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
Findings Of Fact By Application for Permit to Move Building over State Roads dated November 1, 1985, Eyal Sade, on behalf of Sade Housemovers applied for a permit to move a dwelling over state roads some 32 miles in Tampa and vicinity. Although this application showed the width of the building to be 32.2 feet, including eaves, E & S Construction/Sade Housemovers, was issued regular Permit No. B17531 on November 6, 1985 (Exhibit 1). Width, excluding eaves, was left blank on this application. This permit provided the building would be moved over state roads between the hours of 12:00 midnight and 6:00 A.M. and be escorted by local police. The application showed utility companies TECO, GTE and WRec [sic] had been notified of the move and the move had been cleared by the Florida Highway Patrol without comment regarding the need for escort. Also Seaboard railroad system had been notified (Exhibit 1). This move commenced shortly after midnight, November 19, 1985, with escorts from the Hillsborough County Sheriff's Department. The building had to be jacked up on the platform on which it rode and required a 90 degree turn to commence its trip south on Nebraska Avenue (U.S. 41). This delayed the start of the movement down Nebraska Avenue approximately 30 minutes. Shortly after the trip started, the portable generator that provided lighting on the building stopped functioning and the escorts told Mr. Sade he had to get the lights on the building. Sade attempted to have the generator repaired as the move progressed. When the movers stopped for approximately five minutes to repair the generator, the police escorts testified that the crew moving the building stopped working to eat. This was denied by Sade and the members of his crew who all testified that the sandwiches that Sade procured were eaten as the move progressed. The two deputies from the Sheriff's Office who escorted the move considered the move to be progressing slowly and told Sade several times that he should be ready to park the building before 6:00 A.M. Sade had spent three days surveying the route before November 19, and had taken measurements of all bridges and the elevation of lights. Mrs. Sade had contacted by telephone the City of Tampa Utilities Department to advise them of the move as well as Pasco County officials for the portion of the route in Pasco County. There was a conflict in the testimony of the deputies and Sade regarding the presence of a man on top of the building to clear traffic lights as the building passed under these lights. Sade testified he had a man on the building during the time the building was in the City of Tampa. The deputies testified they told Sade he needed someone on the top of the building. The bridge over the Hillsborough River on SR 39 was some twenty miles from the commencement of the trip and the building arrived at this bridge around 5:30 A.M. The escorts had told Sade several times that he should not be on the road after 6:00 A.M. and that hour was approaching. Sade was aware of a large lot on which the building could be parked off the highway located about one mile south of Hillsborough River bridge and decided to cross the bridge to get to that location. While crossing the Hillsborough River bridge, the building got stuck on the guardrail and had to be backed off. Sade's winch broke down but they were able to obtain a bulldozer from a business adjacent to the bridge which helped get the building off the pavement and along the right of way as demanded by the escorting officers. While this was going on, the traffic was totally blocked for about 20 minutes and delayed with one way traffic having to proceed past the building until the building was finally moved completely off the roadway. Even then the overhang of the building extended offer the road to the white line along the edge of the pavement. Sade's testimony that this eave was 17 feet above the pavement was not disputed; however, William Ledden opined that a semi-trailer would hit the roof of the building if it attempted to pass under this eave. By the time the building was parked along the right-of-way, it was approximately 8:40 A.M. and traffic had been stopped and delayed for almost three hours. The problem of getting the building stuck on the bridge, the resulting delay past 6:00 A.M. and that the building was still on the road was reported to Petitioner, and William Ledden, a certified officer employed by DOT as a weights and safety inspector, was dispatched to the scene. Ledden looked at the permit issued Sade for the move, saw it was a regular permit, saw that it expired at 6:00 A.M. and directed Sade not to move the building until a proper permit was issued. Ledden was present during the time the wrecker relocated the building alongside the paved road on the shoulder. For a building exceeding 30'6" in width a Special Permit is required (Rule 14-63.03, Florida Administrative Code). Ledden testified he made it clear to Sade that the building was not to be moved without a valid permit. On the morning of November 20, 1985, after midnight, the building was moved without incident across Hillsborough River bridge to the large lot south of the bridge that Sade had hoped to make the night before. Sade reapplied to DOT for a permit to move the building to its intended destination and on November 25, 1985, Special Permit No. B17546 (Exhibit 2) was issued to Respondent. This permit indicated all necessary parties were notified of the move. Shortly after midnight, November 27, 1985, the movement of this building recommenced pursuant to the Special Permit. The move progressed satisfactorily until the bridge on SR 39 over Blackwater Creek was reached. Petitioner's witness testified the building hit the rub rails on both sides of the bridge. Photograph admitted on Exhibit 4 shows one side of the building rubbing on the guardrail. Respondent acknowledged that the clearance was close and that to clear the guardrail on one side, the building had to be raised on that side. The driver of the towing truck acknowledged that he initially got off line and one side of the building touched the guardrail and it was necessary to back off the bridge to get realigned. To raise one side of the building to enable it to clear the guardrail on the right side, 2 x 12 planks were placed on the roadway for the right wheels of the carriage to ride on. These planks had to be moved continuously as the building progressed across the bridge. This materially slowed the progress across the bridge. Other than the initial rubbing of the guardrail, the only complaint of Petitioner regarding this part of the move is that the bridge was blocked to traffic for one and one-half hours while the building crossed the bridge. Sade testified the building was on the bridge for only 30 to 45 minutes; however, the longer period is deemed more reliable. After clearing the bridge, the building struck some tree limbs alongside the road and a railroad stop sign over the road which had to be realigned. This realignment was done by the moving crew and no safety hazard resulted. The carriage for the building had been raised as much as possible to clear the bridge guardrails and still be low enough to clear the overhanging traffic signals, hence the need to raise one side of the carriage to clear the guardrail at the Blackwater Creek bridge. The November 27 move was completed prior to 6:00 A.M. in accordance with the permit.
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 Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.) The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work. Ability to read and understand blueprints and written instructions. Ability to communicate effectively orally and in writing. Ability to plan, organize and coordinate work assignments. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-3. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work. Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-17 through 2-18. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel." A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula: (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least 10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points. GE was the apparent awardee of the contract for RFP 1004. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded 53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded 38 points to GE and 20 points to Old Tampa Bay. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician. The letters concluded with the following statement: The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.) As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay: There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.) Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work: The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract." Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather, Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However, Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE. Mr. Green did not testify at the hearing. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians. Old Tampa Bay's letter stated that it had selected Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected): [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license. * * * [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green." Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota." Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work." Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge inspector because he lacked the required engineer’s license or certification as a bridge inspector. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems. Mr. Abernathy conceded that he does not have an electrical contractor’s license. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago. By letter to Mr. Abernathy dated July 17, 1998, Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows: As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed. . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full: We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician. Attached is his resume. We have selected Mr. Adrian Cook as the supporting electrician, Journeyman License Number JE776, Hillsborough County. We have selected Mr. Wayne Cano as an electrician’s helper. Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of completion of various professional training courses. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction." Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper." Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license. Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected): Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electrician license. Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic] systems and on bridges recently rehabilitated with modern computer controlled systems. They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights. On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have headquarters within Sarasota/Manatee County" . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure". Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected): Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day 7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license. In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr. Green and Mr. Vance in the original proposal who’s [sic] experience will "keep bridge down time and repair time to a minimum." By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of August 13, 1998. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal knowledge of their background or experience, and relied on their résumés in making his decision. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996. Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green, any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting, and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact At all times here relevant Respondent was licensed as a roofing contractor and qualifying agent and owner of Handyman Service Company, Pinellas Park, Florida. In November or December 1982, representatives of Sandalwood Club Association contacted Richard Fabrizi, who was acting as sales agent for Handyman Service Company, about some repairs desired at their condominiums. Fabrizi advised Respondent and several meetings were held with Sandalwood representatives after which contract proposals for work desired by Sandalwood were presented by Respondent. It became apparent that complete reroofing of the Sandalwood condominiums was needed; however, the association did not have sufficient funds at that time for such a project. As a result of the negotiations a repair contract was entered into between Handyman and Sandalwood Club whereby Handyman contracted to perform certain work for $16,000 (Exhibit 1). At about the time this contract was entered into Pinellas Park became incorporated and established its own building department. Respondent was qualified to perform roofing contracting in Clearwater, in whose jurisdiction Sandalwood was placed before Pinellas Park, but he had not qualified to contract in Pinellas Park. When this was realized, Respondent engaged the services of Edgar Plumtree, a licensed contractor, to pull permits and supervise the roofing at Sandalwood. The permit for this work (Exhibit 2) was signed by Joseph A. Saturno, contractor, but no evidence was presented regarding Saturno or how his name came to appear on Exhibit 2. Expert testimony was presented that the work proposed to be performed in Exhibit 1 constituted much more than repair work; however, Respondent's witness's testimony that the contract was intended by all parties to be a temporary repair, guaranteed for three years, was unrebutted. Expert testimony that the use of 90# mineral-coated roofing material in valleys did not comply with the Southern Standard Building Codes, which has been made applicable to Pinellas Park, was modified on cross-examination by testimony that such material could be used for repairs if approved by the building inspector. The evidence was unrebutted that the building inspector approved the use of the 90# roofing in the valleys. The expert witness further found violation of codes when a coating material was placed over aggregate surface on a flat roof or aggregate was reused without cleaning; however, on cross-examination this witness acknowledged that rerocking was not a code violation if sold as a repair in lieu of new roof. He did not consider the scope of the work shown in Exhibit 1 to be compatible with a minor repair, despite the intent of the parties to so treat this work. The work on the Sandalwood project was completed in March 1983. Sandalwood was in the process of issuing a contract to replace the shingles on their sloping roofs and in May 1983 Respondent met with Sandalwood Condominium Association as one of the bidders was unhappy with the roofing repairs done by Handyman. Due to brittle shingles the tie-ins were unsatisfactory. An appointment was set up with representatives of the Pinellas Park Building Inspector, Sandalwood representatives, and Handyman representatives. Handyman was also bidding on the shingle replacement contract. On May 26, 1983, this meeting was held including the successful bidder (Baker) on the shingle roof replacement contract. The building inspector, Respondent, Baker, and Sandalwood representatives went on the roofs. The building inspector suggested Baker do the tie-ins from the work done by Handyman, for which the latter agreed to pay, but Baker declined. Thereafter, the flashing between the shingle roofs and the flat roofs was installed by Handyman and the shingles by Baker. Exhibit 6 indicates the shingles do not properly cover the flashing. Respondent's testimony that the work performed by Handyman was exactly what Sandalwood requested them to perform was not rebutted.
Recommendation It is RECOMMENDED that Franklin A. Marciano be issued a letter of reprimand for completing a roofing repair contract in a municipality in which he was not licensed. DONE AND ENTERED this 19th day of October 1984 at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1984. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank A. Marciano 11327 43rd Street, North Clearwater, Florida 33520 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company. RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER 1. & 2. Accepted and Incorporated herein 3. & 4. Accepted and Incorporated herein 5. - 8. Accepted and Incorporated herein Accepted except for the statement that letters from rental companies were not submitted & 11. Accepted and Incorporated herein 12. - 14. Accepted and Incorporated herein Accepted but not probative of any material fact & 17. Accepted but not probative of any material fact Accepted but incomplete Rejected as contra to the weight of the evidence Rejected as a comment on the evidence and not a Findings of Fact Accepted but not probative of any material fact Rejected as irrelevant & 25. Rejected as contra to the weight of the evidence Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein & 7. Accepted and incorporated herein Accepted and incorporated herein Accepted & 11. Accepted and incorporated herein Accepted Accepted and incorporated herein Not established Accepted but not probative of any material fact Accepted and incorporated herein Accepted and incorporated herein COPIES FURNISHED: Crit Smith, Esquire 215 South Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32302 Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue is whether Respondent engaged in negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes.
Findings Of Fact Respondent has been licensed as a professional engineer in Florida since 1968, holding license number 18122. He is a member of the American Society of Professional Engineers and the Florida Engineering Society. Respondent served as the engineer of record for the Le Porin residence in Charlotte County, Florida. This case arose from a complaint made by an official with the Charlotte County Building Department (Building Department) following the submission of what he concluded was an incomplete drawing by Respondent in connection with the Le Porin job. The present case addresses the sufficiency of the strapping of the roof truss to the concrete block wall of the Le Porin residence. Petitioner does not challenge the sufficiency of the straps themselves. Petitioner challenges the sufficiency of the nails attaching the top of the straps to the roof truss and the sufficiency of the anchors screwing the bottom of the straps into the concrete block wall. In response to the request of the Building Department official, Respondent submitted a “Correction Detail” on May 29, 1999, to the Charlotte County Building Department. The purpose of the detail was to address a concern of the Building Department official about missing or missed truss straps. The text accompanying the detail asserts that the actual lift-up value is 1482 pounds. The text adds: “Missed or missing truss straps with less than 1000 lbs. of up-lift . . .” The diagram accompanying the detail shows an RT22TW retrofit strap extending from the truss down along the interior of two filled concrete blocks, which represent the uppermost two rows of blocks forming the exterior wall. The diagram depicts the strap as attached to the concrete blocks by three 3/16” x 2” tapcons: one is in the filled center of the uppermost concrete block, one is in the solid base of the uppermost concrete block, and one is in the filled center of the second uppermost concrete block. The portion of the strap abutting the truss reveals six dots on alternating sides of the upper portion of the strap, although it is unclear if these dots represent nails. The diagram depicts the upper portion of the strap as running along the broad face of the rafter, but not extending across the top of the rafter and down the opposite side. Respondent supplied a sheet of specifications from the manufacturer of the strap, Hughes Manufacturing, Inc., which shows a strap extending along one face of the rafter, across the top of the rafter, and then down a short distance along the opposite face of the rafter. The manufacturer’s diagram depicts a strap with a stronger grip on the rafter than the strap depicted in Respondent’s diagram in his correction detail, which shows a strap merely running along one face of the rafter. In the manufacturer’s installation, nails are driven into both sides of the rafter; in Respondent’s installation, nails are driven into only one side of the rafter. Evidently, the corrective nature of the retrofit straps precluded the installation of them over the rafters that had already been enclosed by the roof. The manufacturer’s specifications show that the RT 22 strap, which Respondent has proposed, is 14-gauge galvanized steel. The “TW” may refer to the fact that the strap is twisted by 90 degrees, so that it can be attached to the wide face of the rafter and the side of the concrete wall, which are perpendicular to each other. According to the manufacturer’s specifications, the RT 22 strap, which is 22 inches long and one inch wide, contains at least 18 symmetrically spaced, 3/16-inch holes for fasteners to attach the strap to the surfaces being secured. The manufacturer’s specifications state that the RT 22 strap requires 18 16d nails, assuming that both surfaces to which the strap is being attached are wood. At least in a wood-on-wood application, the manufacturer’s specifications provide that the normal design load of the RT 22 strap is 1116 pounds and the uplift design load is 1782 pounds. The specifications note that the manufacturer has derived the design loads from the National Design Specification for Wood Construction, 1991 Edition. By letter dated June 1, 1999, to the Building Department, Respondent provided additional information on the strapping of the trusses at the LePorin residence. The letter states that certain trusses were strapped with “one RT22TW (1484)” instead of a previously indicated strap and that the “remedial action is satisfactory when used with [three] 3/16 x 1 1/2 [long] (min.) Tapcons.” By Plan Review Correction List dated June 3, 1999, the Building Department cites, for two separate notes, the requirement of Standard Building Code (SBC) B 1606.1, which requires that all buildings must be designed to withstand prescribed wind loads. The first note acknowledges the use in the correction detail of three 3/16” Tapcons with straps to correct a problem of missing truss straps. The first note states that the attached specifications for Tapcons indicate shear values of 510 pounds (680 pounds x 0.25 x 3 Tapcons) for hollow block, and the note cautions that 510 pounds is insufficient for 1000 pounds of uplift. The second note requests a correction drawing for the missed straps showing a value of at least 1000 pounds. This latter note appears to be in reference to the truss straps with less than 1000 pounds uplift, as described above in Respondent’s correction detail. By letter dated June 9, 1999, to the Building Department, Respondent included manufacturer’s specifications from Concrete Anchor Systems for the Tapcons. Respondent explained that he used the strength design method for building design. He contended that using the 4:1 ratio as a safety factor, as sought by the plans examiner with whom Respondent had been dealing, would mix working stress design and strength design, which would be a poor engineering practice. The June 9 letter states that the manufacturer rates at 1782 pounds uplift the RT22TW strap at 14-gauge thickness, one inch width, and holes of 3/16” diameter. The letter contends that this equates to 2004 pounds deformation load (1-.1875)(.0747)(33,000). The June 9 letter asserts that the manufacturer rates an HFTM strap using six 3/16” x 1 1/4 inch Tapcons as capable of resisting 1700 pounds of uplift. Doing the calculations for an eccentric strap, Respondent determined that the manufacturer’s data yield a strength of 1037 pounds, which exceeds the design load of 1000 pounds. Noting that strength design uses factored loads, not safety factors, Respondent contended in the June 9 letter that the three Tapcons for the 3500-pound concrete at 3/16” x 1 1/4” is equal to 852 x 3 = 2556 (shear); 2556-1 x 1000 = 0.4; and 0.4 x the yield stress is equal to the nominal stress. Combining this with the factored load, Respondent contended, is good engineering practice and consistent with applicable codes. Accompanying Respondent’s June 9 letter is a June 9, 1999, letter from ITWRamset/Red Head, which manufactures the Tapcon anchors. The manufacturer’s letter sets forth the “ultimate shear failure loads” of the 3/16” x 1 1/4” anchors; in 3000 psi concrete, the shear strength is 852 pounds. The manufacturer’s letter adds that a safety factor of 4:1 (or 25 percent of this ultimate load capacity) is used for long-term static loads, not for short-term hurricane loads. The letter warns that the performance characteristics of Tapcon anchors are based on the embedment depth of the anchor and the base material into which the anchor is installed. Accompanying materials describing the specifications of the ITWRamset/Red Head Tapcon anchors state that, for embedment in solid concrete, one 3/16” x 1 1/4” anchor provides ultimate pullout strength of 581 pounds. (As noted by Respondent in his proposed recommended order, 1 1/4 inches is the depth to which the two-inch anchors would be embedded in concrete.) The same materials describe the ultimate shear strength for one 3/16” x 1 1/4” anchor, embedded in 3145 psi hard rock concrete, as 852 pounds. A cautionary installation note in the accompanying materials warns that “safe working loads for single installations under static loading should not exceed 25% of ultimate load capacity.” At the hearing, a state-certified general contractor testified for Respondent. He has worked extensively with Respondent for the past five years. Testifying that the general contractor is responsible for installing the straps, the contractor testified that he could drive six nails into the strap, but, if the strap had been wrapped over, he could have driven three nails on each side of the rafter. Petitioner has proved by clear and convincing evidence that Respondent’s proposed method of attachment of the strap to the rafter does not conform to the manufacturer’s specifications and constitutes negligence in the practice of engineering. The inability of Respondent to wrap the rafter was exacerbated by his failure to specify the number, weight, and location of nails. Without regard to whether such specifications are required in typical situations, in this situation, involving a retrofit of straps where a contractor and carpenter might be unable easily to drive nails, the engineer’s specification of the number, weight, and location of the nails was imperative. At the hearing, a state-registered structural engineer testified for Respondent. Based on his analysis, the three Tapcon anchors could safely withstand 1000 pounds of uplift. Respondent’s calculations use strength-design analysis, not allowable stress design analysis, and there is a question, under the SBC, as to the use of strength design in masonry, at least for wind loads. At the hearing, a state- registered engineer testified for Petitioner. He explained that the use of masonry, in strength-design analysis, is of limited usefulness, except for earthquakes, because of the difficulty in using the correct load and resistance factors, and the preferred characteristic of wood, as for wind loads, to resist higher forces for shorter durations (as contrasted to steel and masonry, whose ability to resist loads is unrelated to the duration of the load). Petitioner’s engineer testified that the SBC employs a testing affiliate, which has determined that the allowable stress on each of the subject Tapcons is 183 pounds, so that three Tapcons of the type specified could resist 549 pounds. Even with the historical, although now controversial, factor increasing the allowable stress for these three Tapcons by one- third, they could still not resist a 1000-pound shear load. Petitioner’s evidence challenging the sufficiency of the three Tapcon anchors is persuasive, but not quite clear and convincing. As noted below, negligence in engineering is especially dependent upon applied engineering practices and principles, and the testimony of Respondent’s expert is sufficient to insulate Respondent from an adverse finding as to the Tapcon anchors.
Recommendation It is RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent guilty of negligence in the practice of engineering and issuing a reprimand. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 28th day of December, 2000. COPIES FURNISHED: Dennis Barton, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Natalie A. Lowe, Esquire V.P. for Legal Affairs Florida Engineers Management Corporation 1208 Hays street Tallahassee, Florida 32301 William H. Hollimon Ausley & McMullen 227 South Calhoun Street Tallahassee, Florida 32301 Joseph C. Cash 4422 Mundella Circle Port Charlotte, Florida 33948
