The Issue The issue in this case is whether an Application to the South Florida Water Management District for Authority to Utilize Works or Land of the District filed by Respondents, Joint Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A., should be approved by the South Florida Water Management District.
Findings Of Fact Petitioners, Arthur Pivirotto and Ann H. Pivirotto presented no evidence in this matter. Petitioners have, therefore, failed to meet their burden of proof that Right of Way Occupancy Permit Application Number 94-1005-2 should not be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order in case number 96-0870 dismissing the Petition for Formal Proceedings Per 40E-1.521 Fl. Admin. Code and 120.57 F.S. DONE and ENTERED this 2nd day of August, 1996, in Tallahassee Florida. LARRY SART1N, 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 August, 1996. COPIES FURNISHED: William A. Fleck, Esquire 6650 West Indiantown Road Suite 200 Jupiter, Florida 33458 Charles H. Burns, Esquire 1080 East Indiantown Road Jupiter, Florida 33477 Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Donald S. Fradley, Esquire 27 Pennock Lane Jupiter, Florida 33458 Alan J. Cooper, Esquire Tequesta Corporate Center 250 Tequesta Drive, Suite 200 Tequesta, Florida 33469 Samuel E. Poole, III, Executive Director Department of Environmental Protection South Water Management District Post Office Box 24680 West Palm Beach, Florida 33146
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within the 30 days of rendition of the order to be reviewed.
Findings Of Fact On April 22, 1994, Respondent, Southwest Florida Water Management District (SFWMD), published proposed amendments to Rule 40D-4.051 in the Florida Administrative Weekly, Volume 20, Number 16, at page 2450. The portions which are the subject of this proceedings are as follows: * 40D-4.051 Exemptions <<(1) Exemptions are found in>> [[The following activities are exempt from permitting under this chapter: The activities specified in]] Sections 373.406, Florida Statutes. (2)-(7) No Change. * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. On May 13, 1994, Petitioner, Gerald A. Robbins, filed a Petition to Challenge Proposed Rule 40D-4.051. On May 20, 1994, Petitioner filed an Amended Petition to Challenge Proposed Rule 40D-4.051. In its rule challenge, Petitioner requests that 40D-4.051(1) be rewritten as follows: "Exemptions are as found in Sections 373.406 AND 403.927 Florida Statutes." On July 1, 1994, Respondent withdrew its proposed amendment to Subsection (1) of Rule 40D-4.051. The following Notice of Withdrawal appeared in Florida Administrative Weekly, Volume 20, No. 26: Southwest Florida Water Management District RULE TITLES: RULE NOS.: Exemptions 40D-4.051(1) NOTICE OF WITHDRAWAL Notice is hereby given that the above proposed rule amendment, published in the Florida Administrative Weekly, Volume 20, Number 16, on Page 2450, April 22, 1994, have (sic) been withdrawn. This is the sole subsection being withdrawn from rulemaking pursuant to Section 120.54(13)(b), Florida Statutes. The remainder of the proposed amendments to Section 40D-4.051, Florida Administrative Code remains subject to Section 120.54(1), Florida Statutes. By Order dated June 28, 1994, the portion of Petitioner's rule challenge relating to Rule 40D-4.051(7) was dismissed. Petitioner appealed the Order to the Fifth District Court of Appeal, Gerald A. Robbins v. Southwest Florida Water Management District, Case No. 94-1717. The court denied Petitioner's Petition for Review of Non-Final Administrative Action by Order dated October 10, 1994.
The Issue The issue is whether the plan amendments adopted by Ordinances 97-56, 97-59, 97-61, 97-63, 97-64, 97-66, and 97-67 are in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background On November 14, 1997, Respondent Collier County (the County) adopted numerous amendments to its Growth Management Plan (the Plan). The County adopted these Plan amendments (the Plan Amendments) pursuant to its Evaluation and Appraisal Report (EAR). By law, local governments must assess their comprehensive plans every seven years and prepare an EAR. On December 24, 1997, Petitioner Department of Community Affairs (DCA) published its Notice of Intent to find the Plan Amendments not in compliance with the criteria of Chapter 163, Part II, Florida Statutes (Chapter 163), and Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). A detailed Statement of Intent is attached to the Notice of Intent. The petition of DCA incorporates the Statement of Intent. The petition of Intervenors Collier County Audubon Society, Inc., and Florida Wildlife Federation (Intervenors) also incorporates by reference the Statement of Intent. The petitions cite 16 grounds for a determination that the Plan Amendments are not in compliance with Chapter 163 and Chapter 9J-5, although, at hearing, Intervenors dropped Issue 5. Intervenor Collier County School Board (School Board) intervened to defend the Plan Amendments regarding the siting of schools. The parties stipulated to the standing of all of the parties. The Plan, as amended by the Plan Amendments (County Exhibit 1), discloses repealed and added language by strikeouts and underlines, respectively. All but two of the issues involve amended Plan provisions. The two exceptions are the Intergovernmental Coordination Element (ICE) (Issue 1) and Housing Element (Issue 4). In Issue 1, DCA and Intervenors challenge ICE Policy 1.2.6 and its effect of allowing schools to be sited anywhere in Collier County. Although the County did not amend ICE Policy 1.2.6, it substantially amended another Plan provision with the effect of relaxing restrictions on the siting of schools. In Issue 4, DCA and Intervenors challenge Plan provisions governing farmworker housing as not supported by the best available data and analysis. Although the County did not amend these Plan provisions, Petitioner and Intervenors contend that updated data and analysis demanded that the County do so. Issue 1 ICE Policy 1.2.6 states: The County shall continue to coordinate with the Collier County School Board on the site selection for new schools and the provision of infrastructure, particularly roads, to support existing and proposed school facilities in accordance with the Interlocal Agreement adopted in accordance with Chapter 163.3177 F.S. on June 25, 1996. Although unamended by the Plan Amendments, ICE Policy 1.2.6 is subject to challenge because of the effect of other EAR amendments on school siting. Plan Amendments in the Future Land Use Element (FLUE) affect school siting, but the effect of other Plan Amendments is to restrict slightly school-siting standards. For instance, prior to the Plan Amendments, the Plan generally allowed schools in areas designated Agricultural/Rural. As amended, FLUE II.g adds some restrictions to schools as a land use in areas designated Agricultural/Rural. This provision reads: Community facilities such as churches, group housing uses, cemeteries, and schools which shall be subject to the following criteria: Site area and school size shall be subject to the General Educational Facilities Report submitted annually by the Collier County School Board to the Board of County Commissioners. The Site must comply with the State Requirements for Educational Facilities adopted by the State Board of Education. The site shall be subject to all applicable State or Federal Regulations. The County made the identical change in permitting schools in the Conservation designation. For the Urban designation, the County repealed the identical former language, but, in adding schools as a permitted use, did not include the three bulleted provisions quoted above. However, a Plan Amendment to the Sanitary Sewer Subelement (Sanitary Sewer) outweighs the slight restrictions added in the Plan Amendments to the FLUE and results in a net relaxation of the school-siting standards. In the Plan Amendments, the County repealed Sanitary Sewer Subelement (Sanitary Sewer) Policy 1.1.6, which provided: By January 1, 1990, review existing criteria and regulatory framework for septic tank installations and determine the suitability of same for Collier County by December 31, 1990, implement local ordinances regulating septic tank installations if above review indicates need to do so. Prior to its repeal, Sanitary Sewer Policy 1.1.6 threatened the continued reliance on septic tanks, especially for more intensive uses, such as schools. Although reliance upon septic tanks is not the School Board's preferred means of disposing of sanitary sewage, the School Board has determined that the use of septic tanks is economically feasible. At present, septic tanks exclusively serve the sanitary sewer needs of one public school, Big Cypress Elementary School, which is located on Golden Gate Boulevard east of State Road 951 and is attended by over 1000 students. As long as Sanitary Sewer Policy 1.1.6 was in effect, the School District was on notice that its ability to site schools without regard to the availability of central sewer, including larger package plants, was in doubt. The repeal of Sanitary Sewer Policy 1.1.6 eliminates that doubt and invites school-siting decisions without regard to Plan-imposed, or at least -threatened, requirements of central sewer. As a result of the Plan Amendments, the Plan effectively allows the School District to site schools through the entire range of future land use designations, including conservation areas. In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means--i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5. Withdrawing school-siting decisions from the comprehensive planning process interferes with the ability of the Plan to address the demand that schools will place upon public facilities, such as traffic, sewer, water, solid waste, drainage, and recreation. As do the County and School Board in the Interlocal Agreement, the Florida Department of Education likewise recognizes the direct effects of school siting. Section 1.4(2) of the State Requirements for Educational Facilities, 1997, published by the Florida Department of Education, identifies numerous factors that school boards should consider in siting schools, including the compatibility of uses of adjacent property, the capacity of roads, and the effect (on the buildings) of siting in a floodplain. As the floodplain can affect the school, so the school can affect the floodplain, but the effects of schools on natural and manmade resources receives little, if any, attention in the State Requirements for Educational Facilities or the Interlocal Agreement. When addressing public facilities, the educational planning documents focus on the effects upon the users of the school, such as the capacity of the roads to accommodate the parents driving their children to school or the location of the school in an area safe from flooding. Schools also have indirect effects on natural and manmade resources, especially when a public school is sited in a relatively undeveloped area. Induced sometimes by the availability of relative inexpensive land and developer-provided incentives, the construction of a public school exemplifies the "if you build it, they will come" scenario. The construction of a public school may compete with excess road capacity as a development-attractor to a relatively undeveloped area within a larger area undergoing brisk population growth. Thus, school- siting decisions may have large indirect effects on the natural and manmade resources in an area, well in excess of the impact of the school itself or the demand upon public facilities made by its users. DCA and Intervenors have proved by a preponderance of the evidence that, after consideration of the Plan Amendments affecting the siting of schools, ICE Policy 1.2.6 is inconsistent with the criterion of designating the future general distribution, location, and extent of educational uses of land. By ignoring the issue of school-siting in the Plan, the County has failed to address, in the planning process and in the Plan, issues such as the proximity of schools to existing or future residential development, the identification of land uses incompatible with schools, and the prohibition of the siting of schools in locations that fail to preserve environmentally sensitive lands, such as floodplains, unique native habitats, or habitats for listed species. By relaxing its school-siting standards, the Plan fails to meet the pleaded minimum criteria of land use planning and forfeits an opportunity to discourage urban sprawl and encourage a comprehensive planning solution to the challenges of population growth and the development and redevelopment of land. Issue 2 As amended, Natural Groundwater and Aquifer Recharge Subelement (Groundwater) Objective 1.2 replaces a promise to adopt a groundwater protection ordinance by August 1, 1989, with the following: Implement the Collier County Ground Water Protection Ordinance that includes: regulation of land use activities County-wide as well as within wellfield protection zones surrounding identified public water supply wellfields and identified sensitive recharge areas; and County-wide ground water quality criteria, to protect the County's ground water resources as well as sensitive recharge areas. Groundwater Policies 1.2.1 through 1.2.4 provide: The Ordinance will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance, to provide an appropriate level of protection to sensitive recharge areas. The Ordinance will address the breaching of confining units by improper well construction, rock mining and other excavations, blasting and other similar activities. Apply the criteria of those sections of the Collier County Ground Water Protection Ordinance that address: breaching of confining units by improper well construction, rock mining and other excavations, blasting, and other similar activities to protect recharge of the Surficial Aquifer System, to planned/permitted future development. The County will implement the Ordinance in a manner to minimize duplication of effort between the County and other State agencies. Implementation of the Collier County Ground Water Protection Ordinance will follow Ordinance procedures, and other internal County procedures in a manner to minimize duplication of effort among County, municipal, and State agencies. DCA and Intervenors have proved by a preponderance of the evidence that Groundwater Objective 1.2 does not supply a specific, measurable, intermediate end that is achievable and marks progress toward a goal. As presently formulated, this objective is nothing but a promise of the implementation of a land development regulation whose regulatory content or performance criteria are omitted from the Plan. The objective defers the establishment of regulatory content and performance standards to the land development regulations. The objective itself offers no protection to the groundwater resources or aquifer recharge areas because the County has relegated this crucial task to the land development regulations. The deferral and relegation of regulatory content and performance standards--required by Chapters 163 and 9J-5--to the land development regulations gravely undermines the entire comprehensive planning process for several reasons. Through deferral and relegation, the County retains the ability to amend or repeal the regulatory content and performance standards without a Plan amendment, which means without the public participation, agency review, and opportunity for a hearing that must accompany Plan amendments. Through deferral and relegation, the County insulates the regulatory content and performance criteria that are required to be in the Plan from determinations of consistency with the criteria of Chapters 163 and 9J-5 (including the crucial criteria of minimum content and supporting data and analysis), the regional policy plan, and the state comprehensive plan. Deferral and relegation to land development regulations do not insulate the provisions setting regulatory content and performance criteria from a consistency determination with the provisions of the Plan. However, the deferral and relegation effectively limit substantially affected persons to challenging the consistency of the land development regulations with the Plan, although this may be a meaningless right if the Plan lacks the required regulatory content and performance standards, against which the land development regulations may be compared. Also, because the comparison is between a land development regulation and Plan provision, the result of a finding of any inconsistency raises the likelihood of the elimination of the land development regulation, rather than the Plan provision with which it is in conflict, due to the relative ease of amendment or repeal of land development regulations as opposed to Plan provisions. Lastly, through deferral and relegation, the County insulates any regulatory content and performance criteria from an enforcement action, under Chapter 163, concerning development orders that are inconsistent with Plan provisions. Although other enforcement actions may be available for development orders inconsistent with land development regulations, the Chapter 163 action provides the added safeguards of statutory intervention by the Florida Department of Legal Affairs and recognition of relatively broad standing among private parties. DCA and Intervenors have proved by a preponderance of the evidence that the four policies do not identify programs and activities by which the County will achieve the planning goals or objectives that the policies are supposed to serve. Like Groundwater Objective 1.2, Policies 1.2.1, 1.2.2, 1.2.3, and 1.2.4 improperly defer and relegate to the land development regulations the identification of those programs and activities that are required to be in the Plan. The policies are impermissibly vague because they rely on land development regulations to identify the programs and activities necessary to achieve goals and objectives, rather than identify in the Plan the programs and activities, possibly leaving to the land development regulations the task of providing an additional level of detail for these programs and activities. For the reasons stated in Paragraphs 26-30 above, the County has improperly deferred and relegated to the land development regulations descriptive material that must be contained in the Plan. DCA and Intervenors have proved by a preponderance of the evidence that the Plan, including Groundwater Objective 1.2, is inconsistent with the criterion of an objective protecting the functions of natural groundwater recharge, and the Plan, including Groundwater Policies 1.2.1 through 1.2.4, is inconsistent with the criterion of regulating land use and development to protect the functions of natural groundwater aquifer recharge areas. Issue 3 Drainage Subelement (Drainage) Policy 1.1.2 provides: Outline how to iImplement procedures and projects within the County's Land Development Code and those procedures delegated by South Florida Water Management District during 5 year planning time frame to ensure that at the time a development permit is issued, pre- development versus post development discharge rates are monitored to assure that adequate water management facility capacity is available or will be available when needed to serve the development. The flaws of the Drainage Policy 1.1.2 start with the County's failure to adopt, in the Plan, an enforceable level of service (LOS) standard for drainage. Drainage Objective 1.2 provides that the County shall "Adopt Maintain adopted level of service standards for basins and sub-basins identified in the Water Management Master Plan." This master plan appears to be a part of the land development regulations, not the Plan. For the reasons stated in Paragraphs 26-30 above, this deferral and relegation of a crucial and required provision of a Plan--i.e., setting a drainage LOS--undermine the Plan's approach to drainage. Drainage Policy 1.2.1 formerly provided that the County would use the findings from a study to be conducted under the master plan to "identify existing levels of service for all the drainage basins and sub-basins." A parenthetical note states that the County completed this task in May 1990. New Drainage Policy 1.2.1.A provides, for "future 'private'" development, that the drainage LOS standards are the "water quantity and quality standards" specified in various ordinances that are not incorporated into the Plan. New Drainage Policy 1.2.1.B assigns "existing 'private'" development and "existing or future public drainage facilities" LOS standards identified in the master plan. For such development, a table assigns letters to various basins, but the meaning of the letter is not explained in the Plan. The net effect of this objective and policies is that the Plan defers and relegates to the land development regulations the crucial task of setting comprehensive drainage LOS standards--comprehensive in the components of drainage (e.g., hydroperiod, rate, quality, and basin) and comprehensive in the scope of development (i.e., all private and public development and redevelopment, including public development, not just "public drainage facilities"). In the context of other Drainage provisions, Drainage Policy 1.1.2 is essentially useless. It defers and relegates to the land development regulations the regulatory content (including setting a drainage LOS), performance criteria, and identification of programs and activities. On its face, given the failure of the Plan to set a drainage LOS, Drainage Policy 1.1.2 promises nothing more than the monitoring of post- development runoff. DCA and Intervenors have proved by a preponderance of the evidence that the Drainage Policy 1.1.2 does not identify programs and activities by which by which the County will achieve the planning goals or objectives that the policy is supposed to serve and that the Plan lacks a policy regulating land use and development to protect the functions of natural drainage features. Issue 4 This issue raises the question whether the County relied on the best available data when preparing Plan provisions concerning farmworker housing. In their joint proposed recommended order, the County and School Board offer proposed Plan amendments providing for the collection of new farmworker housing data in 1998, the analysis of the data in 1999, and the adoption of any necessary Plan amendments in 2000. This is consistent with the tenor of the testimony of their witnesses: the County wants more time to conduct more studies to determine if farmworker housing needs may have lessened somewhat. The data and analysis accompanying the revisions to the Housing Element (Housing) include analysis of 1990 census data done by the Shimberg Center at the University of Florida. Tables showing the percentage in the unincorporated County of owners and renters, respectively, paying more than 30 percent of their income for housing reveal that, for persons with annual incomes of less than $10,000, the percentages are 76.1 and 95.9; for persons with annual incomes of $10,000 to $19,999, the percentages are 44.3 and 75.9; and for persons with incomes of $20,000 to $34,999, the percentages are 32.3 and 31.4. After reciting these data, the Housing data and analysis state: The previous tables indicate a strong need for more affordable owner and rental opportunities throughout the County. Very low, low[,] and moderate income families who pay more than 30 [percent] of their gross monthly income on housing cost are considered to be "cost burdened" according to the U.S. Department of Housing and Urban Development. As a County witness testified, 85-90 percent of County farmworkers reside in Immokalee. According to the County's own data, 36.8 percent of the housing units in the Immokalee area are substandard. The next highest area has 13.4 percent substandard housing, and the next highest has 4.7 percent substandard housing. Of the 4507 units in the Immokalee area, 101 lack plumbing, 74 lack kitchens, and 134 have more than 1.01 persons per room (with some units appearing in more than one category). After reciting these data, the Housing data and analysis state: As the housing stock continues to age, there is a need to provide housing rehabilitation programs for the very low to moderate income rental and owner occupied households in order to prevent continuing deterioration and potential substandard housing conditions. After displaying other data, the Housing data and analysis report that various tables prepared by the Shimberg Center project a very large deficit of affordable, renter occupied and owner occupied dwelling units for the years 2000, 2005 and 2010. Local estimates have not been calculated but efforts to address the estimated deficits are identified in the Housing Element. According to the Shimberg Center data, there is a county wide need for 4,973 affordable rental units and 9,500 affordable owner occupied units by 2000 for a total of 14,473 affordable housing units. Responding to these data, the Housing data and analysis state: The City [Naples] established a goal of encouraging the development of 500 affordable housing units each year within the urban area boundaries identified in a 1994 Interlocal Agreement. Based upon County data collected for this Interlocal Agreement's 500 unit goal, the statistics indicate that 30 [percent] of all single family building permits issued since July 1994 meet the Interlocal Agreement[']s affordable housing criteria. Since the adoption of this Interlocal Agreement, an average of 600+ affordable housing units have been produced countywide each year. Since the urban area target of 500 unit[s] per year has been met, it is recommended that the target be increased to 750 units countywide. A target of 750 units countywide is realistic based upon building permits and [certificates of occupancy] issued annually. The tables contain a comprehensive projection of affordable housing for all income ranges and are not limited to persons with moderate or less annual incomes. Thus, for unincorporated Collier County, one table discloses a deficit of 287 units by 2010 for persons making over $150,000 annually. Addressing farmworker housing specifically, the Housing data and analysis mention the County's 1994 Immokalee Housing Study. Housing designated exclusively for farmworkers consists of privately owned migrant labor camps and Farm Worker Village, which was built with the assistance of the Farmers Home Administration and is owned and operated by the County. The Housing data and analysis note that farmworkers "are also housed in a variety of other housing that is usually substandard, deteriorated or overcrowded." The Housing data and analysis report that farmworker housing in the Immokalee area includes migrant labor camps and shared housing. The Housing data and analysis note that there is no farmworker housing located on the farms in the Immokalee area. According to the Housing data and analysis, the 109 migrant camps in the County comprise 1987 units. The County owns and operates 571 one- to four-bedroom units for rent at affordable rates, but, at the time of the survey, there were 60 applications on the waiting list for these units. The County also has 276 Section 8 certificates from the Farmers Home Administration. Families paying more than 30 percent of their income on housing are eligible for these certificates, which are limited to housing expenses in rural areas. Surveying existing studies, the Housing data and analysis concludes that 4.5 persons reside in each farmworker household. Restating projections from the County's 1994 Immokalee Housing Study, the Housing data and analysis report that, in 2005, farmworker housing demand will consist of 10,711 permanent units and 3251 seasonal units for a total of 13,962 units. For 1995, the Housing data and analysis calculate that the 2961 available seasonal units could accommodate, at 4.5 persons per dwelling unit, 13,324 of the 33,134 seasonal residents, leaving a shortfall of housing for nearly 20,000 seasonal residents or, at 4.5 persons per dwelling unit, 4402 units. However, this analysis understates projected needs for farmworker housing because, without analysis, it uses for all future years the current estimate of 4.5 persons per dwelling unit without considering whether greater availability of affordable housing would reduce the number of persons per dwelling unit. The dispute begins to emerge when the Housing data and analysis note the obvious difficulty of establishing accurate farmworker population figures and conclude that the population increases are relative to the amount of acreage in production at the time of the population count. The County contends that future farmworker housing demands are artificially high because they do not reflect recent trends reducing agricultural operations. However, the County's contentions are unsupported by data and analysis collected in accordance with a professionally recognized methodology. To the contrary, the County elsewhere in the Plan estimated that seasonal farmworker residents, who are present in the Immokalee area during the winter months, would increase by 25 percent after 1992 "to reflect the anticipated expansion of the citrus industry." FLUE, page 57. The County elsewhere relied on the projection of the South Florida Water Management District that agricultural water demands will increase by 46 percent from 1990 to 2010. Conservation, page 35. According to the FLUE data and analysis, nearly 6000 acres of land in the Immokalee area were devoted to agricultural uses. This is only about 2.5 percent of the nearly 250,000 acres in agricultural uses in the County and only about 0.4 percent of the 1.3 million acres in the County. The County's contention of declining needs for farmworker housing repudiates the findings and conclusions of the County's own 1994 Immokalee Housing Plan and the Shimberg Center's more recent work. Rather than address these data and analysis in preparing the Housing goals, objectives, and policies, the County relied on speculation and conjecture that farmworker housing needs may have declined, or may soon decline, due to a perceived decline in agricultural operations. No data indicate what agricultural operations have declined or may decline or, more importantly, the effect of any such decline on the need for farmworker housing. The County did not analyze even this conjecture and speculation from the perspective of other relevant data and analysis, such as the leveling off of a decline, in the mid-1990s, in tomato farming; possibly offsetting trends in other labor-intensive farming; possibly offsetting trends in labor-intensive farming around Immokalee; and trends in Hendry County labor-intensive farming and the impact of Hendry County farmworkers choosing to reside in Immokalee. The available data and analysis reveal ongoing shortages in affordable housing of nearly 15,000 units by 2000. For migrant farmworkers, the available data and analysis suggest a shortage of nearly 4500 units in 1995. The data and analysis suggest that other farmworker substandard housing units will be lost to attrition. Except as it involves farmworker housing, the County relied on a 25 percent increase in farmworkers after 1992 and a 46 percent increase in agricultural water demands from 1990 to 2010. Ignoring the available data and analysis, the County relied on vague concerns about a reduction in labor-intensive agricultural operations in support of its development of affordable housing strategies that do not focus on the unique and pressing needs of farmworkers. The following Plan provisions repeatedly fail to respond adequately to the quantitative and qualitative housing needs of farmworkers. Housing Objective 1 is to increase by only 500 units annually the number of new affordable housing units for persons earning a wider range of incomes than do farmworkers "to continue to meet the housing needs of all current and future very-low, low[,] and moderate income residents of the County, including those households with special needs such as rural and farmworker housing in rural Collier County." Failing to focus measurably the affordable-housing effort on farmworker housing, Housing Policy 1.4 states: Affordable housing will be distributed equitably throughout the County using strategies which include, but are not limited to, density bonus agreements and impact fee waivers or deferrals. In addition, affordable housing will be located where adequate infrastructure and services are available. Housing Objective 2 is to create a nonprofit housing development corporation by 2000, with representatives from business, government, housing advocates, and the general community, to assist the County in achieving the annual goal of 500 new units, as stated in Housing Objective 1. Housing Policy 2.1 is to increase the supply of housing for very low, low, and moderate income residents, including farmworker housing, through the use of existing programs, such as low income housing tax credits, density bonuses, and impact fee waivers or deferrals. DCA and Intervenors have proved by a preponderance of the evidence that the cited Housing objectives and policies are not supported by the data and analysis. In preparing the revised provisions of the Housing Element, the County relied on speculation and anecdotal evidence of reductions in the numbers of farmworkers, declining to address the professionally collected data and analysis of that data, including the County's own data- collection and -analysis. DCA and Intervenors have proved by a preponderance of the evidence that the Plan lacks policies providing guidelines or criteria for the location of farmworker housing. The data and analysis reveal a crucial need for such housing in the Immokalee area, but the Plan, most notably Housing Policy 1.4, fails to address these data and analysis by failing to focus affordable- housing efforts for farmworkers where the need is greatest. The Plan also fails to establish locational criteria or guidelines to assure that the farmworker housing best serves the needs of the farmworkers. Issue 5 Prior to these amendments, Golden Gate Area Master Plan (Golden Gate) Policy 2.2.3 provided that the County would apply the stricter of its special development standards or Chapter 28-25, Florida Administrative Code, to applications for development within South Golden Gate Estates. However, these amendments repealed Golden Gate Policy 2.2.3 and replaced it with new Golden Gate Policy 2.1.4, which provides that the County will apply Chapter 28-25, Florida Administrative Code, to applications in "those Golden Gate Estates units located within the Big Cypress Area of Critical State Concern." The state rules limit site alterations to 10 percent of the total site, limit impervious areas to 50 percent of the site, and prohibit alteration of the natural flow of water. The effect of the Plan Amendment is to remove these land use restrictions from the part of the South Golden Gate Estates that is not in the Big Cypress Area of Critical State Concern. As reported in the Golden Gate data and analysis, "hailed as the world's largest subdivision," the Golden Gates Estates subdivision encompasses about 170 square miles or eight percent of the County. Golden Gates Estates is located in central Collier County. Part of Golden Gate Estates is located east of Interstate 75, north of the point at which the interstate turns east and heads toward Miami. South Golden Gate Estates is located south of Interstate 75. Gulf American sold 95 percent of the lots in Golden Gate Estates by 1965. South Golden Gate Estates comprises around 17,000 parcels, including about 10,000 parcels under 2.25 acres. Approximately 2000 people live in South Golden Gate Estates, although the actual number may be higher due to unpermitted construction. About 8000 people live in the remainder of Golden Gate Estates. Totaling 94 square miles, South Golden Gate Estates is surrounded by the Florida Panther National Wildlife Refuge to the north, the Picayune Strand State Forest and Belle Meade (about 16,000 acres on the CARL list for state acquisition) to the west, the Cape Romano/Ten Thousand Islands Aquatic Preserve to the south, and Fakahatchee Strand State Preserve to the east. The Fakahatchee Strand State Preserve is separated from Big Cypress National Preserve to the east by State Road 29. Northwest of the Cape Romano/Ten Thousand Islands Aquatic Preserve is Rookery Bay Aquatic Preserve, which lies between Marco Island and Naples Bay. Major public conservation lands in the County--all near Golden Gate Estates--include Big Cypress National Preserve (534,947 acres), Fakahatchee Strand State Preserve (65,524 acres), and Florida Panther National Wildlife Refuge (24,300 acres). Major additions include another 100,000 acres added to the Big Cypress National Preserve, but in the northeast part of the County away from Golden Gate Estates, and 30,000 acres in Golden Gate Estates (with nearly 12,000 acres already acquired). A large portion, if not all, of South Golden Gate Estates is proposed for state acquisition under the Save Our Everglades program, but progress, until recently at least, has been slow. The state has imposed the Big Cypress Area of Critical State Concern over the entire County east of Golden Gate Estates, as well as a large area south of South Golden Gate Estates. Most of the Area of Critical State Concern encompasses publicly owned land, but privately owned land is also within the Area of Critical State Concern. DCA contends that the data and analysis do not support the Plan Amendments that are the subject of Issue 5. The effect of the replacement of one policy with another policy is to relax development restrictions in the part of Golden Gate Estates outside of Areas of Critical State Concern. The Drainage data and analysis describe the patterns of surface water runoff characteristic of the County prior to alteration of these natural drainage features. In general, there is a nearly imperceptible ground slope in the County from a high point near Immokalee in the north-northeast corner of the County to the south and southwest to the Gulf of Mexico. Slopes as little as 4 inches per mile are common east of State Road 29; slopes of 12 inches per mile are typical to the west of State Road 29. Prior to construction of artificial drainage facilities, the runoff traveled slowly through long sloughs, which are shallow but wide depressions, and extensive cypress forests in its journey toward the estuaries and bays of the Gulf of Mexico. The natural rhythm between the wet season and the slow, natural drainage left vast parts of the County, including what is now Golden Gate Estates, seasonally inundated. The natural drainage patterns attenuated the runoff, so as to permit the upstream deposit of much of the sediments and nutrients borne by the runoff prior to its entry into rivers and bays. The natural drainage patterns also created native habitat for various plant and wildlife species seeking the periodic or permanent wetlands hydrated by the runoff. The first major disturbance of this natural drainage process came with road construction. Development of roads in the County typically involved the excavation of a canal and the application of the excavated material into the road base, so as to raise the road surface above the surrounding water level. State Road 29, which runs south from Immokalee to Everglades City in the southeast corner of the County, was constructed in this matter in 1926, as was U.S. Route 41 (Tamiami Trail) two years later, reportedly in a transaction in which Baron Collier constructed the road in return for a conveyance from the state of what became Collier County. The logging industry used the same process to construct tramways for transporting cypress logs during the 1950s. The extension of these early canals allowed the expansion of agricultural and other uses of seasonally or permanently inundated lands. The Drainage data and analysis conclude their description of this process as follows: The above described method of "ditch and drain" development in Collier County resulted in a haphazard series of canals that had a tendency to lower the water table and change the flow patterns of the natural drainage basins. In addition to canals, many dikes were constructed around very large tracts of land and the water levels lowered by pumping to create agricultural land. This combination of development events impacted large areas of wetland and began to concentrate the flow of stormwater run-off instead of allowing the traditional sheetflow across the land. In the area adjacent to Naples, developers had cut canals in order to lower the water table and facilitate the construction of housing. In the late 1950s and early 1960s, Gulf American Corporation took this practice to a new level in the development and worldwide marketing of 173 square miles of land and water that came to be known as Golden Gate Estates. Prior to development, much of the area consisted of waterbodies several feet deep through the wet season. In general, the area was flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. In order to market Golden Gate Estates as a vacation and retirement community, Gulf American undertook a vast drainage project in an effort to eliminate from the landscape and waterscape waterbodies several feet deep through the wet season and flat swamp lands featuring cypress forests, pine forest islands, and wet and dry prairie. Major components of this effort were clearing 813 miles of paved and limerock roads and dredging 183 miles of canals, which drain into the Gordon River, Naples Bay, and Faka Union Bay. The County approved the Golden Gate Estates subdivision in early 1960, and, five years later, 90 percent of the land had been platted and sold in parcels of 1.25, 2.5, and 5 acres. As the Golden Gate data and analysis explain, the County rezoned the area to low-density residential when it became apparent that it could not provide essential facilities and services. The artificial drainage facilities that replaced natural drainage features and converted land from water facilitated the urbanization of the County. Urbanization brought large increases in impervious surface. Large increases in impervious surface produced even more and faster runoff and a decrease in percolation into the groundwater system. The effect on the artificial drainage system was to overwhelm it during major or serial storm events, resulting in flooding. Flooding completed the cycle by resulting in additional artificial drainage facilities. The addition of more artificial drainage capacity adversely affected natural resources in several respects. The addition of more artificial drainage capacity accelerated the rate at which canals transported stormwater into the Gulf, so as to eliminate or reduce the duration of flooding. But the rushing stormwater destabilized channels and reduced the opportunity for natural filtration of sediments and nutrients. The bays and estuaries into which the stormwater eventually runs thus received increased loads of sediments from destabilized channels and increased loads of sediments, nutrients, and pollutants from decreased filtration. Another effect of the addition of more artificial drainage capacity was to lower the water table elevation at all times, not just during the wet season. Thus, the canals overdrained large areas, including Golden Gate Estates, leaving them especially vulnerable to fire during the dry season and droughts during the wet season. The Golden Gate data and analysis report that the annual acreage consumed by fire increased eightfold after Golden Gate Estates was drained so as to alter the hydroperiod and lower the water table. The fires became more severe, eliminating the organic (humus) part of soils and thus discouraging post-fire, vegetative recolonization. The replacement of natural drainage features with artificial drainage facilities dramatically altered natural hydroperiods and, in so doing, destroyed wetlands and wetlands habitat, encouraged saltwater intrusion, and degraded estuaries and eliminated marine habitat by altering the timing and amount of freshwater infusions on which commercially harvested fin fish, shellfish, and sport fish depend at some point in their life cycle. The effect of artificial drainage facilities on water quality, water quantity, and hydroperiod adversely affected recharge of the surficial aquifer, on which the County depends for most of its drinking water. The surficial aquifer receives 90 percent of its recharge from rain and surface flow with direct infiltration from rainfall being the most important source of recharge of the water table aquifer, according to the Groundwater data and analysis. As the Drainage data and analysis concede, artificial drainage facilities have reduced aquifer recharge, which is often best served during flood events when the drainage facilities are overwhelmed. Additionally, as the Groundwater data and analysis note, runoff-transported pollutants can enter the groundwater, just as they can enter surface waters. The Groundwater data and analysis state that protection of natural groundwater recharge relies on land use restrictions that ensure that land uses do not change the recharge process in terms of timing, water quantity, or water quality. The Groundwater data and analysis identify two factors as affecting timing and water quantity: covering recharge areas with impervious surfaces and overdraining recharge areas by canals. In terms of water quality, the Groundwater data and analysis warn of pollutants introduced directly into the water table aquifer by stormwater detention/retention facilities, sewage treatment percolation ponds and absorption fields, and septic systems. Based on a formula developed by the Environmental Protection Agency that considers, among other things, water table elevation and soil permeability, the Groundwater data and analysis warn that County groundwater is highly sensitive to groundwater contamination. In particular, the Groundwater data and analysis recommend the investigation of possible groundwater contamination through the agricultural use of pesticides and fertilizer and the residential use of septic tanks in the area of the East Golden Gate Wellfield. The Groundwater data and analysis recommend, among other things, land use controls around wellfields, areas of high transmissivity, and major hydrological flowways. In light of the deleterious impacts of artificial drainage facilities on water quality, water quantity, and aquifer recharge, the Drainage data and analysis suggest that the drainage LOS standards address these three factors. The Drainage data and analysis state that it is "essential" that the stormwater management standards concerning water quality provide treatment levels "at least compatible with current state requirements. Drainage, page D-I-3. Regarding water quantity, the Drainage data and analysis state that the standards must provide adequate flood protection for developed areas and sufficient water to maintain aquifers, wetlands, and estuarine systems. The Drainage data and analysis discuss the difficulties the County experienced in trying to set a drainage LOS. Historically inadequate systems compounded the problem. Developments permitted prior to 1977, including all of Golden Gate Estates, were designed only to protect against flooding in the event of the ten-year storm, and these developments have an inconsistent record in meeting even these relaxed standards. The County required post-1977 development to meet the more demanding standards of the 25-year, 3-day storm event, and these developments have generally done so. The Drainage data and analysis report that the County hired consulting engineers in 1989 to prepare the Stormwater Management Master Plan. Out of this work emerged LOS standards using water quality as a function of the storm event, water quantity, and the potential of the area to provide aquifer recharge. However, neither the Plan nor even the Drainage data and analysis disclose these drainage LOS standards. The discussion of the drainage LOS standards does not focus extensively on basin issues as to water quantity. Another feature of a drainage LOS, the basin in which runoff is naturally found is important because drastic alterations of basin may alter the periodic, natural changes in salinity necessary to the health of the receiving estuaries. Due to the flatness of the topography, basins in the County naturally shift, depending on the location of rainfall and amount of rainfall compared to the capacity of the natural drainage features. Roads that run along the barely perceptible ridge lines defining a basin change the dynamic of location and amount of rainfall compared to the capacity of the natural drainage feature, so as possibly to change the basin receiving the resulting runoff. Roads that cut across ridge lines have an obvious effect on receiving basins. Canals have similar effects on these basins. Citing the results of the Stormwater Management Master Plan, the Drainage data and analysis list the ten major basins in the County. However, after listing these basins, the Drainage data and analysis note: At this time, an aggressive stormwater management capital improvement project construction is not proposed. The intent is to respond to the will of the local citizens as they petition the Board of County Commissioners to design and construct stormwater management improvements through the creation of taxing and/or assessment districts. The omission of the drainage LOS standards from the Plan (and, although not strictly relevant, even from the data and analysis) precludes an determination of the scope and effect of the County's decision not to schedule stormwater improvements until residents demand such public facilities. Nothing in the Plan allows the informed reader to learn whether the County's undisclosed drainage LOS standards have adequately blended the objective of natural-resource protection with the objective of flood control. Nothing in the Plan allows the informed reader to learn of the extent to which the County must apply these undisclosed drainage LOS standards to development, redevelopment, and unchanged land uses (i.e., retrofitting). The effect of the omission of drainage LOS standards from the Plan is heightened by certain water-quality trends during the ten-year period ending in 1989, coupled with the County's reduction in water-quality monitoring during the ensuing ten years. Map LU-92 in the Conservation data and analysis identifies 24 "estuarine bays" from the Lee County line south to Everglades City. These bays include Clam Bay, which is just north and west of the terminus of Pine Ridge Road; Doctors Bay, which is immediately north of Naples; Naples Bay, which is immediately south of Naples and receives water from the Gordon River and Haldeman Creek; Rookery Bay, which is south of Naples about midway between Naples and Marco Island and receives water from Henderson Creek; and Faka Union Bay and Fakahatchee Bay, which are roughly midway between Marco Island and Everglades City. According to the Conservation data and analysis, the worst water quality reported by the Department of Environmental Protection in a 1994 statewide assessment of water quality was the estuarine portion of the Gordon River, which violated water quality standards for conductivity and dissolved oxygen. Rated as "threatened or moderately impaired" in this study, Naples Bay violated water quality standards for conductivity. A portion of the Henderson Creek Canal violated water quality standards for conductivity and dissolved oxygen. The Conservation data and analysis note that the County assessed available data collected from 1979 through 1989 and determined that, during this period, surface waters may have experienced an increase in nutrients. Inland-water data indicate that nutrient levels (nitrogen, phosphorus, or both) increased from 1979 through 1989 in the Gordon River Extension, Henderson Creek, Main Golden Gate Canal, and Faka Union Canal. Although there are less estuarine nutrient data, the data for Clam Bay reveal a steep increase in nitrogen and a slower increase in phosphorus. The sediments of numerous inland waterways contain organochlorine pesticides. Although polycyclic aromatic hydrocarbons are not widespread in estuarine sediments, they were detected among 80 percent of samples taken in Naples Bay in 1992. Among inland sediments, they are very high in the Gordon River Extension. Heavy metals are at very slightly elevated levels in urbanized estuaries, which include Naples Bay. The Golden Gate data and analysis predict "substantial population increases" for Golden Gate Estates. However, the Golden Gate data and analysis indicate that only a 4 square-mile area is served by central sewer; the same area is the only area served by central water. The Golden Gate data and analysis of the relevant drainage facilities report that the drainage basin for Golden Gate Estates is the 107 square-mile Golden Gate Basin and the 185.3 square-mile Faka Union Canal System Basin. The Faka Union Canal System Basin discharges into the Faka Union Bay, and the Golden Gate Basin appears to discharge into Naples Bay. Given the role of drainage in preserving or restoring the health of bays and estuaries, maintaining or improving natural recharge of the aquifer on which the County depends for its drinking water, and maintaining or restoring viable wetlands habitat for a variety of terrestrial and marine wildlife and plant life, and the historic exacerbation of flooding and fire by poorly planned artificial drainage facilities, DCA has proved by a preponderance of the evidence that the data and analysis do not support the Plan amendments that repealed Golden Gate Policy 2.2.3 and replaced it with Golden Gate Policy 2.1.4, so as to restrict the coverage of pre-existing restrictions on site alterations that substantially impact the drainage of South Golden Gate Estates. Issue 6 Conservation Objective 1.1 provides: By August 1, 1994, the County will complete continue with the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. Species of special status are defined as species listed in the current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission. Conservation Policies 1.1.1 and 1.1.2 respectively provide: By August 1, 1989, appoint and establish operational procedures for Continue with using a Technical Advisory Committee to advise and assist the County in the activities involved in the development and implementation of the County Environmental Resources Management Program. By the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto[,] incorporate the Goals, Objectives, and Policies contained within this Element into the County's land development regulations as interim environmental resources protection and management standards. Conservation Objective 1.3 provides: By August 1, 1994, complete Continue with the phased delineation, data gathering, management guidelines and implementation of the County Natural Resources Protection Areas (NRPA) program by implementing the Board- approved process for nominating potential areas for review. The purpose of Natural Resources Protection Areas will be to protect endangered or potentially endangered species (as listed in current "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida," published by the Florida Game and Fresh Water Fish Commission) and their habitats. Conservation Policy 1.3.1 specifies the components of the NRPA program. Specific requirements include identifying NRPAs on the Future Land Use Map (FLUM), establishing development standards applicable within NRPAs to maintain functioning natural resources and restore or mitigate natural resources within NRPAs that are already degraded, identifying an NRPA review process, and deferring development within NRPAs through purchase, tax incentives, and transfer of development rights. Conservation Appendix D, which is part of the data and analysis, is devoted to Natural Resource Protection Areas (NRPAs). The issue is not what the County did or did not provide DCA during the review and adoption process. This historical fact is superseded by the opportunity presented to both sides to present data and analysis at the de novo hearing. Conservation Appendix D states that the Board of County Commissioners approved on March 1, 1994, a process for identifying NRPAs and establishing management plans for NRPAs. The process requires initial Board approval before the process commences. Appendix D identifies 33 criteria to be considered in designating NRPAs. Nearly all of the criteria involve environmental factors. The criteria represent a comprehensive range of environmental factors. Appendix D notes that, on February 28, 1995, the Board of County Commissioners approved Clam Bay as a NRPA and directed staff to begin the preparation of a management plan for Clam Bay. Clam Bay is a wetland area within an approved development of regional impact. Clam Bay was the site of a considerable mangrove die- off in 1992 and 1995. County staff appear to believe that there is a problem with flushing and possibly high water levels, as well, so the County is seeking a permit to dredge the pass. Historically, Clam Pass was connected to Vanderbilt Pond to the north, but land development severed this connection. Clam Bay is the only NRPA that the Board of County Commissioners has designated. DCA contends that the data show that the NRPA process does not adequately protect wetlands, wildlife, and wildlife habitat. Intervenors likewise argue that the NRPA is ineffective, and the County's ineffectual implementation of the NRPA program deprives Conservation Objective 1.3 of support from the data and analysis. The issue of whether these two objectives and three policies are supported by data and analysis requires consideration of their purpose and the efficacy of the programs to be established to help attain these objectives and realize their purpose. Conservation Objective 1.1, with its policies, establishes the Environmental Resources Management Program, whose purpose is to identify, manage, and protect "properly, appropriately, and effectively" natural resources, including species of special status. Conservation Objective 1.3, with its policy, establishes the NRPA program, whose purpose is to protect endangered or potentially endangered wildlife and plant life. The broader scope of the Environmental Resources Management Program is offset by its offer of only conditional protection, as disclosed by the three quoted adverbs. The highly conditional promise of Conservation Objective 1.1 means that this objective and its policies do not require much in the way of supporting data and analysis. For this reason, DCA and Intervenors have failed to prove that Conservation Objective 1.1 and Policies 1.1.1 and 1.1.2 are not supported by data and analysis. The focus of Conservation Objective 1.3 and Policy 1.3.1 is narrower--limited to endangered species and potentially endangered species--and its promise of protection is unconditional. A fair definition of potentially endangered species is threatened species and species of special concern, so this recommended order shall use the phrase, "listed species," to describe the species covered by Conservation Objective 1.3 and Policy 1.3.1. In determining the extent to which Conservation Objective 1.3 and Policy 1.3.1 are supported by data and analysis, it is necessary to consider the County's role in providing habitat to listed species, any trends in wildlife habitat and listed species, the treatment of listed species by other Plan provisions, and the County's use of NRPAs. In 1994, the Florida Game and Fresh Water Fish Commission published Closing the Gaps in Florida's Wildlife Habitat Conservation System (Closing the Gaps). This report divides Florida into geographic regions; Southwest Florida comprises Sarasota, Charlotte, Lee, Collier, Glades, and Hendry counties. Closing the Gaps cites this region as "the most important region in Florida" in terms of "maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . .." Closing the Gaps, page 173. Most prominent in Southwest Florida are the only stable panther population east of the Mississippi River; the only stable black bear population south of Interstate 4; the greatest populations of Audubon's crested caracara in the United States; core populations of sandhill cranes, swallow-tail kites, and burrowing owls; important foraging and nesting habitats for colonies of many species of wading birds; and favorable conditions for several species of tropical plants that are rare elsewhere in Florida. Closing the Gaps states that most of the County hosts at least seven "focal species." "Focal species" are 40 species-- many of which are listed--selected for their role as indicators of natural communities or requirement of large areas for habitat. Closing the Gaps, page 8. Although most of this area is within Big Cypress and other publicly owned lands, it extends through Golden Gate Estates and into extreme west Collier County. A land-cover map in Closing the Gaps shows that the largest contiguous area of cypress swamp occupies Golden Gate Estates. Another map depicts this area as a large area of "strategic habitat" that runs to the north and northeast to link with strategic habitat running through central Hendry County and eventually to the western half of Glades County. Closing the Gaps, page 172. "Strategic habitat" is intended to provide habitat to species "lacking adequate representation in current conservation areas." Closing the Gaps, page 7. Closing the Gaps divides Collier County into two geographic areas for more detailed analysis. One area is north of Golden Gate Estates, reaching the Lee County line. The other area is west of Fakahatchee Strand and occupies South Golden Gate Estates and the remainder of Golden Gate Estates to the north. The more northerly area consists of cypress swamp, hardwood swamp, dry prairie, and pineland and "represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, page 174. This area includes Lake Trafford, which is the highest part of the County and the only area supplying relatively high, natural aquifer recharge, and provides strategic habitat for the Florida panther, Florida black bear, wood stork, and American swallow-tailed kite. The more southerly area provides strategic habitat for the Florida panther, Florida black bear, red-cockaded woodpecker, and several rare wading birds that nest elsewhere. South Golden Gate Estates provides strategic habitat for the American swallow- tailed kite, southern bald eagle, eastern indigo snake, and several plant species. Central Golden Gate Estates provides strategic habitat for the American swallow-tail kite, red- cockaded woodpecker, gopher tortoise, eastern indigo snake, and several plant species. Both the northerly and southerly areas provide the "largest contiguous blocks of high-quality habitat . . . outside of conservation areas" for Florida bears. Closing the Gaps, page The County hosts the largest black bears in Florida and one of the largest groups of bears. Closing the Gaps asserts that bear habitat in the County "appears to be of the potentially greatest importance to black bears and many other rare species." Closing the Gaps, page 62. Coastal Collier County also provides strategic habitat for numerous species, including the southern bald eagle, gopher tortoise, loggerhead turtle, least tern, snowy plover, Florida black bear (Rookery Bay), peregrine falcon (Rookery Bay and Cape Romano), yellow-crowned night heron, brown pelican, Florida burrowing owl, American oystercatcher, and Florida scrub lizard. An aquatic mammal of prominence is the West Indian manatee, which frequents the waters of the County. The greatest number of citings throughout the year are in the Faka Union Canal and around Marco Island. During the winter months, the animals congregate in the Faka Union Canal. Manatees are under considerable stress. According to Conservation data and analysis, the number of manatee deaths in the County was 71 in 1996, the last year for which data were available. This was 25 percent of the total manatee deaths recorded for the preceding 22 years and was five less than the total for the preceding five years. The other large mammal under stress is the Florida panther. In 1993, the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Department of Environmental Protection, and National Park Service published Florida Panther Habitat Preservation Plan: South Florida Population (Panther Plan). The purpose of the Panther Plan is to identify actions to assure the long-term preservation of habitats that are essential for maintaining a self-sustaining population of panthers in South Florida. Data indicate that a minimum self- sustaining population in this area is 50 adult panthers. The reproducing South Florida panther population occupies only Collier, Dade, Hendry, and Lee Counties. Although estimates vary, approximately 30-50 adult panthers probably remain in the South Florida area. In 1990, an estimated 46 panthers (of all ages) roamed the Big Cypress basin. During the study period of 1979 through 1991, 46.9 percent of panther deaths were due to highway collisions, mostly along State Road 29 and Old Alligator Alley (State Road 84), which are both in Collier County. Range demands of the panther are substantial. Males panthers require 180-200 square miles with minimal overlap with other males. Females require 75-150 square miles and tolerate overlapping territories with other females. The vast area in public ownership represented by Big Cypress Preserve and Everglades National Park offer lower-quality habitat for the panther, which prefers drier land, as does the bear, although it is less demanding than the panther in terms of habitat type. The northern 53 percent of the South Florida panther range is in private ownership, but the higher soil fertility and forested habitat characteristic of this land allow it to accommodate over half of the adult panthers, who are healthier and more productive than their counterparts in the southern portion of the South Florida range. Partly for these reasons, the vast publicly owned lands can support only 9-22 of the adult panthers in South Florida. Publicly owned lands in the South Florida range are probably at their limit in supporting panthers. The first two recommendations of the Panther Plan are to develop "site-specific habitat preservation plans" for land south of the Caloosahatchee River, which comprises 75 percent of known panther range and contains 39 of the 41 panthers studied between 1981 and 1991, and for land north of the Caloosahatchee River, which offers superior habitat that may in the future become more available for settlement by panthers. Other Plan provisions address wildlife and wildlife habitat. Conservation Policy 1.3.2 is to continue management guidelines for wildlife and wildlife habitat, but the guidelines are deferred and relegated to the land development regulations. Moreover, a County witness conceded at the hearing that staff was having difficult preparing these management guidelines. Conservation Objective 6.1 is to prepare development standards for all important native habitats, but the Plan Amendments extended the deadline for doing so another six years, until June 1, 1998, and largely deferred and relegated to the land development regulations. However, Conservation Objective 6.1 incorporates Policies 6.4.6 and 6.4.7 until the County prepares the development standards. For new residential developments greater than 2.5 acres in the Coastal Area or 20 acres in the coastal urban area, Policy 6.4.6 requires the retention of a minimum percentage of viable, naturally functioning native habitat. However, this policy is undermined by vagueness concerning "Coastal Area," "coastal urban area," and "viable, naturally functioning native habitat"; the emphasis on the preservation of sample habitats, rather than contiguous wildlife habitat; and the County's practice of allowing compliance with this requirement through total landclearing following by replanting. For all new development, Policy 6.4.7 addresses contiguous habitat, but only by encouraging, not requiring, preservation, and without specifying a minimum area to be preserved. Conservation Policy 7.2 is to maintain the average annual number of deaths of manatees from boat collisions at 3.2, although this is a small fraction of the total annual manatee deaths. Conservation Policy 7.3.3 is to prepare management guidelines in the land development regulations to inform landowners of the proper ways to reduce disturbances to red- cockaded woodpeckers, Florida panthers, other listed species, eagle nests, and wood stork habitat. Pending the preparation of these land development regulations, Conservation Policy 7.3.4 is for the County to "evaluate and apply applicable recommendations" of two governmental agencies regarding the protection of listed species. Lastly, the County will designate unspecified portions of known panther habitat as Areas of Environmental Concern on the FLUM. There is no explanation in the record why the County has designated only Clam Pass as an NRPA. However, the record does not support an inference that the NRPA program has had any effect whatsoever in addressing the needs of wildlife and habitat. In 1993 and 1994, County staff recommended 10-12 areas as NRPAs, including Belle Meade, Cap Key Strand (which runs from Immokalee and Lake Trafford south to the Florida Panther National Wildlife Refuge), and South Golden Gate Estates. These areas, which the County declined to designate as NRPAs, provide considerably more wildlife habitat and more wildlife habitat of higher quality than does Clam Pass, whose designation seems to reflect a reaction to mangrove dieoffs and possibly water quantity, but not habitat or even water quality. Considering the County's role in providing crucial wildlife habitat to listed species, weak Plan provisions concerning wildlife and wildlife habitat, and ineffective utilization of the NRPA program (at least for the purpose of protecting wildlife habitat), DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 1.3 and Policy 1.3.1 are not support by data and analysis. Issue 7 Conservation Objective 12.1 is: Continue to Eencourage the undertaking of activities necessary to attain maintain by 1994, hurricane evacuation clearance time for a Category 3 storm at a maximum of 28 hours as defined by the 1987 1996 Southwest Florida Regional Planning Council Hurricane Plan Evacuation Study Update, and by 1999, 27.2 hours. Activities will include on-site sheltering for mobile home developments, increased shelter space, and maintenance of equal or lower densities of the Category 1 hurricane vulnerability zone Coastal high hazard area in the land use plan. Conservation Policy 12.1.1 states: Land use plan amendments in the Category 1 hurricane vulnerability zone Coastal high hazard area shall only be considered if such increases in densities provide appropriate mitigation to reduce the impacts of hurricane evacuation times. shall be re-evaluated within three years and may change to a density level consistent with the Future Land Use Element. Conservation Objective 12.1 is not to maintain or reduce evacuation times; it is not even to encourage the maintenance of evacuation times. Objective 12.1 merely encourages activities that are necessary to maintain evacuation times. Additionally, Conservation Objective 12.1 refers to the misdefined Coastal High Hazard Area, as discussed in Issue 8. These two flaws in Conservation Objective 12.1 mean that this objective has not responded to the Conservation data and analysis, including Conservation Appendix E, which discusses hurricane evacuation times. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 12.1 and Policy 12.1.1 are not supported by data and analysis and Objective 12.1 is inconsistent with a criterion to maintain or reduce hurricane evacuation times. Issues 8 and 15 Following amendment, Conservation Policy 12.2.5 defines the Coastal High Hazard Area as the area "lying within the Category 1 Evacuation Zone as determined by the Emergency Management Director." The County amended the FLUM to depict the coastal high hazard area, as defined in Conservation Policy 12.2.5. The "Category 1 Evacuation Zone as determined by the Emergency Management Director" omits areas within the category 1 hurricane zone, as established in the 1996 Southwest Florida Regional Planning Council Hurricane Evacuation Study Update, which is the regional hurricane evacuation study applicable to the County. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Policy 12.2.5 and the conforming FLUM amendment reflect a Coastal High Hazard Area that is not the category 1 hurricane zone, as established by the regional hurricane evacuation study applicable to the County. Issue 9 Conservation Objective 6.3 states: A portion of the viable, naturally functioning transitional zone wetlands defined by State and Federal permitting requirements shall be preserved in any new non-agricultural development unless otherwise mitigated through the DER State and the ACOE permitting process and approved by the County. Conservation Objective 6.3 does not state what portion of the transitional zone wetlands shall be preserved, nor does it define "viable, naturally functioning transitional zone wetlands." Each of these concepts--viable, naturally functioning, and transitional zone--requires definition. There is thus no way to evaluate the success of the policies under the objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 6.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issue 10 Conservation Objective 7.3 states: By January 1, 1992, The County shall continue to develop and implement programs for protecting fisheries and other animal wildlife by including measures for protection and/or relocation of endangered, threatened, or species of special concern of status. The effect of the amendment of Conservation Objective 7.3 is to remove the deadline by which the County was to develop and implement programs to protect wildlife, including listed species. There is thus no way to evaluate the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objective 7.3 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. Issues 11, 12, 13, and 14 Conservation Objective 9.4 is: By September 30, 1989, the County shall establish The County shall implement the existing a local storage tank compliance program to protect ground and surface water quality including site inspections and information transfer. Conservation Objective 9.5 is: By August 31, 1989, the The County shall adopt implement construction, pretreatment, monitoring, and effluent limit requirements of the Collier County Ground Water Protection an Ordinance regulating the use of septic tanks serving industrial and manufacturing activities. Conservation Objective 10.6 is: By August 1, 1990, tThe County shall continue to implement the Coastal Barrier and Beach System Management Program by conserving the habitats, species, natural shoreline and dune systems contained within the County coastal zone. FLUE Policy 3.1.d is: Protect potable water wellfields and aquifer recharge areas. This shall be accomplished through the creation and implementation of a wellfield protection ordinance. The ordinance shall establish cones of influence based on groundwater travel times, restrict land uses and activities within the cones of influence and establish development standards for those activities beyond the cones of influence which may endanger the wellfields and aquifer recharge areas based on their potential for pollution. The Groundwater Protection Ordinance shall be implemented to protect existing and future wellfields, natural aquifer recharge areas and groundwater resources through standards for development involving the use, storage, generation and disposal of hazardous waste products, disposal of sewage and effluent, stormwater management, earthmining, petroleum exploration, solid waste and other related aspects of land use and development within the mapped wellfield protection zones. Groundwater Policies 1.2.1 and 1.2.2 are: The [Groundwater Protection] Ordinance [to be adopted by August 1, 1989, under Groundwater Objective 1.2] will address both existing and projected future land use and surface activities. Apply action criteria specified in the Collier County Ground Water Protection Ordinance to both existing and future regulated development according to procedures specified in the Ordinance to protect the County's ground water resources. The [Groundwater Protection] Ordinance will continue Apply criteria for ground water protection specified in enforcement procedures specified in the Ordinance to provide an appropriate level of protection to sensitive recharge areas. Conservation Objective 9.4 promises the implementation of a storage tank program that is contained in the land development regulations, which are not incorporated by reference into the Plan. Because these land development regulations are not themselves subject to the compliance determinations that are the subject of this case, Conservation Objective 9.4 is not a specific, measurable, intermediate end that is achievable and marks progress toward a goal. This deferral and relegation to the land development regulations leaves no way of evaluating the success of the policies under this objective or that attainment of this objective marks progress toward a stated goal. The same deficiencies characterize Conservation Objectives 9.5 and 10.6, FLUE Policy 3.1.3, and Groundwater Policies 1.2.1 and 1.2.2, except that, for the policies, this deferral and relegation to the land development regulations leaves no way of identifying the way in which the County will conduct programs and activities to achieve identified goals. DCA and Intervenors have proved by a preponderance of the evidence that Conservation Objectives 9.4, 9.5, and 10.6, are not specific, measurable, intermediate ends that are achievable and mark progress toward a goal. DCA and Intervenors have proved by a preponderance of the evidence that FLUE Policy 3.1.d and Groundwater Policies 1.2.1 and 1.2.2 do not identify the way in which the County will conduct programs and activities to achieve identified goals. Issue 15 Section 187.201, Florida Statutes, sets out the State comprehensive plan. Section 187.201(8)(b)2 is to "[I]dentify and protect the functions of water recharge areas and provide incentives for their conservation." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Groundwater Objective 1.2 and Policies 1.2.1-1.2.4 and FLUE Policy 3.1.d. Section 187.201(8)(b)9 is to "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and through incentives." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, and FLUE Policy 3.1.d. Section 187.201(8)(b)10 is to "[p]rotect surface and groundwater quality and quantity in the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 6.3, FLUE Policy 3.1.d, Groundwater Objective 1.2 and Policies 1.2.1-1.2.4, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(8)(b)12 is to "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 9.5, FLUE Policy 3.1.d, Groundwater Policies 1.2.1 and 1.2.2, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(9)(b)4 is to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3, 7.3, 9.4, 9.5, and 10.6 and Policy 12.2.5; FLUE Policy 3.1.d; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(9)(b)9 is to prohibit development that disturbs coastal dune systems. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objective 10.6 and Policy 12.2.5. Section 187.201(10)(b)1 to "[c]onserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, and 9.5 and Policy 1.3.1; Drainage Policy 1.1.2; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)3 is to "[p]rohibit the destruction of endangered species and protect their habitats." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3, 9.5, and 10.6 and Policy 1.3.1; and Golden Gate Policy 2.1.4. Section 187.201(10)(b)7 is to "[p]rotect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value." In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 6.3 and 9.5, Drainage Policy 1.1.2, and Golden Gate Policy 2.1.4. Section 187.201(26)(b)7 is to ensure the development of local government comprehensive plans that implement and reflect state goals and policies and that address issues of particular concern to a region. In light of the provision of the State comprehensive plan cited in the preceding paragraph, DCA and Intervenors have proved by a preponderance of the evidence that the following Plan provisions are inconsistent with the State comprehensive plan, construed as a whole: Conservation Objectives 1.3, 6.3, 7.3 10.6, and 12.1 and Policies 1.3.1, 12.1.1, and 12.2.5; Golden Gate Policy 2.1.4; and ICE Policy 1.2.6.
Recommendation It is RECOMMENDED that the Administration Commission enter a final order determining that the Plan Amendments are not in compliance. DONE AND ENTERED this 19th day of March, 1999, 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 19th day of March, 1999. COPIES FURNISHED: Shaw P. Stiller Colin M. Roopnarine Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese 2951 61st Avenue South Saint Petersburg, Florida 33712 Marjorie M. Student Rodney C. Wade Assistant County Attorneys 3301 East Tamiami Trail Naples, Florida 34112 Richard D. Yovanovich Roetzel & Andress 850 Park Shore Drive Naples, Florida 34103 Donna Arduin, Secretary Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399-0001 David Schwartz, Esquire Executive Office of the Governor 209 Capitol Tallahassee, Florida 32399-0001
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
The Issue The issues in this case are whether the Department of Transportation abused its discretion in deciding to replace an existing drawbridge with a fixed-span, high-level bridge and whether the Department of Transportation violated the statutory requirement of public hearings with effective public participation prior to selecting, siting, and designing the fixed-span, high-level bridge. Prior to referring this matter to the Division of Administrative Hearings, the Department of Transportation determined as a matter of law that Petitioners lacked standing to challenge the Florida Transportation Plan. The Department of Transportation therefore declined to refer to the Division Petitioners' challenge to the Florida Transportation Plan. For this reason, the recommended order does not address the issue whether the Florida Transportation Plan appropriately includes the proposed bridge or whether the Department of Transportation correctly determined that Petitioners lacked standing to raise this issue.
Findings Of Fact Parties Intervenor Save Anna Maria Island, Inc. (SAM) is a not- for-profit corporation organized to inform the residents of Anna Maria Island about the proposal of the Department of Transportation (DOT) to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The general purpose of SAM is to preserve the environment and character of Anna Maria Island by persuading DOT not to proceed with the proposed project and encouraging local officials to join SAM in opposing the project. Some members of SAM live in Sunbow Bay and West Bay Cove, which are condominiums near the proposed project. Most members of SAM and at least some Petitioners reside on Anna Maria Island. Intervenor Robert E. VanWagoner lives on Anna Maria Island. Petitioners, Intervenor VanWagoner, and members of SAM use the Anna Maria Island Bridge, driving motor vehicles across the bridge on errands to the mainland, fishing from the bridge, and walking, jogging, and bicycling on the bridge. Due to their proximity to the bridge and Sarasota Pass, Petitioners and Intervenors have a heightened interest in the environmental, cultural, and aesthetic ramifications of the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. Petitioners and Intervenors would be uniquely impacted by any abuse by DOT in the exercise of its planning discretion in deciding to build the fixed-span, high-level bridge. Petitioners and Intervenors have participated in the transportation- planning process culminating in DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Petitioners and Intervenors would be expected beneficiaries of additional public hearings or enhanced public participation concerning the proposed project. Petitioners and Intervenors would be uniquely impacted by any violation by DOT of statutes requiring public hearings with effective public participation. Anna Maria Island Bridge and Proposed Bridge Manatee Avenue, which is part of State Road 64, connects Bradenton on the east with Anna Maria Island on the west. The road segment between the mainland and the island is a minor urban arterial. The road spans Sarasota Pass, which is also known as Anna Maria Island Sound, by the Anna Maria Island Bridge about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton. The Anna Maria Island Bridge is a drawbridge or bascule bridge that was built 37 years ago. The deck of the drawbridge is 25 feet above the water at mean water, and the vertical clearance with a closed bascule is 17.5 feet at mean high water. (All elevations over the water and all water depths are relative to mean water, unless otherwise stated.) The bridge spans are 48 feet long, and the bascule span is 128 feet long. The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below. The Anna Maria Island Bridge is 3123 feet long and 37.4 feet wide. It contains two 12-feet traffic lanes, no shoulders, and two five-foot sidewalks separated from the traffic lanes by nine-inch curbs. The bridge is not lighted except for navigation lighting in its below-deck structure. Manatee Avenue consists of two lanes on both sides of the Anna Maria Island Bridge. A shorter, two-lane bridge lies between the Anna Maria Island Bridge and the mainland. The speed limit along the approaches and on the Anna Maria Island Bridge is 50 miles per hour. The approach roadway consists of two 12-foot traffic lanes with 8-foot gravel shoulders. There are no sidewalks or bicycle paths along the approaches to the bridge. Gulf Drive is the major north-south road on Anna Maria Island, intersecting Manatee Avenue one-half mile west of the Anna Maria Island Bridge. At least partly designated as State Road 789, Gulf Drive is a two-lane arterial under state jurisdiction south of Manatee Avenue and a two-lane collector under city jurisdiction north of Manatee Avenue. There is little if any opportunity to expand the capacity of Gulf Drive or other roads on the largely developed island; though heavily travelled during peak periods, most if not all of these roads are constrained. Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. A traffic signal at Gulf Drive is the major cause of traffic congestion on Manatee Avenue at the bridge. On Friday and Saturday nights, traffic at the light often backs up past the bascule. Compared to the Anna Maria Island Bridge, the proposed bridge would be a little longer, at 3372 feet long, and half again as wide, at 54 feet wide. On a 4 percent grade, the deck would be 75 feet high at the center with two 12-foot travel lanes, two 10- foot shoulders, and one six-foot sidewalk separated from the traffic lane by a sturdier divider than those separating the sidewalks from traffic lanes on the Anna Maria Island Bridge. The spans of the proposed bridge would be three times longer than the spans of the Anna Maria Island Bridge. The tripling of widths between supports under the bridge would open up the view under the bridge and facilitate the bypassing of the channel by small boats cutting under the bridge. At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. At 800 feet from either shore, the slightly asymmetrical bridge would be 40 feet high at the west end and 45 feet high on the east end, according to the bridge profile in the Final Bridge Concept Report. The northern edge of the proposed bridge would be 20 feet south of the southern edge of the Anna Maria Island Bridge. Construction of the proposed bridge would take about two years. Demolition of the existing bridge would be by unspecified means, probably explosives, following completion of the construction of the new bridge. The proposed bridge would combine stormwater treatment with scuppers. The stormwater treatment would extend from the ends of the bridge 300 feet toward the center, leaving untreated stormwater along most of the proposed bridge. The untreated area on the proposed bridge would exceed the untreated area on the Anna Maria Island Bridge by over one-half acre. However, the additional amount of stormwater contaminants entering the water would be limited to road surface particles and road cleaners because no additional traffic would use the proposed two-lane bridge. Anna Maria Island and Sarasota Pass Anna Maria Island is a barrier island between Sarasota Pass to the east and the Gulf of Mexico to the west. For the most part, Anna Maria Island is less than one-half mile wide, except for a canalized area at the north end where a minor bridge connects the island to a small key. The Anna Maria Island Bridge connects the island to the mainland indirectly by way of Perico Island, a noncoastal barrier island to the east of Anna Maria Island. Sarasota Pass is about 6000 feet wide at the Anna Maria Island Bridge. However, when the bridge was constructed, the contractor deposited long fingers of fill at the east and west ends of the bridge. The west finger is about 2000 feet long, and the east finger is about 1000 feet long. Thus, as a result of artificial constrictions, Sarasota Pass at the existing bridge is a little over 3000 feet wide. The City of Holmes Beach lies at the west end of the Anna Maria Island Bridge, although its jurisdiction probably does not include the 2000 feet of fill added when the bridge was built. The City of Anna Maria lies to the north of Holmes Beach at the north end of Anna Maria Island. The Anna Maria Island Bridge is about three miles south of the north end of the island. About two miles south of the Anna Maria Island Bridge lies the Cortez Bridge, which is also a drawbridge of the same vintage as the Anna Maria Island Bridge. The Cortez Bridge, which is shorter than the Anna Maria Island Bridge, serves Cortez Road and connects the mainland to the island at the City of Bradenton Beach, which is the third municipality on Anna Maria Island. Bradenton Beach is a little less than two miles from the south end of the island. The remaining major bridge on Anna Maria Island connects Gulf Drive to Longboat Key to the south. A bridge at the south end of Longboat Key runs to Lido Key, which is joined to the mainland at Sarasota by the Ringling Bridge. The Anna Maria Island Bridge is about 9000 feet south of the confluence of Sarasota Pass and Lower Tampa Bay. The estuarine waters of Sarasota Pass connect the expansive Tampa Bay estuary to the north with the Sarasota Bay estuary to the south. Sarasota Pass and Sarasota Bay are Outstanding Florida Waters. The water in the vicinity of the Anna Maria Island Bridge is Class II water. Seagrass is a key component of the Sarasota Pass estuary. Seagrass is vital to water quality and provides essential habitat and food for wildlife, including wading and diving birds, fish, shellfish, and manatee. Seagrass beds provide nursery habitat for juvenile marine life of considerable importance at maturity to recreational or commercial fishermen and are important foraging areas for snook, spotted seatrout, and red drum or redfish. Seagrass aids water quality by filtering suspended material from the water column and stabilizing the bottom. The resulting improvements in water transparency increase the depths to which sunlight can penetrate. Seagrass is dependent on sunlight. Thus, the deeper that sunlight can penetrate due to water transparency, water color, and other water-quality parameters, the deeper the water in which seagrass can grow. Seagrass is not hardy and is especially sensitive to changes in the amount of light that it receives. Submerged in water, seagrass can be killed by reductions in water transparency, such as those typically accompanying nutrient loading, which can lead to phytoplankton in the water blocking light generally and epiphytes on the seagrass leaves directly interfering with the plant's absorption of light. Seagrass can also die off due to the introduction or resuspension of sediments in the water column, which may result from stormwater runoff, agricultural drainage, boat prop dredging, and construction (references to "construction" include demolition). Another source of seagrass mortality is the introduction or elevation of certain toxic substances in the water column or sediments by way of stormwater runoff, agricultural drainage, boat emissions, or construction activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also be destroyed by the burrowing and feeding of marine life such as rays. Relatively small reductions in sunlight can destroy seagrass over a wide area. If, while all other factors remain constant, reductions in transparency or increases in turbidity reduce by one foot the maximum water depth at which seagrass can grow, the effects may be widespread in estuarine bottoms, which are often gently sloped. Two factors discourage seagrass recolonization following their destruction, even assuming the elimination of the cause of the seagrass mortality in the first place. First, the species of seagrass involved in this case spread very slowly. Second, even a temporary loss of seagrass may change background conditions to discourage recolonization. Once the seagrass in an area is destroyed, bottom sediments may build up, turbidity may increase, and water transparency may decrease. This process may effectively prevent seagrass recolonization at depths at which seagrass previously grew, regardless whether recolonization is through natural means or artificial transplantation. If an area is so well-flushed as to remove sediments, the loss of the stabilizing bottom vegetation may result in erosion, critically deepening the water depth so that seagrass cannot capture enough light to recolonize the area. The Anna Maria Island Bridge is at the north end of a flourishing seagrass meadow featuring Thalassia, Halodule, and Syringodium. Important areas of seagrass exist north of the bridge, but the dense, lush seagrass meadow to the south is more prolific. Near the Anna Maria Island Bridge, seagrass grows in water as deep as six feet. The record lacks evidence of a comprehensive, detailed bathymetry, but several important facts are clear from available evidence of water depths. First, the water in the middle of the pass under the existing or proposed bridge is too deep for seagrass. Seagrass would not grow in the middle of the pass at this location even if there were no bridge. Second, the water is deeper under the existing bridge than it would be under the proposed bridge. The only place where the water under the Anna Maria Island Bridge is not deeper than the water under the proposed bridge is the westernmost 100 feet, where the water depths are about the same. Most importantly, the depths under the Anna Maria Island Bridge are too great for seagrass growth along nearly the entire length of the bridge, even if the bridge were removed. On the other hand, seagrass thrives upon the bottom that would be under at least 1600 feet of the proposed bridge. Suitably shallow depths exist 800 feet along either end of the proposed bridge, and seagrass occupies these areas, which amount to about two acres of seagrass. Despite the known sensitivity of seagrass to changes in lighting, DOT and its consultants never considered how much the proposed bridge would shade these two acres of seagrass. There was no analysis of such factors as the area or duration of the shadow that would be cast at different times of the year by the proposed bridge or the variation in the shadow from the low east and west ends of the proposed bridge to the 40- and 45-foot heights where the seagrass ends. Thus, there is also no evidence of any analysis of the effect of such shading on the seagrass presently growing in the area that would be covered by the proposed bridge. It is more likely than not that the two acres of seagrass presently growing in the area that would be covered by the proposed bridge would be destroyed by the proposed project. If, as is probable, the seagrass did not survive disturbances from construction, including temporary turbidity, recolonization is unlikely due to shading from the new bridge and either long- term turbidity from stirred-up, destabilized sediments or deeper water from erosion. In the unlikely event the seagrass survived the construction, shading from the new bridge would likely kill it anyway and prevent recolonization. But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 37 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below. The new bridge would add even more untreated stormwater to Sarasota Pass. Stormwater contaminants include a wide variety of potentially toxic materials, such as road materials, tire materials, lubrication, road cleaners, paint, building materials, and virtually anything that might be loaded onto vehicles using the bridge. Common runoff contaminants are heavy metals, hydrocarbons, oil and grease, zinc, and copper. Stormwater pollution of the sediments along the drip line of the Anna Maria Island Bridge is more than a theoretical possibility. Seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge. (Increased water depths account for seagrass conditions north of the bridge.) The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge, and off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet immediately south of the bridge is unlikely the result of prop dredging because adjacent seagrass is dense. The general absence of seagrass along the south dripline may be attributable due to the biochemical or mechanical disturbance caused by the stormwater rushing off the bridge. To the extent of mechanical disturbance, the presence of seagrass in the adjacent 20 feet at the west end of the bridge may be due to a lack of proximity to an unblocked scupper drain at that location. To the extent the disturbance may be biochemically caused, this anomaly may reflect variations in flushing. At least 1000 feet of seagrass (500 feet at either end of the new bridge) just south of the proposed bridge would receive untreated stormwater rushing through the scuppers of the proposed bridge. The width of the affected band would presumably be the same 20 feet as the width affected by the existing bridge. It is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of additional seagrass losses from prop dredging caused by small boats bypassing the channel and running between the new bridge's widely spaced supports. Foundations for the proposed bridge would occupy 0.12 acres of seagrass. However, this seagrass would be under the deck of the proposed bridge, so this area has already been taken into account in the shading analysis. In addition to the likely permanent destruction of 2.5 acres of seagrass under, and 20 feet south of, the proposed bridge, it is more likely than not that construction would at least temporarily destroy additional seagrass farther to the south. The proposed project calls for the construction of large work platforms parallel to, and south of, the new bridge and small fingerplatforms running from the work platforms toward the new bridge. The work platforms would be placed in water shallower than six feet and would cover areas vegetated by seagrass. The platforms would be 1100 and 1200 feet long and 40 feet wide and would thus cover a little about two acres of seagrass. The platforms would be low on the water--lower than the existing bridge--and effectively shade the seagrass below them. DOT witnesses promised the use of slatted platforms to minimize shading, but, again, there was no showing that the slats would pass sufficient sunlight at critical water depths for sufficient periods of time. What seagrass survived the construction of the platforms would not survive the shading and turbidity during construction, as this area is well within the mixing zone allowed by the dredge-and-fill permit tentatively approved by the Department of Environmental Protection (DEP; references to DEP include the predecessor agency, the Department of Environmental Regulation (DER), except where references to DER are necessary for clarity). The likely loss of the two acres of seagrass from the work platform would not be permanent absent permanent alteration of the bathymetry, introduction of persistent contaminants, or collection of substantial amounts of sediment during construction in the area under the work platform. Recolonization would probably begin upon completion of the project. The platforms would not remain in place during the entire two-year period of construction. There would be no need for the platforms on the south side of the proposed bridge during the demolition of the existing bridge to the north. It is also possible that the platforms would be removed as construction was finished along the bridge. However, the slow growth of the seagrass suggests that considerable time would be required for the recolonization of the two acres to the present density. There is no reason to calculate lost seagrass from the construction of the fingerplatforms. They will span the area from the south edge of the proposed bridge to the north edge of the work platforms. Thus, they cover the area already affected by the stormwater running off the bridge. The 600- by 20- foot area proposed to be served by the stormwater management system, where adjacent seagrass presumably would not be affected, might be affected by the fingerplatforms, but the small size of the platforms renders the loss unnecessary to consider for purposes of this recommended order. DOT has proposed mitigation to compensate for some seagrass losses. But DOT did not account for the permanent loss of 2.5 acres of seagrass and temporary loss of 2.0 acres of seagrass. The proposed mitigation is ineffective for a number of reasons. The seagrass transplant receiving area proposed for mitigation is too small. It is 0.19 acres as compared to the likely permanent loss of 2.5 acres and temporary loss of 2.0 acres. This is a dramatic departure from the normal seagrass mitigation ratio of 1:1 required by DEP. Although less important due to the gross inadequacy of the size of the transplant receiving site, there is also a major discrepancy between the densely vegetated donor area and the sparse transplantation pattern specified for the receiving area. The primary seagrass mitigation is too speculative. The transplant receiving area is near the natural western shore of the pass. Unlawful boat use of a nearby fishing pier and bioturbation have resulted in barren patches in the transplantation area, but the recolonization process is proceeding naturally. Consistent with the slightly more colored water and somewhat poorer flushing than is found at the bridge, natural recolonization in the transplant receiving area is already establishing as extensive and dense a seagrass bed as boating and bioturbation will permit. The natural recolonization process now taking place in the transplant receiving area will revegetate more quickly and completely the portion of the bottom capable of supporting seagrass than would DOT's mitigation effort. DOT's proposed seagrass transplantation might even disrupt the natural recolonization process. The success of the proposed seagrass transplantation is speculative at best. Seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not consistently prevented net habitat loss. The DEP witness who reviewed DOT's application is an Environmental Specialist III who has been with DEP nearly nine years and has reviewed over 500 dredge-and-fill permits. Testifying against the permit and particularly the seagrass mitigation plan, he noted that DOT's seagrass mitigation plan promises uncertain benefits. Unsupported by comprehensive bathymetric and water-quality data, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, more likely than not would fail. The overall seagrass mitigation plan is excessively contingent. The importance of alternative and contingent seagrass mitigation plans is underscored by the likelihood of the failure of the main transplant receiving site and the unlikelihood that seagrass will recolonize under the existing or proposed bridge. But the alternative and contingent mitigation plans are illusory. The alternative and contingent mitigation plans lack success criteria, detailed guidelines for identifying donor and receiving areas, and practicality. The alternative and contingent mitigation plans amount to nothing more than vague and unenforceable undertakings to find seagrass somewhere and transplant it somewhere else. Such a difficult task demands more detail. One of the two crucial functions of seagrass in the immediate area of the Anna Maria Island Bridge is that it is consumed by manatee. Manatee are especially prevalent in an area just north of the bridge. Between 1985 and 1991, there were 432 adult manatee sightings and 44 manatee calf sightings in the vicinity of the Anna Maria Island Bridge. About two-thirds of these 476 sightings were north of the bridge and one-third south of the bridge. Manatee use Sarasota Pass to travel between Tampa Bay and Sarasota Bay. The fill added during the construction of the Anna Maria Island Bridge already constrains the manatee passageway under the Anna Maria Island Bridge by artificially narrowing the pass by about one-third. Construction at either end of the bridge would tend to concentrate the manatee even more toward the center of the bridge where they would more likely encounter boats in the main channel. Estimates in 1987 were that Florida's manatee population is about 1200, with equal numbers on the east and west coasts. Manatee populations are slow-breeding. Gestation runs 13-15 months with one or sometimes two calves born. The breeding cycle is 3-5 years. The natural life expectancy and reproductive life of a female are unknown. The risk of extinction heightens when the low reproductive rate and manatee mortality attributable to collisions with boats and barges are combined with the permanent and temporary loss of seagrass, two-year constriction of the already-reduced passageway at the bridge, and permanent dispersal of small boats through shallow seagrass beds where manatee are likely to feed. The other crucial function of seagrass is in maintaining water quality through the assimilation of nutrients and stabilization of bottom sediments. The water-quality data in this case are limited. DOT never determined the extent to which sediments at the existing bridge may have been contaminated over the years by stormwater-borne heavy metals or oil and grease. DOT never analyzed these sediments by grain size and percentage of fine organic materials. Instead, DOT proceeded with the proposed project in Outstanding Florida Waters without knowledge of these sediments in terms of their chemical composition or susceptibility to resuspension into the water column. IV Planning and Hearing Process DOT's Project Development and Environmental Guidelines Pursuant to its Project Development and Environmental (PD&E) Guidelines, DOT conducts a PD&E study at the start of the planning process for projects of the scope of the proposed bridge. The PD&E manual, which "fully reflects the Department's policy for projected development . . .," assists project managers and district engineers by informing them of various requirements imposed by law on transportation projects and identifying the documentation required in the various stages of the transportation-planning process. Section 2-1 of the PD&E manual describes the Advance Notification process as the means by which DOT advises other federal, state, and local agencies of proposed projects. Chapter 25 of the PD&E manual explains DEP's role in determining whether a proposed project is consistent with the Coastal Zone Management Act. Section 25-2.4 warns that an agency finding of consistency may be changed. Section 3-1 divides proposed projects into three types in terms of environmental impact. Projects with the least impact qualify for a categoric exclusion. Projects with a categoric exclusion include actions that "do not have a significant impact on any natural, cultural, recreational, historic, or other resources [or] do not involve significant air, noise, or water quality impacts[.]" Section 18-2.4 states that a project qualifying for a categoric exclusion "may have an involvement with wetlands so long as this involvement is determined not to be significant." The next class of proposed projects are those subjected to an environmental assessment. For such projects, "the significance of the environmental impact is not clearly established." The environmental assessment is prepared "whenever there is a need to determine the appropriate class of environmental determination required." The last class of proposed projects are those subjected to an environmental impact statement. Such projects "significantly affect the human environment " Projects with a categoric exclusion typically require less public involvement and environmental review than projects requiring an environmental assessment or environmental impact statement. However, Section 8-2.7.2.3 provides: "A public hearing must be held to comply with Chapter 339 F.S. regardless of funding [federal or state] . . . [w]hen a project is controversial in nature." Section 8-2.8 describes public hearings: A public hearing is the official public forum used by the Department through which citizens and government officials express their concerns, opinions, and comments regarding a project. It is by no means the only opportunity whereby citizens have access to the Department about the project, but it is the official point in the project development process where information developed to date [is] shared with the community and the community can go on record officially concerning the project. Much of what is shared with the community has been developed with citizen and local government input during early stages of project development. Section 8-2.8.1 requires a DOT representative to appear at each public hearing to discuss briefly all alternates studied and the advantages of each. The DOT representative must outline the social, economic, and environmental impacts of the project. Revised Section 9-2.1 explains that the Project Concept Report marks the start of the "project development process." This report identifies the activities required to conduct the PD&E study. Section 9.1 describes the engineering reports to be developed during the planning process: The preliminary engineering report is prepared by the District or consultant during the early stages of project development .... After the public hearing has been held and a recommended alternative has been selected the final engineering report is prepared. The final engineering report is submitted after the recommended alternative has been approved by the Federal Highway Administration. . . . Section 9-2.2.1 explains that the Final Engineering Report must follow a sufficient amount of engineering so as to consider types of bridges. Section 10-2.4 identifies the Permit Coordination Package, which DOT sends to all agencies from which it must obtain a permit. The package evaluates the impacts of the project upon permittable areas, addressing such issues as the "elimination of habitat" and "destruction of vegetation." The package also contains a discussion of proposed mitigation. Section 10-2.5 directs DOT to submit permit applications when the "design of the project is 65 to 70 percent complete." Section 13-1 addresses nonfederally funded projects, which the proposed project eventually proved to be. The manual sets forth a number of policies and objectives which DOT "must address to comply with the [Florida Transportation Plan.]" These include provisions to "prohibit the destruction of endangered species and protect their habitats," "promote rehabilitation and reuse of existing facilities, structure and buildings as an alternative to new construction," and "encourage citizen participation at all levels of policy development, planning, and operations." These provisions guide DOT in the preparation of the Florida Transportation Plan and do not apply to individual transportation projects, such as the proposed bridge. Section 13-1 states: "It shall be the policy of the Department to develop environmental studies on all major transportation projects regardless of funding to comply with state and federal laws." Section 13-1 requires DOT to prepare a state environmental impact study on "all major transportation projects" in which state monies are used. Section 13-2.2 defines a "major transportation project" as, among other things, "Replacement of an existing bridge that could have substantial adverse effect on land use, community development patterns, community cohesion or natural ecological systems." If a project is a "major transportation project," DOT must prepare and circulate an Advance Notification Package and conduct a hearing, which must be announced by letters to all owners or property within 300 feet of the centerline of the alternates under consideration. Section 13-2.5 imposes upon DOT the same public hearing procedures as set forth in Chapter 8 of the PD&E manual. Proposed Project 1. 1987-89 In 1987, DOT started a bridge replacement program to identify bridges for possible replacement or widening. According to Robert Crim, DOT's project manager for the proposed bridge, one objective of the bridge program was to eliminate drawbridges. A statewide consultant, Sverdrup Corporation, studied numerous bridges of all types for inclusion in the program and ultimately recommended that DOT widen or replace some, but not all, of them. DOT submitted the Anna Maria Island Bridge to Sverdrup for possible inclusion in the bridge-replacement study program. But before doing so, DOT obtained the approval of the local Metropolitan Planning Organization (MPO) for replacing the bridge. On the recommendation of Sverdrup to include the Anna Maria Island Bridge in the bridge-replacement study program, DOT included the replacement bridge in its five-year work program in 1988 and each subsequent year. DOT conducts annual public hearings on the work program. At the public hearing, DOT's representatives discuss each project, and members of the public may comment on projects. On March 29, 1988, Sverdrup issued a Project Concept Report, which is intended to identify the ideal transportation solution. The Project Concept Report starts the PD&E process, which eventually determines if it is feasible to implement the ideal solution identified in the Project Concept Report. The Project Concept Report proposes the replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge. The report refers to the proposed project as a "major bridge replacement project." The report anticipates a categoric exclusion for the project despite the classification of Sarasota Pass as Outstanding Florida Waters and the presence of considerable seagrass and manatee around the Anna Maria Island Bridge. In April 1988, DOT circulated an Advance Notification Package to interested agencies informing them that DOT was starting a study of the construction of a two-lane bridge. The Manatee County Board of County Commissioners responded to the April 1988 Advance Notification Package. By letter dated June 14, 1988, to DOT's then-Secretary Kaye Henderson, the County Commissioners expressed "strong support" for the replacement of the Anna Maria Island Bridge with a fixed- span, high-level bridge. The letter cautions that two lanes are inadequate for existing and projected traffic. In a letter to Sverdrup dated October 3, 1988, the Chairman of the Board of County Commissioners emphasized the Board's position: "it is the unanimous feeling here that planning to build anything less than a four-lane replacement would be disastrous, or simply planned obsolescence." In August 1988, DOT hired Figg and Muller Engineers, Inc. (references to Figg and Muller include Figg Engineers, Inc., which prepared certain reports) to perform the PD&E study. The role of Figg and Muller in conducting the PD&E study was to identify the means of accomplishing a predetermined goal--in this study, the best way to replace the Anna Maria Island Bridge. DOT asked Figg and Muller specifically to evaluate a fixed-span, high-level bridge, but, in discharging its duties, Figg and Muller considered all viable alternatives, including the no- build option, and considered all environmental impacts of these alternatives. After DOT issued the Advance Notification Package in April 1988, the MPO asked DOT to evaluate the possibility of expanding the facility to four lanes. Despite a strong preference to limit the new facility to two lanes, DOT evaluated the four-lane option to comply with local transportation plans. DOT thus directed Figg and Muller, which had already begun its work, to consider four-lane alternatives as well. Anticipating its formal retention in August 1988 to conduct the PD&E study, Figg and Muller had earlier retained an environmental subconsultant. On May 31, 1988, Figg and Muller sent a letter with a proposed contract and related materials to Peninsula Design and Engineering, Inc. (references to this company and Mangrove Systems, Inc. shall be to "Peninsula"; the same person, first employed by Peninsula and later Mangrove Systems, performed the environmental work). Figg and Muller described the proposed project as the "replacement of a two-lane bascule bridge . . . with a fixed- span, high-level bridge." Enclosed materials describe the new bridge as 54 feet wide with a 40-foot roadway, five-feet sidewalks on each side, and a 65-foot vertical clearance. The new bridge, which would be next to the existing bridge, is described, as it was then conceived, as a federal-aid project. The attachment warns that aesthetics, grassbeds, and manatees, among other things, would be important considerations during the study and design. The subconsulting contract requires Peninsula to quantify wetland encroachments and endangered species. The contract warns that the environmental sensitivity of the area requires the identification of an "intensive baseline environmental assessment" to identify the best environmental alternatives regarding alignment and construction techniques. The contract warns further that "accurate description of floral and fauna communities in submergent habitats requires a greater level of effort than is typically necessary in [terrestrial] habitat evaluations." Because environmental permits could be "challenging to obtain" without intensive evaluation of submergent communities, the contract requires Peninsula to develop transects of flora communities in the impacted area and identify endangered species and their habitats. The contract requires Peninsula to develop additional biological information necessary for environmental assessment, including sampling the bottom sediments for, among other things, heavy metal concentrations. The contract also requires Peninsula to prepare a Permit Coordination Package to develop proposed mitigation plans and evaluate project impacts, including the elimination of habitat, changes in sedimentation, and destruction of vegetation. Peninsula conducted a macrophyte investigation on September 27, 1988. The Peninsula employee established eight stations--four just offshore from the filled-in bridge approaches and four closer to the channel, north and south of the existing bridge. The Peninsula employee set 100-meter transects with ten data- collection sites along each transect. The transects for the stations near the approaches ran perpendicular to the bridge. The Peninsula employee followed a "similar" approach with the stations near the channel, although ambiguous language in the report leaves it unclear if the transects for the four "offshore" stations ran perpendicular or, as stated at one point, "parallel" to the bridge. In either case, the transects run on September 27, 1988 do not travel under the existing or proposed bridge. The fieldwork thus yielded information about seagrass in the general area of the project, but no data that could be directly used to study and analyze the effects of shading from the existing or proposed bridge. The Peninsula report notes a continuing chronic loss of seagrass south of the existing [bridge] in the vicinity of [two] stations. . . . The causal factors contributing to these losses include continuing historic degradation of water quality in the area and more importantly, the hydraulic conditions created by the configuration and construction of the [bridge] approach fills and the submerged borrow areas. The report also records "unusual foraging signatures" at one station, possibly indicative of manatee foraging. Figg and Muller, Peninsula, and other consultants prepared the Site Characteristics Inventory Report dated November 8, 1988, and updated December 20, 1988. The inventory report summarizes the data "necessary for adequate evaluation of the location, design and impacts of the project." The Site Characteristics Inventory Report describes various features of the Anna Maria Island Bridge. Stating that the bridge's overall vehicular accident rate is low, the inventory report notes the high percentage of rear-end collisions and concludes: "The high percentage of rear end collisions suggests a high amount of vehicle cueing [sic]. This could be attributed to vehicles stopped for a left turn, stopped for the SR 789 signalized intersection or stopped for a bridge opening." Peninsula prepared the Permit Coordination Package by May, 1989. The package misidentifies the waters around the Anna Maria Island Bridge as Class III waters, though it reports more importantly that these waters are Outstanding Florida Waters. However, the Permit Coordination Package grossly understates the area of subtidal and intertidal seagrass within 1000 feet of the Anna Maria Island Bridge. The Permit Coordination Package considers seagrass mitigation only in passing, assuming without any analysis of water depths, water transparency, turbidity, or sediment composition, that seagrass would recolonize under the removed part of the existing bridge. The mitigation discussion is directed mostly to mangroves. The Permit Coordination Package contains an extensive discussion of manatee as an endangered species. Peninsula reported 163 manatee sitings north of the Anna Maria Island Bridge from 1985 through 1988 and 63 sitings south of the bridge during the same time. The Permit Coordination Package contains a reasonably detailed set of suggestions for minimizing construction-related impacts to manatee. Peninsula considered the impact of the proposed bridge on the seagrass beds upon which manatee feed. Peninsula reported that the impact on seagrass of the south alignment would be an order of magnitude greater than the impact on seagrass of the north alignment. The Permit Coordination Package reviews research suggesting that manatee mortality from boat collisions is higher when the mammals are feeding in seagrass beds, are in areas frequented by small recreational boats that operate at relatively high speeds and move in unpredictable ways in shallow water, and are in shallow, restricted navigation channels. The Permit Coordination Package notes that bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, the Permit Coordination Package acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters using large castnets." These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass. Figg and Muller conducted a study of ship impacts, culminating in the Ship Impact Analysis Data Collection dated November 7, 1988. The document describes the proposed project as the replacement of the Anna Maria Island Bridge with a fixed- span bridge with a 65-foot clearance. The ship-impact study notes that, from January 1985 through September 1988, 650 vessels monthly required bridge openings to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge. Over nearly four years, these vessels comprised 24,889 sailboats (83.5 percent), 4447 powerboats (14.9 percent), 467 tugs/barges (1.67 percent). The tugboats were typically 35 feet by 195 feet. A variety of the sailboats had masts requiring a vertical clearance greater than 65 feet. Sailboats with masts as high as 80 feet-- including a number of boats manufactured in Florida--have passed through the opened drawbridge. The growing importance of a clearance greater than 65 feet is evidenced by the closing of other nearby passes into the Gulf and the increasing use of taller-masted boats. The ship-impact document includes a survey of bridge tenders and commercial boating interests. One tender, who had worked at the Anna Maria Island Bridge for 12 years, reported that he had never seen or known of an marine vessel colliding with the bridge. No one else reported any such collisions. In general, persons surveyed agreed that winds and currents present no navigational difficulties at the fendered channel of the Anna Maria Island Bridge. Figg and Muller prepared the Draft Preliminary Engineering Report dated December 20, 1988, and revised February 13, 1989, "to examine the most feasible and prudent locations and conceptual designs for the construction of the proposed bridge replacement structure . . . at Sarasota Pass ...." The study's objective was to "develop a bridge replacement that will provide an efficient, economical and safe transportation facility with minimal adverse impacts on both the human and natural element." The introduction to the Draft Preliminary Engineering Report notes that DOT has classified the Anna Maria Island Bridge as functionally obsolete. The draft report states that the proposed bridge replacement project is necessary to correct the primary deficiencies of a "lack of emergency shoulders, obsolete design load of H-15 and low overall clearance." The introduction to the draft report states that the current project would be either a two- or four-lane facility. The actual size and need would be consistent with the Manatee County comprehensive plan and MPO transportation plan. The next section of the Draft Preliminary Engineering Report describes existing conditions. This section accurately details most aspects of the existing condition of the Anna Maria Island Bridge. The draft report identifies the bridge's H-15 design load, posted speed limit of 50 miles per hour, and absence of posted weight restrictions. The draft report reveals that the bridge has 36 scheduled daily openings most of the year. Based on a 1988 DOT inspection, the draft report states that the bascule is in "good" condition, meaning that there was "moderate incidence of significant early deterioration." Based on a 1987 DOT inspection, the draft report states that the deck, superstructure, and substructure are in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity," and the channel protection was in "excellent" condition. The draft report collects detailed accident data for the Anna Maria Island Bridge. The draft report states that the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" was 14,300 vehicles with an average daily traffic of 17,000 vehicles projected for 2010. Based on accident data for 1984 through 1986, the draft report concedes that the accident rate for the bridge is low. For the two approaches, bascule, and remainder of the existing bridge, there were a total of 62 collisions during the three-year period, with the most prevalent being 27 rear- end collisions. None of these 27 rear-end collisions occurred on the bascule. Most of the rear-end collisions--17--occurred on the two approaches. The remaining ten rear-end collisions occurred on the bridge between the bascule and the approaches. The approaches were also the sites of more total collisions than the bridge itself, including the bascule. For the three-year period, 61 percent of the collisions occurred on the two approaches, 5 percent occurred on the bascule, and 34 percent occurred on the remainder of the bridge. There was only one collision involving a vehicle and a pedestrian during the three years in question. This took place on the eastern approach. There were no collisions involving bicyclists. The draft report states that a high percentage of the rear-end collisions occurred near a boat ramp on the west approach and a marina and convenience store on the east approach. The marina and convenience store are about one-quarter mile east of the Anna Maria Island Bridge. The boat ramp is between the west end of the bridge and the signal at Gulf Drive. The draft report suggests that rear-end collisions on the approaches may involve vehicles slowing for right turns into these destinations. The draft report opines that the "high percentage of rear-end collisions on the bridge (39 percent)" may involve vehicles stopping quickly for a bridge opening. This suggestion ignores the queuing effect from vehicles turning into the boat ramp or convenience store and marina. The draft report tries to limit the effect of these traffic backups to rear-end collisions on the bridge approaches. However, attributing a high percentage of rear-end collisions on the bridge to bridge openings ignores the traffic backups from these off-bridge sources, as well as the traffic light at Gulf Drive. Figg and Muller's analysis of the sources of rear-end collisions lacks support, such as through analysis of accident reports. The analysis even cites the wrong figure. The 39 percent figure applies to total collisions on the bridge compared to total collisions; the percentage of total rear-end collisions occurring on the bridge is 37 percent (10/27). The draft report also falters when describing cultural and environmental features. Noting low pedestrian volumes on the Anna Maria Island Bridge, the draft report contends three times in one paragraph that "pedestrian activity is not a major consideration for this project," "pedestrian activity does not warrant special consideration on the project," and "sidewalks ... are used very little by pedestrians." As for environmental factors, the draft report incorrectly identifies the Class II waters surrounding the Anna Maria Island Bridge as Class III waters, although the draft report correctly notes that these waters are Outstanding Florida Waters. But the omissions in the draft report are more significant. The draft report omits any mention of manatee or the seagrass located under what would be the new bridge. The draft report does not discuss the effects of shading, water transparency, and water depth on seagrass. The section following the description of existing conditions is entitled "Need for Improvement." As the name of the section suggests, this part of the Draft Preliminary Engineering Report contains less data and more analysis of the existing and proposed bridges. The discussion is at times more promotional than it is analytic. This section of the draft report starts by noting that the existing bridge has had no significant upgrades to its two, 12-foot shoulder-less traffic lanes. The draft report finds that the lack of shoulders presents a traffic hazard when traffic is stalled on the bridge. The opening of the drawbridge is another source of danger to motorists due to stopped traffic, according to the draft report. The draft report argues that this hazard is "substantiated" by the previously discussed data on rear-end collisions. The draft report summarizes the above-described accident data "for the existing facility" without disclosing that more than half of the accidents occurred on the bridge approaches and not the bridge itself. The draft report adds that opening the drawbridge would also present a danger during evacuations by preventing people from evacuating the island. However, there is no discussion of Coast Guard policy, which is not to order bridge openings during an evacuation, nor is there any mention of the frequency of evacuations, which take place about once every six years. There is also no discussion of the widely known necessity of early evacuations from the island due to early flooding of island roads and bridge approaches. On incomplete data, the draft report merely contends that "evacuation efforts would be severely hampered" by the need to open the drawbridge. The draft report suggests that bicycle traffic would be better accommodated by a new bridge. The draft report observes that the two existing five-foot sidewalks on the Anna Maria Island Bridge create an unsafe condition by mixing bicycle traffic with pedestrians and fishermen. The draft report neglects to discuss the discouraging effects on bicyclists, pedestrians, and fishermen of using a single six-foot sidewalk running up a 4 percent grade to a final height of 75 feet over the water. The draft report states that the MPO's 2000 Plan identified a need for a four-lane facility over Sarasota Pass. However, the 2010 Plan, which was prepared after the draft report, identifies no such need. The draft report notes that the proposed project is also in compliance with the Manatee County comprehensive plan. Addressing social and economic issues, the draft report accurately describes the area surrounding the proposed project as a "naturally beautiful site" with the proposed project promising to be "highly visible from both land and water." The draft report assures that engineers would design a bridge profile "to ensure a pleasing visual effect." The draft report acknowledges that the proposed project is not directly needed to meet any economic demands. But the "social demands for the project would be based on a more efficient and convenient transportation system linking Anna Maria Island with the mainland." The draft report suggests that the improved link "could foster economic development in the area" and everyone would be served by a more dependable evacuation route. However, there is no evidence that the existing drawbridge has ever impeded vehicular or vessel traffic during an evacuation or that the proposed bridge would result in more traffic on Anna Maria Island by way of Manatee Avenue or other routes. The next section of the Draft Preliminary Engineering Report is the analysis of alternative alignments. This section first considers the no-build alternative. The cited advantages of not building the project are that there would be no disturbance to the environment, even though these impacts, according to the draft report, "are nearly all of short term duration and can be considered as minor over the life of the new structure." On the other hand, the benefits of building the bridge include the elimination of the inconvenience of the drawbridge to motorists and boaters and the cost of operation of the typical bascule bridge. The draft report states that maintenance costs for a typical bascule bridge are about $150,000 annually plus estimated major rehabilitation costs of $500,000 to $750,000 every 15-20 years. Additional reported benefits to replacing the Anna Maria Island Bridge are eliminating the safety hazards posed by the lack of shoulders and raising by 25 percent the design load from H-15 to H-20. The draft report concludes that the benefits of the no-build alternative are outweighed by the "substandard design and safety concerns." The draft report considers a two-lane bridge, a four- lane bridge, and two two-lane bridges. Additionally, the draft report considers alignments north and south of the Anna Maria Island Bridge with three structure levels: high-level fixed, mid-level bascule (i.e., a 45-foot closed vertical clearance drawbridge), and low-level bascule. These options account for 18 alternatives. Figg and Muller studied each of the 18 alternatives for traffic flow, ease of construction, bicycle accessibility, operation, safety, aesthetics, environmental impacts, right-of- way impacts, and project costs. As to the north alignment, the draft report notes several problems, including the need to relocate a power line and water line and modify two navigation channels. The draft report states that the boat ramp just west of the bridge and the marina on the east would be impacted if DOT constructed a single four- lane bridge, which would also impact right-of-way. As to the south alignment, the draft report notes several problems, including the need to relocate a water line. Any structure would also impact right-of-way. As to the low- and mid-level bascules, the draft report contends without significant supporting data that few boats could pass through an unopened mid-level bascule that could not also pass through an unopened low- level bascule. The draft report cannot justify any bascule options due to the "additional expenses of the bascule construction, bascule maintenance and bascule operations." The draft report cautions that the bascule alternatives are not "a practical, improved replacement to the existing bascule bridge." The final section of the Draft Preliminary Engineering Report is entitled "Preliminary Design Analysis." The draft report offers rough summaries of projected construction costs for various alternatives. The projections are of greater value for the comparison of differences in probable costs of various alternatives than they are for identifying the estimated cost of a particular alternative. According to the draft report, a two-lane, fixed- span, high-level bridge on the north alignment would cost $9.9 million, and a two-lane, mid-level bascule on the north alignment would cost $12.5 million. On the south alignment, these bridges would cost $10 and $12.6 million, respectively. Discussing the benefits of replacing the Anna Maria Island Bridge, the draft report states that the "most obvious" benefit would be the elimination of the delays to vehicular and vessel traffic from drawbridge openings. A fixed-span bridge also would offer a dependable evacuation route. The draft report suggests that shallow-draft boaters would find navigation enhanced by the tripling of the widths between the supports under the fixed-span, high-level bridge as compared to the more narrowly spaced supports under the existing bridge. The draft report again asserts that the new structure would also offer improved aesthetics, both in terms of the view of the proposed bridge and the view from the proposed bridge. Page VIII-13 of the draft report is missing from SAM Exhibit No. 32. In the final report, and possibly in the draft report, Figg and Muller admitted on this page that the proposed grade of the new bridge would "limit fishing activities and pedestrian use." A brief discussion of rear-end collisions and economic and community development was probably present on the omitted page, but this section generally summarizes discussions from earlier sections. The draft report also considers wetland impacts of new two-lane bridges on the north and south alignments. Relying on the understatements of Peninsula, the draft report states that the area of subtidal seagrass is only 0.63 acres 500 feet north of the existing bridge and 0 acres 500 feet south of the existing bridge. The draft report concludes that a two-lane bridge 25 feet north or 25 feet south of the Anna Maria Island Bridge would not impact any subtidal seagrass and would impact only 0.06 acres of intertidal seagrass on the north alignment and 1.65 acres of intertidal seagrass on the south alignment. The draft report also considers the impacts of new four-lane bridges on the north and south alignment. All of this analysis understates seagrass loss by considerable amounts. Based on these data and analysis, the Draft Preliminary Engineering Report concludes that [a]lignment se[le]ctions based solely on a vegetative impact evaluation would focus on the northern alternative. However, alignment selection will necessarily need to be tempered with a consideration of endangered species involvement and impacts to navigation, partic- ularly when addressing the northern alignment. Sverdrup reviewed Figg and Muller's Draft Preliminary Engineering Report prior to its revision in February 1989. Addressing the discussion of bascule alternates, one Sverdrup engineer stated in a Review Comment Sheet dated January 6, 1989: Information presented thus far does not support premature rejection of bascule options. Vessel height distribution may require some detective work. Consider visits to local marinas, corre- lation with vessel numbers/names on bridge tender logs, additional data recorded by bridge tenders for a few weeks. . . . Objective is to establish relations between traffic benefit vs. reduced openings for different vessel clearances. Ultimate rejection or viability of bascule alternate must have adequate foundation. . . . Sverdrup's environmental representative, Don Smith, reviewed the work of Peninsula. Despite Peninsula's excessively conservative estimates of seagrass loss, Mr. Smith rejected even these estimates as too pessimistic. By review comment sheet to Figg and Muller dated December 28, 1988, Mr. Smith wrote: "As presently written, this section grossly overestimates the extent of possible wetland impact & must be redone." Adamantly rejecting Mr. Smith's criticism, the Peninsula employee wrote on his copy of the review comment sheet: Table 7 does not grossly over estimate wetland impacts. . . . The acreage figures are not grossly overestimated at all. I resent the grossly! Does Sverdrup have any DATA! that reflects my gross overestimates! NO, SHIT A memorandum dated January 23, 1989, memorializes the conclusions of a meeting involving Sverdrup and Figg and Muller representatives. Figg and Muller argued that its subconsultant did not overestimate wetlands and asked Sverdrup to substantiate Mr. Smith's contrary assertion. Sverdrup appears to have relented, and the two consultants agreed to remove a drawing. On January 11 and 12, 1989, the value engineering (VE) team met to define the goals of the first phase of review. The VE team is a multidisciplinary group of engineers unrelated to the project who determine the suitability of the proposal and the feasibility of any more cost-effective proposals. VE responds to the design alternatives presented in the draft report. The VE team listened to a Figg and Muller representative discuss alignment issues, including the presence of seagrass beds immediately south of the Anna Maria Island Bridge. The VE team understood that concerns about the north alignment included navigation and "occasional manatee sitings," and concerns about the south alignment included greater seagrass impact. The VE team visited the Anna Maria Island Bridge, which they found to be in "good condition." They found "no severe deterioration which would endanger the capacity of the bridge." Preliminary VE considers the maintenance and operation costs of bascule alternates, although the memorandum omits mention of the costs of the no-build alternate. Preliminary VE does not identify the no-build alternative as a viable option requiring further consideration. On February 27, 1989, DOT conducted its first public meeting on the proposed project. DOT conducted a public information workshop at the Manatee County public library in Bradenton. DOT regarded the February 1989 workshop as an opportunity for the public and DOT, as equal partners, to gather and make basic plans about whether to replace the Anna Maria Island Bridge and, if so, with what. In March 1989, the MPO adopted an updated long-range transportation plan, which still showed State Road 64 as a four- lane road, including the segment over Sarasota Pass. A memorandum dated March 31, 1989, from a Sverdrup representative to a Figg and Muller representative transmitted new traffic data with the direction: "This data must be analyzed and documented in a revised Traffic Report in order to reach the conclusions necessary to proceed with the project development." The Sverdrup representative relieved Figg and Muller from the obligation of doing certain traffic calculations for bascule alternatives "since it is evident that the fixed high-level structure will be recommended due to lower overall cost." A review comment sheet dated June 13, 1989, from Mr. Smith to Figg and Muller suggested that they revise the draft report to state that the "no- build alternate is eliminated from further consideration; i.e, definitively close the door." On July 7, 1989, Mr. Crim, two Figg and Muller representatives, and two Sverdrup representatives, including Mr. Smith, discussed the north and south alignments to try to agree on the preferred alternative. Someone mentioned that they needed to take a closer look at the environmental impacts because a DEP representative had implied to Sverdrup that the "documentation must show very good reasons for selecting anything but the most environmentally sound alternative." A Figg and Muller representative added that manatee frequently use an area north of the bridge, but the participants felt this was not a significant issue for alternative selection "since manatees can be found throughout the area, north and south." The agenda for the July 7 meeting contains numerous items. Under seagrass, it identifies a need to confirm the area impacted, adding parenthetically "3.65 acres vegetated and 0.63 acres non-vegetated?" On July 7, 1989, Mr. Crim and a Sverdrup representative met with three representatives of the Federal Highway Administration to obtain their comments on the Draft Preliminary Engineering Report. The Sverdrup representative explained that the existing bridge was functionally obsolete due to the lack of shoulders and substandard design load. She explained that the proposed project would be a new four-lane bridge and did not identify a no-build alternative. She disclosed that seagrass impacts were 3.65 acres for the south alignment and 1.55 acres for the north alignment and said that the Federal Highway Administration would receive an application for a categoric exclusion in mid-September, 1989. On July 20, 1989, two Sverdrup representatives, including Mr. Smith, participated in a teleconference with five DOT representatives, including Mr. Crim. They discussed the north and south alignments to try to agree on a preferred alternative to present at the August 10 public hearing. The participants discussed the navigational problems with the north alignment and seagrass problems with the south alignment. Sverdrup tended to agree with Figg and Muller's recommendation of the south alignment. The participants agreed that it should be possible to negotiate an acceptable mitigation plan with DEP, even though one of the DOT representatives warned that DOT District 1, in which the proposed project is located, "has not had much success with seagrass mitigation in the past and that it can be very expensive and still not work." This DOT representative suggested that they present both alignments at the public hearing and defer the recommendation until after receiving public comments. The participants decided to do this. On August 10, 1989, DOT conducted the first public hearing on the project. The public hearing took place at the Anna Maria Island City Hall. DOT uses public hearings to present to the public a preferred alternate and give the public a chance to present information to show that DOT or its consultants have made any mistakes or omitted any considerations or that circumstances have changed materially. Transcribed by a court reporter, a public hearing is tightly structured. The hearing begins with opening remarks of representatives of DOT and its consultants describing the proposed project. These opening remarks are followed by a break during which members of the public may approach representatives of DOT or the consultants, ask questions, and presumably receive answers. However, these questions and answers are not recorded by the court reporter. Following the break, back on the record, members of the public may make oral comments to the DOT and consultant representatives, who almost invariably decline to respond to general questions or engage in any give-and- take with a speaker. Likewise, the DOT and consultant representatives almost invariably insist that speakers limit their comments to the individual project and not discuss other projects, even if relevant (e.g., the Cortez Bridge and a new bridge farther south). After the hearing is concluded, the public may submit written comments for a short period. After this period ends, DOT and the consultants meet privately, consider the record, make a decision on the project, and announce the decision publicly. About 50 persons attended the August 10 public hearing, which was held at Anna Maria City Hall. DOT, Sverdrup, and Figg and Muller provided comment sheets, displays, and reports for public inspection at the public hearing. Representatives of the consultants and DOT encouraged the audience to examine the materials, ask questions of knowledgeable individuals during the off-the-record break, and then make public comments. According to Mr. Crim, DOT intended the August 1989 public hearing to serve as a combined location and design public hearing. However, DOT had failed to give notice to owners of condominiums within 300 feet of the centerline of the west terminus of the proposed project. DOT instead had notified only the condominium association. In his opening remarks to the persons attending the public hearing, Mr. Crim stated that the Anna Maria Island Bridge was one of about 60 bridges in the statewide program "being studied for future replacement." He explained that DOT was "evaluating viable options for either improving or replacing these bridges, obtaining public input and then completing the environmental documentation and design for any recommended improvements." Mr. Crim told the audience: Our study to replace the Anna Maria Island Bridge is nearing the completion of the project development phase. Tonight's hearing is an important step in that phase where we present preferred project alternates for your input prior to selecting a final alternate and then proceeding with preliminary design. Mr. Smith told the audience that DOT had three options: build a new bridge on the north alignment, build a new bridge on the south alignment, or not build a bridge. He stressed that displays in the hearing room did not represent "final plans" and that "absolutely no decisions have been made to this point." Later during the public-comment portion of the public hearing, Mr. Smith stated that there would be no more public hearings, unless so much time passed without construction that the project had to undergo additional review. A Figg and Muller representative told the audience that the 36 drawbridge openings daily "is a cause of a significant number of rear end collision accidents." She identified as the preferred alternative two fixed- span, high- level, two-lane bridges with a single such bridge initially. The Figg and Muller representative noted the seagrass impacts of both alignments. She stated that manatee are in the area, but that DOT expected no impacts due to the use of protective measures. After an hour and a half, the representatives of DOT and the consultants finished their initial presentations. During the break, members of the audience spoke with the representatives of DOT and the consultants. Public comments were divided as to the proposed fixed-span, high- level bridge. Speakers informed DOT of impending recreational and commercial development on the north side of the bridge, as well as navigational concerns, that would be adversely affected by the north alignment. Explaining DOT's practice of typically presenting a preferred alternate, Mr. Crim testified that DOT "can't go to a public hearing and say we don't know what we're going to do. Anybody got any comments?" Instead, DOT presents its recommendation to sharpen the focus of the public hearing. The February 1989 workshop was to help form the decision; the August 1989 public hearing was to show whether DOT should change a tentative decision. On November 1, 1989, Figg and Muller issued the Final Preliminary Engineering Report. The text of the final report is not materially different from the text of the draft report issued nine months earlier except as noted below. Mr. Crim testified that, at this point, DOT had decided to replace the bridge, but had not decided to build a fixed-span, high-level bridge. The final report recites the same "primary deficiencies" of the Anna Maria Island Bridge cited in the draft report, but adds a new deficiency--delays due to bascule openings. Acknowledging the existence of the marina and convenience store one-quarter mile east of the bridge, the final report suggests that collisions on the bridge approaches could be due to vehicles stopping for left turns, as well as right turns. Discussing traffic projections, the final report mentions that, when the draft report was first drafted in December 1988, traffic projections disclosed a need for a two- lane facility with possible expansion to four lanes at some future point. New traffic information demonstrated that the four-lane facility would be needed prior to 2015. The final report increases, without discussion, the 1988 average daily traffic "on the facility in the vicinity of the Anna Maria Island Bridge" to 15,400, from 14,300 vehicles reported in the draft report for the same period. The final report adds that the two-lane bridge would reach a level of service E in 2006, so "it is recommended that a four lane facility be constructed prior to this date." The final report contains a new section on endangered and threatened species. This section contains data showing that the area around the Anna Maria Island Bridge is frequented by manatee. The final report relays the information from the Permit Coordination Package that, from 1985 through 1988, there were 163 manatee sitings north of the bridge and 63 manatee sitings south of the bridge. Early in the section analyzing alternative alignments, the final report notes, as does the draft report, that the benefits of the no-build alternative are outweighed by the disadvantages of "substandard design and safety concerns." Recognizing that only the no-build alternative would avoid impacts to the wetlands, the Final Preliminary Engineering Report states: "this alternative is not feasible considering the structural deficiency of the bridge, the absence of shoulders (functional obsolescence) and projected traffic increases indicating the need for two additional lanes." The final report concludes: "Therefore, the No-Build Alternative is not a viable alternative and is hereby eliminated from further consideration in this report." The final report revises the comparative cost estimates, reducing the north and south alignment costs for a two-lane bridge by a little over $1 million. The final report continues to understate the area of subtidal seagrass north and south of the bridge. The final report describes the public involvement on the proposed project. Referring to the public workshop that took place on February 27, 1989. the final report states that, of the 36 individuals who supplied written comments on the proposed bridge, 21 favored a two-lane bridge, six favored a four-lane bridge, 30 favored a high-level, fixed-span bridge, 21 favored the south alignment, and two favored the north alignment. Summarizing the results of the public hearing held on August 10, 1989, the final report recounts that, among oral comments, five favored two lanes, three favored four lanes, five favored the south alignment, no one favored the north alignment, and seven favored the no-build alternative. Written comments were two favoring four lanes, one favoring two lanes, four favoring the south alignment, no one favoring the north alignment, and one favoring the no-build alternative. A new section of the final report is entitled, "Preferred Alternative." Recommending that four lanes be built, the final report recommends the south alignment, mostly on the basis of impediments to navigation posed by the north alignment. There is little discussion of seagrass impact. Relying on the needs of boat traffic, although ignoring the needs of high- masted boats, the final report recommends a fixed-span, high- level bridge and proceeds to analyze the projected costs in greater detail than did the draft report. The remaining material differences between the draft and final reports are that the final report drops the repeated references to the unimportance of pedestrian activity on the Anna Maria Island Bridge, the description of the area surrounding the proposed bridge as "a naturally beautiful site," the assurance that the proposed bridge would be "highly visible from both land and water," and the exhortation that DOT consider the "aesthetics or visual impacts of the project." The final report continues to misidentify the waters around the Anna Maria Island Bridge as Class III waters. On November 27, 1989, DOT circulated a revised Advance Notification Package, noting that the new proposal was for two two-lane, high-level bridges to be constructed in two phases. The notice states that the project is a federal-aid project and that DOT and the Federal Highway Administration would determine the degree of environmental documentation necessary. 2. 1990-92 Various state agencies responded in early 1990 to the revised Advance Notification Package. Several agencies expressed reservations about the proposed project, although ultimately all state agencies dropped their objections at this stage. By letter dated January 4, 1990, DER objected to the loss of seagrass from construction and shading. DER also warned that seagrass mitigation had met with little success in this general area. DER suggested that DOT consider rebuilding the bridge at its current location at or near its current width. The letter suggests that DOT take several steps. In particular, the letter states that the proposed project is in Outstanding Florida Waters, and DOT must, among other things, show that "existing ambient water quality will not be lowered." Representatives of DOT, Sverdrup, Figg and Muller, Peninsula, and DER met on March 23, 1990, to discuss DER concerns about impacts to seagrass and the ability to mitigate. The Peninsula employee estimated seagrass losses of 0.1 acre from pier placement, 0.5 acres (worst case) from construction, and an overshadow effect. Due to the greater height of the new bridge, someone at the meeting said that the overshadow effect would be minimized. As to mitigation, someone reported DER's concern that seagrass typically was already growing where conditions were favorable and, where seagrass was absent, conditions were unfavorable. The Peninsula employee suggested that they could fill holes in the area, raising the bottom elevation to a depth at which seagrass could grow. Someone reported DER's insistence to consider mitigation now, to avoid problems in the permitting stage. In response, DOT "proposed to commit to studying the overshadow effects of the new bridge and the rate of re- colonization of seagrasses in the alignment of the old bridge." DOT agreed to develop alternative mitigation prior to construction of the second two-lane bridge, if recolonization failed. DER agreed to this approach. The agreement between DOT and DER was memorialized by letter dated March 30, 1990, from a DOT representative to a DER representative. The letter promises that, after completion of the construction of the first two-lane bridge, DOT would start monitoring recolonization where the Anna Maria Island Bridge had stood and the effect of shading from the new bridge. If at the end of a monitoring period of unspecified duration an unspecified entity determined that recolonization had been unsuccessful, DOT would implement mitigation at an unspecified location. The letter concludes that DOT's commitment to this procedure will "alleviate DER's concerns regarding the impacts to seagrass and allow for a determination of consistency with the Florida Coastal Management Program." By letter from DER to the Office of the Governor dated April 13, 1990, DER stated that DOT had provided reasonable assurance of seagrass mitigation in part by assuring that seagrass would recolonize under the existing bridge once it was removed. DER noted that DOT promised to monitor recolonization and shading following removal of the existing bridge and construction of the first two-lane bridge. DER recommended a bathymetric survey and stated that a permit would contain success criteria for natural recolonization and require alternate mitigation plans. Withdrawing its earlier objection, the DER letter finds that the project is "consistent with our authorities in the Florida Coastal Management Program at this time." The letter concludes with the promise of a more detailed review during permitting. In the meantime, consultants continued to work on the project. Figg and Muller prepared a draft of the Final Engineering Report and submitted it to Sverdrup for review. In a Review Comment Sheet dated February 15, 1990, directed to Figg and Muller, Mr. Smith again protested high estimates of seagrass losses, stating: "Shading is a non-issue which is not even addressed in any agency regulations. Revise the document accordingly." Other work early in 1990 included final VE review of the project. The second VE memorandum was completed March 26, 1990. Memorializing a meeting that took place February 28, 1990, final VE describes the proposed project as a 65-foot clearance bridge 20 feet north of the Anna Maria Island Bridge. The memorandum concludes that VE could offer no significant improvements to the proposed project. The memorandum does not consider the no- build alternative. However, the memorandum recommends that DOT consider relaxing the ship-impact standard at the ends of the bridge based on the shallow depths at the ends of the bridge, the absence of reported marine collisions with the bridge, and the existence of alternative access to Anna Maria Island. While Figg and Muller spent most of 1990 and early 1991 preparing the Final Engineering Report, consultants or subconsultants prepared additional reports, such as the geotechnical report and bridge hydraulic report. In December 1990, DOT made some changes to the new design, widening the shoulders and adding a sidewalk. Figg and Muller issued the Final Engineering Report about a year after the date of January 31, 1990, shown on its title page. The first paragraph of the Final Engineering Report makes the case for the replacement of the existing bridge, but without any mention of structural deficiency. The report states that the Anna Maria Island Bridge is narrow, without shoulders, and functionally obsolete. . . . In addition to safety concerns associated with a lack of shoulders, accident data show a high number of rear end collisions. One factor contributing to these collisions is the delays to the traffic caused by the opening of the bridge's drawspan. These factors, combined with a need for efficient and safe transportation routes to and from the islands, determined the need to replace the existing bridge at this time. The Final Engineering Report states that DOT and its consultants evaluated 18 alternatives, plus the no-build alternative, and describes the Final Preliminary Engineering Report. The Final Engineering Report notes that the Federal Highway Administration issued a categoric exclusion July 23, 1990. The categoric exclusion was based on, among other things, a DOT representation that the project had no "controversy potential," which may have seemed plausible at the time. DOT District 1 Secretary David May contended that such a representation, which preceded his appointment as District Secretary, would be correct if the controversy were based on unfounded information. In any event, the Federal Highway Administration did not withdraw the categoric exclusion in 1995, even after DOT disclosed the controversy surrounding the proposed project. The Final Engineering Report explains that the original traffic data were faulty. Correct data revealed that the "original concept of a two-lane replacement bridge was unworkable." Thus, DOT and the consultants decided to pursue a two-phase project with the first phase being the demolition of the existing bridge and construction of a single two-lane bridge. The Final Engineering Report states that the decision to build ultimately four lanes warranted reissuance of the Advance Notification Package. The Final Engineering Report states that, in a meeting between representatives of DER and DOT, DOT representatives suggested that the advance notification stage was premature for the development of mitigation commitments, but acceded to DER's insistence due to the availability of a "great deal" of information. The two agencies reportedly reached an understanding of what would be required to offset environmental impacts. The Final Engineering Report states: "Based on that agreement, DOT proceeded with completing the environmental study process and the final design at a cost of approximately $1,000,000 of public funds." The Final Engineering Report discloses that the consultants eliminated the existing alignment in the PD&E study and selected the south alignment due to fewer adverse impacts. The report notes direct and indirect impacts to 3.01 acres of vegetated wetlands, including 1.65 acres of seagrass. The report calculates the seagrass impacts as 0.25 acres from pier placement and 1.4 acres from shading. DOT and the consultants selected the south alignment based on "strong public support" and DER's suggestion that impacts could be offset. The Final Engineering Report explains that DOT eliminated the alternate of the existing alignment because of the loss of access to the island from Manatee Avenue during the two- year construction period. The Final Engineering Report does not mention the reasons for the elimination of the no- build alternative. On July 8, 1991, Figg and Muller issued the Final Bridge Concept Report. The concept remained the construction of two, two-lane fixed-span, high-level bridges in two phases and the removal of the Anna Maria Island Bridge. The purpose of the Final Bridge Concept Report is to provide detailed findings of different types of structures and recommend the appropriate alternatives for consideration in the "final phase of the design and plan preparation." The recommendation is based on comparative analyses of cost and design features. The Final Bridge Concept Report refers the reader to the Final Preliminary Engineering Report for information about environmental conditions. In a brief synopsis, the Final Bridge Concept Report continues erroneously to describe the waters around the Anna Maria Island Bridge as Class III waters, but recognizes that they are Outstanding Florida Waters, so "special emphasis must be placed on the water quality." The Final Bridge Concept Report notes that the total area of seagrass "involved" with the proposed bridge is 1.65 acres and that manatee use the area. Describing the two phases of the overall project, the Final Bridge Concept Report states that the first two-lane bridge would be constructed in the same "corridor alignment," just south of the existing bridge. DOT would build the second bridge when traffic warranted, which is projected to be 2006. In mid-1991, DOT entered into a new contract with Figg and Muller to prepare final design and construction plans for the proposed bridge. DOT included funding for construction of the bridge in its work program adopted in July 1991 with work scheduled for fiscal year 1996. In June and July 1992, the Peninsula employee conducted additional fieldwork to determine the extent of seagrass. This time, though, his work focused specifically on the area under the existing and proposed bridge. The resulting Baseline Seagrass Survey, which Peninsula submitted to DEP in November 1992, states that the purpose of the fieldwork was to collect sufficient baseline data so that DOT could determine the success of natural recolonization under the existing bridge and seagrass shading under the new bridge. The 1992 fieldwork is more intensive than the 1988 fieldwork. The Peninsula employee made ten north-south transects across Sarasota Pass. Although still lacking a bathymetric survey of bottom elevations and effective water depths, the employee calculated approximate water depths at each of 20 data- collection points along each transect and determined, for each point, the species, shoot density, and areal density of any seagrass. He also collected water-quality data for temperature, salinity, conductivity, dissolved oxygen, and water clarity (secchi depth) and recorded "incidental faunal observations." According to Mr. Crim, DOT had completed about 90 percent of its final design and construction plans in August 1992. At this time, DOT applied to the Army Corps of Engineers for a dredge-and-fill permit, DER for a dredge- and-fill permit, Coast Guard for a bridge permit, and Southwest Florida Water Management District for a management-and-storage-of-surface- water permit. In November 1992, residents of Anna Maria, Holmes Beach, and Bradenton Beach voted on a referendum concerning the 65-foot clearance, fixed- span bridge proposed to replace the Anna Maria Island Bridge. The vote was 1961 opposed and 515 in favor. On December 11, 1992, the City Council of Bradenton Beach voted for DOT to place the proposed bridge project on hold pending further study. However, by memorandum dated December 1, 1992, to Mr. Crim, District Secretary May stated: You may be aware that there is concern currently being expressed by some local officials about the design of the Anna Maria Bridge replacement project. We will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project "production ready" as rapidly as possible. 3. 1993 Public opposition to the proposed bridge--in any alignment--continued in 1993. DOT participated in two MPO- sponsored public hearings on January 8, 1993, where numerous bridge opponents expressed disapproval of the proposed project. At the 1:00 pm meeting, a DOT representative disclosed that the bridge construction plans were 95 percent complete and right-of-way acquisition was underway. At the 7:00 pm meeting, the DOT representative responded to a question whether DOT could change its plans. He acknowledged that DOT and the MPO could change their plans, but a discussion of such a change three years earlier would have been better because dropping the project now would mean that "we have thrown away a million dollars of tax money." On January 13, 1993, a special MPO task force met and voted 4-3 to oppose the proposed bridge. There was some support on the task force for a 45- foot-high bascule bridge instead of a fixed-span, high-level bridge. On January 19, 1993, area mayors and city council members met with District Secretary May, who discussed the DOT five-year work program. Addressing the proposed bridge, District Secretary May said: . . . one of the primary components of the program is the Anna Maria Bridge and I know that's a great concern to all of you. It's a concern to the department too. So, rather than get into a big discourse on that, it is a 65', fixed span bridge. It's been designed as such. We're in the middle of purchasing right-of-way for that bridge. . . . In response to a question as to the extent of completion of design work and the ability of the MPO to stop the project, District Secretary May stated that 100 percent of the design was completed and, by law, both the MPO and DOT had to concur to stop the project. In response to criticism about the limited extent of public participation, District Secretary May conceded that DOT had improved public participation compared to seven or eight years ago, when DOT "didn't go to . . . near the level of public involvement that we do now." For the Ringling Bridge, for example, he said that he was "soliciting all sorts of input from all those people," referring to the public. Conceding that the Anna Maria Island Bridge is "not structurally deficient," District Secretary May explained that rehabilitation was not a cost- effective solution. When asked if it was a "done deal that the new bridge is coming in," District Secretary May answered, ". . . Yes, there's a new bridge going to be put there." Responding to a follow-up question, District Secretary May repeated the message: "Without a doubt. As opposed to rehabilitation. The MPO has not come to us with any requests yet so we'll respond once we get a request from them. Yes, ma'am." When asked what DOT would do if the MPO now suggested a 45-foot bascule, District Secretary May said he would "respond at that point in time. But that's a million dollars worth of throw-away design." Asked if public reaction to the proposed bridge would not justify dropping the project, District Secretary May replied: . . . First, if I IMPLIED that we were not doing a good job several years ago [in public participation], that, that is incorrect. We did as good a job as we could do then. We're trying . . . we're exceeding that now. He added that the results of the island-wide referendum were based in part on public misunderstanding of the safety issue and advised that the bridge is of interest to the region, not merely the island. Asked at the end of the meeting if he meant that the proposed bridge was "going to happen," District Secretary May answered, "A bridge is going to happen here." He added, "We need a replacement. We need to replace that bridge. We need to have a bridge replacement," rejecting rehabilitation as not cost effective. Still supported by the Manatee County Commission, the bridge was now opposed by the city councils of Anna Maria and Bradenton Beach. The executive director of the MPO mentioned that the Mayor of Holmes Beach reported that the city approved the 75-foot-high bridge, but this support was short-lived. About 40 residents spoke at an MPO meeting on January 25, 1993; nearly all of them opposed the bridge. A SAM attorney argued that DOT's notice preceding the August 1989 public hearing had been defective. Following discussion, with some support for a 45-foot-high bascule bridge, the MPO voted 10-4 to recommend that DOT proceed with the 75-foot-high bridge. Meanwhile, DEP was again expressing concern about the proposed project. By letter dated January 21, 1993, to James Wilt, the DOT district permit engineer responsible for the bridge project, a DEP administrator in the Tampa office advised that he could not recommend the project for approval. Although the letter was not final agency action, it was sent "to allow applicant time to assess fully the further commitment of financial resources for this project." By letter dated February 3, 1993, Mr. Wilt informed the DEP administrator in Tampa that DEP had long known of seagrass impacts from the proposed bridge in the southern alignment. The February 3 letter complains that DEP neglected to mention the possibility that the bridge project might not be permitted in a September 1992 letter stating that the application was complete or in a December 1992 letter stating that processing of the application had begun. The February 3 letter also complains that a DOT representative called DEP in late December "to inquire about the anticipated date of issuance of the Dredge/Fill permit. [She] was advised that a final field review of the site had to be conducted and the DOT could expect to receive a permit the 2nd or 3rd week in January, 1993." Concluding the February 3 letter, DOT warned DEP: Based upon the early and extensive coordination that has occurred on this project, the absence of any adverse comments during the processing of the application and the fact that DER estimated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable. On February 10, 1993, DEP issued a Notice of Permit Denial, stating that the proposed bridge would "run directly through the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." Noting that DEP had expressed concerns about the likely inadequacy of mitigation three years earlier, it had recommended that any new bridge be located at the current location. The Notice of Permit Denial acknowledges that DEP had found the proposed project consistent with the Florida Coastal Management Program, "pending a more detailed review during the permitting stage." However, DOT had failed to substantiate its assurances to offset seagrass impacts, according to the Notice of Permit Denial. The Notice of Permit Denial reports that DEP expressed "significant concerns" about the project in January 1990, including the concern that DEP "'could not expect the applicant to be able to provide reasonable assurances that they could offset the loss of this valuable resource (seagrass beds) through mitigation.'" Thus, DEP recommended that the proposed bridge should be located at the location of the existing bridge. The Notice of Permit Denial denies the application because DOT failed to provide reasonable assurance that the project would be clearly in the public interest and would not significantly degrade Outstanding Florida Waters. DEP found that the project would be adverse to endangered species and threatened habitats, adverse to fishing and marine productivity, and adverse to the current condition and relative value of functions being performed because nutrient assimilation would be reduced by the loss of at least 2.5 acres of seagrass serving as viable nursery area. DEP also concluded that DOT had failed to provide a plan to protect Class II, Outstanding Florida Waters, from significant damage or to provide reasonable assurance that the project would not result in the violation of water-quality standards. The Notice of Permit Denial notes in particular that the project could not lawfully reduce below ambient conditions the following water-quality parameters: biological oxygen demand, dissolved oxygen, iron, mercury, nutrients, phosphorus, turbidity, zinc, and biological integrity. On April 27, 1993, the City Council of Anna Maria voted unanimously to reject the proposed bridge. On May 4, 1993, the City Council of Holmes Beach voted 4-1 to reject the proposed bridge. The mayor vetoed the resolution, and the City Council overrode the veto. On July 4, 1993, the Sarasota Herald-Tribune published the results of a survey asking if readers preferred replacing drawbridges on the Intracoastal Waterway with fixed-span, high- level bridges. The results were 73 percent favored replacement and 26 percent opposed replacement. The newspaper reprinted about 75 responses, ranging in emotion between the following: Yes. Don't let the old-timers sway the decision. Let's go with the modern time. Some of them will be long gone before the bridge is completed. No. Keep the unique and lovely part of our country as it was when you were first attracted to it--or move away. Environmental work on the proposed project stepped up after DEP denied the permit. On July 13, 1993, Peninsula forwarded to DEP the Seagrass Mitigation Plan, which later became part of the permit. At the same time, responding to public concerns about wind safety on high-level bridges, DOT retained Dr. Robert C. Sheets, former director of the National Weather Service, to advise on the effects of high winds at high elevations. Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge. According to Dr. Sheets, the vertical exchange of energy characteristic of predominantly convective storms like thunderstorms and hurricanes precludes much difference in wind speeds at the two heights in question. The difference in wind speeds during nonconvective storms like "no- name storms" or "storms of the century" is larger, but still not great. No-name storms lack the vertical exchange of energy of hurricanes and thunderstorms, so wind speeds at 75 feet are greater than at 25 feet. Local emergency management and law enforcement officials would close any bridge when wind speeds at the deck reach 45 miles per hour. A 75-foot-high bridge might encounter such winds in nonconvective storms about 20 minutes earlier than would the 25-foot-high existing bridge. In June 1993, Petitioners filed a petition alleging, among other things, that DOT's notice preceding the August 1989 public hearing was legally insufficient because DOT failed to send it to owners of condominiums within 300 feet of the proposed project. Abating any proceedings on the petition, DOT decided to conduct another public hearing on the project. Agreeing to requests of residents to schedule the public hearing in the fall when seasonal residents could attend, DOT scheduled the public hearing for October 26 and 27, 1993. On October 1, 1993, DOT mailed letters to all required persons, including owners of condominiums within 300 feet of the proposed project, advising them of the times, dates, and locations of the public hearing on October 26 and 27, 1993. DOT also advertised the public hearings. The letter and advertisement state: This hearing is being conducted to solicit input from area residents, local public officials, and other interested persons or organizations relative to the location, design, and social, economic and environmental effects of the proposed improvements. . . . The purpose of the project is to replace the existing bascule bridge with a fixed-span high level bridge. To encourage public participation, DOT conducted one public hearing on the mainland and another public hearing on the island. The two public hearings were really a single, two-day public hearing. About 200 persons attended the October 26 hearing in Bradenton and 550 persons attended the October 27 hearing in Holmes Beach. The hearing format for both nights was identical and tracked DOT's typical practice in conducting public hearings, such as the August 1989 hearing. However, each hearing began, after a brief introduction, with an eight-and-one- half minute videotape instead of a live project description. During a break following the videotape, persons in attendance could talk to representatives of DOT and the consultants and ask them questions off the record. The final part of the hearing was devoted entirely to recorded comments from the audience. At the start of the first night's hearing, the DOT representative identified the fixed-span, high-level bridge as DOT's preferred alternate, stating: The reason for holding the public hearing and the purpose of this public hearing is to allow you to present to us any new, any additional information that has not been considered in the past and was not looked at during the study that was held some several years ago on this bridge. At the start of the second night's hearing, the same DOT representative said: "This public hearing . . . involves the replacement of the Anna Maria Bridge. . . . The proposed improvement involves a replacement of the . . . Anna Maria Bridge with a 65-foot minimum clearance, high level, fixed span bridge." The DOT representative added, referring to the fixed- span, high- level bridge: . . . We refer to this as the DOT preferred alternative. It has been said that you did not have the choices that you hear that others have. The public hearing that was held, several people in this room remember that were there about five years ago, presented many different alternatives at that time. In the normal course of a project development and environmental study allows us to go through many different alternatives, and through the weeding out process we then select a preferred alternative based on all of the elements that we can possibly get into in making this decision. We did that. The preferred alternative was chosen and what we have here tonight, for you tonight is the preferred alternative, two level, high level-- 2-lane, high level, fixed bridge. With that, we will now have the presentation. The professionally produced videotape features background music, narration, computer graphics, and skilled editing and cinematography. The videotape begins by stating that DOT has determined the "aging drawbridge to be functionally obsolete because it fails to meet current design standards and has no emergency shoulders for breakdowns." The narration explains that traffic congestion is compounded by bridge openings for marine traffic. The videotape generates an artificial tone of anxiety by fast editing of closeups of existing road traffic and the drawbridge warning light, then zooming in ominously on the warning light and chipped-away concrete revealing steel-reinforcing bars. The narrator tells the audience that these obsolete conditions led DOT to recommend replacing the bridge. As the videotape explains, "Several alternatives were considered when plans for upgrading the Anna Maria Island Bridge were made." The videotape identifies these alternatives as the no-build option, north alignment, and south alignment. The videotape states that the no-build alternative would require extensive and expensive repairs, including the complete renovation of the drawspan and extensive substructure, but this is not economically viable. A new bridge using the existing alignment would eliminate Manatee Avenue access to Anna Maria Island for two years. The north alignment would impact the nearby boat ramp and require a new navigational channel, which would destroy seagrass. The videotape reports that the preferred alternative is the south alignment, which "affects about one and one-half acres of seagrass" that "will be closely monitored." The videotape assures the viewer that the "Florida Department of Transportation is committed to minimizing impacts to the seagrass in the project area." The narration and block letters on the screen add: "The benefits of the recommended alignment constitute the most favorable balance of environmental concerns, welfare of the community and achieving the objective of providing a modern and effective bridge." The videotape mentions that drawbridges require regular openings to allow vessel passage. A computer-graphic rendering of the bascule opening shows the bridge opening quickly without a gate or warning lights, a bus suddenly stopping less than a bus length from the vertical bridge span, and a convertible car stopping quickly behind the bus with a second car immediately queuing up behind the delayed bus and car passengers. The videotape concedes that a mid-level bascule bridge would "alleviate much of the traffic delay," but warns that it is a "greater financial burden." The videotape states that the initial construction cost of a drawbridge would be $11.4 million, and the annual operation and maintenance costs of a drawbridge average at least $150,000 plus a $500,000 major repair job every 20 years. On the other hand, the videotape states that the cost of a fixed- span, high-level bridge would be $8.4 million, so the preferred alternative would save at least $3 million over the life of the project. The videotape displays a sailboat with a mast under 65 feet cruising under the proposed bridge just as emergency vehicles pass cars pulled over onto the spacious shoulder. To the extent of any implication that emergency vehicles could be delayed by an opened drawbridge, the videotape ignores the radio coordination that exists between such vehicles and the bridge tenders. The videotape next considers emergency evacuations. Noting that wave effects and flooding on approaches would more likely close a bridge than would high winds, the videotape warns of conflicts between marine vessels and vehicles during evacuations. This warning ignores the Coast Guard practice not to order bridge openings so as to interfere with evacuations and the effect of the need of islanders to get off the island early due to the flooding of island roads and bridge approaches, typically well in advance of the worst of the storm. Displaying photographs from the same perspective of the existing bridge and the proposed bridge superimposed by computer, the videotape assures that "the bridge blends gracefully with the surrounding area." One photograph depicting the proposed bridge was on display with a photograph displaying the existing bridge, both as seen from the east, slightly south of Manatee Avenue. The actual photographs were also on display at the public hearings. The obvious purpose of the two photographs was to encourage viewers to compare the two bridges. However, the comparison was distorted so as to underrepresent the size of the proposed bridge. The photograph of the proposed bridge was taken with a wide-angle lens with the sides cropped, which removed the distortion and extra field of vision accompanying a wide-angle photograph. Because the photograph of the existing bridge was taken with a normal lens, the photograph of the proposed bridge underrepresented its height and width by 20 percent relative to the height and width of the existing bridge. The videotape concludes: An aesthetically appealing and environmentally sound structure that safely spans the Intracoastal Waterway is the Department's goal. A bridge that blends with the unique ambience of this island paradise while guaranteeing Manatee County's residents and visitors safe and efficient travel is of paramount importance to us all. Though not unanimous, public comment at the public hearings was vastly against the proposed project. Figg and Muller summarized the comments by stating that 374 persons favored the project and 940 persons opposed the project. The most popular reasons against the new bridge were in descending order: environmental problems, high-level wind problems, accelerated development, bad aesthetics, and failure to solve evacuation problems. Among the oral or written comments were comments from an orthopedic surgeon who has lived in Holmes Beach for 24 years, opposed the proposed bridge, and said that the existing bridge had never been a problem in treating his patients on the mainland. The Manatee Chamber of Commerce supported the proposed bridge. The Mayor of the City of Anna Maria complained that DOT took its direction from the MPO, from which the island municipalities had been denied voting membership until late 1989 when they obtained one voting member. The mayor also complained of a bridge-by-bridge approach to bridge construction, rather than a regional plan addressing the uniqueness of the barrier island. Mr. Crim testified at the January 1996 formal hearing in this case that DOT's position at the October 1993 public hearings, compared to the August 1989 public hearing, was "even more defined." Unless "something significant" came up, DOT was "going to build the bridge that it had already planned." Mr. Crim testified that the only other viable option at the 1993 public hearings was the no-build alternative. After the public hearings on October 26 and 27, 1993, District Secretary May reported to the MPO, during its meeting of November 22, 1993, that comments were about 3-1 opposed to the bridge. The MPO voted 6-8 not to reconsider its support for the 75-foot-high bridge. 4. 1994-Present Following the October 1993 public hearings, Petitioners filed a petition with DOT in January 1994 challenging DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. The procedural history of this case is set forth in the Preliminary Statement and is incorporated by reference. Between the October 1993 public hearings and the formal hearing in this case in January 1996, the MPO dropped the four-lane bridge from its 2020 needs plan based on updated traffic projections that indicate no need for the additional capacity. The needs plan continues to limit Manatee Avenue to two lanes east of the Anna Maria Island Bridge to 75th Street, which is substantially east of the bridge. At the January 1996 formal hearing, Mr. Crim was unaware that the MPO had dropped from its 2020 needs plan the four-laning of Manatee Avenue over Sarasota Pass. However, DOT policy is that once a project has reached a certain stage of development, which this proposed project has, it can only be stopped if both DOT and the MPO agree. As District Secretary May testified, DOT no longer begins the planning process with the MPOs, as it did here, but instead starts with local communities. But even if the MPO voted to eliminate the proposed project, District Secretary May intends for DOT to proceed with the fixed-span, high-level bridge because, by the January 1996 formal hearing, DOT had spent over $2 million on the proposed project. DOT acceded to an MPO request to stop the Cortez bridge- replacement project, but this action preceded District Secretary May's appointment. After more than two years of discussions with DOT following the Notice of Permit Denial, on May 2, 1995, DEP issued an Intent to Issue a dredge- and-fill permit for the demolition of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge on the originally proposed south alignment. Intervenors filed petitions with DEP in June and July 1995 challenging DEP's Intent to Issue the dredge-and-fill permit. After the formal hearing in December 1995 and issuance of a recommended order recommending that DEP deny the permit, DEP has not yet issued a final order. Ultimate Findings of Fact DOT's Exercise of Discretion in Deciding to Replace the Anna Maria Island Bridge with a Fixed-Span, High-Level Bridge The proposed project would permanently destroy 2.5 acres of seagrass and temporarily destroy 2.0 acres of seagrass. Proposed mitigation is vague, contingent, and ultimate illusory. Degradation of water quality is likely, and DOT never obtained the baseline water-quality data from which analysis must begin. The proposed project would adversely affect the conservation of fish and wildlife, including endangered species and their habitats; adversely affect navigation on the Intracoastal Waterway for tall-masted boats currently using Sarasota Pass; and adversely affect fishing and recreation values by destroying vast areas of seagrass and removing the existing bridge as a popular area for fishing, bicycling, jogging, and walking. A permanent improvement, the proposed project would be sited in a productive marine environment performing crucial functions of feeding endangered manatee and other wildlife and cleaning Outstanding Florida Waters through nutrient assimilation and stabilization of sediments. The proposed project would poorly serve important cultural and aesthetic concerns expressed by an overwhelming majority of island residents, who would be uniquely affected by the proposed project. A large majority of the people of Anna Maria Island do not want the proposed bridge. The island-wide referendum conducted by the three municipalities in November 1992 reveals that opponents outnumber proponents by nearly a 4:1 margin. Some residents reject the bridge because they believe that it is only the first of two bridges, which would double the lanes onto the island and result in greater traffic on the island. DOT does not presently intend to build a second bridge, nor is the MPO seeking such a bridge at present. Some bridge opponents distrust DOT and the mainland-dominated MPO on this point, but the record does not indicate that such plans are presently under active consideration. Most if not all residents opposing the bridge focus on the height of the proposed bridge from the perspective of wind safety, but these concerns are largely ungrounded. However, the concerns of bridge opponents about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the proposed bridge because they believe that it is unsuitable for their small island community. A high-level bridge would not permit fishing from anywhere but the extreme ends. Many area residents--many of whom are older persons--who walk, bicycle, or jog on the existing bridge would find the 4 percent grade and bridge height forbidding. It is difficult to see how a single six-foot sidewalk on the proposed bridge would better accommodate walking, bicycling, jogging, and fishing better than the two five-foot sidewalks on the existing bridge. Objections to the bridge height involve more than reduced access for nonmotorists. Except for one condominium permitted under prior law, nothing manmade on the island stands over 38 feet high. Bridge opponents claim that the size and appearance of the bridge would not blend well with the subdued appearance and casual ambience of their island. Bridge opponents prefer their timeworn drawbridge, which allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Better scaled to the island community, the drawbridge, occasionally interrupting vehicular traffic, provides a marked boundary between the island and the mainland. Such a boundary is less apparent from a wide expanse of new roadway across a fixed- span, high-level bridge, from which motorists, bicyclists, and pedestrians would have little if any view or feeling of the water separating the island from the mainland. Most if not all bridge opponents resist the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle-- the pace and rhythm of their lives--that they sought in moving to the island in the first place. At the same time, the reasons for the proposed bridge are insubstantial. Interestingly, DOT recently completed the rehabilitation of the Cortez Bridge. Abandoning earlier plans to replace the bridge, DOT instead repaired and rehabilitated the drawbridge without widening the bridge or bascule spans. The Anna Maria Island Bridge has not proved unsafe over 37 years. Collisions on the bridge approaches are 50 percent more numerous than on the bridge itself. Superficial analysis of the accident data does not alter the fact that the bridge's accident rate is low. Most of the rear-end collisions on the bridge and bridge approaches are attributable to traffic backups from the Gulf Drive light and turns into the boat ramp on the west and convenience store and marina on the east. The drawbridge has not been a material cause of collisions on the bridge and bridge approaches, and the fixed-span, high-level bridge therefore would probably not reduce the number of collisions in this area. If vehicular safety were a problem on the Anna Maria Island Bridge, the sensible response would be to analyze the data carefully. If, for instance, numerous collisions were at night, DOT should considering adding street lights to the bridge. If, as is likely, most of the rear-end collisions are attributable to traffic backups, then DOT should consider the effects of lowering the speed limit through an increasingly congested area with boat ramps, a marina, and a convenience store. Perhaps such a study would present DOT an opportunity to revisit the wisdom of maintaining a 50-mile-per-hour speed limit on a road segment that, to the west, quickly ends at the Gulf of Mexico on a narrow barrier island with constrained and congested roads and, to the east, passes through increasingly urbanized areas. In promoting the proposed bridge, DOT has oversold the planning and design standards that arguably militate against the Anna Maria Island Bridge. In reality, these standards reveal that the decision to add shoulders is conditioned on consideration of numerous other factors, including the environmental, cultural, and aesthetic factors militating in favor of retaining the Anna Maria Island Bridge. DOT claims that the Anna Maria Island Bridge is functionally obsolete in large part due to the absence of shoulders or breakdown lanes on the bridge. Although the safety of a road segment is enhanced by the presence of breakdown lanes, the added margin of safety is not as great as DOT implies in this case. Countering suggestions of greater safety, the shouldered approaches to the bridge have experienced 50 percent more collisions than the unshouldered bridge. The record contains three sources of design standards for bridges: DOT's Index No. 700 or Design Criteria Related to Highway Safety, dated September 1991 (SAM Exhibit No. 123); Chapters 1 and 2 of Volume I of DOT's Plans Preparation Manual (SAM Exhibit No. 126); and the 1990 standards of the American Association of State Highway and Transportation Officials (AASHTO) (SAM Exhibit No. 105). The Plans Preparation Manual specifies that through lanes should be "as wide as practical, up to 12 feet." Index No. 700 specifies that clear widths for bridges with undivided travel lanes on urban arterials with design speeds of 30-50 miles per hour, such as this road segment, should be the "travel lanes plus approach shoulder widths." The introduction to Chapter 1 of the Plans Preparation Manual states that projects are normally based on established design standards for the various elements of the project, such as width of roadway . . .. Selection of the appropriate standards is influenced by traffic volume and composition, desired levels of service, terrain features, roadside developments, environmental considerations and other individual characteristics. Addressing the aesthetics of road projects, Chapter 1 states that the designer should consider, after functionality, how a highway will be perceived by users, ensuring that "[h]orizontal and vertical alignment should be coordinated so that a driver has an opportunity to gain a sense of the local environment." Notes to Index No. 700 stress the conditionality of the design standards. One note states: "Values shown above shall be used on all new construction and on reconstruction projects to the extent that economic and environmental considerations and [right-of-way] limitations will allow." Another note adds for clear zones: Standard values are to be used for all new construction projects. These values may be reduced only where individually justified to mitigate critical social, economic, and environ- mental impacts or to lessen right-of- way costs. Standard values are also to be used for recon- struction projects; however values down to AASHTO minimum may be used where individually justified due to critical social, economic and environmental impacts and/or excessive right-of-way costs or when existing roadside obstacles are not considered hazardous as evidenced by field review and by accident history or accident potential. AASHTO standards call for a minimum width of the travel lanes plus three feet per side. But AASHTO standards recognize that reasonably adequate bridges . . . that meet tolerable criteria may be retained. Some of the nontechnical factors that should be considered are the esthetic value and the historical signifi- cance attached to famous structures, covered bridges, and stone arches. The bridge approaches have eight-foot gravel shoulders, although no design shoulders. However, the design standards do not require bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors. After consideration of all the factors, the cited design standards do not mandate the widening of the existing bridge to add shoulders. As for the failure of the Anna Maria Island Bridge to meet current load standards for bridges, the AASHTO minimum design standard for new bridges "should be HS-20." The existing bridge is rated HS-15. However, the same conditions attach to the load standard of a bridge as apply to the presence and width of shoulders. HS-15 is a "tolerable" criterion. There is nothing in the record suggesting that the current load limit of the Anna Maria Island Bridge is unsafe. If DOT were concerned about the load capacity of the bridge, it would have imposed weight limits on the bridge. After consideration of all the factors, the design standards no more call for a new bridge to increase the load rating to HS-20 than they call for adding shoulders to the bridge. As for the failure of the Anna Maria Island Bridge to meet current ship-impact standards, the record does not clearly establish that the existing bridge fails to meet these standards. Even if it fails to meet these standards, the VE team itself recommended relaxing the H-20 bridge-impact standard outside of the channel, partly based on the faultless marine safety record of the bridge and the availability of alternative access to Anna Maria Island. Even DOT does not cite a 25 percent improvement in ship- impact resistance as a compelling reason, in isolation, for a new bridge. The Draft Preliminary Engineering Report contends that the Anna Maria Island Bridge should be replaced due to its low overall clearance. But the proposed bridge would effectively close the Intracoastal Waterway at Sarasota Pass to a growing number of sailboats that can presently navigate the pass. And there is no evidence that the 36 daily bridge openings unduly delay vehicular traffic, especially in view of the traffic delays already caused by the traffic light at Gulf Drive. The Final Preliminary Engineering Report adds two more reasons for replacing the Anna Maria Island Bridge. The first is the need to accommodate traffic increases. However, updated analysis has reduced traffic projections, and the proposed bridge is now clearly limited to two lanes in any event. The second reason cited in the Final Preliminary Engineering Report is "structural deficiency." There is absolutely no evidence in the record suggesting that the Anna Maria Island Bridge is structurally deficient. Nine months prior to this statement appearing in the Final Preliminary Engineering Report the VE team inspected the bridge and found it was in "good condition" with "no severe deterioration which would endanger the capacity of the bridge." Coming from engineers, the assertion that the bridge is "structurally deficient," without support or qualification, was irresponsible. The driving force behind DOT's decision to replace the Anna Maria Island Bridge seems to be cost. DOT contends that it is less expensive to replace the Anna Maria Island Bridge now than it is to rehabilitate and repair it for the remainder of its useful life. When built, the Anna Maria Island Bridge had a life expectancy of 50 years. The bridge remains in "good condition," and traffic demands on this segment of Manatee Avenue can be satisfied by two lanes for a period in excess of the remaining useful life of the bridge. DOT projects the cost of the new bridge at $8.4 million. However, DOT has spent $2 million without commencing construction and still has not identified aspects of construction that might be dictated by environmental concerns, such as the construction of work platforms or use of specialized demolition techniques. The $8.4 million figure is probably low. The $8.4 million projection for the proposed bridge is definitely low once environmental costs are considered. Perhaps incapable even of approximation as to lost seagrass beds, degraded water quality, and reduced wildlife, including manatee, environmental costs can be partly quantified in terms of lost recreational opportunities, property values, and business income in the event of degraded waterbodies and increased governmental expenditures to reverse environmental degradation. It is even more likely that DOT's cost figures for retaining the Anna Maria Island Bridge are high. DOT projects "minor" (i.e., without widening) rehabilitation costs for the Anna Maria Island Bridge as $2.0-$3.8 million. They are based on general experience, which has not proved reliable for this bridge. General experience suggests that a bridge of this type and vintage should have needed to be rehabilitated at 20 years; yet, 37 years later, still without such a rehabil- itation, the Anna Maria Island Bridge remains in good condition. The Anna Maria Island Bridge could benefit from a "minor" rehabilitation costing at least $500,000. This probably would be the only substantial rehabilitation required for the remaining useful life of the bridge. DOT typically replaces rather than rehabilitates when rehabilitation will cost at least 60 percent of the cost of replacement. If so, using DOT's numbers, replacement would not be indicated unless rehabilitation were to cost over $5 million. Several provisions in the state comprehensive plan tend to sustain DOT's decision to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge. Three of these provisions are in the transportation section of the state comprehensive plan calling for transportation planning to manage growth, enhance system efficiency, and ensure efficient access to services, jobs, markets, and attractions. A provision in the public facilities section calls for planning and financing new facilities in a timely, orderly, and efficient manner. These provisions favor the new bridge only to the extent of a need for the new structure. Absent a need, some of these provisions, such as favoring timely and efficient planning of new facilities, actually militate against the new bridge because DOT could advance the funding of another, needed project if it did not spend the money on the replacement bridge. Arrayed against these provisions of the state comprehensive plan are numerous other provisions clearly disfavoring the new bridge. Some of these provisions are in the sections on transportation and public facilities. One provision admonishes that, in addition to enhancing system efficiency, it is also important to minimize adverse environmental impacts. Another transportation provision is to promote timely resurfacing and repair of roads and bridges to minimize costly reconstruction and enhance safety. A final applicable transportation provision is to avoid transportation improvements that encourage increased development in coastal high-hazard or productive marine areas. According to the Draft Preliminary Engineering Report, the proposed bridge "could foster economic development in the area," meaning the barrier island. Provisions in the section on public facilities are to protect substantial investments in already-existing public facilities and promote rehabilitation and reuse of existing facilities rather than commence new construction. Numerous provisions of the state comprehensive plan disfavor the new bridge on environmental grounds. Florida must ensure that development in coastal areas does not endanger important natural or marine resources and must protect and restore long-term productivity of marine fisheries habitat and other aquatic resources. Other provisions are to conserve wetlands, fish, and marine life to maintain their environmental, economic, aesthetic, and recreational values; to prohibit the destruction of endangered species and protect their habitats; and to protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. One provision explicitly links Florida's environmental health with its economic health by requiring that Florida maintain the environment as one of its primary economic assets. The proposed bridge project is inconsistent with the state comprehensive plan, taken as a whole. The proposed project disregards the requirements to rehabilitate and reuse existing facilities where possible, to avoid transportation improvements that encourage development in coastal high- hazard areas, and to repair and resurface roads and bridges in time to avoid more costly expenses. The inconsistencies between the proposed project and environmental provisions of the state comprehensive plan are evident. Another group of provisions disfavors on a different basis the decision to replace the Anna Maria Island Bridge with the new bridge. These provisions call for improved intergovernmental coordination, maximized citizen involvement, and encouraged citizen participation at all levels of policy development, planning, and operations. The record does not support a finding that DOT seriously addressed the various elements in the state comprehensive plan that must guide state agencies in their capital expenditures. In so doing, DOT undermined citizen participation in this important planning process. DOT and its consultants collected some environmental data, but too little, too late. Also, DOT never subjected the environmental data to detailed, careful analysis. Motivated by cost considerations, which offer scant support for the proposed bridge project, DOT sought to replace old drawbridges and wanted to replace them as inexpensively as was reasonably possible. In pursuing its drawbridge-replacement policy in this case, DOT did not assess sufficiently the relevant environmental, cultural, and aesthetic factors. This failure undermined citizen participation and the planning process itself. For instance, before collecting the detailed seagrass data in June and July 1992, DOT had already proceeded far into the planning for the present project, rejecting the no-build alternative, selecting the south alignment, and possibly selecting the fixed-span, high-level design. Yet, informed consideration by DOT and the public of all of the alternatives demanded early knowledge of the area and functions of seagrass to be destroyed by the project. The seagrass issue came as no surprise to DOT. Sarasota Pass is Outstanding Florida Waters. A DOT representative had warned other DOT representatives in July 1989 that they had not had much success with seagrass mitigation. Over a year earlier, at the very inception of this long planning process, Figg and Muller amply identified in its subconsulting contract with Peninsula the various environmental problems posed by this project. In early 1990, DER warned DOT about the importance of seagrass and mitigation. Yet, DOT elected to avoid federal environmental review by obtaining in mid-1990 a categoric exclusion on the basis that the proposed supposedly had no significant impact on any natural, cultural, or recreational resources and had no significant impact on water quality. Instead of seriously confronting the seagrass issue, Sverdrup twice tried to influence Figg and Muller and its subconsultant to understate the amount of seagrass that would be destroyed by the proposed project. These efforts are not merely unreasonable in retrospect, but were unreasonable at the time, as evidenced by the angry reaction of the Peninsula employee and the more businesslike resistance of Figg and Muller. The resulting atmosphere was not conducive to a vigorous investigation of environmental conditions and thoughtful analysis of the impact of the proposed alternatives on these conditions. DOT and its consultants never obtained much data that various parties demanded. When entering into the subconsulting contract with Peninsula, Figg and Muller required Peninsula to do an analysis of bottom sediments for heavy metal concentrations, but this was never done. In early 1990, DER warned DOT about the strict water-quality standards applicable to the project. Yet, DOT and its consultants never obtained vital water-quality data. Still in the first half of 1990, DEP recommended that DOT obtain a bathymetric survey, which DEP promised to review in detail at the permitting stage. But DOT and its consultants never obtained this crucial data either. In fact, it was not until two years later--after DOT had rejected the no-build alternative and south alignment, if not also the bascule designs--that Peninsula obtained seagrass data of the level of detail even approaching what DEP had sought. The treatment of manatee in the planning process was also inadequate. Omitted entirely from the Draft Preliminary Engineering Report, manatee were discussed in later documents. But at no time did any consultant address two distinct threats posed to manatee by the proposed project. First, the wider-spanned bridge would, as promised by the Draft Preliminary Engineering Report, enhance navigation for shallow-drafter boats by facilitating their bypassing of the channel and cutting under the bridge. In addition to destroying seagrass by prop dredging, small boats cutting under the bridge would threaten manatee feeding in shallow water in exactly the manner described in the Permit Coordination Package. Second, construction of the new bridge would effectively narrow the pass, which has already been constricted by fill placed when the Anna Maria Island Bridge was built. This would drive manatee into a narrower area within the channel and increase the chances of injury from collisions with boats. 335. More than once in this planning process, DOT and its consultants tried unreasonably to wring support for the proposed project from unfavorable data and analysis. Mr. Smith's attempts to coerce the analysis of seagrass losses is perhaps the most glaring example of this unfortunate treatment of data and analysis. Another Sverdrup representative discouraged independent analysis of new traffic data by Figg and Muller when he sent Figg and Muller a memorandum with the instructions to analyze and document the data "to reach the conclusions necessary to proceed with the project development." A more pervasive example of this practice is in the treatment of the accident data. In the Site Characteristics Report prepared at the end of 1988, the consultants noted the low accident rate of the Anna Maria Island Bridge and suggested reasonably that the high percentage of rear-end collisions might be due to traffic backups, which might be due to backups from the Gulf Drive traffic light, nearby left turns, or drawbridge openings. A month or two later, in the Draft Preliminary Engineering Report, Figg and Muller tried, without detailed analysis of accident reports, to limit the effects of the boat ramp, marina, convenience store, and traffic signal to rear-end collisions on the approaches and attribute rear-end collisions on the bridge to the opening of the drawbridge. A later reference in the draft report to accident data "for the existing facility" is misleading for its failure to differentiate between the bridge and the bridge approaches. By the August 1989 public hearing, the Figg and Muller representative was telling the public that the drawbridge openings were a cause of a "significant number" of rear-end collisions. No evidence supports this conjecture, which does not rise to the level of analysis. DOT and its consultants failed to substantiate other vehicular safety concerns when they failed to account for the coordination that exists between drawbridge openings and emergency vehicles and drawbridge openings and hurricane evacuation. Yet, DOT and its consultants continued to cite these nonissues, like they cited rear-end collisions, prominently in their arguments about functional obsolescence and safety, at least through the rejection of the no- build alternative in the Final Preliminary Engineering Report issued on November 1, 1989. At the formal hearing, DOT tried to bolster its safety arguments with two new arguments that are hopelessly anecdotal. DOT presented evidence that bridge tenders are susceptible to crime: a DOT witness testified that the shelter of a bridge tender in Dade County was pockmarked by numerous bullet holes. Another DOT witness testified that a bridge tender was crushed by the gears of a drawbridge he was trying to fix when the power company suddenly restored power after an outage. Neither narrative establishes widespread problems with drawbridges. There is nothing to suggest that a bridge tender on the Anna Maria Island Bridge must contend with drive-by shootings. If so, motorists and other users of the bridge might be safer if a bridge tender were available to telephone the police. The death of the bridge tender crushed by the drawbridge gears was tragic, but easily avoidable simply by shutting down the power to the bridge before working on it. Likewise, DOT tried at the formal hearing to support the functional- obsolescence argument by contending that the additional lanes would hasten evacuation efforts by the ability to convert to more lanes one-way east. But island evacuation does not require the addition of two shoulders that could be converted into travel lanes during evacuations. Successful evacuations have taken place with the existing bridge, whose two lanes can be used one-way east in emergencies. The two-lane bridge is not a bottleneck considering the two- lane facility to the east and the floodprone bridge approaches and island road system to the west. DOT's premature commitment to project implementation discouraged objective analysis of the data. Nor was DOT receptive to DEP's role in reviewing the proposed project. When DER withdrew its early objections to the Advance Notification Package in April 1990, it promised a more detailed review during permitting. But the Final Engineering Report in early 1991 sounded what proved to be an ominous note when it stated that, based on the agreement with DER, DOT had spent about $1 million of public funds on the completion of the PD&E process and final design of the new bridge. Not applying for permits when the design work was 65- 70 percent complete, as directed by the PD&E, DOT waited instead until August 1992, when the final design and construction plans for the project were 90 percent complete. When DEP expressed concern about the project, DOT, ignoring another opportunity to focus on the substantive environmental and public welfare issues, responded instead with an insubstantial estoppel argument and stern warning that "anything other than the issuance of a permit for the southern alignment is unacceptable." Not every transportation project will serve all provisions of the state comprehensive plan. Some planning processes and decisions may even conflict with more provisions of the state comprehensive plan than they serve, but still not conflict sufficiently with the entire state comprehensive plan, construed as a whole, to constitute an abuse of discretion. But in this case, the proposed project is marginally consistent with a few provisions and markedly inconsistent with numerous, material provisions of the state comprehensive plan. And the inconsistencies appear to be the direct result of the repeated failures of DOT and its consultants to collect necessary data and their repeated efforts to wring support from unsupportive data and analysis. These inconsistencies with the state comprehensive plan amount to an abuse of discretion in deciding to replace the Anna Maria Island Bridge with the fixed- span, high-level bridge. DOT's Compliance with the Statutory Requirement of Public Hearings, Including Effective Public Participation, Prior to Selecting, Locating, and Designing the Fixed-Span, High-Level Bridge The replacement of the Anna Maria Island Bridge with a fixed-span, high-level bridge is a major transportation improvement. The proposed bridge would cost millions of dollars, destroy 2.5 acres of seagrass permanently and 2.0 acres of seagrass temporarily, imperil manatee, and degrade Outstanding Florida Waters. The proposed project has generated considerable public controversy, which triggers the requirement of a public hearing in the PD&E manual. The proposed project is a "major transportation project," under the definition in the PD&E manual requiring an environmental impact study. Sverdrup's Project Concept Report calls the proposed project a "major bridge replacement project." DOT was amenable to public input on all issues at the February 1989 workshop, but there is no indication that DOT provided sufficient notice as to permit the public to participate effectively. DOT was clearly amenable to public input at the August 1989 public hearing as to the location of the proposed bridge. DOT still was in the formulative stage of deciding the alignment of any new bridge. DOT opted for the south alignment only after hearing public comments concerning the impact of the north alignment on navigation, recreation, and business. The notice for the August 1989 public hearing, though insufficient to satisfy the statutory requirement for a design public hearing, was reasonable in that it was sufficient to satisfy the requirement of effective public participation. It is less clear that DOT had not, prior to the August 1989 public hearing, already selected the facility-type--namely, a new bridge over the no- build option. But Petitioners and Intervenors failed to show that DOT had in fact already made this decision before the August 1989 public hearing. DOT announced the rejection of the no-build alternative on November 1, 1989, in the Final Preliminary Engineering Report. Although Mr. Smith's June 13, 1989, memorandum to Figg and Muller recommended the rejection of the no-build alternative, Figg and Muller proved able to resist Sverdrup's suggestions as to seagrass losses, and other evidence does not point clearly to an earlier rejection of the no-build option. But the preponderance of the evidence establishes that, long prior to October 1993, DOT had selected and committed to the design of the new fixed- span, high-level bridge over such alternatives as a low-, mid-, or high-level bascule bridge. DOT representatives and consultants thought that they had already conducted the design public hearing four years earlier. Only in early 1993 did DOT decide to hold another design public hearing after reconsidering the legal sufficiency of the notice before the August 1989 public hearing. So, for at least three and one-half years, DOT and its consultants operated on the assumption that DOT had satisfied the requirement of a design public hearing and could proceed to the next step. It is unreasonable to expect, given DOT's strong commitment to project implementation, that the project did not proceed through design in these three and one-half years. DOT spent $1 million on planning and design for this project through the Final Engineering Report issued on November 1, 1989. If the total cost of the fixed-span, high-level bridge on the south alignment was to be $8.4 million and construction had not yet begun, one would infer that the $1 million covered a lot of the required design. By the formal hearing in January 1996, DOT had spent $2 million on the proposed bridge. Although part of that sum may have gone toward litigation expenses, most of it presumably went toward additional design and construction planning. Additional evidence that DOT selected the design prior to the October 1993 public hearings comes from two sources: the preparation of documentary milestones in the planning process and statements of DOT representatives. According to the PD&E manual, DOT issues the Final Engineering Report after the public hearings and selection of the recommended alternate. The Final Engineering Report, which was issued in late 1990 or early 1991, follows the approval by the Federal Highway Administration of the recommended alternative, according to the PD&E manual. According to the PD&E manual, DOT applies for permits when the project design is 65-70 percent done. In August 1991, DOT applied for permits after retaining Figg and Muller in mid-1991 to prepare final design and construction plans. All this time, the Draft Preliminary Engineering Report had all but eliminated bascule alternatives in February 1989. Public comments of DOT representatives disclose with greater certainty than milestone documentation the design progress on this project. As early as March 31, 1989, Sverdrup advised Figg and Muller not to do traffic calculations for bascule alternatives "since it is evident that the fixed high- level structure will be recommended due to lower overall cost." Later comments consistently portray the bridge design as finished or all but finished by the end of 1992 and start of 1993; there is no doubt that DOT had selected and committed to a design by this time. When DOT submitted the dredge-and-fill application in August 1992, final design and construction planning was 90 percent complete, according to Mr. Crim. On December 1, 1992, District Secretary May, sensing increasing community resistance to the proposed bridge, acknowledged local resistance to the "design" of the replacement bridge and directed Mr. Crim that "we will proceed with the fixed-span bridge concept as developed in the PD&E document. Please make every effort to render this project 'production ready' as rapidly as possible." On January 8, 1993, a DOT representative told MPO representatives that construction plans were 95 percent done and acquisition of right-of-way had begun. Referring to the new bridge, District Secretary May told a meeting of local government officials on January 19, 1993, that "it's been designed" as a fixed-span, high-level bridge. He stated that 100 percent of the design work was done and changing to a 45-foot bascule bridge would mean that DOT had thrown away $1 million on design work. According to Mr. Crim, the options at the October 1993 public hearing were the fixed-span, high-level bridge or the no- build alternative; the bridge design was thus no longer in doubt. DOT's misplaced reliance on the August 1989 public hearing as a design hearing did not preclude the possibility that DOT could have conducted a design public hearing at a later date with effective public participation. The key factual questions would be whether DOT had already decided upon a design and, if so, whether it had restarted the design-selection process so as to approach the curative public hearing with no precommitment toward the fixed- span, high-level design. It is unnecessary to explore in any detail what restarting the design selection process would entail. DOT could have approached the October 1993 public hearing differently than it approached other public hearings. DOT could have engaged the public, on the record, in a give-and-take analysis of the engineering, traffic, environmental, cultural, and other data. DOT could have abandoned its customary approach requiring the public to show an error, an omission, or changed conditions, or else DOT's tentative decision would become final. Instead, DOT approached the October 1993 public hearing, as Mr. Crim admitted, with an "even more defined" position than usual. Unless something "significant" came up at the hearing, the fixed-span, high-level bridge was going in. Presenting a blatantly promotional videotape and a distorted comparative photograph, DOT tried to rescue the $1-2 million it had invested in this project rather than risk a wide-ranging public discussion on the design of the proposed bridge with a meaningful exchange of information and analysis. The resulting burden placed on the public to change DOT's mind was inordinate, precluded effective public participation, and revealed DOT's commitment to the fixed-span, high-level design.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order cancelling the proposed project to replace the Anna Maria Island Bridge with a fixed-span, high-level bridge. ENTERED on May 6, 1996, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 6, 1996. APPENDIX Rulings on Proposed Findings of Petitioners and SAM 1-5: adopted or adopted in substance. 6: same rulings as in prior recommended order except to extent of any contrary rulings in this recommended order. 7: adopted or adopted in substance, during the early part of the planning process. 8: adopted or adopted in substance, except as to the date of the public hearing. 9-17: adopted or adopted in substance. 18: rejected as irrelevant. 19-23: adopted or adopted in substance. 24: rejected as irrelevant. 25: adopted or adopted in substance. 26: adopted or adopted in substance, except as to author and recipient of memorandum. 27: rejected as unnecessary. 28: adopted or adopted in substance. 29-35: rejected as unnecessary. 36-37: adopted or adopted in substance. 38-41: rejected as subordinate. 42-43: rejected as irrelevant. 44: rejected as unsupported by the appropriate weight of the evidence. 45-46: rejected as subordinate. 47-54: adopted or adopted in substance. 55: rejected as unsupported by the appropriate weight of the evidence. 56: rejected as recitation of evidence. 57: rejected as subordinate. 58-63: adopted or adopted in substance. 64: rejected as subordinate. 65-66: adopted or adopted in substance. 67-79: rejected as subordinate. 80-83: adopted or adopted in substance. 84: rejected as recitation of evidence. The selection of the type of facility in this case is a bridge--specifically whether to build a new bridge or rehabilitate the old one. 85: adopted or adopted in substance. 86: adopted or adopted in substance, except that DOT did not select the facility-type (a bridge) and the site (the south alignment) until after the August 1989 public hearing. 87: rejected as not finding of fact. 88: adopted or adopted in substance. 89: rejected as unnecessary. It is only necessary to find that DOT selected the fixed-span, high-level design prior to the October 1993 design public hearings. 90-91: rejected as subordinate. 92: adopted or adopted in substance. 93: rejected as subordinate. 94-98: adopted or adopted in substance. 99: adopted or adopted in substance, but the approaches have actual, gravel shoulders of eight feet. 100: rejected as unsupported by the appropriate weight of the evidence. 101-43: adopted or adopted in substance. 144: rejected as subordinate. 145: adopted or adopted in substance. 146-47: rejected as unsupported by the appropriate weight of the evidence. 148-53: adopted or adopted in substance. 154-57: rejected as unsupported by the appropriate weight of the evidence. 158-60: adopted or adopted in substance. Rulings on Proposed Findings of Intervenor VanWagoner Any proposed findings referring to statements of counsel that have been adopted were adopted because of evidence in the record supporting such findings. Counsel's statements are not support for such proposed findings because these statements are not evidence. Any proposed findings referring to views taken by the undersigned that have been adopted were adopted because of evidence in the record supporting such findings, such as road maps. 1-11: adopted or adopted in substance. 12: rejected as subordinate and unnecessary. 13: adopted or adopted in substance, as to removal of four- laning project from MPO needs plan. 14: rejected as speculative. 15: rejected as unsupported by the appropriate weight of the evidence, as to safety being an issue. 16: adopted or adopted in substance. 17: rejected as subordinate, except as to a design change. 18: rejected as unsupported by the appropriate weight of the evidence. 19-20: rejected as subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 21 (remainder): rejected as recitation of evidence. 22-24: rejected as unnecessary. 25: adopted or adopted in substance. 26-27: rejected as unsupported by the appropriate weight of the evidence. 28-33: rejected as recitation of evidence. 34-37: adopted or adopted in substance. 38: rejected as recitation of evidence. 39: adopted or adopted in substance, except that proposed finding as to disclosure is rejected as unnecessary. 40-43: rejected as subordinate. 44: adopted or adopted in substance. 45-47: rejected as recitation of evidence. 48: adopted or adopted in substance. 49: rejected as unnecessary. 50-51: rejected as subordinate and recitation of evidence. 52-53: adopted or adopted in substance. 54-64: rejected as subordinate. 65-66 (first paragraph): rejected as recitation of evidence. 66 (remainder): adopted or adopted in substance. 67-70: rejected as recitation of evidence. 71: adopted or adopted in substance. 72-73: rejected as subordinate. 74: adopted or adopted in substance. 73 (second 73)-75: rejected as not findings of fact. 76: adopted or adopted in substance. 77 (first clause): rejected as unsupported by the appropriate weight of the evidence. 77 (second clause): adopted or adopted in substance. 78: adopted or adopted in substance. 79-80: rejected as unsupported by the appropriate weight of the evidence. 81-83: rejected as not findings of fact. 84: adopted or adopted in substance. 85: rejected as unsupported by the appropriate weight of the evidence. 86: adopted or adopted in substance. 87: rejected as unsupported by the appropriate weight of the evidence. Rulings on Proposed Findings of DOT 1-2: adopted or adopted in substance except for the date of construction. Most references in the DOT documentation are to 1959, although there are some references to 1957. 3 (first two sentences): adopted or adopted in substance. 3 (last sentence): rejected as subordinate. 4-13: adopted or adopted in substance. 14: adopted as to 4 percent grade, but rejected as irrelevant as to remainder. 15: rejected as subordinate. 16 (first sentence): adopted or adopted in substance. (second sentence): rejected as subordinate. (first sentence): rejected as subordinate. 17 (second sentence): adopted or adopted in substance. 18-21: adopted or adopted in substance. 22-24: rejected as irrelevant and subordinate. 25-26 (first sentence): adopted or adopted in substance. 26 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: adopted or adopted in substance, except that there are conditions attached to the standard criteria. Also, replacement remains a factual determination requiring consideration of all the circumstances. 29: adopted or adopted in substance. 30: adopted in the sense that the decision to replace the Anna Maria Island Bridge accompanied the PD&E process. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32-34: adopted or adopted in substance. 35: rejected as subordinate, irrelevant, or unsupported by the appropriate weight of the evidence. 36-39: adopted or adopted in substance, except as to no foregone conclusions reached as a result of DOT's studies, which is rejected as unsupported by the appropriate weight of the evidence. 40-53: adopted or adopted in substance. 54: adopted or adopted in substance, except the public lacked effective participation in the February 1989 workshop because of lack of notice and lack of factual background. If the references to "workshop" are to the August 1989 public hearing, this format too leaves something to be desired as to effective public participation given the refusal of DOT and consultant representatives to engage in any give-and-take with member of the public except off the record during the break and the refusal to discuss anything but the project under consideration. 55-60: adopted or adopted in substance. 61: adopted or adopted in substance, except willingness to continue with public involvement is rejected as unsupported by the appropriate weight of the evidence. 62: adopted or adopted in substance. 63 (first two sentences): rejected as unsupported by the appropriate weight of the evidence. 63 (third sentence): adopted or adopted in substance, as the sole reason for the October 1993 public hearings. 64-65 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 65 (remainder)-68: adopted or adopted in substance. 69: rejected as unsupported by the appropriate weight of the evidence; the fixed-span, high-level bridge was the selection, not merely a preferred alternative. 70-71: adopted or adopted in substance. 72 (first sentence): rejected as irrelevant. District Secretary May does not need to attend the public hearings or remain in the hearing room during the public hearings, if he attends. If he is to be involved in the decision, he needs only to familiarize himself with the public comments. 72 (second sentence)-74: rejected as unsupported by the appropriate weight of the evidence. 75: rejected as subordinate and unnecessary. 76: rejected as unsupported by the appropriate weight of the evidence. 77-78: rejected as subordinate. 79: rejected as unsupported by the appropriate weight of the evidence, although cost was a major factor in the design decision, whenever it was actually made. 80: rejected as subordinate. 81-82 (first sentence): adopted or adopted in substance. 82 (second and third sentences): rejected as unsupported by the appropriate weight of the evidence. 82 (fourth sentence): adopted or adopted in substance, although this projection is probably too low. 83-84: rejected as unsupported by the appropriate weight of the evidence. 85-87: adopted or adopted in substance, as recitals of DOT's reasoning-- not as persuasive reasoning under all of the circumstances. 88: adopted or adopted in substance, as recital of Final Preliminary Engineering Report. 89: rejected as unsupported by the appropriate weight of the evidence. 90: rejected as subordinate and irrelevant. 91-92 (except last sentence): adopted or adopted in substance. 92 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 93-94 (first sentence): adopted or adopted in substance. 94 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 95: adopted or adopted in substance. 96: adopted or adopted in substance, as recital of DOT's thinking. 97: adopted or adopted in substance. 98: adopted or adopted in substance, except as to not meeting design standards. 99: adopted or adopted in substance, as recital of DOT's thinking. 100-04: rejected as irrelevant. 105: adopted or adopted in substance, as recital of thinking of these individuals. 106: rejected as repetitious. 107: adopted or adopted in substance. 108 (first sentence): rejected as irrelevant. 108 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 109: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 110: rejected as unsupported by the appropriate weight of the evidence. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 113 (first sentence): adopted or adopted in substance. 113 (second sentence): rejected as irrelevant and as unsupported by the appropriate weight of the evidence. 114-16: rejected as unsupported by the appropriate weight of the evidence. 117 (except second sentence): rejected as subordinate. (second sentence): adopted or adopted in substance. (first sentence): rejected as subordinate and irrelevant. 118 (second sentence): adopted or adopted in substance. 119: rejected as irrelevant and subordinate. 120: rejected as unsupported by the appropriate weight of the evidence. 121 (first clause): adopted or adopted in substance. 121 (remainder): rejected as irrelevant and subordinate. 122-26: adopted or adopted in substance. 127-28: adopted or adopted in substance. 129-30: rejected as subordinate and unnecessary. 131 (first sentence): adopted or adopted in substance. 131 (remainder)-32: rejected as subordinate and unnecessary. 133 (first sentence): adopted or adopted in substance. 133 (remainder): rejected as subordinate and unnecessary. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, Mail Station 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 David M. Levin Icard Merrill 2033 Main Street, Suite 600 Sarasota, Florida 34237 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Francine Ffolkes, Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert E. VanWagoner Post Office Box 4121 Anna Maria, Florida 34216 Christine C. Stretesky, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent's statements as set forth in the First Amended Petition to Determine Validity of Agency Statements Defined as Rules are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner alleges that the following constitute agency statements defined as rules but not properly adopted as rules by the District: The District considers a particular parcel of property to be located within a "floodway" within the District's regulatory jurisdiction for Works of the District (WOD) permitting on the basis of the parcel being located within a floodway established pursuant to a currently-approved Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS). The District will not accept any alternative floodway boundaries that are inconsistent with those established in the FIS unless FEMA confirms that the alternative boundaries are more accurate than those obtained from the existing FIS, and FEMA approves the alternative boundaries through a formal approval process, such as a Letter of Map Revision that also requires local government concurrence. If the District determines the parcel to be within its regulatory floodway, it will require an Environmental Resource Permit (ERP) application for any development activities within the floodway, other than those entitled to a general permit under Rule 40B-4.3010, Florida Administrative Code. The District will require an ERP for the activities described in paragraph "c" notwithstanding the fact that the Department is evaluating those same activities as part of an ERP application that has been submitted to the Department of Environmental Protection (Department) for the same activity in the same location under the terms of the Operating Agreement.1/ The District will evaluate an application to conduct development activities as described in paragraph "c" based upon the full range of ERP permitting criteria contained in the District's rules, even though the Department is processing an ERP application for the same activities pursuant to the Operating Agreement between the District and the Department. The District's policy is to deny or to object to the issuance of any permit application to conduct commercial mining operations in the WOD composed of the Alapaha River floodway. It is the policy of the District to consider any proposed development activity in a WOD, other than those eligible for a general permit under Rule 40B-4.3010, Florida Administrative Code, to have an adverse impact on the regulatory floodway, and thereby to be unpermittable by the District. The District's policies against allowing development activities in WODs apply even if a professional engineer certifies under Rule 40B-4.3030, Florida Administrative Code, that the activity will not violate the conditions of issuance set forth in the rule. The policies apply because the District will consider the development activities to violate ERP permitting rules applicable to all development activities, not just those within WODs. It is also the District's policy to ask the Department to deny ERP applications for development activities proposed in WODs that require ERPs even though the Department is processing the application pursuant to the Operating Agreement. The District's policy is to deny ERP applications to conduct commercial mining activities in WODs as determined by the FIS, and to recommend to the Department that ERP applications to the Department for such projects be denied, unless the applicant goes through the FEMA amendment process described in paragraph b to remove the area from the FEMA- determined floodway. Each party requests that it be granted costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes. Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. Respondent is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an ERP issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between Suwannee River Water Management District and Department of Environmental Protection (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the WOD impacts. It is the District's position that the District's review of any ERP application to undertake development activities in a WOD would be based upon all of the ERP criteria, and not just those criteria relating to floodway conveyance referenced in Rule 40B-4.3030, Florida Administrative Code. On or about November 30, 2001, the District published in the Florida Administrative Weekly a notice of its intent to adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate floodways for the purpose of its works of the district regulatory program. Facts Based on Evidence of Record Background/Events leading up to this dispute The total amount of the subject property owned by Petitioner is approximately 560 acres. The property is generally a rolling terrain. A significant feature is a man-made berm which was placed around the perimeter of the property by a former owner, presumably to keep water off of the land during floods of the Alapaha River. Dennis Price is a self-employed registered professional geologist. At one time, he was employed by the District and at another time, he was employed by Petitioner. For purposes of this proceeding, he was hired by Petitioner as a consultant for certain permitting projects including the project that gave rise to this dispute. Mr. Price met with and corresponded with the District as well as staff from the Department over a period of two years regarding this mining project. In June of 1999, the Department wrote to Mr. Price in response to a meeting. The letter noted that Petitioner intended to expand mining operations. In addition to informing Mr. Price of the Department's permit requirements, the letter referenced the District's permitting requirements: Mr. Still provided us with an aerial photograph showing the SRWMD's regulated floodway in the area of your mine. A copy is enclosed with the floodway line highlighted in orange. A substantial portion of your proposed expansion area will be within this floodway. The SRWMD has adopted the Alapaha River and its floodway as a works of the district. The Department adopted the SRWMD's regulations pertaining to the environmental resource permit; however, this did not include the regulations pertaining to projects within works of the district. If your permit application only includes areas outside of the floodway, a single application will have to be provided to this bureau. If you intend to expand within the floodway, a separate application will also have to be provided to the SRWMD for a works of the district permit. In either situation, the Department's Jacksonville office will review any modifications to your industrial wastewater permit. (emphasis supplied)2/ In response, Mr. Price wrote to the Department in July of 1999 and stated in pertinent part: Dear Mr. Neel, this letter is in response to your June 22, 1999 letter "RE: Permits for Mining Operation". Angelo's currently has a Sand and Limestone General Permit from DEP - General Permit Number FLA011635. That permit is based on a 5 year mining plan that was presented to the DEP on January 11, 1999. The permit, my letter and the 5 year mining plan presented to DEP are enclosed. Another attachment is an aerial photo of the property showing the Regulatory Floodway line and the location of the areas to be mined under that 5 year mining plan. The aerial photograph has superimposed upon it the location of the floodway of the Alapaha River, as determined by FEMA maps. Please note that the 5 year mining plan and the associated storage and processing areas are outside the regulatory floodway. Therefore, no works of the district permit will be needed at this time. See FAC Rule 40B-4.300(1)(a) [sic]. Future mining beyond the five year mine plan will not occur without first applying for and obtaining permits from the appropriate regulatory agency. At the present time we will only mine areas within the 5 year mine plan. We will have an engineer field locate the floodway line on the property to ensure that no mining or associated storage and process activities occur within the floodway. We are requesting that the ERP permitting process remain within the DEP bureau of Mine Reclamation since the DEP has already issued a general permit for this activity and the DEP normally handles ERP's for mining operations. We have determined that the mining area will be less than 100 acres, and based on Rule 40B-4.2020(2)(B) FAC a general permit may be applied for. We will notify you when we have a draft application prepared and would like to meet with you at your earliest convenience after that to discuss the permit application. (emphasis supplied) In response to information which Mr. Price provided to the Department, the Department wrote to Mr. Price in December of 1999 and again addressed concerns about the area of the project in relation to the floodway line: Specific Item: FLOODWAY Information submitted in response to the request for additional information (RAI) dated August 12, 1999, indicates that Angelo's proposed project boundary and activities extend up to and coincide with the Floodway Line. There appears to be no set-back or buffer from the Floodway (or any other) Line. Chapter 40B-4, Florida Administrative Code (F.A.C.), contains the rules for the Suwannee River Water Management Area which were adopted by the Department of Environmental Protection. Section 40B-4.2010(2)(b)(3)(b) provides that a General Permit may be issued for construction, operation, and maintenance of a surfacewater management system servicing a total project area less than 120 acres provided the system will not be located in, cross or connect to a work of the district. Information submitted with this (November 12, 1999) submittal indicates that the proposed activities within the proposed project coincides with, or is so closely located to, the Floodway Line so as to indicate that the proposed activities would be considered to be connected to a work of the district. This is based upon examination of the plan views and [sic] well as cross section information that has been provided. Please provide a discussion, and drawings as may be needed, that addresses all activities along the established Floodway Line. This information should address all aspects of all operations along this line through the completion of reclamation activities. Be sure to address best management practices, and any proposed setbacks in the response to this request. (emphasis in original)3/ Mr. Price described the proposed project as part of the permit application which was submitted to the Department: Describe in general terms the proposed project, system, or activity. Angelo's Aggregate Materials, Ltd. (AAM) owns approximately 341 acres of land. The current mining site, known as the Jasper Pit, is located on a 160 acre parcel of land. Of the 160 acres, only 82.45 acres are available for mining since the remainder of the property falls within the floodway boundary of the Alapaha River. The 160 acre parcel has an existing berm around the entire perimeter of the property constructed in the 1950's by the previous owner. The Alapaha flood study conducted for FEMA did not take into account this berm. AAM is proposing to construct a 20' wide access road between NW 8th Boulevard and the Jasper Pit, encompassing approximately 7.22 acres. This roadway will be constructed within the limits of property owned by AAM. The stormwater management system for the roadway will consist entirely of grassed swales as covered under FDEP's swale exemption. The Jasper Pit is a sand and limestone mining operation. (emphasis supplied) On August 28, 2001, David Still, the District's Director of Resource Management, wrote a letter to the Department in response to a request received by e-mail from the Department for technical assistance. Mr. Still responds to requests for technical assistance from other agencies as a matter of routine and as contemplated by the operating agreement between the Department and the District. The letter reads as follows: The floodway along the Alapaha River was identified and mapped as part of a Federal Emergency Management Association (FEMA) flood study performed by the United States Army Corps of Engineers, subsequently approved by FEMA and adopted as part of the local government (Hamilton County) ordinance. Based on the above, Suwannee River Water Management District (SRWMD) then adopted the floodway as a Work of the District (WOD). There is only one floodway. SRWMD recognizes and accepts the FEMA flood study performed by the U.S. Army Corps of Engineers and local government (Hamilton County) floodway boundary as the best available information to identify the floodway boundary. There is a formal process whereby change can be made to the FEMA boundary with additional or improved information. If FEMA and Hamilton County approve a revised floodway delineation and boundary, so be it, SRWMD will recognize it, however, SRWMD will not unilaterally change a boundary resulting from a detailed federal flood insurance study. We have informed Mr. Thompson and his client of this. We consider the kind of work contemplated by the applicant (at least based on our earliest discussions with them) will cause an adverse impact to the WOD (the floodway) which of course is in conflict with the requirements of 40B-400.103(1)(h) and SRWMD 40B-4, Part III, Florida Administrative Code (F.A.C.). The District will object to the issuance of any permit in direct conflict with District rules. We feel the rule is clear and any conflict with 40B-400.103(1)(h), F.A.C. which the Florida Department of Environmental Protection has adopted by reference requires denial of the Environmental Resource Permit (ERP) application. Any work of this nature within a WOD is subject to the additional permitting requirements of 40B-4, Part III, F.A.C., even if the District needs to implement such requirements with a separate WOD permit. Mr. Still's reference to "the applicant" in the August 28, 2001, letter is to Petitioner. While Mr. Still is not the agency head, his August 28, 2001, letter clearly communicates the District's policy. Given his position in the agency and the manner in which he discussed this issue, the letter describes and communicates the District's policy on what constitutes a floodway and its boundary. Mr. Still does not have final authority to make decisions on permitting within the District, as that authority rests with the governing board. In a letter written on October 10, 2001, in response to a letter from Petitioner's counsel, Mr. Still stated that District staff would recommend to their governing board that Petitioner's proposed activity is an activity within a floodway that is regulated under Chapter 40B-4, Part III, Florida Administrative Code, and that the proposed activity would adversely impact the floodway: "Therefore, as staff, we would recommend our governing board consider this activity adverse to our rules." This letter is case specific to Petitioner. Within a few days of Mr. Still's October 10, 2001, letter, Petitioner filed its Petition to Determine Validity of Agency Statements Defined as Rules. Other facts established by the evidence of record The District uses FEMA FIRM maps as evidence of the location of the floodways in the works of the district. The District communicated this policy in Mr. Still's letter dated August 28, 2001. The District will not unilaterally change the floodway delineation and boundary established by FEMA. In order for an applicant to persuade the District that a proposed activity within the FEMA floodway line is not within the District's floodway, an applicant must apply to FEMA for a map amendment or revision. The District will acknowledge that a proposed activity is not within the floodway of a work of the district only if the applicant is successful in obtaining a map amendment or revision showing that the proposed activity indeed is not within the floodway. The District has applied this policy to another company which applied for a permit. That is, the District required the permit applicant to apply to FEMA for a map revision or amendment as a condition of issuance of a permit because its proposed activity was within the FEMA floodway as established by the FEMA maps. Petitioner has not filed a permit application with the District regarding the proposed mining project. It is Petitioner's position that to do so would be futile.
Findings Of Fact Petitioners own residential property near South Florida Water Management District (SFWMD) Canal C-24. The canal is owned and maintained by SFWMD, an agency of the State of Florida. The State property includes the banks and bottom of Canal C-24 and a 50-foot-wide strip of land which separates Petitioners' property from the canal. However, some of the Petitioners have obtained permits from SFWMD to maintain boat docks in the canal and to cross the 50 feet of intervening property as necessary. Canal C-24 is closed to navigation immediately west of Petitioners' property by a SFWMD dam used to control the water level. However, the canal is open to navigation east of the dam and connects with the St. Lucie River which flows into the Atlantic Ocean. Respondent GDC plans the residential development of property east of that owned by Petitioners. Construction of the proposed bridge will improve access to the GDC property and other portions of southeast Port St. Lucie which are now blocked on the north and east by water and on the west by the Florida Turnpike. On August 28, 1980, Respondent Department of Environmental Regulation (DER) issued its Notice of Intent to grant a permit for construction of the bridge with 17 feet clearance. The bridge was originally planned to provide 12 feet clearance which was approved by SFWMD and the City of Port St. Lucie. Based on Petitioner's objections and the recommendation of the US Coast Guard, the clearance was increased to 17 feet. However, Petitioners maintained their opposition, giving rise to these proceedings. At 17 feet the bridge would be approximately six feet below the Florida Turnpike bridge which is situated between the GDC residential development and Petitioners' property. Thus, Petitioners are currently limited to a 23-foot navigation clearance by the Florida Turnpike bridge which was present when they purchased their property. None of the Petitioners operates any boat at his Port St. Lucie residence which would be affected by construction of the proposed bridge. Rather, Petitioners' objections are based on the obstruction of larger boats they might acquire and on the belief that resale value of their property would be diminished. They also content that use of the canal as a hurricane refuge for large boats will be restricted. Finally, Petitioners argue that bridge pilings will cause erosion and thus create a surface hazard in addition to the height impediment. The Petitioners indicated no plans to acquire any power boats of such size as to be restricted by a 17-foot clearance, nor did their plans include the purchase or use of any sailboats which would not already be blocked by the 23- foot turnpike bridge. No studies, appraisals or together evidence was introduced to establish that property values would be affected by construction of the proposed bridge. Conflicting evidence was presented on the use of the canal by third parties as a hurricane refuge. However, the expert testimony given by Respondents' witnesses established that use of the canal during storms was unsafe and impractical due to the narrowness of the canal, the absence of trees to reduce the force of the wind or secure the boats, and the possibility of strong currents caused by operation of the flood control dam. Further, this testimony established that safer moorings are available on the adjacent portion of the St. Lucie River, which has the added advantage of being directly accessible to the ocean. Such moorings are preferable because of the greater maneuverability in the river and the presence of mangroves which provide anchorage and wind protection. The alleged erosion problem was not supported by any studies or expert testimony, but was based on Petitioners' observations of some soil erosion around turnpike bridge pilings. GDC's construction proposal has been considered by DER, and its engineering plans will be reviewed by the City of Port St. Lucie before it authorizes construction. This process should insure that any potential erosion problems are minimized. Furthermore, there was no evidence to indicate that soil erosion, even if it did occur at the site of the proposed bridge, would create any hazard to navigation. The City Manager of Port St. Lucie supports construction of the bridge at its present level. His concern, and that of the City Commission, is centered on the need to deliver police, fire and ambulance service to the area south of the proposed bridge. Additionally, opening of the bridge will result in the improved flow of vehicular traffic in the community. A local contractor who owns lots on both sides of the canal opposes any further elevation of the bridge as it would reduce the view from houses he intends to construct in this area. The GDC evidence established that raising the height of the bridge would also enlarge the property on either side of the canal required for bridge purposes. Finally, the cost of construction of further increasing bridge height would be substantial, amounting to approximately $40,000 per foot.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation grant the permit to General Development Corporation as reflected in the Notice of Intent issued on August 28, 1980. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Mr. Kenneth J. Thomas 2649 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Anita R. Cockerham 2549 SW Harem Circle Port St. Lucie, Florida 33452 Mr. Walter J. Konrad Ms. Victoria Konrad 2657 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. Henry Albright Ms. Nancy Albright 2651 Harem Circle, SW Port St. Lucie, Florida 33452 Mr. William Isaacs 2645 SW Harem Circle Port St. Lucie, Florida 33452 Mr. and Mrs. Frederick C. Walrath 2647 SW Harem Circle Port St. Lucie, Florida 33452 Ms. Mary Bruins Kars 2659 Harem Circle Port St. Lucie, Florida 33452 Mr. Norman Zlinkoff 1814 Erwin Road Port St. Lucie, Florida 33452 Mr. Donald M. Homer General Development Corporation 111 South Bayshore Drive Miami, Florida 33131 Randall E. Denker, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Joseph Z. Fleming, Esquire 620 Ingraham Building 25 SE Second Avenue Miami, Florida 33131
Findings Of Fact Upon consideration of my observation of the witnesses and their demeanor while testifying, documentary evidence received including the parties pre- hearing stipulation, the following relevant facts are found: Respondent DOT filed a dredge and fill permit based on its application filed with Respondent DER and proposed to upgrade a 4.9 mile segment of State Road 80 from a 2-lane roadway to a rural 4-lane divided roadway which included construction of new north and south bound bridges over a canal (designated as L- 8) and constructing a triple box culvert to replace the existing bridge over Callery Judge Canal, located from 20 mile bend to 5.5 miles west of State Road 7, Palm Beach County, Florida. (Joint Composite Exhibit 1). Respondent DER published the required notice of its intent to issue the applied for permit by DOT in the April 14, 1986 edition of the Palm Beach Post Times, a newspaper of general circulation. Petitioner is the fee simple owner of the property located to the west of Callery Judge Canal. Petitioner's property includes a drainage easement which has been given to the Seminole Water Management District and includes submerged portions of the canal. Callery Judge Canal is a water control structure. Callery Judge Canal is connected to another canal designated as C-51, which is also a water control structure. The length of Callery Judge from the C-51 Canal extends approximately 400 feet. There are water control structures at the end of Callery Judge Canal and approximately 4 miles both east and west of the C-51 Canal. As such, there is limited navigability of the C-51 Canal by Petitioner. The C-51 Canal is used by Petitioner and unidentified public members for recreational navigation purposes. There is no commerce navigation on either the C-51 or Callery Judge Canal. Petitioner currently has navigational access to C-51 through Callery Judge. Petitioner owns two boats which he has from time to time used on the Callery Judge Canal to get to the C-51 Canal. Both C-51 and Callery Judge Canal are Class 3 water bodies. Respondent DER has dredge and fill jurisdiction over both canals as they connect to state waters. Respondent DOT, in addition to publishing notice in the Palm Beach Post Times, sent written notice to adjacent property owners advising them of DOT's application and only Petitioner protested based on his claim of impaired navigation from Callery Judge to C-51. Additionally, Petitioner objected on the basis that the project would adversely affect his riparian rights of access to C-51 and that the effect of issuing of the requested permits would amount to the taking of private property without first making payment of full compensation to him. The existing bridge which expands Callery Judge Canal does not meet state safety practices inasmuch as there is only the approximately 2 feet between the edge of the travel lane to the face of the railing. This space provides only a 2 foot recovery lane for disabled vehicles. With the triple box culverts as applied for by DOT, an adequate recovery lane of approximately 10 feet will be provided which meets state safety requirements for recovery lanes. (Testimony of Midgett). The triple box culverts will allow for DOT to complete its planned widening of the bridge on both ends and thereby eliminate adverse safety concerns relating to traffic "bottle necking." Fish, alligators, and other wildlife will be able to continue passing from Callery Judge to C-51 after installation of the triple box culverts as proposed by DOT and therefore there will be no adverse impacts on fish and wildlife conservation. The proposed culverts will allow drainage to continue and water flow will not be constricted. Following construction of the triple box culverts, Petitioner may continue to enjoy other riparian rights that he presently enjoys. Thus, Petitioner may continue to swim and bathe in Callery Judge Canal. Petitioner may also continue to navigate Callery Judge for fishing and other recreational purposes. There are no marinas, boat lifts, boat ramps or other facilities on C- 51 or Callery Judge Canals which would provide navigation access to the canals by the general public. The one boat facility in either canal is a boat ramp in C-51 maintained by the South Florida Water Management District. The Palm Beach County Health Department, a local approved DER program, (pursuant to Section 403.916, Florida Statutes), reviewed the subject application and determined that DOT's application, with modifications incorporated in Respondent DER's intent to issue, provided the reasonable assurances and was in the public interest pursuant to Section 403.918(2), Florida Statutes. Petitioner's riparian rights to navigate Callery Judge Canal and access to C-51 would be impaired by the Respondent DOT's installation of the triple box culverts as applied for. However, when these adverse impacts are balanced against the other factors as required pursuant to Section 403.918(2), Florida Statutes, Petitioner's adverse impacts are considered to be negligible. Respondent DOT has provided Respondent DER reasonable assurances that water quality standards will not be violated based on the proposed project. Respondent DOT has provided Respondent DER reasonable assurances that by use of turbidity screens during construction of the culverts, turbidity values 50 feet down stream from the project site will not exceed 29 N.T.D.'s above background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation, grant Respondent, Department of Transportation, a dredge and fill permit as set forth with the conditions accompanied in its Notice of Intent to Issue, based on the determination herein that the proposed activities are not contrary to the public interest. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1846 Rulings on Respondent, Department of Environmental Regulation's proposed Recommended Order. Paragraph 12, adopted as modified, paragraphs 12, 17 and 18, Recommended Order. Paragraph 13, adopted as modified, paragraphs 15 and 16, Recommended Order. Paragraph 18, rejected as unnecessary for resolution of the issues. Paragraph 19, adopted as modified, paragraph 15, Recommended Order. Paragraph 21, first sentence adopted and remainder rejected as being speculative or conclusionary. Paragraph 24 the parties Stipulation and other statements respecting the parties positions were not incorporated in the Recommended Order as being unnecessary or was not the subject of testimony based on the stipulation. Rulings on Respondent, Department of Transportation's proposed Recommended Order. Paragraph 1 adopted as modified, paragraph 8, Recommended Order. Statutory and Code provisions are not recited in the Recommended as findings of fact. However, official notice was taken of the pertinent rules, regulations and statutory provisions. Paragraph 4 substantially adopted, paragraphs 3, 4 and 5, Recommended Order. Paragraph 12 rejected as being unnecessary to determine the issues posed herein and based on the ultimate determination that the project was in the public interest, paragraph 15, Recommended Order. Rulings on Petitioner's proposed Recommended Order. Paragraph 5, first sentence attributable to Respondent, Department of Transportation, rejected as no evidence was introduced to substantiate that Respondent DOT was unaware that Petitioner was owner and holder of a riparian property right of access. Paragraph 4, last sentence rejected as evidence adduced indicates that Petitioner's rights to gain access between his riparian lands and the C-51 canal was considered, paragraph 16, Recommended Order. Paragraph 5, last sentence rejected as there was a determination that the proposed project was in the public interest and that any impairment of Petitioner's access was counter balanced against public considerations as required in Section 403.918(2), Florida Statutes. Paragraph 16, Recommended Order. Paragraph 6, rejected as being contrary to other credited evidence which indicates that the proper balancing test was in fact made. See paragraphs 10-18, Recommended Order which deals with the consideration of the public interest criteria set forth in Section 403.918(2), Florida Statutes. COPIES FURNISHED: Mark S. Ulmer, Esquire 200 SE Sixth Street, Suite 404 Ft. Lauderdale, Florida 33301 Mel Wilson, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 Karen A. Brodeen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
