06-003288 Manasota-88, Inc. And Roy R. Lewis, Iii vs. Department Of Environmental Protection And Manatee County Port Authority Status: Closed Recommended Order on Tuesday, February 6, 2007.

Summary: Port Manatee did not provide reasonable assurance that removing an economic incentive would not delay timely completion of seagrass mitigation. Recommend that the Environmental Resource Permit modification be granted w/condition of remedial action.

Case No. 06-3288

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANASOTA-88, INC. and ROY R. ) ) ) ) ) ) ) ) ) ) ) ) )

LEWIS, III,

RECOMMENDED ORDER

Petitioners,

vs.

DEPARTMENT OF ENVIRONMENTAL

PROTECTION and MANATEE COUNTY

PORT AUTHORITY,

Respondents.

On October 30-31 and November 1, 2006, a final

administrative hearing was held in this case in Bradenton,

Florida, before J. Lawrence Johnston, Administrative Law Judge

(ALJ), Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners Manasota-88, Inc. and Roy R. Lewis, III:

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Manatee County Port Authority:

Kevin S. Hennessy, Esquire

R. David Jackson, Esquire

Lewis, Longman & Walker, P.A.

1001 Third Avenue West, Suite 670

Bradenton, Florida 34205-7848

STATEMENT OF THE ISSUES

The issues in this case are: whether the Department of

Environmental Protection (DEP) should modify an Environmental

Resource Permit (ERP) held by the Manatee County Port Authority

(the Port) for expansion of its facilities at Port Manatee by

eliminating a specific condition (SC) that prohibits the opening

and use of those expanded facilities before DEP's "final success

determination" concerning the Port's related seagrass mitigation

ERP; and whether attorney's fees should be awarded.

PRELIMINARY STATEMENT

On February 10, 2005, the Port applied for modification of

SC 5 of its ERP. DEP twice requested additional information

relating to how the Port would provide reasonable assurance with

respect to the requested permit modification, and the Port

responded with additional information that was reviewed by DEP.

On April 7, 2006, DEP gave notice of its intent to approve

the requested modification and issued a draft permit modification

that also included modifications to the related seagrass

mitigation ERP that were not requested by the Port. After DEP

extended the time for the Port to file a petition, DEP and the

Port met on July 5, 2006, and DEP issued a revised Notice of

Intent (NOI) and revised draft permit modification that granted

the Port's application without the additional modifications.

On July 19, 2006, Manasota-88, Inc., and Roy R. Lewis, III

(Robin Lewis) timely petitioned for a formal administrative

hearing challenging the NOI and revised draft permit modification

and seeking to reinstate the NOI and draft permit modification

issued in April. DEP dismissed the petition with leave to amend

based on DEP's determination that the petition included

insufficient allegations as to how Petitioners' substantial

interests were affected by the proposed agency action. On

August 21, 2006, Petitioners filed an Amended Petition for Formal

Administrative Proceeding (Petition), which DEP referred to

(DOAH).

On September 8, 2006, the Port filed a Motion to Dismiss

with Prejudice and a Motion to Expedite Final Hearing. On

September 15, 2006, the final hearing was scheduled for

October 11 and 12, 2006. On September 19, 2006, the Motion to

Dismiss was denied, and the Motion to Expedite was granted,

requiring discovery responses within 15 days.

On September 26 and 27, 2006, Petitioners filed a Motion to

Impose Expedited Deposition Transcript Costs and an Emergency

Motion to Continue Hearing and to Compel Discovery. A telephonic

hearing was held on September 29, 2006, and the final hearing was

continued until October 30-31 and November 1, 2006.

On October 27, 2006, the parties filed a Pre-Hearing

Stipulation, and the Port filed a Motion in Limine seeking to

exclude evidence relating to: other permits issued to the Port;

DEP's Consent Order OGC File No. 05-2790; and seagrass mitigation

success credit determinations made by DEP. The Port also filed a

Motion for Attorney's Fees.

At the onset of the final hearing, the Motion in Limine was

argued and denied.

During the final hearing, the Port, as applicant, called as

witnesses: George F. Isiminger, Director of Engineering and

Environmental Affairs for the Port Authority; Stephen G. Swingle,

an environmental scientist; Raymond F. Dennis, III, an ecologist

responsible for the monitoring of the sea grass mitigation at

Port Manatee; and Thomas F. Ries, the current seagrass mitigation

supervisor for the Port Manatee expansion project. The Port also

designated excerpts from the deposition transcripts of

Janet Llewellyn, Deputy Director of the DEP's Division of Water

Resource Management, and Martin Seeling, an environmental

administrator with the DEP, for admission as Port Exhibits 17 and

18. The other parties added excerpts for consideration as part

of the exhibits. The Port also offered Port Exhibits 1 through

13, 15, 16, and 19 through 21, which were admitted in evidence

without objection, along with Port Exhibits 17 and 18.

Petitioners called two witnesses: Robin Lewis, who is an

environmental consultant and the former seagrass mitigation

supervisor for the Port Manatee expansion project; and Glenn

Compton, Chairman of Manasota-88. Petitioners also had their

Exhibits 3, 9, 24, 26, 34, 37, 41, 57, 64, 66, 69, 75, 88, 90,

93, 96 through 101, 105 through 108, and 116 admitted in

evidence. Ruling was reserved on objections to Petitioners'

Exhibits 21 and 109, which are sustained.

In rebuttal, the Port re-called Mr. Dennis and also called

David Crewz of the Fish and Wildlife Research Institute.

After presentation of evidence, the parties arranged for

preparation of a Transcript of the final hearing; the parties

were given ten days from the filing of the Transcript in which to

file proposed recommended orders (PROs); and the record was

closed. However, at that point, Petitioners inquired about the

status of the transcripts of the depositions of Don Deis and

Cheryl Miller, consultants for DEP on seagrass mitigation

success, which were filed at the outset of the proceedings but

deferred pending an assessment of the need for them to be made

after the presentation of other evidence; and the record was re-

opened to reflect Petitioners' request that those transcripts be

placed in evidence and to allow the other parties to respond.

When the Port objected, the transcripts were marked as

Petitioners' Exhibits 117 and 118, and the parties were given an

opportunity to file argument on their admissibility and to

designate excerpts from the transcripts to be considered, if

admitted. Written arguments on admissibility and all

designations, together with the Port's additional objections to

certain designations, were filed by November 13, 2006. Based on

the written arguments, the objections are overruled, and the

designated portions of Petitioners' Exhibits 117 and 118 are

admitted in evidence.

On November 13, 2006, Petitioners also filed a Request for

Official Recognition of the Florida Conceptual State Land

Management Plan and ERP No. 0129291-003-EI (with related NOI),

which were identified as Petitioners' Exhibit 1 and 5,

respectively (although Petitioners also proposed that the latter

be identified as Petitioners' Exhibit 119). The other parties

filed objections, which are overruled; and the Request for

Official Recognition is granted.

The Transcript (745 pages in six volumes) was filed on

December 11, 2006. The parties filed timely PROs. In addition,

Petitioners filed a Motion for SLAPP Fees and Response to Port

Manatee Fee Motion. (The PROs filed by Petitioners and the Port

also addressed the Port's Motion for Attorney's Fees.) On

January 2, 2007, the Port filed a Response in Opposition to

Petitioners' Motion for SLAPP Fees. On January 3, 2007,

Petitioners filed an Amended PRO in compliance with the 40-page

limit in Florida Administrative Code Rule 28-106.215. (Unless

otherwise indicated, all rule references are to the current

Florida Administrative Code, and all statute references are to

the 2006 codification of the Florida Statutes.)

FINDINGS OF FACT

A. The Parties

1. DEP is an executive agency of the State of Florida under

Article IV, Section 6, of the Florida Constitution. DEP

administers the Environmental Resource Permit Program pursuant to

Chapter 373, Part IV, Florida Statutes, for various activities,

including "dredging and filling" by Florida's seaports.

2. The Port operates and sets policy for Port Manatee, a

public deepwater commercial seaport located in the northern part

of Manatee County on Tampa Bay.

3. Manasota-88, Inc., is a Florida corporation not for

profit that has at least 25 current members residing within

Manatee County. Manasota-88 was formed, more than one year

before the Port filed its application for the permit modification

that is the subject of this proceeding, for the purposes of

protection of public health and the environment, fish and

wildlife resources, and air and water quality.

4. A substantial number of the members of Manasota-88 fish,

swim and snorkel, watch birds, and enjoy wild life observation in

Tampa Bay around Port Manatee.

5. Robin Lewis is president and principal ecologist for

Lewis Environmental Services, Inc., an environmental consulting

firm. Mr. Lewis is a wetlands scientist with extensive expertise

in ecology, restoration, and creation of marshes, mangrove

forests, and seagrass meadows.

6. Robin Lewis had been involved in many projects relating

to seagrass protection and restoration in Tampa Bay and the area

where the Project is located. At the inception of the Port

Manatee expansion project, Mr. Lewis objected to the Port's

underestimation of the acreage of seagrass that would be impacted

by the expansion project. Mr. Lewis was subsequently hired by

the Port on a contract basis to map seagrass in the impact and

mitigation areas of the Port's expansion project.

7. Mr. Lewis owns two boats that he sometimes uses for

fishing and shallow water recreation. The boats are equipped

with poles so that he can pole into motorized vessel restriction

zones. Mr. Lewis has fished the area around Port Manatee many

times over the course of most of his adult life. Mr. Lewis is

also a wildlife and bird watching enthusiast. The Tampa Bay area

around Port Manatee, including the area of project impacts and

the mitigation areas, provide opportunities for wildlife

observation and bird-watching, and Mr. Lewis has engaged in those

activities in the Port Manatee area many times over the years.

B. DEP Permits, Port Authority Application, and

Mitigation Credit Correspondence

8. In August 1994, the Port began the permitting process

for a substantial expansion of Port Manatee by applying to DEP's

Bureau of Beaches and Coastal Systems for authorization for

dredging and filling and other activities in the coastal waters

and wetlands around Port Manatee.

9. In December 1999, the Board of Trustees of the Internal

Improvement Trust Fund and DEP issued ERP No. 0129291-001-EC, a

"Conceptual Permit" for enlargement of the main access channel

at the entrance to Port Manatee, construction of a ship turning

basin, expansion of Berth 5, and construction of new Berths 4 and

12 (Phase II) at Port Manatee (the Expansion Project).

10. Conceptual Permit SC 5 provided that the Port would

have to obtain individual ERPs for the various conceptually

approved activities. The Conceptual Permit's "Description of

Activities" section on page 1 summarized that the Port proposed

to offset 12.7 acres of seagrass habitat impacts by transplanting

the existing seagrass and by creating, restoring, and enhancing

seagrass habitat in Tampa Bay.

11. Conceptual Permit SC 9 specified that DEP had to deem

the seagrass mitigation to be successful before the Port could

initiate dredging.

12. The requirement to achieve 12.7 seagrass mitigation

success credits was specified in ERP No. 0129291-002-EI (the

"Seagrass Mitigation Permit"), which was issued to the Port on

August 29, 2000. Procedures for documenting seagrass mitigation

success are included in the Seagrass Mitigation Permit and an

attached July 2000 Seagrass Mitigation Plan, authored principally

by Robin Lewis, which authorize and describe all of the seagrass

mitigation requirements for the Expansion Project.

13. Pursuant to SC 9 of the Seagrass Mitigation Permit, the

requirements of SC 8 must be met for the mitigation to be

considered successful, but the Port is allowed to request a

determination that any portion of the mitigation is successful at

any time.

14. In furtherance of the conceptually approved Expansion

Project, on December 17, 2002, the Port obtained ERP No. 0129291-

003-EI authorizing the requested construction activities.

Subsequently, ERP No. 0129291-003-EI was the subject of an

application for a major modification to authorize more dredging

for enlargement of the channel wideners, which resulted in

issuance of ERP No. 0129291-009-EM (the Construction Permit) on

June 10, 2004.

15. SC 5 of the Construction Permit identified the seagrass

mitigation criteria and specific seagrass acreage DEP would

require to determine the seagrass mitigation successful for

purposes of authorizing dredging (referred to as "initial

success" or "dredging success"), and established a second

threshold of seagrass mitigation success necessary for

authorization to use the new facilities: "The final success

determination, showing 12.7 credits have been achieved, must be

documented prior to opening of Berths 4, 5, and Phase II of Berth

12 to shipping."

16. By letter dated February 7, 2005, the Port requested a

minor modification of the Seagrass Mitigation Permit to extend

the mitigation construction deadline five years, to August 29,

2010, "to be on the safe side." On May 11, 2005, this minor

modification was granted as ERP 0129291-011-EI.

17. On February 10, 2005, the Port filed the instant

application to modify the Construction Permit by eliminating the

last sentence of its SC 5 of so that the Port could open and

begin beneficial use of the new berths it had constructed before

DEP's "final success determination" concerning the Port's related

seagrass mitigation.

18. On March 11 and April 14, 2005, DEP transmitted

requests for additional information (RAIs) relating to how the

Port would "provide reasonable assurance in a documented

commitment plan to full success of the seagrass mitigation

credits required by permits 0129291-002-EI and 0129291-003-EI, as

well as assurance for financial commitment to accomplish the

action plan."

19. On March 14, 2005, the Port responded to the first RAI,

asserting that reasonable assurance was provided by the Port's

2003/2004 seagrass mitigation monitoring report that requested

10.44 mitigation credits. The Port further contended that the

mitigation was trending toward success and the necessary

additional credits would become available in the next year.

DEP's second RAI acknowledged those assertions, but in a letter

dated April 18, 2005, DEP also requested that the Port submit a

remedial action plan for the failed transplantation of Thalassia

testudinum (also referred to as T. testudinum and commonly called

turtle grass) from the impact area to Mitigation Areas 1, 2,

and 3.

20. On September 9, 2005, DEP responded to the Port's

2003/2004 seagrass mitigation monitoring report and seagrass

mitigation credit request, granting approval of only 6.1 of the

10.44 mitigation credits requested. In addition, DEP commented

that "pursuant to the requirements of the mitigation plan, MCPA

shall prepare and submit a remedial action plan to the Department

for review and approval." This comment referred to the failed

transplantation of T. testudinum .

21. On September 29, 2005, the Port submitted its

Resolution PA 05-16 reaffirming the Port's commitment to fully

comply with the conditions of its permits, "including, but not

limited to, conditions relating to seagrass mitigation."

22. By letter dated October 25, 2005, Martin Seeling

explained to Petitioners why DEP staff was recommending at the

time that the pending application to modify the Construction be

granted:

All the originally required mitigation

activities have now been completed, and some

additional planting in Mitigation Sites 1-4

was completed this September. Based both on

the permittee's reports and the Department's

inspections, about half of the seagrass

mitigation credits have been achieved, and

the rest of the mitigation is clearly

trending toward success. We anticipate that

nearly all the remaining credits will be

achieved with the next year.

The purpose of the referenced permit

condition was to provide a strong incentive

for the permittee to complete the mitigation

in a timely manner and to provide the

Department with assurance that the loss of

seagrasses could indeed be mitigation. Both

of those goals appear to have been

accomplished. At this point, the main thing

needed for the mitigation success is

additional time.

Since there is no real advantage to be gained

by keeping the berths closed, Department

staff have recommended issuance of the permit

modification. One of our requirements for

the Port to complete this application was for

them to provide some alternate form of

assurance that the mitigation would be

completed. Our first suggestion of a surety

bond was not feasible, but the Port was able

to provide assurance by way of a . . .

Resolution (our second recommendation). In

addition to the resolution, we can also add

new (or revise existing) permit conditions to

strengthen the assurance that the Port will

actively pursue mitigation success until it

is achieved.

23. On December 12, 2005, Martin Seeling advised the Port

that, according to DEP's Office of General Counsel, contrary to

earlier indications, the requested modification to SC 5 of the

Construction Permit "would require a major modification to the

permit"; and DEP requested the permit application fee that

applies to a major modification application.

24. On February 15, 2006, the Port submitted an Annual

Progress and Mitigation Success Report claiming entitlement to

13.06 seagrass mitigation success credits.

25. On April 7, 2006, DEP issued a proposed agency action

that not only granted the Port's requested permit modification by

eliminating the last sentence of SC 5 of the Construction Permit,

but also combined and modified the Construction Permit Seagrass

Mitigation Permit Special Conditions to:

a. clarify the actions required and

mitigation ratios applied to the various

mitigation Sites as shown in the Seagrass

Mitigation Table included in proposed amended

SC 2;

b. clarify the reporting and coordination of

monitoring between the seagrass mitigation

supervisor and DEP in proposed amended SC 4e,

f and g;

c. clarify that Mitigation Site 9B would be

removed from the mitigation program because

of seagrass impacts in that Site caused by an

unauthorized discharge of clay during

construction activities in proposed amended

SC 5f;

d. clarify the use of Areas of Interest in

the methodology for documenting seagrass

mitigation success in proposed amended SC 8;

e. clarify that an evaluation of "overall

net change" within Mitigation Sites 1, 2, 3,

8 and 9 would be required in addition to the

Area of Interest analysis in proposed amended

SC 8e;

f. require analysis of the propeller scar

recovery areas by monitoring and

characterizing the seagrass species and

density in 10 propeller scars selected by the

mitigation supervisor in proposed amended

SC 8g;

g. required submittal of a seagrass planting

plan for mitigation of impacts in the

flushing channels at Mitigation Site 7,

including "information regarding the pre-

impact seagrass community (density and

species composition) to assist the

Department's determination of restoration

success" in proposed amended SC 8; and

h. required submittal of a Remedial Action

Plan within 60 days, including planting to

re-establish T. testudinum to "compensate for

the temporal loss of approximately 3 acres of

T. testudinum " in proposed amended SC 14.

26. The NOI issued with the April 7, 2006, proposed agency

action explained that additional assurances in the Seagrass

Mitigation Permit would be required and that remedial action for

the loss of Thalassia would also be required.

27. The Port received a draft of the April 7, 2006,

proposed agency action and submitted a "White Paper" explaining

that it considered many of the requirements to be new

requirements, not included in the Seagrass Mitigation or

Construction Permits, that "raised the bar," making it more

difficult for the Port to achieve seagrass mitigation success.

DEP's mitigation credit consultants, Cheryl Miller and Don Deis

of PBS&J Corporation, responded with a memo refuting the Port's

contentions and defending the April 7, 2006, proposed agency

action. Ms. Miller, Mr. Deis and Martin Seeling, Environmental

Administrator for DEP's Bureau of Beaches and Coastal Systems

continue to support the April 7, 2006, proposed agency action and

do not consider it to "raise the bar." The current seagrass

mitigation supervisor Thomas Ries supported most the permit

modifications proposed by DEP and thought they were necessary.

However, the Port disputed the addition of minor Seagrass

Mitigation Permit modifications to the major Construction Permit

modification the Port requested. DEP gave the Port an extension

of time to file a petition for an administrative hearing while

the matter was further discussed.

28. On April 18, 2006, DEP transmitted a draft Seagrass

Mitigation Credit Assignment letter dated April 21, 2006, that

approved 10.86 of the requested 13.06 seagrass mitigation success

credits.

29. The Port met with DEP on April 28, 2006, and advocated

for additional credits. As a result of this meeting, DEP's

Deputy Director of the Division of Water Resource Management,

Janet Llewellyn, on behalf of DEP, decided that the Port should

be granted an additional .59 mitigation credits for a combined

Area of Interest (AOI) 8A/8B. On May 10, 2006, DEP issued a

credit assignment letter granting 11.45 credits, including the

additional credits assigned in the combined AOI 8A/8B.

30. During the meeting on April 28, 2006, DEP and Port

representatives also agreed that the additional permit

modifications proposed by DEP in the April 7, 2006, proposed

agency action would be removed from the proposed major

modification of the Construction Permit, discussed, and

negotiated; and that the Port would apply for modification of the

Seagrass Mitigation Permit to incorporate some or all of those

modifications in the Seagrass Mitigation Permit, including a

requirement to implement a Turtle Grass Remedial Action Plan.

The Port subsequently continued to characterize DEP's demand for

a Remedial Action Plan addressing the loss of Turtle Grass as

"raising the bar" and opposed it.

31. On July 5, 2006, DEP issued a Revised NOI regarding the

requested permit major modification and a revised permit

modification that granted the Port's request to be allowed to

open and begin using the expanded berth facilities and included

only limited other edits and clarifications. Specifically, the

language at issue in SC 5 was changed to read:

The final success determination, showing that

12.7 credits have been achieved, must be

documented and approved by the Department

prior to the original-expiration date of this

permit (December 17, 2007).

The Revised NOI explained that Port Resolution PA-05-16 and the

2005 annual monitoring report documenting 11.45 credits provided

reasonable assurance of seagrass mitigation success without the

additional modifications proposed in the April 7, 2006, proposed

agency action.

32. Petitioners supported issuance of the April 7, 2006,

proposed agency action or denial of the major modification. When

the revised NOI was issued, Petitioners requested an

administrative hearing to oppose the major modification of the

Construction Permit unless the minor Seagrass Mitigation Permit

modifications were added back in.

33. The Port had not yet submitted an application for the

modifications of the Seagrass Mitigation Permit. The Port

continued to characterize the requirement to implement a Remedial

Action Plan addressing the temporal loss of Turtle Grass as

"raising the bar" and has not yet committed to remedial actions

by the end of the final hearing in this case.

C. Significance of Turtle Grass Transplant Failure

34. The Expansion Project is between two aquatic preserves,

Cockroach Bay Aquatic Preserve to the north and Terra Ceia

Aquatic Preserve to the south, waterward of the Cockroach Bay

State Buffer Preserve, and includes several types of seagrass as

well as a relatively productive benthic community, supporting a

wide array of corals, worms, crabs, fish, invertebrates, and

dolphins.

35. Seagrass beds expand and contract, move with the

sediment around them, may be buried and unburied in sediments,

and have been observed to appear to "come and go" over areas as

large as 50 acres in Tampa Bay. These changes may occur

seasonally and over time depending on climate, water quality and

other factors. Three types of seagrass were identified in the

Impact Areas, Thalassia testudinum , Halidule wrightii , and

Syringodium filiforme --commonly called Turtle Grass, Shoal Grass,

and Manatee Grass. Approximately 3 acres of Turtle Grass and

2.33 acres of Shoal Grass were transplanted from the Impact

Areas.

36. Shoal Grass is a diminutive type of seagrass with roots

that occupy only the first few inches of sediment. Shoal Grass

has less bio-mass, less weight, less leaf structure and less

rhizome structure that Turtle Grass. Shoal Grass grows and

colonizes rapidly in shallow shoals and commonly proliferates in

the summer when waters are warm and loses leaves and dies back in

the winter when the water cools. Through persistence of buried

rhizomes, Shoal Grass can survive being exposed during very low

tides. Rain can adversely affect Shoal Grass by rapidly changing

salinity and nutrient loads carried by stormwater. Shoal Grass

is an early successional species that is adapted to being

uprooted and moved by currents and re-anchoring and re-rooting.

37. Turtle Grass is a much more robust species, typically

five to ten times the bio-mass of shoal grass, including larger

leaves, rhizomes, and roots. Turtle Grass grows more slowly and

is more resistant to being dislodged because its roots and

rhizomes are larger and grow 6 to 8 inches deep in the sediment.

Turtle Grass is a climax species in terms of succession in Tampa

Bay. Turtle Grass plants must be handled carefully because of

their unique growing pattern that relies on a number of leaves to

provide food to a buried rhizome that then feeds a growing tip or

meristem that grows horizontally.

38. Turtle Grass has broader leaves that extend upward

together and move in the water, providing greater protection for

certain species that other seagrasses provide. Turtle Grass

provides a much more distinct fish nursery and shrimp nursery

function. Because Turtle Grass grows in deeper water, it

provides more refuge for fish. Turtle Grass provides habitat for

species like scallops and larger shrimp. Turtle Grass rhizomes

store a great deal of energy which enables Turtle Grass to

withstand adverse conditions to a greater degree than other sea

grasses.

39. The loss of approximately 3 acres of Turtle Grass

represented a substantial loss of habitat. This loss of habitat

had a substantial adverse effect on fish and wildlife utilization

in the Port Manatee Expansion Project area. The reduced fish and

wildlife utilization associated with the loss of turtle grass

substantially affected recreational fishing, birding, and

wildlife observation opportunities in the Port Manatee Expansion

Project area.

40. The NOI issued in conjunction with the Seagrass

Mitigation Permit includes a lengthy summary at page 5 describing

the Port's proposed seagrass mitigation activities, including

specifically that Turtle Grass from the impact area would be

transplanted to Mitigation Sites 1, 2, and 3.

41. The Seagrass Mitigation Plan requires the Port to map

the specific types of seagrasses found in the Impact Areas and

describes the details for the seagrass mitigation effort,

including on page 11 that "All turtlegrass in areas A and B to be

dredged will be transplanted to mitigation Sites 1, 2, and 3."

42. The "Monitoring Required" section on page 16 of the

Seagrass Mitigation Permit states DEP may require remedial

actions if the mitigation is not successful pursuant to the

permit conditions.

43. The Seagrass Mitigation Plan describes the remedial

actions required for transplantation failure, requiring remedial

planting if seagrass transplanted to Sites 1, 2, and 3 was not

successful due to bioturbation or excessive currents.

44. The Seagrass Mitigation Plan includes a Success

Assessment Methodology Summary that explains in relevant part:

If the mitigation is not successful, remedial

action will be taken to ensure success.

Reasonable assurance of success is provided

by advanced transplanting, the mitigation

ratios, over-design of mitigation

opportunities, and a remedial action plan.

45. The Expansion Project was time-sensitive due to

financing opportunities, resulting in the need to use unproved

techniques to timely accomplish the transplantation. The

Seagrass Mitigation Plan describes a process for selecting a

contractor and the contractor's proposed method. The Plan

describes "proven" and "alternative" methods for transplanting

seagrasses at a high rate by maximizing the size of sod units.

46. The Port began its seagrass mitigation program in early

2000 with the "Early Start Program" involving small-scale

transplanting experiments. The Seagrass Mitigation Plan

documents that the planting of seagrass began on April 3, 2000,

and that the transplanting of Turtle Grass from the impact areas

into mitigation site 1, 2, and 3 was scheduled to begin as soon

as possible after DEP issued the Permit.

47. The Port retained a firm known as ASISI, owned by Jim

Anderson, to provide seagrass transplantation services, including

the large-scale or "mega-unit" transplants needed to expedite the

project, and ASISI developed a system for transplanting Shoal

Grass units and a system for transplanting 4-foot by 5-foot sods

of Turtle Grass from the Impact Areas to Mitigation Sites 1, 2,

and 3. The sod transplanting machine developed by ASISI used a

process referred to in the Seagrass Mitigation Plan as one of the

"alternative methods," the "modified tree spade" method.

48. In July 2001, Robin Lewis reported to the Port

regarding Mr. Lewis' seagrass transplantation monitoring.

Mr. Lewis cautioned the Port that ASISI's test planting of

several Turtle Grass sod units had been too rough on the Turtle

Grass sod units and that they were not likely to survive and

persist.

49. During the summer of 2001, ASISI began to mechanically

transplant about three acres of Turtle Grass from the Impact

Areas to Mitigation Sites 2 and 3. This up-front seagrass

transplantation was intended to provide immediate partial

mitigation for the seagrass impacts.

50. In August 2001, Mr. Lewis warned the Port that ASISI's

mega-unit transplant efforts using the modified tree spade method

were failing. Mr. Lewis asserted that the sod units were not

being handled gently enough and were not being installed

carefully into excavated holes with their surfaces flush with or

below grade, as required by the Seagrass Mitigation Plan.

Pursuant to the Seagrass Mitigation Plan, Mr. Lewis urged the

Port to consider changing the methods employed to transplant

seagrass. Mr. Lewis recommended to the Port that it at least

immediately retain divers to follow ASISI's sod transplanting

machine to manually re-install Turtle Grass plants that were

damaged or improperly planted by the mechanical system. The Port

approved this "diver mop-up" program in November 2001, and diver

mop-up efforts were incorporated into the transplantation

process. These efforts proved to be successful only to a limited

extent because they were too late after most of the transplanting

had already taken place and most of the sod had washed away.

51. In 2001, while ASISI was mechanically transplanting

Turtle Grass from the Impact Areas to Sites 2 and 3, Mr. Lewis'

company was staking, preparing final designs, and implementing

the Piney Point mitigation projects in Mitigation Sites 4A and

6A, involving scrape-down of deposited sediments and Shoal Grass

planting. The Port's engineer testified to his concern that

Mr. Lewis was not around to supervise and assist ASISI's mega-

unit Turtle Grass transplantation, but the Port had advised

Mr. Lewis that he was not to monitor ASISI's transplanting

efforts because ASISI's principal, Jim Anderson, did not want him

to do so.

52. During 2002, Mr. Lewis informally monitored ASISI's

mega-unit transplants and found that just over 100 units had

survived out of a total of 12,000 units transplanted. Subsequent

monitoring found that virtually none of the Turtle Grass units

survived and persisted. Turtle Grass is slow-growing, and only

less than an acre has grown throughout the mitigation area.

D. Disputed Credit Determinations

53. Mr. Lewis' 2002 annual monitoring of all of the

mitigation sites established a sufficient acreage of new seagrass

to allow the Port to initiate dredging for part of the Expansion

Project. Nonetheless, the Port rejected Mr. Lewis' analysis of

the seagrass mitigation acreage and expressed disappointment

Mr. Lewis would not include additional seagrass acreage the Port

wished to claim as mitigation that Mr. Lewis considered pre-

existing seagrass.

54. In late 2002, the Port determined that it would not

renew its contract with Lewis Environmental Services for 2003.

After some disagreement about Mr. Lewis' remaining

responsibilities under the existing contract, Mr. Lewis agreed to

prepare the annual monitoring report for 2002 but refused to

prepare or certify the November 2002 credit report submitted by

the Port. In a December 31, 2002, letter to the Port's George

Isiminger, Robin Lewis submitted his resignation as the

Mitigation Supervisor of record "on the basis of personal and

professional ethics."

55. In early 2003, DEP accepted that the Port's November

2002 seagrass mitigation success report documented at least 5.66

acres of new seagrass in the mitigation sites and authorized the

Port to begin dredging for the Expansion Project.

56. The Port subsequently retained Thomas Ries as the

successor mitigation supervisor and continued to monitor the

seagrass mitigation and submit annual progress reports and credit

requests.

57. Robin Lewis maintained an interest in the seagrass

mitigation project and requested copies of the Port's submittals

and submitted comments and concerns regarding the Port's credit

requests and documentation. Mr. Lewis' submittals were

considered by DEP in determining how much credit to approve. In

some cases, Mr. Lewis and DEP found that the Port requested more

credits than it was entitled to and employed analyses that were

not completely correct. Subsequent discussions revealed

disagreements regarding the meaning of permit conditions and how

to document seagrass mitigation success. As result of these

discussions, DEP corrected some errors and did not award all of

the requested credit.

58. Due to extensive discussion of disagreements concerning

the Port's credit request for 2003, DEP recommended that a

combined credit request for 2003 and 2004 be submitted in 2005.

The combined credit request for 2003/2004 was submitted on

March 4, 2005. It requested a cumulative total of 10.44 credits.

After discussion, an RAI, and a DEP inspection, DEP granted

approval of a cumulative total of 6.1 credits by letter dated

September 9, 2005.

59. The Port's next credit request was submitted in

February 2005 and was for a cumulative total of 13.06 credits.

After discussion, DEP granted 11.45 credits in April 2006.

60. The Port proved that it was entitled to at least 10.86

credits under the Seagrass Mitigation Permit through 2005. The

only real remaining credit determination issue is whether the

Port is entitled to 10.86 or 11.45 credits. (Since the Port did

not challenge the credit determination, it waived the right to

credit in excess of 11.45 credits.) This determination depends

on the use of combined AOI 8A/8B.

61. The use of AOI was a concern to DEP and a point of

contention because it is possible for the selection of AOIs to

introduce bias in the monitoring. In the case of combined AOI

8A/8B, an AOI where mitigation credit was to be earned by

increasing seagrass coverage by excluding motorized boats and

allowing seagrass to recover in prop scars, there was no aerial

photography for the baseline year 1999 for use in determining

increased coverage in 8B. However, the Port interpreted the

language of the Seagrass Mitigation Permit to allow the Port to

assume complete coverage in the baseline year for 8B (and no

increased coverage there), measure increased coverage in 8A, and

calculate credits based on the increases in 8A, multiplied by a

mitigation ratio that applied to the acreage of the combined AOI

8A/8B, since the increased seagrass coverage in Site 8A was great

enough mathematically to meet the percentage increase required

for credit for both Area 8A and 8B. This interpretation and

calculation resulted in a request for .59 credits for the

combined AOI 8A/8B.

62. Because this interpretation assumed complete coverage

in Site 8A in baseline year 1999, the Port argued that it was a

"conservative" approach. After the meeting on April 28, 2006,

Ms. Lewellyn agreed.

63. Petitioners contended that this "conservative" approach

in effect would award mitigation credit for Site 8B even if

seagrasses contracted or even were eliminated in Site 8B after

the baseline year 1999. Although such a result probably was not

intended, the approach taken with respect to AOI 8A/8B was not

inconsistent with the literal language of the Seagrass Mitigation

Permit.

64. In addition, on more than one occasion, DEP could have

advised the Port that it would not approve credits for the

combined AOI 8A/8B because aerial photography for the baseline

year 1999 was not available, mitigation success in Site 8B could

not be verified, and credit could not be awarded for Site 8B.

Ms. Llewellyn thought that, after letting those opportunities

pass, it would be unfair for DEP to now deny the credits

requested by the Port for the combined AOI 8A/8B through 2005.

Based on the totality of the evidence, it is found that the Port

is entitled to 11.45 credits at this time.

E. Unauthorized Discharges of Sediment and Other

Violations of DEP rules; O.G.C. File No. 05-2790

65. During the summer of 2004, there was an inadvertent

release of dredged material from a disposal area into Mitigation

Site 9B in conjunction with the Port's implementation of the

Expansion Project under the Construction Permit. This violated

SC 14, 17, and 18 of the Construction Permit, and SC 5 of the

Seagrass Mitigation Permit, and killed about 2.52 acres of mixed

seagrass beds consisting of Turtle Grass and Shoal Grass growing

in Mitigation Site 9B. The Port promptly notified DEP and

initiated corrective action. The matter was resolved by issuance

of a Consent Order, which was not challenged. As of July 2006,

the Port had removed the sediment, but destruction of these 2.52

acres of Turtle Grass and Shoal Grass remained un-mitigated as of

the time of the hearing.

66. Clearly, the additional loss of approximately 2.52

acres of Turtle Grass and Shoal Grass in Mitigation Site 9B

represents an additional substantial loss of habitat and the

functions performed by the habitat. This additional habitat loss

will have a substantial affect on fish and wildlife utilization

in the Port Manatee area. However, Petitioners' attempt to

characterize these as part of the "cumulative impacts" of the

Expansion Project is not well-founded. Rather, they are an

inadvertent permit violation that has been resolved by consent

order. As such, those matters do not bear on whether the pending

permit modification request should be granted.

F. Consideration of the Relevant Factors

67. Reasonable assurance of successful mitigation for the

impacts of the Expansion Project was predicated on four factors

identified in the Seagrass Mitigation Plan: the upfront

transplantation of seagrass; the mitigation ratios; the credits

available in the program; and the remedial action requirements.

68. As found, the purpose of the last sentence of

Construction Permit SC 5--making the opening and use of the new

facilities contingent on documentation of the "final success

determination, showing 12.7 credits have been achieved"--was to

provide DEP reasonable assurance that the loss of seagrasses

would be successfully mitigated in a timely manner by

establishing a strong incentive for the permittee to complete the

mitigation promptly.

69. As found, the Port is entitled to 11.45 credits for its

seagrass mitigation efforts to date. The mitigation project is

trending towards continued success in terms of credits, and it is

not unreasonable to expect 12.7 credits to be achieved in the

near future due to natural processes alone. For these reasons,

it is found that the permit modification requested by the Port

and now also proposed by DEP would not delay achievement of 12.7

credits.

70. It is less clear whether the permit modification

requested by the Port and now also proposed by DEP would delay

the "final success determination," including remediation of the

Turtle Grass component of the upfront transplantation, which

could include planting Turtle Grass. Through the final hearing,

the Port and DEP had not come to an agreement on what such

remediation should include. (While not clear from the evidence,

it seems possible that the Port even may take the position that

the "final success determination" will occur when 12.7 credits

are documented regardless of the failure of the Turtle Grass

transplantation.) It is Petitioners' position that SC 5 of the

Construction Permit is an important incentive for the Port to

timely remediate the failure of the Turtle Grass transplantation

and that it should not be modified without clarification at least

as to the remediation required for the failure of the Turtle

Grass transplantation. Under the totality of the circumstances

of this case, Petitioners' position has merit.

G. Improper Purpose

71. Even if Petitioners ultimately prevail do not prevail,

the evidence did not establish that they participated in this

proceeding primarily to harass or to cause unnecessary delay, or

for frivolous or improper purpose or to needlessly increase the

Port's cost to obtain the approval. Rather, their purpose has

been to protect the natural resources of Tampa Bay, in particular

its seagrass habitat.

CONCLUSIONS OF LAW

H. Standing

72. Section 403.412(5), Florida Statutes, gives Manasota-88

standing to petition to challenge proposed agency action.

73. Petitioners have a substantial interest in mitigation

of the seagrass habitat impacts of the Expansion Project which is

cognizable under the permitting criteria applicable to the

subject permit applications. As a result, Petitioners have

substantial interests that will be affected by the proposed

agency action. As such, Petitioners have standing pursuant to

Sections 120.52(12)(b) and 120.569(1), Florida Statutes. See

also § 403.412(5)-(6), Fla. Stat.

74. The Petitioners have established an immediate injury-

in-fact sufficient to allow them to participate as parties, and

they have standing to challenge the proposed agency action.

J. Burden of Proof

75. As the applicant, the Port has the burden of showing by

preponderance of the credible and credited evidence that it is

entitled to the approval at issue here. Department of

Transportation v. J.W.C. Co. , 396 So. 2d 778, 789 (Fla. 1st DCA

1981).

76. If the Port makes a prima facie showing of reasonable

assurances, the burden shifts to Petitioners to present evidence

of equivalent quality. J.W.C. Co. , 396 So. 2d at 789.

I. Permit Criteria

77. ERP conditions of approval are set forth in Chapter

373, Florida Statutes, and in Rule Chapter 62-330, which

incorporates certain Southwest Florida Water Management District

(SWFWMD) rules in effect in 2005, including Rules 40D-4.301 and

40D-4.302, and the 2005 SWFWMD Basis of Review. To demonstrate

entitlement to the major modification, the Port is required to

provide reasonable assurance to DEP that it will meet these

conditions of approval.

78. "Reasonable assurance" means "a substantial likelihood

that the project will be successfully implemented." Metropolitan

Dade County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992); Save Anna Maria, Inc. v. Department of Transportation ,

700 So. 2d 113, 117 (Fla. 2d DCA 1997). Reasonable assurances

must take into account contingencies that might reasonably be

expected, but an applicant is not required to eliminate all

contrary possibilities, however remote, or to address impacts

which are only theoretical and not reasonably likely.

79. The test in this case is not whether DEP properly

evaluated the original application, but whether the Port provided

reasonable assurance that the applicable conditions for issuance

of the major modification have been satisfied. When a permittee

seeks to modify an existing permit, regulatory review includes

only that portion of the existing permit that is proposed to be

modified. See Friends of the Everglades, Inc. v. Dept. of

Environmental Reg. , 496 So. 2d 181, 183 (Fla. 1st DCA 1986);

Behrens v. Boran , ORDER NO. SWF 02-052, 2 ER FALR 257 (SWFWMD

Aug. 27, 2002), DOAH Case No. 02-0282, 2002 Fla. ENV LEXIS 192

(DOAH July 29, 2002); Kunnen v. Southwest Fla. Water Mgmt. Dist. ,

ORDER NO.: SWF 02-003, DOAH Case No. 01-2571, 2002 Fla. ENV LEXIS

4 (SWFWMD Jan. 29, 2002; DOAH Dec. 17, 2001). The "reasonable

assurance" requirement applies to the activities for which

permitting is presently sought and does not burden the applicant

with "providing 'reasonable assurances' anew with respect to the

original project already constructed in accordance with a valid

permit." Friends of the Everglades , supra at 183. Therefore, a

determination of whether the Port has provided reasonable

assurances to the DEP is limited to a review of those portions of

the proposed permit modification that are different from the

Construction Permit it is modifying.

80. The proposed permit modification does not authorize any

additional construction activities or any additional impacts, it

merely provides for utilization of already constructed facilities

prior to a final determination of complete seagrass mitigation

success. The question is whether the Port will continue to

provide reasonable assurance without the last sentence of SC 5 of

the Construction Permit.

81. Section 373.413, Florida Statutes, and Rule 40D-4.301

relate to the construction, alteration, operation, maintenance,

removal, or abandonment of a storm water management system. The

Construction Permit does not authorize any upland activities

requiring the development of a stormwater management system since

the authorized construction is dredging in the waters of Tampa

Bay.

82. Pursuant to Section 373.414(1), Florida Statutes, an

ERP applicant must provide reasonable assurance that the proposed

activity "is not contrary to the public interest" based upon a

balancing of the factors listed in Section 373.414(1)(a), and

taking into account measures proposed by the applicant to

mitigate adverse effects as contemplated by Section

373.414(1)(b), Florida Statutes.

83. Section 373.414(1)(b), Florida Statutes, provides in

relevant part that:

It shall be the responsibility of the

applicant to choose the form of mitigation.

The mitigation must offset the adverse

effects caused by the regulated activity.

In this case, the regulated activity is dredging and filling in

Tampa Bay, including dredging in the Impact Areas where

approximately 5.33 acres of seagrass existed. To offset these

seagrass impacts, the Port proposed and agreed to the mitigation

required by the Seagrass Mitigation Permit and the Construction

Permit, including the requirement the Port seeks to modify in

this proceeding.

84. Rule 40D-4.302(2) requires DEP to take into

consideration the rule violations that resulted from the

inadvertent release of dredged material, as well as the efforts

taken by the Port to resolve the violations, when determining

whether the Port has provided reasonable assurance that

permitting standards will be met. The Port's rule violations

addressed in the Consent Order are substantial and significantly

adversely affect the existing Turtle Grass and other habitats in

the Port Manatee area. However, the Port has cooperated to the

extent of entering into the Consent Order and agreeing to

mitigate for the impacts. The adverse impacts to Turtle Grass

and Shoal Grass in the Expansion Project area have not yet been

fully mitigated, but progress is being made in that direction.

Since the violations were inadvertent, and have been resolved by

the Consent Order, they are not valid reasons to deny the permit

modification requested by the Port and now also proposed by DEP.

85. Pursuant to Section 373.414(8)(a), Florida Statutes,

DEP is required to "consider the cumulative impacts upon surface

water and wetlands" of certain types of activities. But the loss

of seagrasses by the inadvertent, unauthorized discharge of

sediment in 2004 should not be considered cumulative impacts for

purposes of this major modification application, and they have

been addressed in the Consent Order.

86. Opening the new berths is in the public interest if it

will not delay implementing the seagrass mitigation program.

Among other things, SC 14 of the agency action proposed on

April 7, 2006, would clarify that a Remedial Action Plan for the

temporal loss of Turtle Grass is required by the Seagrass

Mitigation Permit and must be performed. As found, if the

requested modification to SC 5 of the Construction Permit is to

be granted, the Port should be required to submit a Remedial

Action Plan within 60 days in accordance with and as set forth in

amended SC 14 proposed by DEP on April 7, 2006.

87. Attorney's fees are awardable to the prevailing party

under Section 120.595(1), Florida Statutes. If this Recommended

Order is adopted, the Port would not be considered the prevailing

party for purposes of that statute. Even if the Port were the

prevailing party, attorney's fees are not awardable under the

statute because, as found, it was not proven that Petitioners

participated in this proceeding primarily to harass or to cause

unnecessary delay, or for frivolous or improper purpose or to

needlessly increase the Port's cost to obtain the approval.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that DEP grant the requested modification to SC

5 of the Construction Permit with a condition that the Port

submit a Remedial Action Plan within 60 days in accordance with

and as set forth in amended SC 14 proposed by DEP on April 7,

2006.

DONE AND ENTERED this 6th day of February, 2007, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February, 2007.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, Acting General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

W. Douglas Beason, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

Kevin S. Hennessy, Esquire

R. David Jackson, Esquire

Lewis, Longman & Walker, P. A.

1001 Third Avenue West, Suite 670

Bradenton, Florida 34205-7848

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.