10-003317 Citizens For Smart Growth, Kathie Smith, And Odias Smith vs. Department Of Transportation, Martin County Board Of County Commissioners, And South Florida Water Management District Status: Closed Recommended Order on Tuesday, December 28, 2010.

Summary: Applicants gave reasonable assurances to prove entitlement to modify an existing surface water management system for a new bridge over the St. Lucie River and associated highway drainage improvements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITIZENS FOR SMART GROWTH, INC., )

KATHIE SMITH, AND ODIAS SMITH, )

)

Petitioner s, )

)

vs. ) Case No s. 10 - 3 316

) 10 - 3317

DEPARTMENT OF TRANSPORTATION, ) 10 - 3318

MARTIN COUNTY, AND SOUTH )

FLORIDA WATER MANAGEMENT )

DISTRICT, )

)

Respondent s. )

_______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, th ese matter s were heard before the

Division of Administrative Hearings (DOAH) by its assigned

Administrative Law Judge, D . R. Alexander, on October 25 - 27,

20 10, in Stuart, Florida.

APPEARANCES

For Petitioner s : Jeffrey W. Appel, Esquire

Ray Quinney & Nebeker, P.C.

36 South State Street, Sui te 1400

Salt Lake City, Utah 84111 - 1451

For Respondent : Bruce R. Conroy, Esquire

( DOT) Kathleen P. Toolan, Esquire

Department of Transportation

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399 - 0458

For Respondent : Keith L. Williams , Esquire

( District) South Florida Water Management District

3301 Gun Club Road

Mail Stop 1410

West Palm Beach, Florida 33406 - 3007

For Respondent: David A. Acton, Esquire

(County) Senior Assistant County Attorney

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

John J. Fumero, Esquire

Rose Sundstrom & Bentley, LLP

950 Peni n sula Corporate Circle

Suite 2020

Boca Raton, Florida 33487 - 1389

STATEMENT OF THE ISSUE S

The issue s are whether to (a) issue an Environmental

Resource Permit (ERP) to the Department of Transportation (DOT)

and Martin County (County) authorizing construction and

operati on of a surface water management system to serve a

project known as the Indian Street Bridge; (b) issue DOT a

letter of modification of ERP No. 43 - 00785 - S authorizing roadway

and drainage modifications to the Kanner Highway/Indian Street

intersection; and (c) issue DOT a letter of modification of ERP

No. 43 - 01229 - P authorizing roadway and drainage modifications to

Indian Street between the intersections of Kanner Highway and

Willoughby Boulevard.

BACKGROUND

On May 18, 2010, Respondent, South Florida Water Management

District (District), by a Staff Report, provided n otice of its

i nten t to approve Application No. 091021 - 8 filed by DOT and the

County (Applicants) and to issue ERP No. 43 - 02393 - P authorizing

the construction and operation of a surface water management

system to serve 62.06 acres of roadway bridge development ; it

also authorized an easement for the use of 12.45 acres of

sovereign submerged lands . Both au thorizations related to a

project known as the Indian Street Bri d ge. On May 21, 2010, the

District gave notice of intent to approve Ap plication No.

100316 - 7 filed by DOT to modify existing ERP No. 43 - 00785 - S

authorizing roadway and drainage modifications to the Kanner

Highway/Indian Street intersections . Finally, on the same date ,

it gave notice of intent to approve Ap plication No. 100316 - 6

filed by DOT to modify existing ERP No. 43 - 0 1229 - P authorizing

roadw ay and drainage modifications to Indian Street between the

intersections of Kanner Highway and Willoughby Boulevard. A

Revised Staff Report containing minor changes to the first

application was issued on October 20, 2010.

On June 1, 2010, Petitioners, Cit izens for Smart Growth,

Inc., Kathie Smith, and Odias Smith, filed three Petitions for

Administrative Hearings (Petitions) with the District

challenging each of the above proposed actions . After

dismissing certain allegations in the Petitions on the groun d

they raised issues beyond the Distr ict's jurisdiction, the

Petitions were forwarded by the D istrict t o DOAH on June 16,

2010, with a request that an administrative law judge be

assigned to conduct a hearing. The three Petitions were

assigned Case Nos. 10 - 3316, 10 - 3317, and 10 - 3318, respectively,

and were consolidated by Order dated June 18, 2010. That Order

also authorized Petitioners' out - of - state counsel to appear as a

qualified representative. The Distric t's dismissal of certain

allegations was reaffirmed by Order dated August 9, 2010. After

the initial Petitions were dismissed, without prejudice, for

various infirmities, Second Petitions for Administrative Hearing

were filed by Petitioners on September 2 2, 2010. A Third

Petition for Administrative Hearing directed to the ERP

application in Case No. 10 - 3316 was filed on September 27, 2010.

By Notice of Hearing dated June 25, 2010, a final hearing

was scheduled on October 25 - 27, 2010, in Stuart, Florida. After

a case management conference was conducted, a n Order prescribing

discovery timelines and other procedural matters was issued on

September 20, 2010. A Joint Prehearing Stipulation

(Stipulation) was filed by the parties on October 21, 2010.

At the final hearing, Petitioners Odias and Kathie Smith

testified on their own behalf and Petitioners jointly presented

the testimony of David Greg ory Braun, an environmental

consultant, Executive Director of Audubon of Martin County , and

accepted as an expert . Also, they offered Petitioners Exhibits

24, 27, 28, 30, 33 - 35, 39, 42, 53, and 54. Exhibit 54 is the

deposition of Mr. Braun . A ruling on Exhibit 53 , the deposition

of Kathie Smith , was reserved, while all others were received in

evidence except 34 , 3 5 , and 42 . The objection to Exhibit 53 is

overruled. DOT presented the testimony of Ann L. Broadwell, DOT

District 4 Environmental Administrator and accepted as an

expert; Christian B. Jackson, a professional engineer with

Reynolds, Smith & Hills, Inc. , and accepted as an expert; and

Gordon Mullen, a Senior Planner II with Post, Buckley, Schuh &

Jernigan and accepted as an expert. Also, it offered DOT

Exhibits 8 - 11, which were received in evidence. The County

presented the testimony of Don G. Donaldson, Jr., County

Engineer and accepted as an expert . Also, it offered County

Exhibits 1, 5 - 10, 15 - 17, and 19, which were received in

evidence. Exhibit 19 is the deposition of Odias Smith. The

District presented the testimony of Hugo A. Carter, Senior

Supervising Engineer of the Surface Water Management Division

and accepted as an expert; Melinda S. Parrott, Science

Supervisor - Environmental Analyst in the Natural Resource

Management Division and accepted as an expert; and Anita R.

Bain, Division Director of Environmental Resource Regulation and

accepted as an expert. Also, it offered District Exhibits 1 - 4,

which were received in evidence. Finally, Joint Exhibits 1 - 1 9

were received in evidence.

P ursuant to the District's request, the undersign ed took

official recognition of Florida Administrative Code Chapter s 18 -

21, 40E - 4 , 62 - 302, and 62 - 345 a nd the B asis of Review for

Environmental Resource Permit Applications Within the South

Florida Water Management District (B OR ) .

The T ranscript of the hearing ( seven volumes) was filed on

December 2, 20 10 . P roposed Recommended Orders were filed by the

parties on December 13, 2010, a nd t hey have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

I . The Parties

1. Petitioner Citizens for Smart Growth, Inc. , is a

Florida 501(c) ( 3) corporation with its principal place of

business in Palm City, Florida. It was formed by Odias Smith in

August 2001 , who serves as its president . The original

directors were Kathie Smith, Odias Smith, and Craig Smith , who

is the Smiths' son . The composition of the Board has never

changed. According to the original Articles of Incorporation,

its objectives are "preserving and enhancing the present

advantages of living in Martin County (Quality of Life) for the

common good, through public education, and the encouragement of

reasonable and considered decision making b y full disclosure of

impacts and alternatives for the most appropriate use of land,

water and resources." The exact number of members fluctuates

from time to time. There are no dues paid by any member. At

his deposition, Mr. Smith stated that no members hip list exists;

however, Kathie Smith stated that she currently has a list of

125 names, consisting of persons who at one time or another have

made a contribution, have attended a meeting , or asked to be

"kept informed of what's going on or asked to be on a mailing

list or a telephone list, so they could be advised when we have

meetings . " N o meetings have been held since 2006. Therefore,

the Petitions filed in these cases have never been discussed at

any meetings of th e members , although Ms. Smith indicated that

telephone discussions periodically occur with various

individuals . Kathie Smith believe s that roughly 25 percent of

the members reside in a mobile home park north of the project

site on Kanner Highway on the ea stern side of the St. Lucie

River, she d oes not know how many members reside on the western

side of the St. Lucie River, and she is unaware of any member

who reside s on the South Fork of the St. Lucie River immediately

adjacent to the project . Although the three Petitions allege

that "seventy percent of the members . . . reside and/or

recreate on the St. Lucie River," and in greater detail they

allege how those members use that water body or depend on it for

their livelihood, n o evidence was sub mitted to support the se

allegation s that 70 percent (or any other percentage of members)

use or depend on the South Fork of the St. Lucie River for

recreational or other activities .

2. Petitioners Odias Smith and Cathie Smith reside in Palm

City , a n unincorporated community just south of Stuart in Martin

County . They have opposed the construction of the new bridge

since they moved to Palm City in 2001. It is fair to infer that

Mr. Smith formed the corporation primarily for the purpose of

opposing the bridge. Their home faces north, overlooking the

South Fork of the St. Lucie River, from which it is separated by

Saint Lucie Shores Drive and a narrow strip of common - ownership

property. A boat dock extends from the common - ownership

property into the St. Lucie River, providing 5 slips for use by

the Smiths and other co - owners. The home is located three

blocks or approximately 1,000 feet from the proposed western

landfall of the new bridge. Due to the direction that the house

faces (north) and the si te of the new bridge, the surface water

management system elements associated with the bridge will not

be visible from their property. Mr. Smith believes, however,

that when looking south through a veranda window on the second

floor of his home, he will b e able to see at least a part of the

new bridge. From the front of their house, they now have an

unobstructed view of the existing Palm City Bridge, a large

structure that crosses the St. Lucie River approximately six -

tenths of a mile north of their home, and which is similar in

size to the new bridge now being proposed by the Applicants .

The Smiths' home is more than 500 feet from the Project's right -

of - way, and they do not know of any impact on its value caused

by the Project. Whil e the Smiths currently engage in walking,

boating, running, fishing, and watching wildlife in the

neighborhood or the South Fork of the St. Lucie River , t here was

no credible evidence that the Project would prevent them from

doing so after the bridge and o ther improvements are

constructed. Also, there was no evidence showing that the ERP

Letter Modifications will cause them to suffer any adverse

impacts . In fact, as noted below, by DOT undertaking the

Project, the neighborhood will be improved through red uc ed

flooding, improv ed water quality, and new swales and ponds.

3. The County i s a political subdivision of the State. It

filed one of the applications at issue in this proceeding.

4. DOT is an agency of the State and filed the three

applications being contested.

5. The District has the power and duty to exercise

regulatory jurisdiction over the administration and enforcement

of ERP criteria pursuant to Part IV, Chapter 373, Florid a

Statutes, and Title 40E of the Florida Administrative Code. The

Department of Environment Protection (DEP) has delegated certain

authority to the District , including the authority to authorize

an applicant to use sovereign submerged lands via a public

easement within the District's geographic jurisdiction.

II . The Project

6. Construction of a new bridge over the St. Lucie River

has been studied extensively by the Applicants for over twenty

years. DOT has awarded the contract and nearly all of th e

right - of - way has been purchased. The Project will begin as soon

as the remaining permits are acquired. The Project is fully

funded through the American Recovery and Reinvestment Act of

2009 and County funding.

7. The Project is located in the County and includes 62.06

acres of roadway bridge development and 12.45 acres of sovereign

submerged lands. The Project begins on the west side of the St.

Lucie River on County Road 714, approximately 1,300 feet west of

Mapp Road in Palm City and ends on the ea st side of the St.

Lucie River approximately 1,400 feet east of Kanner Highway

(State Road 76) on Indian Street. It includes construction and

operation of a surface water management system to serve the road

and bridge project. The total length of the Pro ject is

approximately 1.96 miles (1.38 miles of roadway and 0.58 miles

of bridge) while the total area is approximately 74.51 acres .

After treatment, surface water runoff will discharge to the

tidal South Fork of the St. Lucie River.

8 . The Project encompasses a bridge crossing the South

Fork of the St. Lucie River and the Okeechobee Waterway. Both

are classified as Class III waters. The bridge transitions from

4 to 6 lanes east of the Oke e chobee Waterway and will require a

55 - foot v ertical clearance and a 200 - foot horizontal clearance

between the fender systems at the Okeechobee Waterway.

9 . The bridge will cross over a portion of Kiplinger

Island owned and preserved by the County. A part of t he island

was donated to the County i n 1993 - 1994 by The Kiplinger

Washington Editors, Inc. , and the Kiplinger Foundation, Inc.

Audubon of Martin County owns another part of the island . The

transfer of title to the County does not include any restriction

on the use of the island for conservation purposes only.

D ocumentation submitted at hearing refers to a "two hundred foot

wide road right - of - way" easement that the bridge will cross and

allows the County to designate where on the island parcel such

an easement would be. Therefor e, spanning the bridge over a

portion of the island owned by the County is clearly

permissible.

10 . The Project also includes the roadway transition and

widening/reconstruction of (a) County Road 714 from the

beginning of the Project to Mapp Road from 2 - l ane to a 4 - lane

divided roadway; (b) Southwest 36th Street from Mapp Road to the

beginning of the bridge from a 2 - lane rural roadway to a 4 - lane

divided roadway with wide roadway swales; and (c) Kanner Highway

(along Indian Street) from a 4 - lane to a 6 - lan e divided urban

roadway. Drainage improvements on both sides of the St. Lucie

River are associated with the roadway construction.

1 1 . DOT proposes to provide both on - site and off - site

mitigation for wetland and surface waters impacts pursuant to a

miti gation plan approved by the District.

III . The ERP Permitting Criteria

1 2 . In order to obtain an ERP, an applicant must satisfy

the conditions for issuance set forth in Florida Administrative

Code R ules 40E - 4.301 and 40E - 4.302. Besides these rules,

certain related BOR provisions which implement the rules must

also be considered. The c onditions for i ssuance primarily focus

on water quality, water quantity, and environmental criteria and

form the basis of the District ' s ERP permit ting program. The

p arties have stipulated t hat the Project either complies with

the following rule provisions or they are not applicable: Rules

40E - 4.301(1) (a), (b), ( g ), (g), (h), and (k), and 40E -

4.302(1)(a) 3. and 6. All other provisions remain at issue.

Where conflicting evidence on these issues was submitted, the

under signed has resolved all evidentiary conflicts in favor of

the Applicants and District.

13 . Based on the parties ' Stipulation, t he following

provisi ons in Rule 40E - 4.301(1) are in dispute and require an

applicant to provide reasonable assurances that the

construction, alteration, operation, maintenance, removal , or

abandonment of a surface water management system:

( c ) will not cause adverse impacts to

existing surface water storage and

conveyance capabilities;

(d) w ill not adversely impact the value of

functions provided to fish and wildlife and

listed species by wetlands and other surface

waters;

(e) will not adver sely affect the quality

of receiving waters such that the water

quality standards set forth in chapters 62 -

4, 62 - 302, 62 - 520, 62 - 522, 62 - 550, F.A.C.,

including any anti - degradation provisions of

paragraphs 62 - 4.242(1)(a) and (b),

subsections 62 - 4.242(2) an d (3), and rule

62 - 302.300, F.A.C., and any special

standards for Outstanding Florida Waters and

Outstanding National Resource Waters set

forth in subsections 62 - 4.242(2) and (3),

F.A.C., will be violated;

(f) will not cause adverse secondary impacts to

the water resources ;

(i) will be capable, based on generally accepted

engineering and scientific principles, of being

performed and of functioning as proposed;

(j) will be conducted by an entity with

sufficient financial, legal and administrative

capability to ensure that the activity will be

undertaken in accordance with the terms and

conditions of the permit, if issued;

These disputed criteria are discussed s eparately below.

A . Surface Water Storage and Conveyance

14 . Rule 40E - 4.301(1)(c) requires that an applicant

provide reasonable assurances that a proposed activity will not

cause adverse impacts to existing surface water storage and

conveyance capabilities. Through unrefuted evidence, this

requirement was shown to be satisfied . The evidence also

establishes that the surface water in and around the Project

will actu ally improve if the Project is constructed as

permitted. Further, it will create improved and upgraded

surface water management and treatment in areas that now lack

features such as swales, retention/detention ponds, curbs and

gutters, and improve the ove rall surface water storage and

conveyance capabilities of the Project and surrounding areas.

15 . In its current pre - development condition, flooding has

occurred in certain areas adjacent to and within the Project

area due to poor conveyance, low storage v olume, and high

tailwater conditions that result from high tides. The Project

will remedy historic flooding issues in the O ld Palm City area

which lies adjacent to a portion of the Project alignment.

16 . Surface water runoff will be captured, controlled, and

treated by a system of swales, weirs, and retention/detention

facilities for pretreatment prior to discharging into the South

Fork of the St. Lucie River. Reasonable assurances have been

given that existing surface water storage and conveyance

capabi lities will not be adversely affected.

B . Value of Functions to Fish, Wildlife, and Species

17 . Rule 40E - 4.301(1)(d) requires that an applicant

provide reasonable assurances that a proposed activity will not

adversely impact the value of functions pro vided to fish and

wildlife and listed species by wetlands and other surface

waters. BOR Section 4.2.2 further implements this provision.

For the following reasons, the rule and BOR have been satisfied.

18 . The eviden ce shows that the existing functions to fish

and wildlife were assessed and analyzed by a number of federal

and state fish and wildlife agencies. There were extensive

review and site inspections by the District, DOT, United States

Fish and Wildlife Servic e, United States Army Corps of

Engineers, and National Marine Fisheries Commission to assess

the existence of, and potential impact on, fish and wildlife

that may result from the Project. These studies revealed that

while portions of the South Fork of the St. Lucie River provide

potential habitat for aquatic or wetland - dependent or threatened

species of special concern, no nesting or roosting areas within

the vicinity of the Project were observed.

19 . The evidence further supports a finding that "other

su rface waters" over and under the Project will not receive

unacceptable impacts due to their current condition , the

detrimental influences of Lake Okeechobee discharges, and tidal

impacts.

2 0 . Many of the wetlands to be impacted by the Project

were shown to have been impacted by historic activities, and

they provide diminished functions to fish and wildlife. The

wetland functions were assessed through the Uniform Mitigation

Assessment Methodology (UMAM). The UMAM is a standardized

procedure for assessin g the functions provided by wetlands and

other surface waters, the amount that those functions would be

reduced by a proposed project, and the amount of mitigation

necessary to offset that loss. Detailed UMAM assessments were

prepared by the A pplicants an d the District. They demonstrate

that while certain functional units w ill be lost, they w ill be

fully offset by the proposed mitigation. No credible evidence

to the contrary was presented.

C . Water Quality of Receiving Waters

2 1 . Rule 40E - 4.301 (1) (e) requires an applicant to provide

reasonable assurances that a project will not adversely affect

the quality of receiving waters such that State water quality

standards will be violated. BOR Section 4.2.4 implements this

rule and requires that " reasona ble assurances regarding water

quality must be provided for both the short term and long term ,

addressing the proposed construction , . . . [ and ] operation of

the system . " The receiving water body is the South Fork of the

St. Lucie River , which is designat ed as an impaired water body.

2 2 . The evidence establishes that the A pplicants will

avoid and minimize potential short - term impacts to water quality

by using silt screens and turbidity barriers, and implementing

other best management practices to contain turbidity during

construction of the Project. They will also use a temporary

trestle rather than barges in the shallow portions of the South

Fork to avoid stirring up bottom sediments. Finally, a

turbidity monitoring plan will be implemented during

const ruction and dewatering activities for all in - water work.

All of these construction techniques will minimize potential

impacts during construction.

2 3. The evidence further establishes that water quality

standards will not be violated as a result of the P roject. In

fact, in some cases water quality will be enhanced due to the

installation and maintenance of new or upgraded surface water

management features in areas where they do not exist or have

fallen into disrepair.

24 . Over the long term, the Project is expected to have a

beneficial effect on water quality. By improving existing

surface water management and adding new surface water treatment

features, the Project will provide net improvement to water

quality.

D . Wetland Delineation and Impacts

25 . T he Project includes unavoidable impacts to wetlands

and other surface waters. A total of 18.53 acres of wetlands

and other surface waters within the Project site will be

impacted by the Project , including 3.83 acres of wetlands that

will be directly impa cted and 14.7 acres of wetlands and other

surface waters that will be secondarily impacted .

26 . The delineated wetlands are depicted in the Staff

Report as wetlands 2a, 19a, 19b, 22, 25 - 29, 30a, 30b, and 30c,

with each having a detailed UMAM assessment of its values and

condition. (Impacts to wetland 25 are not included in this

Project because they were accounted for in a separate permit

proceeding.)

27 . Using a conservative assessment and set of

assumptions, the District determined that , with the except ion of

wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by

the Project. However, the wetlands that would be impacted

suffer from varying historical adverse impacts that have

compromised the functions and values they provide to fish,

wildlife, and species. This is due to their proximity to urban

development, vegetative connectivity, size, historic impacts,

altered hydroperiod, and invasive plant species. Likewise, even

though the wetlands to be impacted on Kiplinger Island provide

certain resting and feeding functions for birds, the value of

these functions is comparatively lower than other wetlands due

to the presence of invasive species and lack of management.

28 . The preponderance of the evidence sup ports a finding

that the Applicants provided reasonable assurances that the

Project will not cause adverse impacts to fish, wildlife, or

listed species. See Fla. Admin. Code R. 40E - 4.301(1)(d).

E . Secondary Impacts

29 . Rule 40E - 4.301(1)(f) and BOR Sections 4.1.1(f) and

4.2.7 . require a demonstration that the proposed activities will

not cause adverse secondary impacts to the water resources, both

from a wetlands and water quality standpoint. Secondary impacts

are tho se that occur outside the footprint of the project, but

which are very closely linked and ca u sally related to the

activity to be permitted. De minimis or remotely - related

secondary impacts , however, are not considered unacceptable.

See § 4.2.7.(a) .

3 0 . There will be s econdary impacts to 6.83 acres of

freshwater wetlands and 7.87 acres of mangroves, or a total of

14.7 acres. To address these secondary impacts, the Applicants

have established extensive secondary impact zones and buffers

along the Project alignment, which were based in part on

District experience with other road projects and another nearby

proposed bridge project in an area where a State Preserve is

located.

3 1 . While Petitioners' expert contended that a 250 - foot

buffer on both sides of the roadway's 200 - foot right - of - way was

insufficient to address secondary impacts to birds (who the

expert opines may fly into the bridge or moving vehicles ), the

greater weight of evidence shows that bird mortality can be

avoided and mitigated through various measures incorporated into

the Project. Further, the bird mortality studies used by the

expert involved significantly different projects and designs,

and in some cases involv ed projects outside the United States

with different species concerned.

F . Engineering and Scientific Principles

3 2 . Rule 40E - 301(1)(i) requires that an applicant give

reasonable assurance that a project "be capable, based on

generally accepted engineeri ng and scientific principles, of

being performed and of functioning as proposed." Unrefuted

evidence establishes that the proposed system will function and

be maintained as proposed.

G . Financial, Legal and Administrative Capability

33 . Rule 40E - 4.301(1)(j) requires that an applicant give

reasonable assurance that it has the financial, legal, and

administrative capability to ensure that the activity will be

undertaken in accordance with the terms of the permit. The

evidence supports a finding that Applicants have complied with

this requirement.

H . Elimination and Reduction of Impacts

3 4. Before establishing a mitigation plan, Rule 40E -

4.301(3) requires that an applicant implement practicable design

modifications to eliminate and redu ce wetland and other surface

water impacts. In this case, there are unavoidable , temporary

wetland impacts associated with the construction of the Project,

as well as unavoidable wetland impacts for direct (project

footprint), secondary, and cumulative im pacts of the Project.

35 . The record shows that the Applicants have undertaken

extensive efforts to eliminate and reduce wetland and other

surface water impacts of the Project. For example, DOT examined

and assessed several innovative construction techni ques and

bridge designs to eliminate and avoid wetland impacts. To

eliminate and reduce temporary impacts occurring during

construction, DOT has reduced the effect of scour on the pier

foundation and reduced the depth of the footing to minimize the

amount of excavation on the mangrove island. Also, during

construction, the contractor is prohibited from using the 200 -

foot right - of - way on the mangrove island for staging or

stockpiling of construction materials or equipment .

36 . The majority of the bridge width has been reduced to

eliminate and avoid impacts. Also, the Project's alignment was

adjusted to the north to avoid impacts to a tidal creek.

37 . Reasonable assurances have been given that all

practicable design and project alternatives to the const ruction

and placement of the Project were assessed with no practicable

alternatives.

I. Public Interest Test

38 . Besides complying with the requirements of Rule 40E -

4.301, an applicant must also address the seven factors in Rule

40E - 4. 302(1)(a)1. - 7., which comprise the so - called "public

interest" test. See also § 373.414(1)(a), Fla. Stat. In

interpreting the seven factors, the District balances the

potential positive and negative effect s of a project to

determine if it meets the publi c interest criteria. Because

Petitioners agree that factors 3 and 6 of the rule are not at

issue, only the remaining five factors will be considered. For

the following reasons, the Project is positive when the criteria

are weighed and balanced, and there fore the Project is not

contrary to the public interest.

a. Public Health, Safety, and Welfare

39 . The Appli c ants have provided reasonable assurance that

the Project will not affect public health, safety, and welfare.

Specifically, it will benefit the h ealth, safety, and welfare of

the citizens by improving traffic conditions and congestion,

emergency and hurricane evacuation, and access to medical

facilities. In terms of safety, navigation markers are included

as part of the Project for safe boating by the public. See Fla.

Admin. Code R. 40E - 4.302(1)(a)1.

b. Conservation of Fish and Wildlife

4 0 . The activity will not adversely affect the

conservati on of fish and wildlife, including endangered or

threatened species, or their habitats. The mitigation projects

will offset any impacts to fish and wildlife, improve the

abundance and diversity of fish and wildlife on Kiplinger

Island, create mangrove hab itat, and add to the marine

productivity in the area by enhancing water quality. See Fla.

Admin. Code R. 40E - 302(1)(a)2.

c. Fishing or Recreational Values

4 1 . The Project has features that allow for pedestrian and

bicycle utilization and observation are as which should enhance

recreational values. The Old Palm Bridge, approximately one

mile north of the Project, has had no adverse impact on the

fishing recreation along the South Fork of the St. Lucie River.

Navigation will not be affected due to the hei ght and design of

the new bridge. Finally, the bridge is expected to be a

destination for boating, kayaking, fishing, and bird watching.

See Fla. Admin. Code R. 40E - 4.302(1)(a)4.

d. Whether the Activity is of a Permanent Nature

42. The parties have sti pulated that the Project is

permanent in nature. No future activities or future phases of

the project are contemplated. Temporary and permanent impacts

are all being fully mitigated. See Fla. Admin. Code R. 40 E -

4.302(1)(a)5.

e . Values of Functions Bein g Performed in Affected Areas

4 3 . Due to historic impacts to the areas affected by the

Project, the current condition is degraded and t he relative

value of functions is minimal. Although Kiplinger Island will

have temporary impacts, that island is subject to exotic species

and has no recreational use or access by boaters or members of

the public. The Applicants propose mitigation which will

improve and enhance these we tland functions and values in the

areas. See Fla. Admin. Code R. 40E - 4.302(1)(a)7.

f . Summary

4 4 . The evidence supports a finding that the Project is

positive as to whether it will affect the public health, safety,

welfare, or property of others; that the Project is neutral with

respect to navigation, erosion and shoaling, and water flow, as

well as to historical and archaeological concerns; and that the

Project is positive as to conservation of fish, wildlife,

recreational values, marine productivity, permanency, and

current values and functions. When weighed and balanced, the

Project is not contrary to the public interest.

J . Cumulative Impacts

4 5 . Rule 40E - 4.302(1)(b) requires that an applicant gi ve

reasonable assurance that a project will not cause unacceptable

cumulative impacts upon wetlands and other surface waters as set

forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts

are the summation of unmitigated wetland impacts within a

dr ainage basin. An analysis is geographically based upon the

drainage basins described in BOR Figure 4.4.1 . Petitioners'

contention that Figure 4.4.1 is inaccurate or not representative

of the basin in which the Project is located has been rejected.

In this case, the North St. Lucie Basin was used.

4 6 . To assess and quantify any potential unacceptable

cumulative impacts in the basin, and supplement the analyses

performed by the Applicants, the District prepared a Basin Map

that depicted all the exist ing and permitted wetland impacts as

well as those wetlands under some form of public ownership

and/or subject to conservation restrictions or easements. The

District's analysis found that the wetlands to be mitigated were

of poor quality and provided min imal wildlife and water quality

functions. Cumulative impacts from the Project to wetlands

within the basin resulted in approximately a four percent loss

basin - wide. This is an acceptable adverse cumulative impact.

Therefore, the Project will not result in unacceptable

cumulative impacts.

K . Mitigation

4 7 . Adverse impacts to wetlands caused by a proposed

activity must be offset by mitigation measures. See § 4.3.

These may include on - site mitigation, off - site mitigation, off -

site regional mitigation, or the purchase of mitigation credits

from mitigation banks. The proposed mitigation must offset

direct, secondary, and cumulative impacts to the values and

functions of the wetlands impacted by the proposed activity.

4 8 . The ability to provide on - site m itigation for a DOT

linear transportation project such as a bridge is limited and in

this case consists of the creation of mangrove and other

wetlands between the realigned St. Lucie Shores Boulevard and

the west shore of the St. Lucie River, north and south of the

proposed bridge crossing. BOR Section 4.3.1.2 specifical ly

recognizes this limitation and allows off - site mitigation for

linear projects that cannot effectively implement on - site

mitigation requirements due to right - of - way constraints.

4 9 . Off - site mitigation will offset the majority of the

wetland impacts. B ecause no single on - site or off - site location

within the basin was available to provide mitigation necessary

to offset all of the Project's impacts, DOT proposed off - site

mitigation at two established and functioning mitigation areas

known as Dupuis State Reserve (Dupuis) , which is managed by the

County and for which DOT has available mitigation credits , and

the County's Estuarine Mitigation Site, a/k/a Florida

Oceanographic Society (FOS) located on Hutchinson Island.

Dupuis is outside the North St. Lucie Basin and was selected to

offset direct and secondary impacts to freshwater wetlands.

That site meets the ERP criteria in using it for this project.

The FOS is within the North St. Lucie Basin and was selected to

offset direct and secondary impacts to es tuarine wetlands. Like

Dupuis, this site also meets the ERP criteria for the project.

50 . The preponderance of the evidence establishes that the

on - site and off - site mitigation projects fully offset any and

all project impacts, and in most instances befo re the impacts

will actually occur.

IV . Sovereign Submerged Lands and Heightened Public

Concern

5 1. Chapter 18 - 21 applies to requests for authorization to

use sovereign submerged lands. The management policies,

standards, and criteria used to determin e whether to approve or

deny a request are found in Rule 18 - 21.004. For purposes of

granting a public easement to the Applicants, the District

determined that the Project is not contrary to the public

interest and that all requirements of the rule were sa tisfied.

This determination was not disputed. The only issue raised by

Petitioners concerning the use of submerged lands is whether the

application should have been treated as one of "heightened

public concern." See Fla. Admin. Code R. 18 - 21.0051( 5 ). If a

project falls within the purview of that rule, the Board of

Trustees of the Internal Improvement Trust Fund (Board), rather

than the District, must review and approve the application to

use submerged lands.

5 2 . Review by the Board is appropriate whenever a proposed

activity is reasonably expected to result in a heightened public

concern because of its potential effect on the environment,

natural resources, or controversial nature or location. Id.

5 3 . In accordance with established protocol, the ERP

application was sent by the District to DEP's review panel in

Tallahassee (acting as the Board's staff) to determine whether

the Project required review by the Board. The panel concluded

that the Project did not rise to the level of heightened public

concern. Evidence by Petitioners that "many people" attended

meetings and workshops concerning the Project over the last 20

years or so is insufficient to trigger the rule. Significantly,

except for general project objections lodged by Petitioners and

Au dubon of Martin County, which did not include an objection to

an easement, no adjacent property owner or other member of the

public voiced objections to the construction of a new bridge.

V . Revised Staff Report

5 4 . On October 20, 2010, the District issued a Revised

Staff Report that merely corrected administrative errors or

information that had been previously submitted to the District.

Contrary to Petitioners' assertion, i t did not constitute a

material change t o the earlier agency action either individually

or cumulatively. Therefore, it was properly considered in this

proceeding.

V I . Letter Modifications

5 5 . The Letter Modi fi cations were used as a mechanism to

capture minor alterations made to previously iss ued permits for

Kanner Highway and Indian Street. Neither Letter Modification

is significant in terms of water quality, water quantity, or

environmental impacts. Both were issued in accordance with

District rules and should be approved .

CONCLUSIONS OF LAW

5 6 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57 (1) , Florida Statutes .

5 7 . The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Balino v. Dep 't of Health & Rehabilitative Servs. , 348 So. 2d

349, 350 (Fla. 1st DCA 1977). Therefore, DOT and the County

ha ve the burden of proving by a preponderance of the evidence

that they are entitled to a new ERP and modification of two

existing ERP s .

5 8 . The Applicants contend that Petitioners have not

demonstrated that their substantial interests are affected by

the proposed agency action. The District remains neutral on

this issue. To demonstrate standing to participate in an

administrative proceeding, t he proof required " is proof of the

elements of standing, not proof directed to the elements of the

case or to the ultimate merits of the case." Peace River/

Manasota Regional Water Supply Authority, et al. v. IMC

Phosphates Co . , et al. , 18 So. 3d 1079 , 1084 (Fla. 2nd DCA

2009) . Therefore, a third par ty challenger must only offer

evidence that its "interest could reasonably be affected by [the

Applicants'] proposed activities." Id.

5 9 . Citizens for Smart Growth, Inc. 's standing is

" associational " in nature and derived from the representation of

its members. The test for associational standing is set forth

in Fl a. Home Builders Ass 'n , et al. v. Dep 't of Labor and

Employment Security , 412 So. 2d 351 ( Fla. 1982). Under that

test, an association must prove that a substantial number of its

members, although not necessarily a majority, are substantially

affected by the Project; that the subject matter of the Project

is within the general scope of the interests and activities for

which the organization w as created; and the relief requested is

of the type appropriate for the organization to receive on

behalf of its members. Id. at 352 - 53.

60 . While the organization has demonstrated through its

original Articles of Incorporation that the envir onmental

ramifications of the Project are arguably within the general

scope of interests and activities for which the organization was

formed in 2001 , and the relief requested (denial of the permit

and permit modification s ) is of the type appropriate for t he

organization to receive on behalf of its members, it failed to

prove that a substantial number of its members will be affected

by the Project. Th is conclusion is based on the fact that there

is no evidence regarding the actual or even estimated number of

members, if any, who regularly or occasionally use , or recreate

on , the South Fork of the St. Lucie River or the areas where the

drainage improvements will occur, as alleged in the three

Petition s . Given this lack of evidence to support the elements

of standing, the organization fails to qualify for association al

standing . Even so, it was given the opportunity to fully

participate as a party and to litigate all issues raised in its

three Petitions.

6 1 . The Smiths presented evidence , albeit minimal, on how

they could reasonably be expected to be affected by the proposed

bridge and drainage improvements. Although these concerns

ultimately proved to be without merit, they are sufficient to

support the elements of standing. See Peace River at 1084.

T herefore, the Smiths have standing to participate.

6 2 . District rules and statutory provisions require that

a n applicant give reasonable assurance that the conditions for

the issuance of a permit have been met. §§ 373.413 and 373.414,

Fla. Sta t.; Fla. Admin. Code R. 40E - 4.301 and 40E - 4.302.

Reasonable assurance contemplates a substantial likelihood that

the project will be successfully implemented. Metropolitan Dade

C ty. v. Coscan Fl a. , Inc. , et al. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992). However, this does not require an absolute guarantee

of compliance with environmental standards. See , e.g. , Save Our

Suwannee , Inc. v. De p 't of Environmental Protection , et al. ,

1996 Fla. ENV LEXIS 37 at *17 - 18, Case No s . 95 - 3899 and 95 - 3900

(DOAH Dec. 22, 1995, DEP Feb. 5, 1996). "A party seeking a

regulatory permit from DEP or a water management district is not

required to disprove all 'possibilities, ' ' theoretical impacts,'

or 'worst case scenarios' by a permit challenger in order to be

entitled to a permit. " Charlotte C ty. , et al. v. IMC - Phosphates

Co . , et al. , 2003 Fla. ENV LEXIS 169 at *46, Case No. 02 - 4134

(DOAH Aug. 1, 2003, DEP Sept. 15, 2003). W hen these principles

are applied to the evidence submitted by the Applicants, it is

concluded that reasonable assurances have been given that all

criteria have been met, and there is a substantial likelihood

that the Project will be successfully implemente d.

6 3 . For the reasons stated in the Findings of Fact, by a

preponderance of the evidence, DOT and the County have

established their entitlement to the requested new ERP, and DOT

has established its entitlement to modification of two existing

ERP s . Therefore, the three application s should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the South Florida Water Management

District enter a final order granting Application Nos. 091021 - 8,

100316 - 7, and 100316 - 6.

DONE AND ENTERED this 28th day of December, 2010, in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of December , 20 1 0 .

COPIES FURNISHED:

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

Jeffrey W. Appel, Esquire

Ray Quinney and Nebeker , P.C.

36 South State Street, Suite 1400

Salt Lake City, Florida 84111 - 1401

Bruce R. Conroy, Esquire

Department of Transportation

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399 - 0458

David A. Acton, Esquire

Senior Assistant County Attorney

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart , Florida 34996 - 3397

John J. Fumero , Esquire

Rose, Sundstrom & Bentley, P.A.

950 Peninsula Corporate Circle

Suite 2020

Boca Raton , Florida 33487 - 1389

Keith L. Williams , Esquire

South Florida Water Management District

3301 Gun Club Road

Mail Stop 1410

West Palm Beach, Florida 3340 6 - 3007

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.