E process, which eventually determines if it is feasible to implement the ideal solution identified in the Project Concept Report. The Project Concept Report proposes the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. The report refers to the proposed project as a "major bridge replacement project." The report anticipates a categoric exclusion for the project despite the classification of Sarasota Pass as Outstanding Florida Waters and the presence of considerable seagrass and manatee around the Anna Maria Island Bridge. In April 1988, DOT circulated an Advance Notification Package to interested agencies informing them that DOT was starting a study of the construction of a two-lane bridge. The Manatee County Board of County Commissioners responded to the April 1988 Advance Notification Package. By letter dated June 14, 1988, to DOT's then-Secretary Kaye Henderson, the County Commissioners expressed "strong support" for the replacement of the Anna Maria Island Bridge with a fixed- span, high-level bridge. The letter cautions that two lanes are inadequate for existing and projected traffic. In a letter to Sverdrup dated October 3, 1988, the Chairman of the Board of County Commissioners emphasized the Board's position: "it is the unanimous feeling here that planning to build anything less than a four-lane replacement would be disastrous, or simply planned obsolescence." In August 1988, DOT hired Figg and Muller Engineers, Inc. (references to Figg and Muller include Figg Engineers, Inc., which prepared certain reports) to perform the PD&E study. The role of Figg and Muller in conducting the PD&E study was to identify the means of accomplishing a predetermined goal--in this study, the best way to replace the Anna Maria Island Bridge. DOT asked Figg and Muller specifically to evaluate a fixed-span, high-level bridge, but, in discharging its duties, Figg and Muller considered all viable alternatives, including the no- build option, and considered all environmental impacts of these alternatives. After DOT issued the Advance Notification Package in April 1988, the MPO asked DOT to evaluate the possibility of expanding the facility to four lanes. Despite a strong preference to limit the new facility to two lanes, DOT evaluated the four-lane option to comply with local transportation plans. DOT thus directed Figg and Muller, which had already begun its work, to consider four-lane alternatives as well. Anticipating its formal retention in August 1988 to conduct the PD&E study, Figg and Muller had earlier retained an environmental subconsultant. On May 31, 1988, Figg and Muller sent a letter with a proposed contract and related materials to Peninsula Design and Engineering, Inc. (references to this company and Mangrove Systems, Inc. shall be to "Peninsula"; the same person, first employed by Peninsula and later Mangrove Systems, performed the environmental work). Figg and Muller described the proposed project as the "replacement of a two-lane bascule bridge . . . with a fixed- span, high-level bridge." Enclosed materials describe the new bridge as 54 feet wide with a 40-foot roadway, five-feet sidewalks on each side, and a 65-foot vertical clearance. The new bridge, which would be next to the existing bridge, is described, as it was then conceived, as a federal-aid project. The attachment warns that aesthetics, grassbeds, and manatees, among other things, would be important considerations during the study and design. The subconsulting contract requires Peninsula to quantify wetland encroachments and endangered species. The contract warns that the environmental sensitivity of the area requires the identification of an "intensive baseline environmental assessment" to identify the best environmental alternatives regarding alignment and construction techniques. The contract warns further that "accurate description of floral and fauna communities in submergent habitats requires a greater level of effort than is typically necessary in [terrestrial] habitat evaluations." Because environmental permits could be "challenging to obtain" without intensive evaluation of submergent communities, the contract requires Peninsula to develop transects of flora communities in the impacted area and identify endangered species and their habitats. The contract requires Peninsula to develop additional biological information necessary for environmental assessment, including sampling the bottom sediments for, among other things, heavy metal concentrations. The contract also requires Peninsula to prepare a Permit Coordination Package to develop proposed mitigation plans and evaluate project impacts, including the elimination of habitat, changes in sedimentation, and destruction of vegetation. Peninsula conducted a macrophyte investigation on September 27, 1988. The Peninsula employee established eight stations--four just offshore from the filled-in bridge approaches and four closer to the channel, north and south of the existing bridge. The Peninsula employee set 100-meter transects with ten data- collection sites along each transect. The transects for the stations near the approaches ran perpendicular to the bridge. The Peninsula employee followed a "similar" approach with the stations near the channel, although ambiguous language in the report leaves it unclear if the transects for the four "offshore" stations ran perpendicular or, as stated at one point, "parallel" to the bridge. In either case, the transects run on September 27, 1988 do not travel under the existing or proposed bridge. The fieldwork thus yielded information about seagrass in the general area of the project, but no data that could be directly used to study and analyze the effects of shading from the existing or proposed bridge. The Peninsula report notes a continuing chronic loss of seagrass south of the existing [bridge] in the vicinity of [two] stations. . . . The causal factors contributing to these losses include continuing historic degradation of water quality in the area and more importantly, the hydraulic conditions created by the configuration and construction of the [bridge] approach fills and the submerged borrow areas. The report also records "unusual foraging signatures" at one station, possibly indicative of manatee foraging. Figg and Muller, Peninsula, and other consultants prepared the Site Characteristics Inventory Report dated November 8, 1988, and updated December 20, 1988. The inventory report summarizes the data "necessary for adequate evaluation of the location, design and impacts of the project." The Site Characteristics Inventory Report describes various features of the Anna Maria Island Bridge. Stating that the bridge's overall vehicular accident rate is low, the inventory report notes the high percentage of rear-end collisions and concludes: "The high percentage of rear end collisions suggests a high amount of vehicle cueing [sic]. This could be attributed to vehicles stopped for a left turn, stopped for the SR 789 signalized intersection or stopped for a bridge opening." Peninsula prepared the Permit Coordination Package by May, 1989. The package misidentifies the waters around the Anna Maria Island Bridge as Class III waters, though it reports more importantly that these waters are Outstanding Florida Waters. However, the Permit Coordination Package grossly understates the area of subtidal and intertidal seagrass within 1000 feet of the Anna Maria Island Bridge. The Permit Coordination Package considers seagrass mitigation only in passing, assuming without any analysis of water depths, water transparency, turbidity, or sediment composition, that seagrass would recolonize under the removed part of the existing bridge. The mitigation discussion is directed mostly to mangroves. The Permit Coordination Package contains an extensive discussion of manatee as an endangered species. Peninsula reported 163 manatee sitings north of the Anna Maria Island Bridge from 1985 through 1988 and 63 sitings south of the bridge during the same time. The Permit Coordination Package contains a reasonably detailed set of suggestions for minimizing construction-related impacts to manatee. Peninsula considered the impact of the proposed bridge on the seagrass beds upon which manatee feed. Peninsula reported that the impact on seagrass of the south alignment would be an order of magnitude greater than the impact on seagrass of the north alignment. The Permit Coordination Package reviews research suggesting that manatee mortality from boat collisions is higher when the mammals are feeding in seagrass beds, are in areas frequented by small recreational boats that operate at relatively high speeds and move in unpredictable ways in shallow water, and are in shallow, restricted navigation channels. The Permit Coordination Package notes that bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, the Permit Coordination Package acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters using large castnets." These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass. Figg and Muller conducted a study of ship impacts, culminating in the Ship Impact Analysis Data Collection dated November 7, 1988. The document describes the proposed project as the replacement of the Anna Maria Island Bridge with a fixed- span bridge with a 65-foot clearance. The ship-impact study notes that, from January 1985 through September 1988, 650 vessels monthly required bridge openings to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge. Over nearly four years, these vessels comprised 24,889 sailboats (83.5 percent), 4447 powerboats (14.9 percent), 467 tugs/barges (1.67 percent). The tugboats were typically 35 feet by 195 feet. A variety of the sailboats had masts requiring a vertical clearance greater than 65 feet. Sailboats with masts as high as 80 feet-- including a number of boats manufactured in Florida--have passed through the opened drawbridge. The growing importance of a clearance greater than 65 feet is evidenced by the closing of other nearby passes into the Gulf and the increasing use of taller-masted boats. The ship-impact document includes a survey of bridge tenders and commercial boating interests. One tender, who had worked at the Anna Maria Island Bridge for 12 years, reported that he had never seen or known of an marine vessel colliding with the bridge. No one else reported any such collisions. In general, persons surveyed agreed that winds and currents present no navigational difficulties at the fendered channel of the Anna Maria Island Bridge. Figg and Muller prepared the Draft Preliminary Engineering Report dated December 20, 1988, and revised February 13, 1989, "to examine the most feasible and prudent locations and conceptual designs for the construction of the proposed bridge replacement structure . . . at Sarasota Pass ...." The study's objective was to "develop a bridge replacement that will provide an efficient, economical and safe transportation facility with minimal adverse impacts on both the human and natural element." The introduction to the Draft Preliminary Engineering Report notes that DOT has classified the Anna Maria Island Bridge as functionally obsolete. The draft report states that the proposed bridge replacement project is necessary to correct the primary deficiencies of a "lack of emergency shoulders, obsolete design load of H-15 and low overall clearance." The introduction to the draft report states that the current project would be either a two- or four-lane facility. The actual size and need would be consistent with the Manatee County comprehensive plan and MPO transportation plan. The next section of the Draft Preliminary Engineering Report describes existing conditions. This section accurately details most aspects of the existing condition of the Anna Maria Island Bridge. The draft report identifies the bridge's H-15 design load, posted speed limit of 50 miles per hour, and absence of posted weight restrictions. The draft report reveals that the bridge has 36 scheduled daily openings most of the year. Based on a 1988 DOT inspection, the draft report states that the bascule is in "good" condition, meaning that there was "moderate incidence of significant early deterioration." Based on a 1987 DOT inspection, the draft report states that the deck, superstructure, and substructure are in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity," and the channel protection was in "excellent" condition. The draft report collects detailed accident data for the Anna Maria Island Bridge. The draft report states that the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" was 14,300 vehicles with an average daily traffic of 17,000 vehicles projected for 2010. Based on accident data for 1984 through 1986, the draft report concedes that the accident rate for the bridge is low. For the two approaches, bascule, and remainder of the existing bridge, there were a total of 62 collisions during the three-year period, with the most prevalent being 27 rear- end collisions. None of these 27 rear-end collisions occurred on the bascule. Most of the rear-end collisions--17--occurred on the two approaches. The remaining ten rear-end collisions occurred on the bridge between the bascule and the approaches. The approaches were also the sites of more total collisions than the bridge itself, including the bascule. For the three-year period, 61 percent of the collisions occurred on the two approaches, 5 percent occurred on the bascule, and 34 percent occurred on the remainder of 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 draft report states that a high percentage of the rear-end collisions occurred near a boat ramp on the west approach and a marina and convenience store on the east approach. The marina and convenience store are about one-quarter mile east of the Anna Maria Island Bridge. The boat ramp is between the west end of the bridge and the signal at Gulf Drive. The draft report suggests that rear-end collisions on the approaches may involve vehicles slowing for right turns into these destinations. The draft report opines that the "high percentage of rear-end collisions on the bridge (39 percent)" may involve vehicles stopping quickly for a bridge opening. This suggestion ignores the queuing effect from vehicles turning into the boat ramp or convenience store and marina. The draft report tries to limit the effect of these traffic backups to rear-end collisions on the bridge approaches. However, attributing a high percentage of rear-end collisions on the bridge to bridge openings ignores the traffic backups from these off-bridge sources, as well as the traffic light at Gulf Drive. Figg and Muller's analysis of the sources of rear-end collisions lacks support, such as through analysis of accident reports. The analysis even cites the wrong figure. The 39 percent figure applies to total collisions on the bridge compared to total collisions; the percentage of total rear-end collisions occurring on the bridge is 37 percent (10/27). The draft report also falters when describing cultural and environmental features. Noting low pedestrian volumes on the Anna Maria Island Bridge, the draft report contends three times in one paragraph that "pedestrian activity is not a major consideration for this project," "pedestrian activity does not warrant special consideration on the project," and "sidewalks ... are used very little by pedestrians." As for environmental factors, the draft report incorrectly identifies the Class II waters surrounding the Anna Maria Island Bridge as Class III waters, although the draft report correctly notes that these waters are Outstanding Florida Waters. But the omissions in the draft report are more significant. The draft report omits any mention of manatee or the seagrass located under what would be the new bridge. The draft report does not discuss the effects of shading, water transparency, and water depth on seagrass. The section following the description of existing conditions is entitled "Need for Improvement." As the name of the section suggests, this part of the Draft Preliminary Engineering Report contains less data and more analysis of the existing and proposed bridges. The discussion is at times more promotional than it is analytic. This section of the draft report starts by noting that the existing bridge has had no significant upgrades to its two, 12-foot shoulder-less traffic lanes. The draft report finds that the lack of shoulders presents a traffic hazard when traffic is stalled on the bridge. The opening of the drawbridge is another source of danger to motorists due to stopped traffic, according to the draft report. The draft report argues that this hazard is "substantiated" by the previously discussed data on rear-end collisions. The draft report summarizes the above-described accident data "for the existing facility" without disclosing that more than half of the accidents occurred on the bridge approaches and not the bridge itself. The draft report adds that opening the drawbridge would also present a danger during evacuations by preventing people from evacuating the island. However, there is no discussion of Coast Guard policy, which is not to order bridge openings during an evacuation, nor is there any mention of the frequency of evacuations, which take place about once every six years. There is also no discussion of the widely known necessity of early evacuations from the island due to early flooding of island roads and bridge approaches. On incomplete data, the draft report merely contends that "evacuation efforts would be severely hampered" by the need to open the drawbridge. The draft report suggests that bicycle traffic would be better accommodated by a new bridge. The draft report observes that the two existing five-foot sidewalks on the Anna Maria Island Bridge create an unsafe condition by mixing bicycle traffic with pedestrians and fishermen. The draft report neglects to discuss the discouraging effects on bicyclists, pedestrians, and fishermen of using a single six-foot sidewalk running up a 4 percent grade to a final height of 75 feet over the water. The draft report states that the MPO's 2000 Plan identified a need for a four-lane facility over Sarasota Pass. However, the 2010 Plan, which was prepared after the draft report, identifies no such need. The draft report notes that the proposed project is also in compliance with the Manatee County comprehensive plan. Addressing social and economic issues, the draft report accurately describes the area surrounding the proposed project as a "naturally beautiful site" with the proposed project promising to be "highly visible from both land and water." The draft report assures that engineers would design a bridge profile "to ensure a pleasing visual effect." The draft report acknowledges that the proposed project is not directly needed to meet any economic demands. But the "social demands for the project would be based on a more efficient and convenient transportation system linking Anna Maria Island with the mainland." The draft report suggests that the improved link "could foster economic development in the area" and everyone would be served by a more dependable evacuation route. However, there is no evidence that the existing drawbridge has ever impeded vehicular or vessel traffic during an evacuation or that the proposed bridge would result in more traffic on Anna Maria Island by way of Manatee Avenue or other routes. The next section of the Draft Preliminary Engineering Report is the analysis of alternative alignments. This section first considers the no-build alternative. The cited advantages of not building the project are that there would be no disturbance to the environment, even though these impacts, according to the draft report, "are nearly all of short term duration and can be considered as minor over the life of the new structure." On the other hand, the benefits of building the bridge include the elimination of the inconvenience of the drawbridge to motorists and boaters and the cost of operation of the typical bascule bridge. The draft report states that maintenance costs for a typical bascule bridge are about $150,000 annually plus estimated major rehabilitation costs of $500,000 to $750,000 every 15-20 years. Additional reported benefits to replacing the Anna Maria Island Bridge are eliminating the safety hazards posed by the lack of shoulders and raising by 25 percent the design load from H-15 to H-20. The draft report concludes that the benefits of the no-build alternative are outweighed by the "substandard design and safety concerns." The draft report considers a two-lane bridge, a four- lane bridge, and two two-lane bridges. Additionally, the draft report considers alignments north and south of the Anna Maria Island Bridge with three structure levels: high-level fixed, mid-level bascule (i.e., a 45-foot closed vertical clearance drawbridge), and low-level bascule. These options account for 18 alternatives. Figg and Muller studied each of the 18 alternatives for traffic flow, ease of construction, bicycle accessibility, operation, safety, aesthetics, environmental impacts, right-of- way impacts, and project costs. As to the north alignment, the draft report notes several problems, including the need to relocate a power line and water line and modify two navigation channels. The draft report states that the boat ramp just west of the bridge and the marina on the east would be impacted if DOT constructed a single four- lane bridge, which would also impact right-of-way. As to the south alignment, the draft report notes several problems, including the need to relocate a water line. Any structure would also impact right-of-way. As to the low- and mid-level bascules, the draft report contends without significant supporting data that few boats could pass through an unopened mid-level bascule that could not also pass through an unopened low- level bascule. The draft report cannot justify any bascule options due to the "additional expenses of the bascule construction, bascule maintenance and bascule operations." The draft report cautions that the bascule alternatives are not "a practical, improved replacement to the existing bascule bridge." The final section of the Draft Preliminary Engineering Report is entitled "Preliminary Design Analysis." The draft report offers rough summaries of projected construction costs for various alternatives. The projections are of greater value for the comparison of differences in probable costs of various alternatives than they are for identifying the estimated cost of a particular alternative. According to the draft report, a two-lane, fixed- span, high-level bridge on the north alignment would cost $9.9 million, and a two-lane, mid-level bascule on the north alignment would cost $12.5 million. On the south alignment, these bridges would cost $10 and $12.6 million, respectively. Discussing the benefits of replacing the Anna Maria Island Bridge, the draft report states that the "most obvious" benefit would be the elimination of the delays to vehicular and vessel traffic from drawbridge openings. A fixed-span bridge also would offer a dependable evacuation route. The draft report suggests that shallow-draft boaters would find navigation enhanced by the tripling of the widths between the supports under the fixed-span, high-level bridge as compared to the more narrowly spaced supports under the existing bridge. The draft report again asserts that the new structure would also offer improved aesthetics, both in terms of the view of the proposed bridge and the view from the proposed bridge. Page VIII-13 of the draft report is missing from SAM Exhibit No. 32. In the final report, and possibly in the draft report, Figg and Muller admitted on this page that the proposed grade of the new bridge would "limit fishing activities and pedestrian use." A brief discussion of rear-end collisions and economic and community development was probably present on the omitted page, but this section generally summarizes discussions from earlier sections. The draft report also considers wetland impacts of new two-lane bridges on the north and south alignments. Relying on the understatements of Peninsula, the draft report states that the area of subtidal seagrass is only 0.63 acres 500 feet north of the existing bridge and 0 acres 500 feet south of the existing bridge. The draft report concludes that a two-lane bridge 25 feet north or 25 feet south of the Anna Maria Island Bridge would not impact any subtidal seagrass and would impact only 0.06 acres of intertidal seagrass on the north alignment and 1.65 acres of intertidal seagrass on the south alignment. The draft report also considers the impacts of new four-lane bridges on the north and south alignment. All of this analysis understates seagrass loss by considerable amounts. Based on these data and analysis, the Draft Preliminary Engineering Report concludes that [a]lignment se[le]ctions based solely on a vegetative impact evaluation would focus on the northern alternative. However, alignment selection will necessarily need to be tempered with a consideration of endangered species involvement and impacts to navigation, partic- ularly when addressing the northern alignment. Sverdrup reviewed Figg and Muller's Draft Preliminary Engineering Report prior to its revision in February 1989. Addressing the discussion of bascule alternates, one Sverdrup engineer stated in a Review Comment Sheet dated January 6, 1989: Information presented thus far does not support premature rejection of bascule options. Vessel height distribution may require some detective work. Consider visits to local marinas, corre- lation with vessel numbers/names on bridge tender logs, additional data recorded by bridge tenders for a few weeks. . . . Objective is to establish relations between traffic benefit vs. reduced openings for different vessel clearances. Ultimate rejection or viability of bascule alternate must have adequate foundation. . . . Sverdrup's environmental representative, Don Smith, reviewed the work of Peninsula. Despite Peninsula's excessively conservative estimates of seagrass loss, Mr. Smith rejected even these estimates as too pessimistic. By review comment sheet to Figg and Muller dated December 28, 1988, Mr. Smith wrote: "As presently written, this section grossly overestimates the extent of possible wetland impact & must be redone." Adamantly rejecting Mr. Smith's criticism, the Peninsula employee wrote on his copy of the review comment sheet: Table 7 does not grossly over estimate wetland impacts. . . . The acreage figures are not grossly overestimated at all. I resent the grossly! Does Sverdrup have any DATA! that reflects my gross overestimates! NO, SHIT A memorandum dated January 23, 1989, memorializes the conclusions of a meeting involving Sverdrup and Figg and Muller representatives. Figg and Muller argued that its subconsultant did not overestimate wetlands and asked Sverdrup to substantiate Mr. Smith's contrary assertion. Sverdrup appears to have relented, and the two consultants agreed to remove a drawing. On January 11 and 12, 1989, the value engineering (VE) team met to define the goals of the first phase of review. The VE team is a multidisciplinary group of engineers unrelated to the project who determine the suitability of the proposal and the feasibility of any more cost-effective proposals. VE responds to the design alternatives presented in the draft report. The VE team listened to a Figg and Muller representative discuss alignment issues, including the presence of seagrass beds immediately south of the Anna Maria Island Bridge. The VE team understood that concerns about the north alignment included navigation and "occasional manatee sitings," and concerns about the south alignment included greater seagrass impact. The VE team visited the Anna Maria Island Bridge, which they found to be in "good condition." They found "no severe deterioration which would endanger the capacity of the bridge." Preliminary VE considers the maintenance and operation costs of bascule alternates, although the memorandum omits mention of the costs of the no-build alternate. Preliminary VE does not identify the no-build alternative as a viable option requiring further consideration. On February 27, 1989, DOT conducted its first public meeting on the proposed project. DOT conducted a public information workshop at the Manatee County public library in Bradenton. DOT regarded the February 1989 workshop as an opportunity for the public and DOT, as equal partners, to gather and make basic plans about whether to replace the Anna Maria Island Bridge and, if so, with what. In March 1989, the MPO adopted an updated long-range transportation plan, which still showed State Road 64 as a four- lane road, including the segment over Sarasota Pass. A memorandum dated March 31, 1989, from a Sverdrup representative to a Figg and Muller representative transmitted new traffic data with the direction: "This data must be analyzed and documented in a revised Traffic Report in order to reach the conclusions necessary to proceed with the project development." The Sverdrup representative relieved Figg and Muller from the obligation of doing certain traffic calculations for bascule alternatives "since it is evident that the fixed high-level structure will be recommended due to lower overall cost." A review comment sheet dated June 13, 1989, from Mr. Smith to Figg and Muller suggested that they revise the draft report to state that the "no- build alternate is eliminated from further consideration; i.e, definitively close the door." On July 7, 1989, Mr. Crim, two Figg and Muller representatives, and two Sverdrup representatives, including Mr. Smith, discussed the north and south alignments to try to agree on the preferred alternative. Someone mentioned that they needed to take a closer look at the environmental impacts because a DEP representative had implied to Sverdrup that the "documentation must show very good reasons for selecting anything but the most environmentally sound alternative." A Figg and Muller representative added that manatee frequently use an area north of the bridge, but the participants felt this was not a significant issue for alternative selection "since manatees can be found throughout the area, north and south." The agenda for the July 7 meeting contains numerous items. Under seagrass, it identifies a need to confirm the area impacted, adding parenthetically "3.65 acres vegetated and 0.63 acres non-vegetated?" On July 7, 1989, Mr. Crim and a Sverdrup representative met with three representatives of the Federal Highway Administration to obtain their comments on the Draft Preliminary Engineering Report. The Sverdrup representative explained that the existing bridge was functionally obsolete due to the lack of shoulders and substandard design load. She explained that the proposed project would be a new four-lane bridge and did not identify a no-build alternative. She disclosed that seagrass impacts were 3.65 acres for the south alignment and 1.55 acres for the north alignment and said that the Federal Highway Administration would receive an application for a categoric exclusion in mid-September, 1989. On July 20, 1989, two Sverdrup representatives, including Mr. Smith, participated in a teleconference with five DOT representatives, including Mr. Crim. They discussed the north and south alignments to try to agree on a preferred alternative to present at the August 10 public hearing. The participants discussed the navigational problems with the north alignment and seagrass problems with the south alignment. Sverdrup tended to agree with Figg and Muller's recommendation of the south alignment. The participants agreed that it should be possible to negotiate an acceptable mitigation plan with DEP, even though one of the DOT representatives warned that DOT District 1, in which the proposed project is located, "has not had much success with seagrass mitigation in the past and that it can be very expensive and still not work." This DOT representative suggested that they present both alignments at the public hearing and defer the recommendation until after receiving public comments. The participants decided to do this. On August 10, 1989, DOT conducted the first public hearing on the project. The public hearing took place at the Anna Maria Island City Hall. DOT uses public hearings to present to the public a preferred alternate and give the public a chance to present information to show that DOT or its consultants have made any mistakes or omitted any considerations or that circumstances have changed materially. Transcribed by a court reporter, a public hearing is tightly structured. The hearing begins with opening remarks of representatives of DOT and its consultants describing the proposed project. These opening remarks are followed by a break during which members of the public may approach representatives of DOT or the consultants, ask questions, and presumably receive answers. However, these questions and answers are not recorded by the court reporter. Following the break, back on the record, members of the public may make oral comments to the DOT and consultant representatives, who almost invariably decline to respond to general questions or engage in any give-and- take with a speaker. Likewise, the DOT and consultant representatives almost invariably insist that speakers limit their comments to the individual project and not discuss other projects, even if relevant (e.g., the Cortez Bridge and a new bridge farther south). After the hearing is concluded, the public may submit written comments for a short period. After this period ends, DOT and the consultants meet privately, consider the record, make a decision on the project, and announce the decision publicly. About 50 persons attended the August 10 public hearing, which was held at Anna Maria City Hall. DOT, Sverdrup, and Figg and Muller provided comment sheets, displays, and reports for public inspection at the public hearing. Representatives of the consultants and DOT encouraged the audience to examine the materials, ask questions of knowledgeable individuals during the off-the-record break, and then make public comments. According to Mr. Crim, DOT intended the August 1989 public hearing to serve as a combined location and design public hearing. However, DOT had failed to give notice to owners of condominiums within 300 feet of the centerline of the west terminus of the proposed project. DOT instead had notified only the condominium association. In his opening remarks to the persons attending the public hearing, Mr. Crim stated that the Anna Maria Island Bridge was one of about 60 bridges in the statewide program "being studied for future replacement." He explained that DOT was "evaluating viable options for either improving or replacing these bridges, obtaining public input and then completing the environmental documentation and design for any recommended improvements." Mr. Crim told the audience: Our study to replace the Anna Maria Island Bridge is nearing the completion of the project development phase. Tonight's hearing is an important step in that phase where we present preferred project alternates for your input prior to selecting a final alternate and then proceeding with preliminary design. Mr. Smith told the audience that DOT had three options: build a new bridge on the north alignment, build a new bridge on the south alignment, or not build a bridge. He stressed that displays in the hearing room did not represent "final plans" and that "absolutely no decisions have been made to this point." Later during the public-comment portion of the public hearing, Mr. Smith stated that there would be no more public hearings, unless so much time passed without construction that the project had to undergo additional review. A Figg and Muller representative told the audience that the 36 drawbridge openings daily "is a cause of a significant number of rear end collision accidents." She identified as the preferred alternative two fixed- span, high- level, two-lane bridges with a single such bridge initially. The Figg and Muller representative noted the seagrass impacts of both alignments. She stated that manatee are in the area, but that DOT expected no impacts due to the use of protective measures. After an hour and a half, the representatives of DOT and the consultants finished their initial presentations. During the break, members of the audience spoke with the representatives of DOT and the consultants. Public comments were divided as to the proposed fixed-span, high- level bridge. Speakers informed DOT of impending recreational and commercial development on the north side of the bridge, as well as navigational concerns, that would be adversely affected by the north alignment. Explaining DOT's practice of typically presenting a preferred alternate, Mr. Crim testified that DOT "can't go to a public hearing and say we don't know what we're going to do. Anybody got any comments?" Instead, DOT presents its recommendation to sharpen the focus of the public hearing. The February 1989 workshop was to help form the decision; the August 1989 public hearing was to show whether DOT should change a tentative decision. On November 1, 1989, Figg and Muller issued the Final Preliminary Engineering Report. The text of the final report is not materially different from the text of the draft report issued nine months earlier except as noted below. Mr. Crim testified that, at this point, DOT had decided to replace the bridge, but had not decided to build a fixed-span, high-level bridge. The final report recites the same "primary deficiencies" of the Anna Maria Island Bridge cited in the draft report, but adds a new deficiency--delays due to bascule openings. Acknowledging the existence of the marina and convenience store one-quarter mile east of the bridge, the final report suggests that collisions on the bridge approaches could be due to vehicles stopping for left turns, as well as right turns. Discussing traffic projections, the final report mentions that, when the draft report was first drafted in December 1988, traffic projections disclosed a need for a two- lane facility with possible expansion to four lanes at some future point. New traffic information demonstrated that the four-lane facility would be needed prior to 2015. The final report increases, without discussion, the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" to 15,400, from 14,300 vehicles reported in the draft report for the same period. The final report adds that the two-lane bridge would reach a level of service E in 2006, so "it is recommended that a four lane facility be constructed prior to this date." The final report contains a new section on endangered and threatened species. This section contains data showing that the area around the Anna Maria Island Bridge is frequented by manatee. The final report relays the information from the Permit Coordination Package that, from 1985 through 1988, there were 163 manatee sitings north of the bridge and 63 manatee sitings south of the bridge. Early in the section analyzing alternative alignments, the final report notes, as does the draft report, that the benefits of the no-build alternative are outweighed by the disadvantages of "substandard design and safety concerns." Recognizing that only the no-build alternative would avoid impacts to the wetlands, the Final Preliminary Engineering Report 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." The final report concludes: "Therefore, the No-Build Alternative is not a viable alternative and is hereby eliminated from further consideration in this report." The final report revises the comparative cost estimates, reducing the north and south alignment costs for a two-lane bridge by a little over $1 million. The final report continues to understate the area of subtidal seagrass north and south of the bridge. The final report describes the public involvement on the proposed project. Referring to the public workshop that took place on February 27, 1989. the final report states that, of the 36 individuals who supplied written comments on the proposed bridge, 21 favored a two-lane bridge, six favored a four-lane bridge, 30 favored a high-level, fixed-span bridge, 21 favored the south alignment, and two favored the north alignment. Summarizing the results of the public hearing held on August 10, 1989, the final report recounts that, among oral comments, five favored two lanes, three favored four lanes, five favored the south alignment, no one favored the north alignment, and seven favored the no-build alternative. Written comments were two favoring four lanes, one favoring two lanes, four favoring the south alignment, no one favoring the north alignment, and one favoring the no-build alternative. A new section of the final report is entitled, "Preferred Alternative." Recommending that four lanes be built, the final report recommends the south alignment, mostly on the basis of impediments to navigation posed by the north alignment. There is little discussion of seagrass impact. Relying on the needs of boat traffic, although ignoring the needs of high- masted boats, the final report recommends a fixed-span, high- level bridge and proceeds to analyze the projected costs in greater detail than did the draft report. The remaining material differences between the draft and final reports are that the final report drops the repeated references to the unimportance of pedestrian activity on the Anna Maria Island Bridge, the description of the area surrounding the proposed bridge as "a naturally beautiful site," the assurance that the proposed bridge would be "highly visible from both land and water," and the exhortation that DOT consider the "aesthetics or visual impacts of the project." The final report continues to misidentify the waters around the Anna Maria Island Bridge as Class III waters. On November 27, 1989, DOT circulated a revised Advance Notification Package, noting that the new proposal was for two two-lane, high-level bridges to be constructed in two phases. The notice states that the project is a federal-aid project and that DOT and the Federal Highway Administration would determine the degree of environmental documentation necessary. 2. 1990-92 Various state agencies responded in early 1990 to the revised Advance Notification Package. Several agencies expressed reservations about the proposed project, although ultimately all state agencies dropped their objections at this stage. By letter dated January 4, 1990, DER objected to the loss of seagrass from construction and shading. DER also warned that seagrass mitigation had met with little success in this general area. DER suggested that DOT consider rebuilding the bridge at its current location at or near its current width. The letter suggests that DOT take several steps. In particular, the letter states that the proposed project is in Outstanding Florida Waters, and DOT must, among other things, show that "existing ambient water quality will not be lowered." Representatives of DOT, Sverdrup, Figg and Muller, Peninsula, and DER met on March 23, 1990, to discuss DER concerns about impacts to seagrass and the ability to mitigate. The Peninsula employee estimated seagrass losses of 0.1 acre from pier placement, 0.5 acres (worst case) from construction, and an overshadow effect. Due to the greater height of the new bridge, someone at the meeting said that the overshadow effect would be minimized. As to mitigation, someone reported DER's concern that seagrass typically was already growing where conditions were favorable and, where seagrass was absent, conditions were unfavorable. The Peninsula employee suggested that they could fill holes in the area, raising the bottom elevation to a depth at which seagrass could grow. Someone reported DER's insistence to consider mitigation now, to avoid problems in the permitting stage. In response, DOT "proposed to commit to studying the overshadow effects of the new bridge and the rate of re- colonization of seagrasses in the alignment of the old bridge." DOT agreed to develop alternative mitigation prior to construction of the second two-lane bridge, if recolonization failed. DER agreed to this approach. The agreement between DOT and DER was memorialized by letter dated March 30, 1990, from a DOT representative to a DER representative. The letter promises that, after completion of the construction of the first two-lane bridge, DOT would start monitoring recolonization where the Anna Maria Island Bridge had stood and the effect of shading from the new bridge. If at the end of a monitoring period of unspecified duration an unspecified entity determined that recolonization had been unsuccessful, DOT would implement mitigation at an unspecified location. The letter concludes that DOT's commitment to this procedure will "alleviate DER's concerns regarding the impacts to seagrass and allow for a determination of consistency with the Florida Coastal Management Program." By letter from DER to the Office of the Governor dated April 13, 1990, DER stated that DOT had provided reasonable assurance of seagrass mitigation in part by assuring that seagrass would recolonize under the existing bridge once it was removed. DER noted that DOT promised to monitor recolonization and shading following removal of the existing bridge and construction of the first two-lane bridge. DER recommended a bathymetric survey and stated that a permit would contain success criteria for natural recolonization and require alternate mitigation plans. Withdrawing its earlier objection, the DER letter finds that the project is "consistent with our authorities in the Florida Coastal Management Program at this time." The letter concludes with the promise of a more detailed review during permitting. In the meantime, consultants continued to work on the project. Figg and Muller prepared a draft of the Final Engineering Report and submitted it to Sverdrup for review. In a Review Comment Sheet dated February 15, 1990, directed to Figg and Muller, Mr. Smith again protested high estimates of seagrass losses, stating: "Shading is a non-issue which is not even addressed in any agency regulations. Revise the document accordingly." Other work early in 1990 included final VE review of the project. The second VE memorandum was completed March 26, 1990. Memorializing a meeting that took place February 28, 1990, final VE describes the proposed project as a 65-foot clearance bridge 20 feet north of the Anna Maria Island Bridge. The memorandum concludes that VE could offer no significant improvements to the proposed project. The memorandum does not consider the no- build alternative. However, the memorandum recommends that DOT consider relaxing the ship-impact standard at the ends of the bridge based on the shallow depths at the ends of the bridge, the absence of reported marine collisions with the bridge, and the existence of alternative access to Anna Maria Island. While Figg and Muller spent most of 1990 and early 1991 preparing the Final Engineering Report, consultants or subconsultants prepared additional reports, such as the geotechnical report and bridge hydraulic report. In December 1990, DOT made some changes to the new design, widening the shoulders and adding a sidewalk. Figg and Muller issued the Final Engineering Report about a year after the date of January 31, 1990, shown on its title page. The first paragraph of the Final Engineering Report makes the case for the replacement of the existing bridge, but without any mention of structural deficiency. The report states that the Anna Maria Island Bridge is narrow, without shoulders, and functionally obsolete. . . . In addition to safety concerns associated with a lack of shoulders, accident data show a high number of rear end collisions. One factor contributing to these collisions is the delays to the traffic caused by the opening of the bridge's drawspan. These factors, combined with a need for efficient and safe transportation routes to and from the islands, determined the need to replace the existing bridge at this time. The Final Engineering Report states that DOT and its consultants evaluated 18 alternatives, plus the no-build alternative, and describes the Final Preliminary Engineering Report. The Final Engineering Report notes that the Federal Highway Administration issued a categoric exclusion July 23, 1990. The categoric exclusion was based on, among other things, a DOT representation that the project had no "controversy potential," which may have seemed plausible at the time. DOT District 1 Secretary David May contended that such a representation, which preceded his appointment as District Secretary, would be correct if the controversy were based on unfounded information. In any event, the Federal Highway Administration did not withdraw the categoric exclusion in 1995, even after DOT disclosed the controversy surrounding the proposed project. The Final Engineering Report explains that the original traffic data were faulty. Correct data revealed that the "original concept of a two-lane replacement bridge was unworkable." Thus, DOT and the consultants decided to pursue a two-phase project with the first phase being the demolition of the existing bridge and construction of a single two-lane bridge. The Final Engineering Report states that the decision to build ultimately four lanes warranted reissuance of the Advance Notification Package. The Final Engineering Report states that, in a meeting between representatives of DER and DOT, DOT representatives suggested that the advance notification stage was premature for the development of mitigation commitments, but acceded to DER's insistence due to the availability of a "great deal" of information. The two agencies reportedly reached an understanding of what would be required to offset environmental impacts. The Final Engineering Report states: "Based on that agreement, DOT proceeded with completing the environmental study process and the final design at a cost of approximately $1,000,000 of public funds." The Final Engineering Report discloses that the consultants eliminated the existing alignment in the PD&E study and selected the south alignment due to fewer adverse impacts. The report notes direct and indirect impacts to 3.01 acres of vegetated wetlands, including 1.65 acres of seagrass. The report calculates the seagrass impacts as 0.25 acres from pier placement and 1.4 acres from shading. DOT and the consultants selected the south alignment based on "strong public support" and DER's suggestion that impacts could be offset. The Final Engineering Report explains that DOT eliminated the alternate of the existing alignment because of the loss of access to the island from Manatee Avenue during the two- year construction period. The Final Engineering Report does not mention the reasons for the elimination of the no- build alternative. On July 8, 1991, Figg and Muller issued the Final Bridge Concept Report. The concept remained the construction of two, two-lane fixed-span, high-level bridges in two phases and the removal of the Anna Maria Island Bridge. The purpose of the Final Bridge Concept Report is to provide detailed findings of different types of structures and recommend the appropriate alternatives for consideration in the "final phase of the design and plan preparation." The recommendation is based on comparative analyses of cost and design features. The Final Bridge Concept Report refers the reader to the Final Preliminary Engineering Report for information about environmental conditions. In a brief synopsis, the Final Bridge Concept Report continues erroneously to describe the waters around the Anna Maria Island Bridge as Class III waters, but recognizes that they are Outstanding Florida Waters, so "special emphasis must be placed on the water quality." The Final Bridge Concept Report notes that the total area of seagrass "involved" with the proposed bridge is 1.65 acres and that manatee use the area. Describing the two phases of the overall project, the Final Bridge Concept Report states that the first two-lane bridge would be constructed in the same "corridor alignment," just south of the existing bridge. DOT would build the second bridge when traffic warranted, which is projected to be 2006. In mid-1991, DOT entered into a new contract with Figg and Muller to prepare final design and construction plans for the proposed bridge. DOT included funding for construction of the bridge in its work program adopted in July 1991 with work scheduled for fiscal year 1996. In June and July 1992, the Peninsula employee conducted additional fieldwork to determine the extent of seagrass. This time, though, his work focused specifically on the area under the existing and proposed bridge. The resulting Baseline Seagrass Survey, which Peninsula submitted to DEP in November 1992, states that the purpose of the fieldwork was to collect sufficient baseline data so that DOT could determine the success of natural recolonization under the existing bridge and seagrass shading under the new bridge. The 1992 fieldwork is more intensive than the 1988 fieldwork. The Peninsula employee made ten north-south transects across Sarasota Pass. Although still lacking a bathymetric survey of bottom elevations and effective water depths, the employee calculated approximate water depths at each of 20 data- collection points along each transect and determined, for each point, the species, shoot density, and areal density of any seagrass. He also collected water-quality data for temperature, salinity, conductivity, dissolved oxygen, and water clarity (secchi depth) and recorded "incidental faunal observations." According to Mr. Crim, DOT had completed about 90 percent of its final design and construction plans in August 1992. At this time, DOT applied to the Army Corps of Engineers for a dredge-and-fill permit, DER for a dredge- and-fill permit, Coast Guard for a bridge permit, and Southwest Florida Water Management District for a management-and-storage-of-surface- water permit. In November 1992, residents of Anna Maria, Holmes Beach, and Bradenton Beach voted on a referendum concerning the 65-foot clearance, fixed- span bridge proposed to replace the Anna Maria Island Bridge. The vote was 1961 opposed and 515 in favor. On December 11, 1992, the City Council of Bradenton Beach voted for DOT to place the proposed bridge project on hold pending further study. However, by memorandum dated December 1, 1992, to Mr. Crim, District Secretary May stated: You may be aware that there is concern currently being expressed by some local officials about the design of the Anna Maria Bridge replacement project. We will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project "production ready" as rapidly as possible. 3. 1993 Public opposition to the proposed bridge--in any alignment--continued in 1993. DOT participated in two MPO- sponsored public hearings on January 8, 1993, where numerous bridge opponents expressed disapproval of the proposed project. At the 1:00 pm meeting, a DOT representative disclosed that the bridge construction plans were 95 percent complete and right-of-way acquisition was underway. At the 7:00 pm meeting, the DOT representative responded to a question whether DOT could change its plans. He acknowledged that DOT and the MPO could change their plans, but a discussion of such a change three years earlier would have been better because dropping the project now would mean that "we have thrown away a million dollars of tax money." On January 13, 1993, a special MPO task force met and voted 4-3 to oppose the proposed bridge. There was some support on the task force for a 45- foot-high bascule bridge instead of a fixed-span, high-level bridge. On January 19, 1993, area mayors and city council members met with District Secretary May, who discussed the DOT five-year work program. Addressing the proposed bridge, District Secretary May said: . . . one of the primary components of the program is the Anna Maria Bridge and I know that's a great concern to all of you. It's a concern to the department too. So, rather than get into a big discourse on that, it is a 65', fixed span bridge. It's been designed as such. We're in the middle of purchasing right-of-way for that bridge. . . . In response to a question as to the extent of completion of design work and the ability of the MPO to stop the project, District Secretary May stated that 100 percent of the design was completed and, by law, both the MPO and DOT had to concur to stop the project. In response to criticism about the limited extent of public participation, District Secretary May conceded that DOT had improved public participation compared to seven or eight years ago, when DOT "didn't go to . . . near the level of public involvement that we do now." For the Ringling Bridge, for example, he said that he was "soliciting all sorts of input from all those people," referring to the public. Conceding that the Anna Maria Island Bridge is "not structurally deficient," District Secretary May explained that rehabilitation was not a cost- effective solution. When asked if it was a "done deal that the new bridge is coming in," District Secretary May answered, ". . . Yes, there's a new bridge going to be put there." Responding to a follow-up question, District Secretary May repeated the message: "Without a doubt. As opposed to rehabilitation. The MPO has not come to us with any requests yet so we'll respond once we get a request from them. Yes, ma'am." When asked what DOT would do if the MPO now suggested a 45-foot bascule, District Secretary May said he would "respond at that point in time. But that's a million dollars worth of throw-away design." Asked if public reaction to the proposed bridge would not justify dropping the project, District Secretary May replied: . . . First, if I IMPLIED that we were not doing a good job several years ago [in public participation], that, that is incorrect. We did as good a job as we could do then. We're trying . . . we're exceeding that now. He added that the results of the island-wide referendum were based in part on public misunderstanding of the safety issue and advised that the bridge is of interest to the region, not merely the island. Asked at the end of the meeting if he meant that the proposed bridge was "going to happen," District Secretary May answered, "A bridge is going to happen here." He added, "We need a replacement. We need to replace that bridge. We need to have a bridge replacement," rejecting rehabilitation as not cost effective. Still supported by the Manatee County Commission, the bridge was now opposed by the city councils of Anna Maria and Bradenton Beach. The executive director of the MPO mentioned that the Mayor of Holmes Beach reported that the city approved the 75-foot-high bridge, but this support was short-lived. About 40 residents spoke at an MPO meeting on January 25, 1993; nearly all of them opposed the bridge. A SAM attorney argued that DOT's notice preceding the August 1989 public hearing had been defective. Following discussion, with some support for a 45-foot-high bascule bridge, the MPO voted 10-4 to recommend that DOT proceed with the 75-foot-high bridge. Meanwhile, DEP was again expressing concern about the proposed project. 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." 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 estimated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable. On February 10, 1993, DEP issued a Notice of Permit Denial, stating that the proposed bridge would "run directly through the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." Noting that DEP had expressed concerns about the likely inadequacy of mitigation three years earlier, it had recommended that any new bridge be located at the current location. The Notice of Permit Denial acknowledges that DEP had found the proposed project consistent with the Florida Coastal Management Program, "pending a more detailed review during the permitting stage." However, DOT had failed to substantiate its assurances to offset seagrass impacts, according to the Notice of Permit Denial. The Notice of Permit Denial 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 of Permit Denial denies the application because DOT failed to provide reasonable assurance that the project would be clearly in the public interest and would not significantly degrade Outstanding Florida Waters. DEP found that the project would be adverse to endangered species and threatened habitats, adverse to fishing and marine productivity, and adverse to the current condition and relative value of functions being performed because nutrient assimilation would be reduced by the loss of at least 2.5 acres of seagrass serving as viable nursery area. DEP also concluded that DOT had failed to provide a plan to protect Class II, Outstanding Florida Waters, from significant damage or to provide reasonable assurance that the project would not result in the violation of water-quality standards. The Notice of Permit Denial notes in particular that the project could not lawfully reduce below ambient conditions the following water-quality parameters: biological oxygen demand, dissolved oxygen, iron, mercury, nutrients, phosphorus, turbidity, zinc, and biological integrity. On April 27, 1993, the City Council of Anna Maria voted unanimously to reject the proposed bridge. On May 4, 1993, the City Council of Holmes Beach voted 4-1 to reject the proposed bridge. The mayor vetoed the resolution, and the City Council overrode the veto. On July 4, 1993, the Sarasota Herald-Tribune published the results of a survey asking if readers preferred replacing drawbridges on the Intracoastal Waterway with fixed-span, high- level bridges. The results were 73 percent favored replacement and 26 percent opposed replacement. The newspaper reprinted about 75 responses, ranging in emotion between the following: Yes. Don't let the old-timers sway the decision. Let's go with the modern time. Some of them will be long gone before the bridge is completed. No. Keep the unique and lovely part of our country as it was when you were first attracted to it--or move away. Environmental work on the proposed project stepped up after DEP denied the permit. On July 13, 1993, Peninsula forwarded to DEP the Seagrass Mitigation Plan, which later became part of the permit. At the same time, responding to public concerns about wind safety on high-level bridges, DOT retained Dr. Robert C. Sheets, former director of the National Weather Service, to advise on the effects of high winds at high elevations. Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge. According to Dr. Sheets, 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. Local emergency management and law enforcement officials would close any bridge when wind speeds at the deck reach 45 miles per hour. A 75-foot-high bridge might encounter such winds in nonconvective storms about 20 minutes earlier than would the 25-foot-high existing bridge. In June 1993, Petitioners filed a petition alleging, among other things, that DOT's notice preceding the August 1989 public hearing was legally insufficient because DOT failed to send it to owners of condominiums within 300 feet of the proposed project. Abating any proceedings on the petition, DOT decided to conduct another public hearing on the project. Agreeing to requests of residents to schedule the public hearing in the fall when seasonal residents could attend, DOT scheduled the public hearing for October 26 and 27, 1993. On October 1, 1993, DOT mailed letters to all required persons, including owners of condominiums within 300 feet of the proposed project, advising them of the times, dates, and locations of the public hearing on October 26 and 27, 1993. DOT also advertised the public hearings. The letter and advertisement state: This hearing is being conducted to solicit input from area residents, local public officials, and other interested persons or organizations relative to the location, design, and social, economic and environmental effects of the proposed improvements. . . . The purpose of the project is to replace the existing bascule bridge with a fixed-span high level bridge. To encourage public participation, DOT conducted one public hearing on the mainland and another public hearing on the island. The two public hearings were really a single, two-day public hearing. About 200 persons attended the October 26 hearing in Bradenton and 550 persons attended the October 27 hearing in Holmes Beach. The hearing format for both nights was identical and tracked DOT's typical practice in conducting public hearings, such as the August 1989 hearing. However, each hearing began, after a brief introduction, with an eight-and-one- half minute videotape instead of a live project description. During a break following the videotape, persons in attendance could talk to representatives of DOT and the consultants and ask them questions off the record. The final part of the hearing was devoted entirely to recorded comments from the audience. At the start of the first night's hearing, the DOT representative identified the fixed-span, high-level bridge as DOT's preferred alternate, stating: The reason for holding the public hearing and the purpose of this public hearing is to allow you to present to us any new, any additional information that has not been considered in the past and was not looked at during the study that was held some several years ago on this bridge. At the start of the second night's hearing, the same DOT representative said: "This public hearing . . . involves the replacement of the Anna Maria Bridge. . . . The proposed improvement involves a replacement of the . . . Anna Maria Bridge with a 65-foot minimum clearance, high level, fixed span bridge." The DOT representative added, referring to the fixed- span, high- level bridge: . . . We refer to this as the DOT preferred alternative. It has been said that you did not have the choices that you hear that others have. The public hearing that was held, several people in this room remember that were there about five years ago, presented many different alternatives at that time. In the normal course of a project development and environmental study allows us to go through many different alternatives, and through the weeding out process we then select a preferred alternative based on all of the elements that we can possibly get into in making this decision. We did that. The preferred alternative was chosen and what we have here tonight, for you tonight is the preferred alternative, two level, high level-- 2-lane, high level, fixed bridge. With that, we will now have the presentation. The professionally produced videotape features background music, narration, computer graphics, and skilled editing and cinematography. The videotape begins by stating that DOT has determined the "aging drawbridge to be functionally obsolete because it fails to meet current design standards and has no emergency shoulders for breakdowns." The narration explains that traffic congestion is compounded by bridge openings for marine traffic. The videotape generates an artificial tone of anxiety by fast editing of closeups of existing road traffic and the drawbridge warning light, then zooming in ominously on the warning light and chipped-away concrete revealing steel-reinforcing bars. The narrator tells the audience that these obsolete conditions led DOT to recommend replacing the bridge. As the videotape explains, "Several alternatives were considered when plans for upgrading the Anna Maria Island Bridge were made." The videotape identifies these alternatives as the no-build option, north alignment, and south alignment. The videotape states that the no-build alternative would require extensive and expensive repairs, including the complete renovation of the drawspan and extensive substructure, but this is not economically viable. A new bridge using the existing alignment would eliminate Manatee Avenue access to Anna Maria Island for two years. The north alignment would impact the nearby boat ramp and require a new navigational channel, which would destroy seagrass. The videotape reports that the preferred alternative is the south alignment, which "affects about one and one-half acres of seagrass" that "will be closely monitored." The videotape assures the viewer that the "Florida Department of Transportation is committed to minimizing impacts to the seagrass in the project area." The narration and block letters on the screen add: "The benefits of the recommended alignment constitute the most favorable balance of environmental concerns, welfare of the community and achieving the objective of providing a modern and effective bridge." The videotape mentions that drawbridges require regular openings to allow vessel passage. A computer-graphic rendering of the bascule opening shows the bridge opening quickly without a gate or warning lights, a bus suddenly stopping less than a bus length from the vertical bridge span, and a convertible car stopping quickly behind the bus with a second car immediately queuing up behind the delayed bus and car passengers. The videotape concedes that a mid-level bascule bridge would "alleviate much of the traffic delay," but warns that it is a "greater financial burden." The videotape states that the initial construction cost of a drawbridge would be $11.4 million, and the annual operation and maintenance costs of a drawbridge average at least $150,000 plus a $500,000 major repair job every 20 years. On the other hand, the videotape states that the cost of a fixed- span, high-level bridge would be $8.4 million, so the preferred alternative would save at least $3 million over the life of the project. The videotape displays a sailboat with a mast under 65 feet cruising under the proposed bridge just as emergency vehicles pass cars pulled over onto the spacious shoulder. To the extent of any implication that emergency vehicles could be delayed by an opened drawbridge, the videotape ignores the radio coordination that exists between such vehicles and the bridge tenders. The videotape next considers emergency evacuations. Noting that wave effects and flooding on approaches would more likely close a bridge than would high winds, the videotape warns of conflicts between marine vessels and vehicles during evacuations. This warning ignores the Coast Guard practice not to order bridge openings so as to interfere with evacuations and the effect of the need of islanders to get off the island early due to the flooding of island roads and bridge approaches, typically well in advance of the worst of the storm. Displaying photographs from the same perspective of the existing bridge and the proposed bridge superimposed by computer, the videotape assures that "the bridge blends gracefully with the surrounding area." One photograph depicting the proposed bridge was on display with a photograph displaying the existing bridge, both as seen from the east, slightly south of Manatee Avenue. The actual photographs were also on display at the public hearings. The obvious purpose of the two photographs was to encourage viewers to compare the two bridges. However, the comparison was distorted so as to underrepresent the size of the proposed bridge. The photograph of the proposed bridge was taken with a wide-angle lens with the sides cropped, which removed the distortion and extra field of vision accompanying a wide-angle photograph. Because the photograph of the existing bridge was taken with a normal lens, the photograph of the proposed bridge underrepresented its height and width by 20 percent relative to the height and width of the existing bridge. The videotape concludes: An aesthetically appealing and environmentally sound structure that safely spans the Intracoastal Waterway is the Department's goal. A bridge that blends with the unique ambience of this island paradise while guaranteeing Manatee County's residents and visitors safe and efficient travel is of paramount importance to us all. Though not unanimous, public comment at the public hearings was vastly against the proposed project. Figg and Muller summarized the comments by stating that 374 persons favored the project and 940 persons opposed the project. The most popular reasons against the new bridge were in descending order: environmental problems, high-level wind problems, accelerated development, bad aesthetics, and failure to solve evacuation problems. Among the oral or written comments were comments from an orthopedic surgeon who has lived in Holmes Beach for 24 years, opposed the proposed bridge, and said that the existing bridge had never been a problem in treating his patients on the mainland. The Manatee Chamber of Commerce supported the proposed bridge. The Mayor of the City of Anna Maria complained that DOT took its direction from the MPO, from which the island municipalities had been denied voting membership until late 1989 when they obtained one voting member. The mayor also complained of a bridge-by-bridge approach to bridge construction, rather than a regional plan addressing the uniqueness of the barrier island. Mr. Crim testified at the January 1996 formal hearing in this case that DOT's position at the October 1993 public hearings, compared to the August 1989 public hearing, was "even more defined." Unless "something significant" came up, DOT was "going to build the bridge that it had already planned." Mr. Crim testified that the only other viable option at the 1993 public hearings was the no-build alternative. After the public hearings on October 26 and 27, 1993, District Secretary May reported to the MPO, during its meeting of November 22, 1993, that comments were about 3-1 opposed to the bridge. The MPO voted 6-8 not to reconsider its support for the 75-foot-high bridge. 4. 1994-Present Following the October 1993 public hearings, Petitioners filed a petition with DOT in January 1994 challenging DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The procedural history of this case is set forth in the Preliminary Statement and is incorporated by reference. Between the October 1993 public hearings and the formal hearing in this case in January 1996, the MPO dropped the four-lane bridge from its 2020 needs plan based on updated traffic projections that indicate no need for the additional capacity. The needs plan continues to limit Manatee Avenue to two lanes east of the Anna Maria Island Bridge to 75th Street, which is substantially east of the bridge. At the January 1996 formal hearing, Mr. Crim was unaware that the MPO had dropped from its 2020 needs plan the four-laning of Manatee Avenue over Sarasota Pass. However, DOT policy is that once a project has reached a certain stage of development, which this proposed project has, it can only be stopped if both DOT and the MPO agree. As District Secretary May testified, DOT no longer begins the planning process with the MPOs, as it did here, but instead starts with local communities. But even if the MPO voted to eliminate the proposed project, District Secretary May intends for DOT to proceed with the fixed-span, high-level bridge because, by the January 1996 formal hearing, DOT had spent over $2 million on the proposed project. DOT acceded to an MPO request to stop the Cortez bridge- replacement project, but this action preceded District Secretary May's appointment. After more than two years of discussions with DOT following the Notice of Permit Denial, on May 2, 1995, DEP issued an Intent to Issue a dredge- and-fill permit for the demolition of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge on the originally proposed south alignment. Intervenors filed petitions with DEP in June and July 1995 challenging DEP's Intent to Issue the dredge-and-fill permit. After the formal hearing in December 1995 and issuance of a recommended order recommending that DEP deny the permit, DEP has not yet issued a final order. Ultimate Findings of Fact DOT's Exercise of Discretion in Deciding to Replace the Anna Maria Island Bridge with a Fixed-Span, High-Level Bridge The proposed project would permanently destroy 2.5 acres of seagrass and temporarily destroy 2.0 acres of seagrass. Proposed mitigation is vague, contingent, and ultimate illusory. Degradation of water quality is likely, and DOT never obtained the baseline water-quality data from which analysis must begin. The proposed project would adversely affect the conservation of fish and wildlife, including endangered species and their habitats; adversely affect navigation on the Intracoastal Waterway for tall-masted boats currently using Sarasota Pass; and adversely affect fishing and recreation values by destroying vast areas of seagrass and removing the existing bridge as a popular area for fishing, bicycling, jogging, and walking. A permanent improvement, the proposed project would be sited in a productive marine environment performing crucial functions of feeding endangered manatee and other wildlife and cleaning Outstanding Florida Waters through nutrient assimilation and stabilization of sediments. The proposed project would poorly serve important cultural and aesthetic concerns expressed by an overwhelming majority of island residents, who would be uniquely affected by the proposed project. A large majority of the people of Anna Maria Island do not want the proposed bridge. The island-wide referendum conducted by the three municipalities in November 1992 reveals 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 result in greater traffic on the island. DOT does not presently intend to build a second bridge, nor is the 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 from the perspective of wind safety, but these concerns are largely ungrounded. However, the concerns of bridge opponents about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the proposed 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 area residents--many of whom are older persons--who walk, bicycle, or jog on the existing bridge would find the 4 percent grade and bridge height forbidding. It is difficult to see how a single six-foot sidewalk on the proposed bridge would better accommodate walking, bicycling, jogging, and fishing better than the two five-foot sidewalks on the existing bridge. 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, which allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Better scaled to the island community, the drawbridge, occasionally interrupting vehicular traffic, 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 fixed- span, 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 bridge opponents resist the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle-- the pace and rhythm of their lives--that they sought in moving to the island in the first place. At the same time, the reasons for the proposed bridge are insubstantial. 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. The Anna Maria Island Bridge has not proved unsafe over 37 years. Collisions on the bridge approaches are 50 percent more numerous than on the bridge itself. Superficial analysis of the accident data does not alter the fact that the bridge's accident rate is low. Most of the rear-end collisions on the bridge and bridge approaches are attributable to traffic backups from the Gulf Drive light and turns into the boat ramp on the west and convenience store and marina on the east. The drawbridge has not been a material cause of collisions on the bridge and bridge approaches, and the fixed-span, high-level bridge therefore would probably not reduce the number of collisions in this area. If vehicular safety were a problem on the Anna Maria Island Bridge, the sensible response would be to analyze the data carefully. If, for instance, numerous collisions were at night, DOT should considering adding street lights to the bridge. If, as is likely, most of the rear-end collisions are attributable to traffic backups, then DOT should consider the effects of lowering the speed limit through an increasingly congested area with boat ramps, a marina, and a convenience store. Perhaps such a study would present DOT an opportunity to revisit the wisdom of maintaining a 50-mile-per-hour speed limit on a road segment that, to the west, quickly ends at the Gulf of Mexico on a narrow barrier island with constrained and congested roads and, to the east, passes through increasingly urbanized areas. In promoting the proposed bridge, DOT has oversold the planning and design standards that arguably militate against the Anna Maria Island Bridge. In reality, these standards reveal that the decision to add shoulders is conditioned on consideration of numerous other factors, including the environmental, cultural, and aesthetic factors militating in favor of retaining the Anna Maria Island Bridge. DOT claims that the Anna Maria Island Bridge is functionally obsolete in large 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 this case. Countering suggestions of greater safety, the shouldered approaches to the bridge have experienced 50 percent more collisions than the unshouldered bridge. 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 environ- mental impacts or to lessen right-of- way costs. Standard values are also to be used for recon- struction 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 signifi- cance attached to famous structures, covered bridges, and stone arches. The bridge approaches have eight-foot gravel shoulders, although no design shoulders. However, the design standards do not require bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors. After consideration of all the factors, the cited design standards do not mandate the widening of the existing bridge to add shoulders. As for the failure of the Anna Maria Island Bridge to 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 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. As for the failure of the Anna Maria Island Bridge to meet current ship-impact standards, the record does not clearly establish that the existing bridge fails to meet these standards. Even if it fails to meet these standards, the VE team itself recommended relaxing the H-20 bridge-impact standard outside of the channel, partly based on the faultless marine safety record of the bridge and the availability of alternative access to Anna Maria Island. Even DOT does not cite a 25 percent improvement in ship- impact resistance as a compelling reason, in isolation, for a new bridge. The Draft Preliminary Engineering Report contends that the Anna Maria Island Bridge should be replaced due to its low overall clearance. But the proposed bridge would effectively close the Intracoastal Waterway at Sarasota Pass to a growing number of sailboats that can presently navigate the pass. And there is no evidence that the 36 daily bridge openings unduly delay vehicular traffic, especially in view of the traffic delays already caused by the traffic light at Gulf Drive. The Final Preliminary Engineering Report adds two more reasons for replacing the Anna Maria Island Bridge. The first is the need to accommodate traffic increases. However, updated analysis has reduced traffic projections, and the proposed bridge is now clearly limited to two lanes in any event. The second reason cited in the Final Preliminary Engineering Report is "structural deficiency." There is absolutely no evidence in the record suggesting that the Anna Maria Island Bridge is structurally deficient. Nine months prior to this statement appearing in the Final Preliminary Engineering Report the VE team inspected the bridge and found it was in "good condition" with "no severe deterioration which would endanger the capacity of the bridge." Coming from engineers, the assertion that the bridge is "structurally deficient," without support or qualification, was irresponsible. The driving force behind DOT's decision to replace the Anna Maria Island Bridge seems to be cost. DOT contends that it is less expensive to replace the Anna Maria Island Bridge now than it is to rehabilitate and repair it for the remainder of its useful life. When built, the Anna Maria Island Bridge had a life expectancy of 50 years. The bridge remains in "good condition," and traffic demands on this segment of Manatee Avenue can be satisfied by two lanes for a period in excess of the remaining useful life of the bridge. DOT projects the cost of the new bridge at $8.4 million. However, DOT has spent $2 million without commencing construction and still has not identified aspects of construction that might be dictated by environmental concerns, such as the construction of work platforms or use of specialized demolition techniques. The $8.4 million figure is probably low. The $8.4 million projection for the proposed bridge is definitely low once environmental costs are considered. 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, property values, and business income in the event of degraded waterbodies and increased governmental expenditures to reverse environmental degradation. It is even more likely that DOT's cost figures for retaining the Anna Maria Island Bridge are high. DOT projects "minor" (i.e., without widening) rehabilitation costs for the Anna Maria Island Bridge as $2.0-$3.8 million. They are based on general experience, which has not proved reliable for this bridge. General experience suggests that a bridge of this type and vintage should have needed to be rehabilitated at 20 years; yet, 37 years later, still without such a rehabil- itation, the Anna Maria Island Bridge remains in good condition. The Anna Maria Island Bridge could benefit from a "minor" rehabilitation costing at least $500,000. This probably would be the only substantial rehabilitation required for the remaining useful life of the bridge. DOT typically replaces rather than rehabilitates when rehabilitation will cost at least 60 percent of the cost of replacement. If so, using DOT's numbers, replacement would not be indicated unless rehabilitation were to cost over $5 million. Several provisions in the state comprehensive plan tend to sustain DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Three of these provisions are in the transportation section of the state comprehensive plan calling for transportation planning to manage growth, enhance system efficiency, and ensure efficient access to services, jobs, markets, and attractions. A provision in the public facilities section calls for planning and financing new facilities in a timely, orderly, and efficient manner. These provisions favor the new bridge only to the extent of a need for the new structure. Absent a need, some of these provisions, such as favoring timely and efficient planning of new facilities, actually militate against the new bridge because DOT could advance the funding of another, needed project if it did not spend the money on the replacement bridge. Arrayed against these provisions of the state comprehensive plan are numerous other provisions clearly disfavoring the new bridge. Some of these provisions are in the sections on transportation and public facilities. One provision admonishes that, in addition to enhancing system efficiency, it is also important to minimize adverse environmental impacts. Another transportation provision is to promote timely resurfacing and repair of roads and bridges to minimize costly reconstruction and enhance safety. A final applicable transportation provision is to avoid transportation improvements that encourage increased development in coastal high-hazard or productive marine areas. According to the Draft Preliminary Engineering Report, the proposed bridge "could foster economic development in the area," meaning the barrier island. Provisions in the section on public facilities are to protect substantial investments in already-existing public facilities and promote rehabilitation and reuse of existing facilities rather than commence new construction. Numerous provisions of the state comprehensive plan disfavor the new bridge on environmental grounds. Florida must ensure that development in coastal areas does not endanger important natural or marine resources and must protect and restore long-term productivity of marine fisheries habitat and other aquatic resources. Other provisions are to conserve wetlands, fish, and marine life to maintain their environmental, economic, aesthetic, and recreational values; to prohibit the destruction of endangered species and protect their habitats; and to protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. One provision explicitly links Florida's environmental health with its economic health by requiring that Florida maintain the environment as one of its primary economic assets. The proposed bridge project is inconsistent with the state comprehensive plan, taken as a whole. The proposed project disregards the requirements to rehabilitate and reuse existing facilities where possible, to avoid transportation improvements that encourage development in coastal high- hazard areas, and to repair and resurface roads and bridges in time to avoid more costly expenses. The inconsistencies between the proposed project and environmental provisions of the state comprehensive plan are evident. Another group of provisions disfavors on a different basis the decision to replace the Anna Maria Island Bridge with the new bridge. These provisions call for improved intergovernmental coordination, maximized citizen involvement, and encouraged citizen participation at all levels of policy development, planning, and operations. The record does not support a finding that DOT seriously addressed the various elements in the state comprehensive plan that must guide state agencies in their capital expenditures. In so doing, DOT undermined citizen participation in this important planning process. DOT and its consultants collected some environmental data, but too little, too late. Also, DOT never subjected the environmental data to detailed, careful analysis. Motivated by cost considerations, which offer scant support for the proposed bridge project, DOT sought to replace old drawbridges and wanted to replace them as inexpensively as was reasonably possible. In pursuing its drawbridge-replacement policy in this case, DOT did not assess sufficiently the relevant environmental, cultural, and aesthetic factors. This failure undermined citizen participation and the planning process itself. For instance, before collecting the detailed seagrass data in June and July 1992, DOT had already proceeded far into the planning for the present project, rejecting the no-build alternative, selecting the south alignment, and possibly selecting the fixed-span, high-level design. Yet, informed consideration by DOT and the public of all of the alternatives demanded early knowledge of the area and functions of seagrass to be destroyed by the project. The seagrass issue came as no surprise to DOT. Sarasota Pass is Outstanding Florida Waters. A DOT representative had warned other DOT representatives in July 1989 that they had not had much success with seagrass mitigation. Over a year earlier, at the very inception of this long planning process, Figg and Muller amply identified in its subconsulting contract with Peninsula the various environmental problems posed by this project. In early 1990, DER warned DOT about the importance of seagrass and mitigation. Yet, DOT elected to avoid federal environmental review by obtaining in mid-1990 a categoric exclusion on the basis that the proposed supposedly had no significant impact on any natural, cultural, or recreational resources and had no significant impact on water quality. Instead of seriously confronting the seagrass issue, Sverdrup twice tried to influence Figg and Muller and its subconsultant to understate the amount of seagrass that would be destroyed by the proposed project. These efforts are not merely unreasonable in retrospect, but were unreasonable at the time, as evidenced by the angry reaction of the Peninsula employee and the more businesslike resistance of Figg and Muller. The resulting atmosphere was not conducive to a vigorous investigation of environmental conditions and thoughtful analysis of the impact of the proposed alternatives on these conditions. DOT and its consultants never obtained much data that various parties demanded. When entering into the subconsulting contract with Peninsula, Figg and Muller required Peninsula to do an analysis of bottom sediments for heavy metal concentrations, but this was never done. In early 1990, DER warned DOT about the strict water-quality standards applicable to the project. Yet, DOT and its consultants never obtained vital water-quality data. Still in the first half of 1990, DEP recommended that DOT obtain a bathymetric survey, which DEP promised to review in detail at the permitting stage. But DOT and its consultants never obtained this crucial data either. In fact, it was not until two years later--after DOT had rejected the no-build alternative and south alignment, if not also the bascule designs--that Peninsula obtained seagrass data of the level of detail even approaching what DEP had sought. The treatment of manatee in the planning process was also inadequate. Omitted entirely from the Draft Preliminary Engineering Report, manatee were discussed in later documents. But at no time did any consultant address two distinct threats posed to manatee by the proposed project. First, the wider-spanned bridge would, as promised by the Draft Preliminary Engineering Report, enhance navigation for shallow-drafter boats by facilitating their bypassing of the channel and cutting under the bridge. In addition to destroying seagrass by prop dredging, small boats cutting under the bridge would threaten manatee feeding in shallow water in exactly the manner described in the Permit Coordination Package. Second, construction of the new bridge would effectively narrow the pass, which has already been constricted by fill placed when the Anna Maria Island Bridge was built. This would drive manatee into a narrower area within the channel and increase the chances of injury from collisions with boats. 335. More than once in this planning process, DOT and its consultants tried unreasonably to wring support for the proposed project from unfavorable data and analysis. Mr. Smith's attempts to coerce the analysis of seagrass losses is perhaps the most glaring example of this unfortunate treatment of data and analysis. Another Sverdrup representative discouraged independent analysis of new traffic data by Figg and Muller when he sent Figg and Muller a memorandum with the instructions to analyze and document the data "to reach the conclusions necessary to proceed with the project development." A more pervasive example of this practice is in the treatment of the accident data. In the Site Characteristics Report prepared at the end of 1988, the consultants noted the low accident rate of the Anna Maria Island Bridge and suggested reasonably that the high percentage of rear-end collisions might be due to traffic backups, which might be due to backups from the Gulf Drive traffic light, nearby left turns, or drawbridge openings. A month or two later, in the Draft Preliminary Engineering Report, Figg and Muller tried, without detailed analysis of accident reports, to limit the effects of the boat ramp, marina, convenience store, and traffic signal to rear-end collisions on the approaches and attribute rear-end collisions on the bridge to the opening of the drawbridge. A later reference in the draft report to accident data "for the existing facility" is misleading for its failure to differentiate between the bridge and the bridge approaches. By the August 1989 public hearing, the Figg and Muller representative was telling the public that the drawbridge openings were a cause of a "significant number" of rear-end collisions. No evidence supports this conjecture, which does not rise to the level of analysis. DOT and its consultants failed to substantiate other vehicular safety concerns when they failed to account for the coordination that exists between drawbridge openings and emergency vehicles and drawbridge openings and hurricane evacuation. Yet, DOT and its consultants continued to cite these nonissues, like they cited rear-end collisions, prominently in their arguments about functional obsolescence and safety, at least through the rejection of the no- build alternative in the Final Preliminary Engineering Report issued on November 1, 1989. At the formal hearing, DOT tried to bolster its safety arguments with two new arguments that are hopelessly anecdotal. 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 witness 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. Neither narrative establishes widespread problems with drawbridges. There is nothing to suggest that a bridge tender on the Anna Maria Island Bridge must contend with drive-by shootings. 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. Likewise, DOT tried at the formal hearing to support the functional- obsolescence argument by contending that the additional lanes would hasten evacuation efforts by the ability to convert to more lanes one-way east. But island evacuation does 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. DOT's premature commitment to project implementation discouraged objective analysis of the data. Nor was DOT receptive to DEP's role in reviewing the proposed project. When DER withdrew its early objections to the Advance Notification Package in April 1990, it promised a more detailed review during permitting. But the Final Engineering Report in early 1991 sounded what proved to be an ominous note when it stated that, based on the agreement with DER, DOT had spent about $1 million of public funds on the completion of the PD&E process and final design of the new bridge. Not applying for permits when the design work was 65- 70 percent complete, as directed by the PD&E, DOT waited instead until August 1992, when the final design and construction plans for the project were 90 percent complete. When DEP expressed concern about the project, DOT, ignoring another opportunity to focus on the substantive environmental and public welfare issues, responded instead with an insubstantial estoppel argument and stern warning that "anything other than the issuance of a permit for the southern alignment is unacceptable." Not every transportation project will serve all provisions of the state comprehensive plan. Some planning processes and decisions may even conflict with more provisions of the state comprehensive plan than they serve, but still not conflict sufficiently with the entire state comprehensive plan, construed as a whole, to constitute an abuse of discretion. But in this case, the proposed project is marginally consistent with a few provisions and markedly inconsistent with numerous, material provisions of the state comprehensive plan. And the inconsistencies appear to be the direct result of the repeated failures of DOT and its consultants to collect necessary data and their repeated efforts to wring support from unsupportive data and analysis. These inconsistencies with the state comprehensive plan amount to an abuse of discretion in deciding to replace the Anna Maria Island Bridge with the fixed- span, high-level bridge. DOT's Compliance with the Statutory Requirement of Public Hearings, Including Effective Public Participation, Prior to Selecting, Locating, and Designing the Fixed-Span, High-Level Bridge The replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge is a major transportation improvement. The proposed bridge would cost millions of dollars, destroy 2.5 acres of seagrass permanently and 2.0 acres of seagrass temporarily, imperil manatee, and degrade Outstanding Florida Waters. The proposed project has generated considerable public controversy, which triggers the requirement of a public hearing in the PD&E manual. The proposed project is a "major transportation project," under the definition in the PD&E manual requiring an environmental impact study. Sverdrup's Project Concept Report calls the proposed project a "major bridge replacement project." DOT was amenable to public input on all issues at the February 1989 workshop, but there is no indication that DOT provided sufficient notice as to permit the public to participate effectively. DOT was clearly amenable to public input at the August 1989 public hearing as to the location of the proposed bridge. DOT still was in the formulative stage of deciding the alignment of any new bridge. DOT opted for the south alignment only after hearing public comments concerning the impact of the north alignment on navigation, recreation, and business. The notice for the August 1989 public hearing, though insufficient to satisfy the statutory requirement for a design public hearing, was reasonable in that it was sufficient to satisfy the requirement of effective public participation. It is less clear that DOT had not, prior to the August 1989 public hearing, already selected the facility-type--namely, a new bridge over the no- build option. But Petitioners and Intervenors failed to show that DOT had in fact already made this decision before the August 1989 public hearing. DOT announced the rejection of the no-build alternative on November 1, 1989, in the Final Preliminary Engineering Report. Although Mr. Smith's June 13, 1989, memorandum to Figg and Muller recommended the rejection of the no-build alternative, Figg and Muller proved able to resist Sverdrup's suggestions as to seagrass losses, and other evidence does not point clearly to an earlier rejection of the no-build option. But the preponderance of the evidence establishes that, long prior to October 1993, DOT had selected and committed to the design of the new fixed- span, high-level bridge over such alternatives as a low-, mid-, or high-level bascule bridge. DOT representatives and consultants thought that they had already conducted the design public hearing four years earlier. Only in early 1993 did DOT decide to hold another design public hearing after reconsidering the legal sufficiency of the notice before the August 1989 public hearing. So, for at least three and one-half years, DOT and its consultants operated on the assumption that DOT had satisfied the requirement of a design public hearing and could proceed to the next step. It is unreasonable to expect, given DOT's strong commitment to project implementation, that the project did not proceed through design in these three and one-half years. DOT spent $1 million on planning and design for this project through the Final Engineering Report issued on November 1, 1989. If the total cost of the fixed-span, high-level bridge on the south alignment was to be $8.4 million and construction had not yet begun, one would infer that the $1 million covered a lot of the required design. By the formal hearing in January 1996, DOT had spent $2 million on the proposed bridge. Although part of that sum may have gone toward litigation expenses, most of it presumably went toward additional design and construction planning. Additional evidence that DOT selected the design prior to the October 1993 public hearings comes from two sources: the preparation of documentary milestones in the planning process and statements of DOT representatives. According to the PD&E manual, DOT issues the Final Engineering Report after the public hearings and selection of the recommended alternate. The Final Engineering Report, which was issued in late 1990 or early 1991, follows the approval by the Federal Highway Administration of the recommended alternative, according to the PD&E manual. According to the PD&E manual, DOT applies for permits when the project design is 65-70 percent done. In August 1991, DOT applied for permits after retaining Figg and Muller in mid-1991 to prepare final design and construction plans. All this time, the Draft Preliminary Engineering Report had all but eliminated bascule alternatives in February 1989. Public comments of DOT representatives disclose with greater certainty than milestone documentation the design progress on this project. As early as March 31, 1989, Sverdrup advised Figg and Muller not to do traffic calculations for bascule alternatives "since it is evident that the fixed high- level structure will be recommended due to lower overall cost." Later comments consistently portray the bridge design as finished or all but finished by the end of 1992 and start of 1993; there is no doubt that DOT had selected and committed to a design by this time. When DOT submitted the dredge-and-fill application in August 1992, final design and construction planning was 90 percent complete, according to Mr. Crim. On December 1, 1992, District Secretary May, sensing increasing community resistance to the proposed bridge, acknowledged local resistance to the "design" of the replacement bridge and directed Mr. Crim that "we will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project 'production ready' as rapidly as possible." On January 8, 1993, a DOT representative told MPO representatives that construction plans were 95 percent done and acquisition of right-of-way had begun. Referring to the new bridge, District Secretary May told a meeting of local government officials on January 19, 1993, that "it's been designed" as a fixed-span, high-level bridge. He stated that 100 percent of the design work was done and changing to a 45-foot bascule bridge would mean that DOT had thrown away $1 million on design work. According to Mr. Crim, the options at the October 1993 public hearing were the fixed-span, high-level bridge or the no- build alternative; the bridge design was thus no longer in doubt. DOT's misplaced reliance on the August 1989 public hearing as a design hearing did not preclude the possibility that DOT could have conducted a design public hearing at a later date with effective public participation. The key factual questions would be whether DOT had already decided upon a design and, if so, whether it had restarted the design-selection process so as to approach the curative public hearing with no precommitment toward the fixed- span, high-level design. It is unnecessary to explore in any detail what restarting the design selection process would entail. DOT could have approached the October 1993 public hearing differently than it approached other public hearings. DOT could have engaged the public, on the record, in a give-and-take analysis of the engineering, traffic, environmental, cultural, and other data. DOT could have abandoned its customary approach requiring the public to show an error, an omission, or changed conditions, or else DOT's tentative decision would become final. Instead, DOT approached the October 1993 public hearing, as Mr. Crim admitted, with an "even more defined" position than usual. Unless something "significant" came up at the hearing, the fixed-span, high-level bridge was going in. Presenting a blatantly promotional videotape and a distorted comparative photograph, DOT tried to rescue the $1-2 million it had invested in this project rather than risk a wide-ranging public discussion on the design of the proposed bridge with a meaningful exchange of information and analysis. The resulting burden placed on the public to change DOT's mind was inordinate, precluded effective public participation, and revealed DOT's commitment to the fixed-span, high-level design.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order cancelling the proposed project to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. ENTERED on May 6, 1996, 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 May 6, 1996. APPENDIX Rulings on Proposed Findings of Petitioners and SAM 1-5: adopted or adopted in substance. 6: same rulings as in prior recommended order except to extent of any contrary rulings in this recommended order. 7: adopted or adopted in substance, during the early part of the planning process. 8: adopted or adopted in substance, except as to the date of the public hearing. 9-17: adopted or adopted in substance. 18: rejected as irrelevant. 19-23: adopted or adopted in substance. 24: rejected as irrelevant. 25: adopted or adopted in substance. 26: adopted or adopted in substance, except as to author and recipient of memorandum. 27: rejected as unnecessary. 28: adopted or adopted in substance. 29-35: rejected as unnecessary. 36-37: adopted or adopted in substance. 38-41: rejected as subordinate. 42-43: rejected as irrelevant. 44: rejected as unsupported by the appropriate weight of the evidence. 45-46: rejected as subordinate. 47-54: adopted or adopted in substance. 55: rejected as unsupported by the appropriate weight of the evidence. 56: rejected as recitation of evidence. 57: rejected as subordinate. 58-63: adopted or adopted in substance. 64: rejected as subordinate. 65-66: adopted or adopted in substance. 67-79: rejected as subordinate. 80-83: adopted or adopted in substance. 84: rejected as recitation of evidence. The selection of the type of facility in this case is a bridge--specifically whether to build a new bridge or rehabilitate the old one. 85: adopted or adopted in substance. 86: adopted or adopted in substance, except that DOT did not select the facility-type (a bridge) and the site (the south alignment) until after the August 1989 public hearing. 87: rejected as not finding of fact. 88: adopted or adopted in substance. 89: rejected as unnecessary. It is only necessary to find that DOT selected the fixed-span, high-level design prior to the October 1993 design public hearings. 90-91: rejected as subordinate. 92: adopted or adopted in substance. 93: rejected as subordinate. 94-98: adopted or adopted in substance. 99: adopted or adopted in substance, but the approaches have actual, gravel shoulders of eight feet. 100: rejected as unsupported by the appropriate weight of the evidence. 101-43: adopted or adopted in substance. 144: rejected as subordinate. 145: adopted or adopted in substance. 146-47: rejected as unsupported by the appropriate weight of the evidence. 148-53: adopted or adopted in substance. 154-57: rejected as unsupported by the appropriate weight of the evidence. 158-60: adopted or adopted in substance. Rulings on Proposed Findings of Intervenor VanWagoner Any proposed findings referring to statements of counsel that have been adopted were adopted because of evidence in the record supporting such findings. Counsel's statements are not support for such proposed findings because these statements are not evidence. Any proposed findings referring to views taken by the undersigned that have been adopted were adopted because of evidence in the record supporting such findings, such as road maps. 1-11: adopted or adopted in substance. 12: rejected as subordinate and unnecessary. 13: adopted or adopted in substance, as to removal of four- laning project from MPO needs plan. 14: rejected as speculative. 15: rejected as unsupported by the appropriate weight of the evidence, as to safety being an issue. 16: adopted or adopted in substance. 17: rejected as subordinate, except as to a design change. 18: rejected as unsupported by the appropriate weight of the evidence. 19-20: rejected as subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 21 (remainder): rejected as recitation of evidence. 22-24: rejected as unnecessary. 25: adopted or adopted in substance. 26-27: rejected as unsupported by the appropriate weight of the evidence. 28-33: rejected as recitation of evidence. 34-37: adopted or adopted in substance. 38: rejected as recitation of evidence. 39: adopted or adopted in substance, except that proposed finding as to disclosure is rejected as unnecessary. 40-43: rejected as subordinate. 44: adopted or adopted in substance. 45-47: rejected as recitation of evidence. 48: adopted or adopted in substance. 49: rejected as unnecessary. 50-51: rejected as subordinate and recitation of evidence. 52-53: adopted or adopted in substance. 54-64: rejected as subordinate. 65-66 (first paragraph): rejected as recitation of evidence. 66 (remainder): adopted or adopted in substance. 67-70: rejected as recitation of evidence. 71: adopted or adopted in substance. 72-73: rejected as subordinate. 74: adopted or adopted in substance. 73 (second 73)-75: rejected as not findings of fact. 76: adopted or adopted in substance. 77 (first clause): rejected as unsupported by the appropriate weight of the evidence. 77 (second clause): adopted or adopted in substance. 78: adopted or adopted in substance. 79-80: rejected as unsupported by the appropriate weight of the evidence. 81-83: rejected as not findings of fact. 84: adopted or adopted in substance. 85: rejected as unsupported by the appropriate weight of the evidence. 86: adopted or adopted in substance. 87: rejected as unsupported by the appropriate weight of the evidence. Rulings on Proposed Findings of DOT 1-2: adopted or adopted in substance except for the date of construction. Most references in the DOT documentation are to 1959, although there are some references to 1957. 3 (first two sentences): adopted or adopted in substance. 3 (last sentence): rejected as subordinate. 4-13: adopted or adopted in substance. 14: adopted as to 4 percent grade, but rejected as irrelevant as to remainder. 15: rejected as subordinate. 16 (first sentence): adopted or adopted in substance. (second sentence): rejected as subordinate. (first sentence): rejected as subordinate. 17 (second sentence): adopted or adopted in substance. 18-21: adopted or adopted in substance. 22-24: rejected as irrelevant and subordinate. 25-26 (first sentence): adopted or adopted in substance. 26 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: adopted or adopted in substance, except that there are conditions attached to the standard criteria. Also, replacement remains a factual determination requiring consideration of all the circumstances. 29: adopted or adopted in substance. 30: adopted in the sense that the decision to replace the Anna Maria Island Bridge accompanied the PD&E process. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32-34: adopted or adopted in substance. 35: rejected as subordinate, irrelevant, or unsupported by the appropriate weight of the evidence. 36-39: adopted or adopted in substance, except as to no foregone conclusions reached as a result of DOT's studies, which is rejected as unsupported by the appropriate weight of the evidence. 40-53: adopted or adopted in substance. 54: adopted or adopted in substance, except the public lacked effective participation in the February 1989 workshop because of lack of notice and lack of factual background. If the references to "workshop" are to the August 1989 public hearing, this format too leaves something to be desired as to effective public participation given the refusal of DOT and consultant representatives to engage in any give-and-take with member of the public except off the record during the break and the refusal to discuss anything but the project under consideration. 55-60: adopted or adopted in substance. 61: adopted or adopted in substance, except willingness to continue with public involvement is rejected as unsupported by the appropriate weight of the evidence. 62: adopted or adopted in substance. 63 (first two sentences): rejected as unsupported by the appropriate weight of the evidence. 63 (third sentence): adopted or adopted in substance, as the sole reason for the October 1993 public hearings. 64-65 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 65 (remainder)-68: adopted or adopted in substance. 69: rejected as unsupported by the appropriate weight of the evidence; the fixed-span, high-level bridge was the selection, not merely a preferred alternative. 70-71: adopted or adopted in substance. 72 (first sentence): rejected as irrelevant. District Secretary May does not need to attend the public hearings or remain in the hearing room during the public hearings, if he attends. If he is to be involved in the decision, he needs only to familiarize himself with the public comments. 72 (second sentence)-74: rejected as unsupported by the appropriate weight of the evidence. 75: rejected as subordinate and unnecessary. 76: rejected as unsupported by the appropriate weight of the evidence. 77-78: rejected as subordinate. 79: rejected as unsupported by the appropriate weight of the evidence, although cost was a major factor in the design decision, whenever it was actually made. 80: rejected as subordinate. 81-82 (first sentence): adopted or adopted in substance. 82 (second and third sentences): rejected as unsupported by the appropriate weight of the evidence. 82 (fourth sentence): adopted or adopted in substance, although this projection is probably too low. 83-84: rejected as unsupported by the appropriate weight of the evidence. 85-87: adopted or adopted in substance, as recitals of DOT's reasoning-- not as persuasive reasoning under all of the circumstances. 88: adopted or adopted in substance, as recital of Final Preliminary Engineering Report. 89: rejected as unsupported by the appropriate weight of the evidence. 90: rejected as subordinate and irrelevant. 91-92 (except last sentence): adopted or adopted in substance. 92 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 93-94 (first sentence): adopted or adopted in substance. 94 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 95: adopted or adopted in substance. 96: adopted or adopted in substance, as recital of DOT's thinking. 97: adopted or adopted in substance. 98: adopted or adopted in substance, except as to not meeting design standards. 99: adopted or adopted in substance, as recital of DOT's thinking. 100-04: rejected as irrelevant. 105: adopted or adopted in substance, as recital of thinking of these individuals. 106: rejected as repetitious. 107: adopted or adopted in substance. 108 (first sentence): rejected as irrelevant. 108 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 109: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 110: rejected as unsupported by the appropriate weight of the evidence. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 113 (first sentence): adopted or adopted in substance. 113 (second sentence): rejected as irrelevant and as unsupported by the appropriate weight of the evidence. 114-16: rejected as unsupported by the appropriate weight of the evidence. 117 (except second sentence): rejected as subordinate. (second sentence): adopted or adopted in substance. (first sentence): rejected as subordinate and irrelevant. 118 (second sentence): adopted or adopted in substance. 119: rejected as irrelevant and subordinate. 120: rejected as unsupported by the appropriate weight of the evidence. 121 (first clause): adopted or adopted in substance. 121 (remainder): rejected as irrelevant and subordinate. 122-26: adopted or adopted in substance. 127-28: adopted or adopted in substance. 129-30: rejected as subordinate and unnecessary. 131 (first sentence): adopted or adopted in substance. 131 (remainder)-32: rejected as subordinate and unnecessary. 133 (first sentence): adopted or adopted in substance. 133 (remainder): rejected as subordinate and unnecessary. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, Mail Station 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 David M. Levin Icard Merrill 2033 Main Street, Suite 600 Sarasota, Florida 34237 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Francine Ffolkes, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 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
The Issue Whether Respondent, Department of Transportation (DOT), properly denied Petitioner's Application for Qualification to perform work on DOT contracts which exceed $250,000.00 pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code.
Findings Of Fact Petitioner, Morse Diesel Civil, LLC ("Morse Diesel"), is a new company created to perform heavy civil construction, in particular large road and bridge projects. Morse Diesel is owned 80 percent by Morse Diesel Civil, Inc., and 20 percent by KPG, Inc. Morse Diesel Civil, Inc., is owned by AMEC Holdings, Inc. KPG, Inc., is owned by Richard Kelly ("Kelly") and Jack Palmer ("Palmer"). Together, Kelly and Palmer have over 50 years' experience in heavy civil construction. On October 8, 1998, Morse Diesel filed an application for qualification with the Florida Department of Transportation ("DOT") to perform all classes of road and bridge work except for bascule bridge rehabilitation. Since the company was new and had not yet performed any work, the letters of recommendation provided in the application related to Morse Diesel International, Inc. ("MDI"). MDI is a large commercial construction management company owned by AMEC Holdings, Inc. Through DOT requests for additional information, Morse Diesel learned that DOT was interested in the experience of its principals and recommendations regarding their work. The work experience of Kelly, Palmer, John Zito, and Grant Ralston was provided to DOT in response to those requests. Under Rule 14-22.003, Florida Administrative Code, DOT thoroughly evaluated Morse Diesel and awarded it an Ability Score of 75 out of 100. DOT found that Morse Diesel had the necessary organization and management, adequate equipment, and a satisfactory work performance record which included an evaluation of the quality of completed work, any history of payment of liquidated damages, untimely completion of projects for which liquidated damages were not paid, cooperative attitude, contract litigations, claims, and defaults. Their score of 75 also included an evaluation of their integrity and responsibility. To date, Morse Diesel's ability score remains unchanged and in effect. On January 11, 1999, Morse Diesel was granted a Certificate of Qualification to perform all classes of work requested except major bridges and provided a maximum capacity rating of $200,000,000; that is, the total aggregate dollar amount of uncompleted work a contractor may have in progress at any time. Thereafter, Morse Diesel applied for a revised Certificate of Qualification to include major bridge classifications. DOT requested and was supplied additional information regarding the work experience of Kelly, Palmer, Zito and Ralston. DOT served a Notice of Intent to Deny the application for additional classes of work and Morse Diesel filed a request for a Section 120.57, administrative hearing. That case was dismissed as moot when Morse Diesel did not renew its Certificate of Qualification. On February 2, 2000, Morse Diesel applied for a Certificate of Qualification for all classes of road and bridge work except for bascule bridge rehabilitation. DOT denied its application on March 3, 2000. The decision to deny an application for Qualification is a very serious matter and each application is thoroughly evaluated by DOT. Less than one percent of all applications are denied. The decision to deny the February 2, 2000, application of Morse Diesel was made by the DOT pre-qualification engineer, Lewis Harper. The Notice of Intent to Deny the Application ("Notice of Intent") was written by Mr. Harper and Brian McGrail of the legal staff and identified the factual bases for the denial of the application and all the statutory and rule criteria utilized in the review of the application. Summary of Allegations The grounds for denial identified by DOT in the written Notice of Intent are: (a) a record of contract litigation, claims, uncooperative attitude, untimely completion of projects without payment of liquidated damages, and defaults by the management of Morse Diesel (Kelly and Palmer) when they worked for S. J. Groves and Sons, Inc., and Balfour Beatty Construction, Inc., on major bridge projects in Alabama, West Virginia, and Florida; (b) S. J. Groves was defaulted on the Cochrane Bridge Project by the State of Alabama; (c) Kelly and Palmer had substantial supervisory and management responsibilities for the Cochrane Bridge project and contributed substantially to the difficulties experienced by the Alabama Road Department; (d) The answer to Question 19-2 of the application regarding Kelly's and Palmer's involvement in the Cochrane Bridge project does not accurately reflect their role and is considered false, deceptive or fraudulent; (e) Kelly and Palmer had responsibility for prosecuting work and making decisions for filing claims on the Wierton-Stubenville Bridge project in the State of West Virginia and there were substantial delays and disputes over settlement of claims; (f) Kelly and Palmer were litigious and claims-oriented when they were associated with Balfour Beatty in Florida; (g) MDI is an affiliate of Morse Diesel because Norm Fornella is an officer is both companies and MDI was not listed in the application as an affiliate; (h) Morse Diesel did not advise DOT of the default of MDI; and (i) KPG is an affiliate of Morse Diesel because Kelly is an officer in both companies and KPG was not listed in the application as an affiliate. The application was not denied due to a lack of adequate experience or equipment. Although Morse Diesel listed the same affiliates in its 1998 application as it did in its 2000 application, the 1998 application was partially granted and the failure to list affiliates was not a ground for denial of the request for additional classes. Allegations (a)-(d): Record of Contract Litigation, Claims, Uncooperative Attitude, Untimely Completion of Projects and Defaults by Management of Morse Diesel The right to submit a claim is a valuable right of the contractor. If a contractor contends he/she is due additional time and money, it is common for him/her to pursue his/her claims rights. If the liability for unforeseen circumstances falls on the owner, the contractor typically pursues claims based upon the increased cost associated with the extra time and expense occasioned by the unforeseen circumstances. Kelly and Palmer have been involved in very difficult, highly technical jobs throughout their careers. It is common for these projects to involve a number of problems and related change items. Industry-wide, complex projects often involve change item costs ranging between 12 percent and 20 percent of the contract price. The Cochrane Bridge Project; Kelly's and Palmer's Involvement; and Application Question 19-2 Construction on the Cochrane Bridge was begun in 1985. Kelly was an executive vice president of S. J. Groves at the time and was also responsible for 30 or 40 other projects. At the same time, Palmer was a vice president of operations for S. J. Groves responsible for 10 to 12 projects. The project manager for the Cochrane Bridge project reported to Palmer and Palmer visited the project every two weeks, mainly to solve problems. The Cochrane Bridge was one of the first cable-stayed bridges built in the United States. It was designed by an Italian design firm and could not be built in accordance with the method of construction proposed by the designer. Moreover, each time there was a design problem, the Italian design firm had to be consulted, which took a great deal of time and caused delays. The Cochrane Bridge was designed to withstand a certain maximum load after construction was completed. The bridge, however, was undergoing greater stress while it was under construction. Consequently, disagreement ensued over the sequence of erection, whose responsibility it was to develop the erection sequencing, whether additional strengthening was needed during construction and, if so, who would pay for it. While these issues were addressed, S. J. Groves stopped work on the project. The State of Alabama requested Groves to work on other areas of the project during the down-time, but Mr. Groves refused for economic reasons. Alabama threatened to default Groves if they did not return to work. Kelly and Palmer attended several high-level company meetings where the issue of whether to continue the project was discussed by Franklin Groves, the owner of S. J. Groves, as well as the company's president and general counsel. Although Kelly and Palmer recommended that S. J. Groves remain on the project, their recommendation was overruled and a default was entered by the State of Alabama. Kelly and Palmer left S. J. Groves within 6 months of the default and formed their own company, RNE, in 1989. There is no reliable evidence that they "contributed substantially to the difficulties experienced by the Alabama Road Department" as charged in the Notice of Intent to Deny. S. J. Groves pursued litigation against the Alabama road department regarding the default and a settlement was reached. The contractor chosen to take over the job after the Groves default, filed claims of approximately $10,000,000 to $12,000,000, and also wound-up in litigation with the State of Alabama. There were thirty to forty vice presidents of S. J. Groves. Neither Kelly nor Palmer understood that they served as a corporate officer of S. J. Groves until after Morse Diesel had filed the 1998 application and were shown corporate forms filed with the Secretary of State. In response to Question 19-2 in the application, Morse Diesel stated: "Richard Kelly and Jack Palmer were denominated vice presidents of S. J. Groves, which defaulted on a job in Alabama in 1989. S. J. Groves had a number of people denominated as Vice Presidents and neither Mr. Kelly nor Mr. Palmer was at the level of management responsible for the decision to abandon the Cochrane Bridge Project. Both Mr. Kelly and Mr. Palmer recommended against abandoning the project and were overruled. They then left the company." There is no evidence which contradicts this finding. Allegation (e): Kelly's and Palmer's Involvement in the Wierton- Stubenville Project DOT presented no evidence to support its charge in the Notice of Intent that Kelly and Palmer were responsible for making the decision to file claims on the Wierton-Stubenville Bridge in the State of West Virginia and that there were substantial delays and disputes over settlement of claims. The only direct evidence is that Kelly was not involved in the preparation of claims or claims settlement on the Wierton- Stubenville project. The record is silent as to Palmer's involvement, if any. Allegation (f): Kelly's and Palmer's Involvement in Litigation and Claims at Balfour Beatty Kelly and Palmer were involved in Balfour Beatty's initial foray into the heavy civil construction business in Florida. In the early 1990's, Kelly met with DOT on Balfour Beatty's application for qualification to bid. At that time, DOT was on notice and inquired about Kelly's and Palmer's involvement in the S. J. Grove's default in Alabama. The Cochrane Bridge project was discussed in detail during a meeting held at DOT headquarters in Tallahassee. After being qualified, Balfour Beatty bid $82,000,000 on a large I-95 project in Broward County and was the successful low bidder by $1,000,000. In the beginning of the project Kelly and Palmer acquired staff and equipment, wrote purchase orders for materials, and supervised the project. On December 31, 1991, Dan White was hired as the project manager and Palmer visited the site every couple of weeks until problems on the project escalated. As the project manager, Dan White was in charge of the job and was responsible for the filing of claims. There were right-of-way problems and contaminated soil which delayed the project from the beginning. An initial design problem resulted from the project having been designed by two different design firms operating from different types of surveys. Consequently, the road was not aligned at the same elevation to match existing structures. These elevation problems shut down the project for months. None of the design, right-of-way, or soil contamination problems was the fault of Balfour Beatty. Nonetheless, DOT rejected all change items and required Balfour Beatty to file claims. A lawyer for DOT eventually became involved in the project in an attempt to settle the disputes which resulted in the preparation of Supplemental Agreement Number 73. SA-73 settled the claims up to that date, set new dates for project completion and paid money for completion by those dates. SA-73 was entered into based upon DOT's assurance that a constructibility review had been completed to make sure that the remainder of the project could be constructed in accordance with the existing plans and there would be no further design problems. However, the constructibility review was not complete and new design problems occurred immediately. The design of the parking lots was changed as they were being built. Core holes, used to determine the depth and density of the pavement had not been drilled. This caused more delays and claims. Balfour Beatty filed a lawsuit against DOT, Morrison Knudsen, the CEI on the project, and DOT personnel on site. The case was settled against DOT and its personnel for $4,750,000 and a jury awarded $4,300,000 against Morrison Knudsen. Balfour Beatty remains qualified to bid on DOT projects and was awarded a contract to build the Fuller Warren Bridge in Jacksonville. Kelly and Palmer, as consultants to Balfour Beatty, participated in preparing the bid for the Fuller Warren Bridge and that project is currently staffed with many of the same personnel who worked on the Broward County I-95 project, including the project manager, Dan White. The Broward County I-95 project was awarded on a bid of $82,000,000. DOT paid Balfour Beatty $97,000,000. The completion of the I-95 project was one to two years late and resulted in over 100 claims being filed. The Fuller Warren Bridge project was awarded on a bid of $81,000,000 and has cost to date approximately $94,000,000 to $96,000,000. None of the problems on the I-95 project were caused by Kelly or Palmer. Neither Kelly nor Palmer was involved in the preparation of the lawsuit or its settlement. ALLEGATION (g): Statements in the Application on Affiliations According to DOT's application, "The term 'affiliate' means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term 'affiliate' includes the officers, directors, executives, shareholders active in management, employees and agents of the affiliate. The ownership by one business entity of a controlling interest in another business or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another." In its application for bid qualification, Morse Diesel listed Morse Diesel Civil, Inc. and AMEC Holding, Inc. as its affiliates. Morse Diesel did not identify either MDI or KPG as "affiliated companies" in response to question number 8 in the application. The application was prepared under the direction of Morse Diesel's President, Mitchell Becker who has a master's degree in civil engineering and a law degree. Based upon his interpretation of the definition, he determined in good faith that MDI and KPG were correctly omitted from the response to question 8 because neither met the criteria for "affiliate" as defined in the application. The answer to question 8 is the same in both the 1998 application and the 2000 application and DOT did not request additional information in the 1998 application related to the response nor did it list the failure to name MDI and KPG as affiliates as a ground for denial of the additional classes of work in 1999. There was a notation on page 2 of 19 in the 1998 application referring to MDI as a "sister company." The question requested letters of recommendation. Morse Diesel was a newly formed company, and did not have recommendations for projects it had completed. Instead, it supplied the recommendations of MDI. It became apparent to Morse Diesel through subsequent requests for additional information that DOT was interested in recommendations about the principals and management of Morse Diesel, not MDI. Consequently, when filing its 2000 application, Morse Diesel did not supply MDI letters of recommendation and instead provided recommendations on previous work completed by Morse Diesel personnel while associated with other companies. The only entities that are predecessor entities or have any control over Morse Diesel are Morse Diesel Civil, Inc. and AMEC Holding, Inc. KPG is not a predecessor or successor of Morse Diesel and has no ability to control it with 20 percent ownership. Similarly, MDI is not a predecessor or successor entity and has no controlling interest in Morse Diesel. There was no intent to hide the nature of Morse Diesel's relationship with MDI or KPG. The fact that Mr. Becker and Mr. Fornella are officers of both Morse Diesel and MDI is clearly stated in their résumés in the application. It is DOT's policy to deny application for misrepresentation only when it is intentional. Morse Diesel listed MDI as an affiliate in its Virginia application because the definition of "affiliate" in that application was broader and appeared to encompass MDI. Footnote 3 on page 7 of the audited financial statements refers to a transfer of funds from MDI to Morse Diesel. Mr. Becker, as president of Morse Diesel testified that the footnote in the financial statement attached to the application was a mistake. MDI has never advanced money to Morse Diesel. The advances made to Morse Diesel were made by Morse Diesel Civil, Inc. Mr. Becker as president of Morse Diesel is aware of the financial condition of the company and reviews the financial statements each month. There is no pooling of equipment or income between Morse Diesel and MDI. Allegation (h): Notice of the MDI Default Question 19-2 on page 16 of 23 of the application asks whether "any officer or partner of your organization has ever been an officer, partner or owner of some other organization that has failed to complete a construction contract?" In response to that question, Morse Diesel explained in the application that Kelly and Palmer had been associated with S. J. Groves when it defaulted on the Cochrane Bridge project in Alabama, but otherwise answered the question "no." Although Mr. Becker and Mr. Fornella are officers of both MDI and Morse Diesel, the application did not reveal the default of MDI on a project in St. Louis because the company is contesting the default and has not as yet failed to complete that construction contract; it is in litigation. There is no credible evidence that Morse Diesel or Mr. Becker intentionally omitted any information from the 2000 application. Allegation (i): See Findings for Allegation (g). Morse Diesel has demonstrated that it is competent and has experience to prosecute the work requested in the application. DOT has allowed at least one other applicant to amend its application to identify related companies as affiliates after DOT has denied certification on that basis. The résumés in the application and evidence presented at hearing reflect the work experience of the management of Morse Diesel and indicate extensive experience in heavy civil construction, including highly complex projects. The management of Morse Diesel has experience constructing all the types of road and bridges for which qualification is sought. Morse Diesel has been qualified in New Jersey, North Carolina, South Carolina, Virginia, Delaware, and Pennsylvania. Furthermore, Pennsylvania qualified Morse Diesel on the condition that Mr.Palmer remain associated with Morse Diesel and involved in any project awarded there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Morse Diesel be permitted to supply DOT with corrections to the unintentional inaccuracies in its application and be pre-qualified in the classifications for which it applied. DONE AND ENTERED this 5th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 5th day of July, 2000. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 24th day of October, 1983.
Findings Of Fact By application number 21312, the applicant seeks a ten year water use permit for a total annual diversion of 3,831 million gallons to provide water and sewer services to an area containing approximately 7,300 acres. In September of 1969, the Florida Public Service Commission granted the applicant certificates of convenience and necessity. The existing facilities of the applicant include nine wells and an average capacity of 700 gallons per minute each. Based upon historical data and taking into accourt the reduction of construction in the service area, the projected 1984 water demand is 375 gallons per day per unit. This is equivalent to an average of 150 gallons per day per person, using a figure of 2.5 persons per living unit. The ultimate estimated population is to be 70,000 to 80,000 people with 28,000 to 32,000 living units. Based upon the average capacities of the wells, in order to meet the projected demand a total number of 22 or 23 wells will be required. This includes the nine existing wells, eleven proposed wells with the same 700 gallon per minute average and a fifteen percent standby capability of two or three additional wells. Rather than the total number of wells utilized -- 22 or 23, -- what is important is the total gallon per minute capacity of 15,400. An allocation based on this data would be equal to the applicant's requested annual maximum diversion of 3,831 million gallons and a daily maximum diversion of 18.37 million gallons. The requested diversion presents no threat of salt water intrusion. The proposed well sites will create no adverse impact upon the Fort Lauderdale well fields. While there is evidence of recharge to the aquifer from runoff waters, there is insufficient data to determine the exact amount which will be returned. For this reason, the staff report's water budget calculations are conservative.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that a ten year permit be issued to the applicant for a maximum annual diversion of 3,831 million gallons; a maximum daily diversion of 18.37 million gallons and a maximum installed field capacity of 15,400 gallons per minute, utilizing 22 or 23 wells with a capacity of 700 gallons per minute each. It is further recommended that the applicant be subject to the conditions set forth on page 5 of the staff report (Exhibit 8) concerning the submission of monthly reports of daily pumpage and actual connections or population served, conformance with health department standards of the water quality of all wells, and the installation and maintenance of an observation well and monthly reports of the data obtained therefrom. Respectively submitted and entered this 10th day of May, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. John R. Maloy Executive Director Central and Southern Florida Flood Control District P.O. Box V West Palm Beach, Florida 33402 Mr. Edward B. Deutsch 350 Southern Federal Building 400 North State Road 7 Margate, Florida 33063 Mr. John Wheeler P.O. Box V West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District
Findings Of Fact Petitioners own residential property near South Florida Water Management District (SFWMD) Canal C-24. The canal is owned and maintained by SFWMD, an agency of the State of Florida. The State property includes the banks and bottom of Canal C-24 and a 50-foot-wide strip of land which separates Petitioners' property from the canal. However, some of the Petitioners have obtained permits from SFWMD to maintain boat docks in the canal and to cross the 50 feet of intervening property as necessary. Canal C-24 is closed to navigation immediately west of Petitioners' property by a SFWMD dam used to control the water level. However, the canal is open to navigation east of the dam and connects with the St. Lucie River which flows into the Atlantic Ocean. Respondent GDC plans the residential development of property east of that owned by Petitioners. Construction of the proposed bridge will improve access to the GDC property and other portions of southeast Port St. Lucie which are now blocked on the north and east by water and on the west by the Florida Turnpike. On August 28, 1980, Respondent Department of Environmental Regulation (DER) issued its Notice of Intent to grant a permit for construction of the bridge with 17 feet clearance. The bridge was originally planned to provide 12 feet clearance which was approved by SFWMD and the City of Port St. Lucie. Based on Petitioner's objections and the recommendation of the US Coast Guard, the clearance was increased to 17 feet. However, Petitioners maintained their opposition, giving rise to these proceedings. At 17 feet the bridge would be approximately six feet below the Florida Turnpike bridge which is situated between the GDC residential development and Petitioners' property. Thus, Petitioners are currently limited to a 23-foot navigation clearance by the Florida Turnpike bridge which was present when they purchased their property. None of the Petitioners operates any boat at his Port St. Lucie residence which would be affected by construction of the proposed bridge. Rather, Petitioners' objections are based on the obstruction of larger boats they might acquire and on the belief that resale value of their property would be diminished. They also content that use of the canal as a hurricane refuge for large boats will be restricted. Finally, Petitioners argue that bridge pilings will cause erosion and thus create a surface hazard in addition to the height impediment. The Petitioners indicated no plans to acquire any power boats of such size as to be restricted by a 17-foot clearance, nor did their plans include the purchase or use of any sailboats which would not already be blocked by the 23- foot turnpike bridge. No studies, appraisals or together evidence was introduced to establish that property values would be affected by construction of the proposed bridge. Conflicting evidence was presented on the use of the canal by third parties as a hurricane refuge. However, the expert testimony given by Respondents' witnesses established that use of the canal during storms was unsafe and impractical due to the narrowness of the canal, the absence of trees to reduce the force of the wind or secure the boats, and the possibility of strong currents caused by operation of the flood control dam. Further, this testimony established that safer moorings are available on the adjacent portion of the St. Lucie River, which has the added advantage of being directly accessible to the ocean. Such moorings are preferable because of the greater maneuverability in the river and the presence of mangroves which provide anchorage and wind protection. The alleged erosion problem was not supported by any studies or expert testimony, but was based on Petitioners' observations of some soil erosion around turnpike bridge pilings. GDC's construction proposal has been considered by DER, and its engineering plans will be reviewed by the City of Port St. Lucie before it authorizes construction. This process should insure that any potential erosion problems are minimized. Furthermore, there was no evidence to indicate that soil erosion, even if it did occur at the site of the proposed bridge, would create any hazard to navigation. The City Manager of Port St. Lucie supports construction of the bridge at its present level. His concern, and that of the City Commission, is centered on the need to deliver police, fire and ambulance service to the area south of the proposed bridge. Additionally, opening of the bridge will result in the improved flow of vehicular traffic in the community. A local contractor who owns lots on both sides of the canal opposes any further elevation of the bridge as it would reduce the view from houses he intends to construct in this area. The GDC evidence established that raising the height of the bridge would also enlarge the property on either side of the canal required for bridge purposes. Finally, the cost of construction of further increasing bridge height would be substantial, amounting to approximately $40,000 per foot.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation grant the permit to General Development Corporation as reflected in the Notice of Intent issued on August 28, 1980. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Mr. Kenneth J. Thomas 2649 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Anita R. Cockerham 2549 SW Harem Circle Port St. Lucie, Florida 33452 Mr. Walter J. Konrad Ms. Victoria Konrad 2657 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. Henry Albright Ms. Nancy Albright 2651 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. William Isaacs 2645 SW Harem Circle Port St. Lucie, Florida 33452 Mr. and Mrs. Frederick C. Walrath 2647 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Mary Bruins Kars 2659 Harem Circle Port St. Lucie, Florida 33452 Mr. Norman Zlinkoff 1814 Erwin Road Port St. Lucie, Florida 33452 Mr. Donald M. Homer General Development Corporation 111 South Bayshore Drive Miami, Florida 33131 Randall E. Denker, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Joseph Z. Fleming, Esquire 620 Ingraham Building 25 SE Second Avenue Miami, Florida 33131
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 22nd day of December, 2006.
Findings Of Fact By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12) The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation) The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene) The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12) After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7) By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13) In their prehearing and posthearing stipulations, the parties agreed to the following: That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. The proposed bridge will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grass- flats suitable as nursery or feeding grounds for marine life, and establish[ed] marine soil(s] suitable for producing plant growth of the type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests. If the permit is issued, it shall be issued with the following conditions: Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown) The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther. There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)
Recommendation That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 30th day of November, 1983.
Findings Of Fact The railroad crossing which is the subject of this proceeding is crossing number 272626-E, in the City of Miami, Florida. Its location at N.E. 55th Terrace is approximately 500 feet north of an existing crossing located at N.E. 54th Street, and roughly 1100 feet south of another crossing located at N.E. 59th Street. The Railway's rationale for seeking to close the N.E. 55th Terrace crossing is that these other two nearby crossings offer practical alternate routes to the N.E. 55th Terrace crossing, and can provide adequate access to the area for the public and emergency services. The City's opposition is based on its contention that closure of the N.E. 55th Terrace crossing would adversely affect emergency access to the area, which has experienced substantial growth in population due to the influx of refugees. The Department of Transportation supports the closing of the subject crossing, contending that N.E. 55th Terrace is not a thoroughfare and that it has a low volume of vehicular traffic, and because of its proximity to other crossings. The section of the Florida East Coast Railway involved in this proceeding runs from N.E. 79th Street to Biscayne Boulevard, a distance of approximately five miles. There are approximately 30 crossings now in existence over this section of the railroad's track. The principal justification for the closure of the N.E. 55th Terrace crossing is its proximity to the other crossings located at N.E. 54th Street and at N.E. 59th Street, and the resulting improvement in safety for vehicular traffic and railroad equipment. Removal of the subject crossing should eliminate vehicular accidents on the tracks, and eliminate upkeep and maintenance expenses caused by frequent vandalism at the N.E. 55th Terrace crossing location. In addition, closure will eliminate one sounding of the train whistle between N.E. 59th Street and N.E. 54th Street. The present signal device at the N.E. 55th Terrace crossing is of an old-type steel construction with a cast iron crossbuck on a concrete-type foundation. Because it is of steel construction, it is hard to maintain in a salt climate. This device is approximately 25 years old and has to be maintained by a pole line which is about 30 years old. It will have to be replaced within two years unless the application is granted and the crossing closed, at a cost of approximately $42,266. This signal device has been the subject of vandalism, requiring replacement of two bond wires within the last three months. On other occasions the lens and bulb were broken out. During the months of August, September and October, 1981, there were four instances when repairs were required at the subject crossing due to vandalism, the frequency of which is higher in this area than at other points in Miami. The crossing at N.E. 55th Terrace does not connect directly with Biscayne Boulevard. It is not an arterial road but is a collector or service road providing access to adjacent properties. There are alternative roads in the area which carry most of the large volume of traffic. Less than 500 vehicles a day use the N.E. 55th Terrace crossing, while approximately 12,000 vehicles a day use the N.E. 54th Street crossing. The movement of fire, police and other emergency vehicles would not be impeded by closing of the N.E. 55th Terrace crossing, since other crossings are readily available and offer better access and quicker response time than N.E. 55th Terrace. Police or fire vehicles moving over the N.E. 55th Terrace crossing must travel over a circuitous route because N.E. 55th Terrace is not a continuous street. In addition, closure of the subject crossing would remove an existing conflict point (a point where the path of any vehicle is interrupted by another vehicle), which is beneficial from a safety standpoint. Finally, any population growth in the area will have adequate transportation over N.E. 54th Street and N.E. 59th Street, and will not require the use of the N.E. 55th Terrace crossing. Consequently, there will be a negligible impact upon traffic over the crossings at N.E. 54th Street and N.E. 59th Street by closure of the N.E. 55th Terrace crossing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Florida East Coast Railway Company to close the at-grade railroad crossing at N.E. 55th Terrace in Miami, Florida, be granted. THIS RECOMMENDED ORDER entered on this 17th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS 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 17th day of March, 1982. COPIES FURNISHED: Charles B. Evans, Esquire One Malaga Street St. Augustine, Florida 32084 Terry V. Percy, Esquire 174 East Flagler Street Miami, Florida 33131 Charles G. Gardner, Esquire 562 Haydon Burns Building Tallahassee, Florida 32301
