16-006165 Indian River Farms Water Control District vs. All Aboard Florida - Operations, Llc; Ram Land Holdings, Llc; J. Acquisitions Brevard, Llc; And St. Johns River Water Management District
 Status: Closed
Recommended Order on Thursday, March 30, 2017.


View Dockets  
Summary: Petitioner did not demonstrate that the new bridges would cause flooding that would not already occur during a 100-year storm because of the height of the existing bridges.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8INDIAN RIVER FARMS WATER CONTROL

13DISTRICT,

14Petitioner,

15vs. Case No. 16 - 6165

21ALL ABOARD FLORIDA - OPERATIONS,

26LLC; RAM LAND HOLDINGS, LLC;

31J. ACQUISITIONS BREVARD, LLC;

35AND ST. JOHNS RIVER WATER

40MANAGEMENT DI STRICT,

43Respondents.

44_______________________________/

45RECOMMENDED ORDER

47The final hearing in this case was held on January 20, 2017,

59by video teleconference at sites in Sebastian and Tallahassee,

68Florida, before Bram D.E. Canter, an Administrative Law Judge of

78the Division of Administrative Hearings (ÐDOAHÑ).

84APPEARANCES

85For Petitioner Indian River Farms Water Control District:

93Michael OÓHaire, Esquire

96OÓHaire, Quinn, Casalino, Chartered

1003111 Cardinal Drive

103Vero B each, Florida 32964 - 4375

110For Respondent All Aboard Florida Î Operations, LLC:

118Eugene E. Stearns, Esquire

122Matthew W. Buttrick Esquire

126Cecilia Duran Simmons, Esquire

130Stearns, Weaver, Miller, Weissler

134Alhadeff & Sitterson, P.A.

138Museum Tower, Suit e 2200

143150 West Flagler Street

147Miami, Florida 33130

150Jeffrey A. Collier, Esquire

154Stearns, Weaver, Miller, Weissler,

158Alhadeff & Sitterson, P.A.

162106 East College Avenue, Suite 700

168Tallahassee, Florida 32301

171For Respondent J. Acquisitions Brevard , LLC:

177James F. Johnston, Esquire

181Scott A. Glass, Esquire

185Shutts & Bowen LLP

189Post Office Box 4956

193Orlando, Florida 32801

196For Respondent RAM Land Holdings, LLC:

202Joe Galletti

204RAM Land Holdings, LLC

208Post Office Box 533327

212Orlando, Florida 32853

215For Respondent St. Johns River Water Management District:

223Kealey A. West, Esquire

227Erin H. Preston, Esquire

231St. Johns River Water Management District

2374049 Reid Street

240Palatka, Florida 32177

243STATEMENT OF THE ISSUE

247The issue to be determined in t his case is whether All

259Aboard Florida Î Operations, LLC (Ðthe ApplicantÑ) ; Ram Land

268Holdings, LLC (ÐRLHÑ) ; and J. Acquisitions Brevard, LLC (ÐJABÑ) ,

277are entitled to the Environmental Resource Permit (ÐERPÑ) issued

286by the St. Johns River Water Management D istrict (ÐSJRWMDÑ) for

297construction and operation of certain railway facilities within

305the portion of the Florida East Coast Railway corridor known as

316Segment D08 (the ÐProjectÑ).

320PRELIMINARY STATEMENT

322On August 26, 2016, SJRWMD gave notice of its intent to

333issue ERP No. 135214 - 2 to the Applicant, RLH, and JAB, pursuant

346to chapter 373, Florida Statutes (2016) . The Applicant is

356developing an express passenger rail service between Miami and

365Orlando, known as the All Aboard Florida Project. RLH and JAB

376own conservation parcels , which will be used for mitigation of

386wetland and surface water impacts associated with the Project.

395On or about August 29, 2016, the Petitioner , Indian River

405Farms Water Control District , filed a petition challenging the

414ERP , because the proposed new bridges for the Project had not

425been approved by Indian River Farms Ó engineer. SJRWMD dismissed

435the p etition and, on September 26, 2016, the Petitioner filed an

447amended petition.

449SJRWMD referred the amended petition to DOAH and filed a

459m otion to dismiss, in which the Applicant joined. The motion

470argued that the amended petition raised issues that were not

480cognizable in this proceeding. The motion to dismiss was

489granted, but leave was granted to file an amended petition

499containing releva nt factual allegations and citations to relevant

508statutes and rules.

511On November 3, 2016, the Petitioner filed a second amended

521petition, which the Applicant and SJRWMD again moved to dismiss.

531An Order was entered striking all claims in the second amende d

543petition arising under c hapter 298, but otherwise denying the

553motion. The Order limited the issues in the case to

563PetitionerÓs claims that (1) the lowest horizontal beams of the

573proposed bridges would be constructed below flood elevations,

581which would c ause flooding, and (2) the proposed bridges would

592cause sand bars to form in the PetitionerÓs canals, which would

603interfere with canal functions.

607Official recognition was taken of Florida Administrative

614Code Chapters 40C - 4 and 62 - 330, as well as the ERP A pplicantÓs

630Handbook Volume I (ÐA.H., Vol. IÑ), and the SJRWMD Permit

640Information Manual (ÐA.H., Vol. IIÑ).

645At the final hearing, the Applicant presented the testimony

654of its Executive Vice President of Rail Infrastructure , Adrian

663Share, P.E.; Matthew Nedde ff, P.E. , who was accepted as an

674expert in hydrologic and hydraulic engineering and modeling; and

683Jeffrey PeQueen, P.E., who was accepted as an expert in

693hydrologic and hydraulic engineering and modeling. The

700ApplicantÓs Exhibits 1 - 25 were admitted into e vidence.

710The Petitioner presented the testimony of its

717Superintend e nt, Secretary, and Treasurer, David E. Gunter; and

727George A. Simons, P.E., who was accepted as an expert in civil

739engineering. The PetitionerÓs Exhibit 2 was admitted into

747evidence.

748SJRWM D presented the testimony of its Supervising

756Professional Engineer, Fariborz Zanganeh, P.E., who was accepted

764as an expert in water resource engineering; and its Chief

774E ngineer for the Environmental Resource Regulation Program,

782Cameron Dewey, P.E., who was accepted as an expert in water

793resource engineering. SJRWMDÓs Exhibit 23 was admitted into

801evidence.

802The one - volume Transcript of the final hearing was filed

813with DOAH. The Petitioner, the Applicant, and SJRWMD each

822submitted proposed recommended order s which were considered in

831the preparation of this Recommended Order.

837FINDINGS OF FACT

840The Parties

8421 . The Petitioner is a water control district organized

852under chapters 189 and 298 , Florida Statutes . It owns and

863maintains the North, Main, and South Can als in Indian River

874County.

8752 . The Petitioner manages drainage works for approximately

88455,000 acres within Indian River County s ituated west of the

896Indian River Lagoon between U.S. 1 and I - 95, including portions

908of the City of Vero Beach.

9143 . The Applican t, All Aboard Florida Î Operations, LLC, is

926a Delaware limited liability company headquartered in Miami,

934Florida, formed for the principal purpose of developing and

943operating express passenger rail service connecting the four

951largest urban population cente rs in Southern and Central

960Florida -- Miami, Fort Lauderdale, West Palm Beach, and Orlando.

970This project is known as the All Aboard Florida Project.

9804 . Respondents, RAM Land Holdings , LLC, and

988J. Acquisitions Brevard, LLC , are third - party mitigation

997provid ers. The parties stipulated that R LH and JAB are not

1009necessary parties to this proceeding.

10145 . SJRWMD is an independent special district created by

1024c hapter 373 , charged with the duty to prevent harm to the water

1037resources of the District and to administer and enforce

1046chapter 373 and the rules promulgated thereunder. The proposed

1055project is within the boundaries of the District.

1063The Proposed Project

10666 . Most of the ApplicantÓs passenger service route,

1075including the portion which will pass through Indian Ri ver

1085County, will use an existing railroad right - of - way established in

1098the late 1800s by Henry Flagler, the founder of the Florida East

1110Coast Railway (ÐFECRÑ).

11137 . The FECR rail corridor runs along FloridaÓs east coast

1124from Miami to Jacksonville . It was de signed to support passenger

1136and freight operations on shared double mainline tracks and was

1146in use from 1895 to 1968. The passenger service was then

1157terminated and portions of the double track and certain bridge

1167structures were removed. The freight servi ce continued and

1176remains in operation today.

11808 . The Project would restore the passenger service that

1190once existed on the FECR rail corridor . The passenger service

1201route will utilize the FECR right - of - way from Miami to Cocoa

1215Beach and then continue along a new segment to be constructed

1226along a limited - access highway system which runs inland from

1237Cocoa Beach to Orlando.

12419 . The Applicant is proposing to upgrade the portion of

1252the FECR right - of - way between Miami and Cocoa Beach by, among

1266other things, replac ing existing railroad ties and tracks and

1276reinstalling double tracks.

127910 . This proceeding involves only Segment D08 of the

1289proposed Project. Segment D08 runs from the southern edge of

1299Indian River County to Cocoa Beach in Brevard County.

130811 . In Segment DO8, the existing FECR railway includes

1318bridges which cross th e North Canal, Main Canal, and South Canal

1330owned and maintained by the Petitioner . The bridges are

1340r eferred to as the North Canal Bridge, the Main Canal Bridge,

1352and the South Canal Bridge. Eac h bridge supports a single

1363track.

136412 . The P roject calls for adding new bridges alongside the

1376three existing bridges over the canals so that the crossings

1386will again accommodate two tracks.

139113 . The PetitionerÓs objections to the proposed permit are

1401confin ed to the proposed bridges at the North Canal and South

1413Canal.

141414 . The new bridge at the North Canal would be constructed

1426along the west side of the existing bridge. The new bridge at

1438the South Canal would be constructed along the east side of the

1450existi ng bridge.

1453Obstruction of Water Flow

145715 . The PetitionerÓs main objection to the proposed

1466project is that the proposed new bridges over the North Canal

1477and South Canal are too low to allow clearance during a 100 - year

1491storm event, which would cause water fl ow to be obstructed. The

1503Petitioner believes floating debris is likely to be blocked and

1513accumulate at the bridges, causing water to back up and flood

1524lands upstream of the bridges.

152916 . The PetitionerÓs Superintendent, David Gunter,

1536testified that there were Ða couple of events where debris

1546backed up either at a bridge or a culvert.Ñ However, he said

1558none of the PetitionerÓs ratepayers ever had a flooding event

1568that was attributable to the FECR bridges.

157517 . The new bridges would be constructed with the same low

1587chord/beam elevations (lowest part of the bridge) as the

1596existing bridges that would remain. For the existing bridge and

1606the proposed new bridge over the North Canal, the low beam

1617elevation is 13.1 f ee t NAVD88 (North American Vertical Datum

16281988) . For the existing bridge and the proposed new bridge at

1640the South Canal, the low beam elevation is 8.5 f ee t NAVD88.

165318 . Because the proposed new bridges would be at the same

1665height above the canals as the existing bridges, the potential

1675problem the Peti tioner is concerned about -- floating debris being

1686trapped by the bridges -- is already a potential problem. The

1697P etitioner did not claim or present evidence to show that the

1709new bridges would increase the probability that floating debris

1718would be trapped, ov er and above the current probability for

1729such an event.

173219 . The Petitioner argued that Ðtwo wrongs donÓt make a

1743right,Ñ and the new bridges should not be approved even though

1755they are at the same height as the existing bridges . Obviously,

1767the Petitioner wants the existing bridges raised, too.

177520. Based on the FEMA Flood Insurance Rate Maps used by

1786the Applicant, the 100 - year flood elevation at the North Canal

1798bridge is 11.5 f ee t NAVD88, or 1.6 feet below the low beam

1812elevation of the North Canal Bridge. The 100 - year flood

1823elevation at the South Canal Bridge is 9.3 f ee t NAVD88, or 0.8

1837feet below the low beam elevation of the North Canal Bridge. 1/

184921 . The ApplicantÓs consultants performed hydrologic and

1857hydraulic analyses for the proposed new bridges usin g a HEC - RAS

1870model which was adapted to local site - specific conditions and

1881incorporated FEMA flood level data . They determined that in a

1892100 - year storm event, the new bridge at the North Canal would

1905cause no more than a 0.04 - foot (0.48 inch es ) increase in water

1920levels immediately upstream (within 500 feet) of the bridge, and

1930the new bridge at the South Canal would result in no more than a

19440.07 - foot (0.84 inch es ) increase in water levels immediately

1956upstream. These were considered insignificant impacts that

1963would not cause flooding to upstream properties.

197022 . The Petitioner disputes the ApplicantÓs determination

1978that there is a 1.6 - foot clearance at the North Canal Bridge and

1992a 0.8 - foot clearance at the South Canal Bridge. The Petitioner

2004asserts that the F EMA elevations used by the Applicant are not

2016based on the best available data , and the best available data

2027show the 100 - year flood elevations are higher .

203723 . The Petitioner calculated higher 100 - year flood

2047elevations using SJRWMD flood stage gages in the canal near the

2058North bridge and the PetitionerÓs own hydrologic model. The

2067Petitioner determined that the low beam at the North Canal

2077bridge is 0.6 feet below the 100 - year flood level, and the low

2091beam at the South Canal bridge is 1.5 feet below the 100 - y ear

2106flood level. 2 / In other words, the P etitioner contends there is

2119no clearance.

212124 . The PetitionerÓs witness, Simons, testified about why

2130he thought FEMA did not use the PetitionerÓs water level data

2141and analysis in determining 100 - year flood elevation s for the

2153FEMA flood maps , but the testimony was largely hearsay.

216225 . SJRWMDÓs ApplicantÓs Handbook refers to the use of

2172FEMA flood level data for th ese kinds of analyses, but it also

2185refers to the use of Ðdetailed informationÑ possessed by SJRWMD.

2195See S ection 3.3.4, A . H . , Vol II. Information possessed by

2208SJRWMD would likely include data from their own water level

2218gages.

221926 . The Petitioner did not present sufficient evidence to

2229prove their data and modeling was more accurate or reliable than

2240FEMA data a nd the ApplicantÓs modeling. FEMA flood insurance

2250rate maps are a standard reference in the industry. The HEC - RAS

2263model is a generally accepted tool used by engineers for this

2274kind of analysis.

227727 . None of the parties presented evidence to make clear

2288wh at is the usual or industry protocol for choosing between

2299conflicting data of this kind in the permitting process .

230928 . The Petitioner has the burden of proof on disputed

2320issues of fact and failed to carry its burden on this disputed

2332issue. It is found , t herefore, that the ApplicantÓs use of FEMA

2344data and the HEC - RAS model was reasonable.

235329 . The Petitioner admitted that the 100 - year flood

2364elevation in the canals has been increasing over time because of

2375the conversion of land uses in the area from agricul tural to

2387urban. Because the Petitioner regulates discharges to its

2395canals, it has some responsibility for the rising water levels

2405in its canals.

240830 . The Petitioner claimed that reduced clearance was due

2418in part to the bridges from Ðage, use, lack of main tenance,

2430frugality or causes other than design.Ñ However, the Petitioner

2439presented no supporting evidence for this allegation in the

2448record.

244931 . In its regulatory role, the Petitioner requires a

2459minimum clearance of one foot between a bridgeÓs lowest

2468hor izontal beam and the 100 - year flood elevation to avoid

2480obstruction of water flow through the canals.

248732. SJRWMD rules do not specify that bridges be designed to

2498have a minimum clearance above the 100 - year flood elevation.

250933 . T he applicable design standa rds for flood protection

2520in the ApplicantÓs Handbook are set forth in Section 3.3.2(b),

2530A.H., Vol. II, which provides in pertinent part as follows:

2540Floodways and floodplains, and levels of

2546flood flows or velocities of adjacent

2552streams, impoundments or othe r water courses

2559must not be altered so as to adversely impact

2568the off - site storage and conveyance

2575capabilities of the water resource. It is

2582presumed a system will meet this criterion if

2590the following are met:

2594* * *

2597(b) A system may not cause a net reduction

2606in the flood conveyance capabilities provided

2612by a floodway except for structures elevated

2619on pilings or traversing works. Such works,

2626or other structures shall cause no more than

2634a one - foot increase in the 100 - year flood

2645elevation immediately u pstream and no more

2652than one tenth of a foot increase in the 100 -

2663year flood elevation 500 feet upstream.

266934 . The bridges would not cause more than a one - foot

2682increase in the 100 - year flood elevation immediately upstream or

2693more than one tenth of a foot i ncrease in the 100 - year flood

2708elevation 500 feet upstream.

271235 . Therefore, the Applicant is presumed to have provided

2722reasonable assurance that the Project would not cause adverse

2731flooding to on - site or off - site property, or adversely impact

2744the existing s urface water storage and conveyance capabilities of

2754the North Canal or South Canal.

276036 . The Petitioner argues that the SJRWMD criteria fail to

2771account for floating debris. The Petitioner claims that bridge

2780designers are obliged to follow basic design gui delines

2789published by FDOT and other government agencies and provide

2798clearance for floating debris, but Petitioner did not offer into

2808evidence these Ðbasic design standardsÑ or prove their industry -

2818wide acceptance. 3/

282137 . SJRWMDÓs engineer, Fariborz Zangane h, stated that the

2831potential for floating debris to be blocked by a bridge or any

2843other traversing work is considered by SJRWMD to be an operation

2854and maintenance issue, not a design issue.

286138 . The Petitioner referred to some road bridges in the

2872area that , upon reconstruction, were raised by county, state, or

2882federal governments to comply with the PetitionerÓs clearance

2890requirement . First, it is noted that the Applicant does not

2901propose to reconstruct the existing North Canal Bridge and South

2911Canal B ridge . Second, there is a substantial difference between

2922the effort and cost of raising a road and raising a railroad

2934track.

293539. Raising the proposed bridges would require elevating

2943the railroad bed for a considerable distance in each direction

2953so that slopes comply with railway safety criteria.

296140 . The Petitioner failed to prove the Project does not

2972comply with SJRWMD flood control criteria .

2979The Sand Bar

298241 . The Petitioner also objects to the proposed bridge at

2993the North Canal because the Petitioner contend s the existing

3003bridge pilings have caused a sand bar to form, and shoaling and

3015erosion would likely increase with construction of additional

3023pilings. The Petitioner believes the problem is caused by the

3033fact that the existing and proposed pilings, which w ould have

3044the same alignment, are not parallel to water flow in the canal.

305642 . There are sand bars upstream of the bridge which

3067cannot have been caused by the bridge pilings.

307543 . The North Canal, which runs downstream almost due east

3086makes a turn to the northeast under the North Canal Bridge. The

3098record evidence, as well as generally known facts of which the

3109Administrative Law Judge may take official recognition,

3116establish that a change in the direction of water flow in a

3128channel creates non - uniform flow , which can cause erosion and

3139shoaling.

314044 . The Petitioner did not present evidence to distinguish

3150between shoaling and erosion that could be caused by the pilings

3161and shoaling and erosion that could be caused by the turn in the

3174canal. The P etitioner did not call a witness for this subject

3186who had special knowledge of the science of hydraulics and no

3197study was done by the Petitioner to confirm its theory of the

3209cause.

321045 . The Petitioner has the burden of proof on disputed

3221issues of fact and failed to car ry its burden on this disputed

3234issue.

323546 . The Applicant asserts that the conditions of the

3245proposed permit provide for maintenance that would include Ðthe

3254removal of any buildup of siltation that might occur over time

3265and potentially cause the North Canal Bridge structure to cease

3275operating as designed.Ñ However, whether the bridge is

3283operating as designed would not address whether the canal is

3293operating as designed because of shoaling.

329947. There is no condition in the proposed permit that

3309imposes on the Applicant the duty to remove built - up sediment

3321beneath the North Canal Bridge. It is unlikely that such a

3332requirement can be imposed on the Applicant because it does not

3343own or control the canal.

334848. The Petitioner claims the railroad authority denied t he

3358Petitioner access to the right - of - way when it sought permission

3371in the past to remove the sandbar at the North Canal Bridge.

3383Unfortunately, a permit condition that requires the Applicant to

3392cooperate with the Indian River Water Control District in

3401perf orming canal maintenance at the bridges is probably not

3411e nforceable.

3413CONCLUSIONS OF LAW

3416Jurisdiction

341749 . The Division of Administrative Hearings has

3425jurisdiction over the parties and the subject matter of this

3435proceeding. See §§ 120.569 and 120.57, Fla. Stat.

3443Standing

344450 . For a petitioner to have standing, it must show that it

3457has a substantial interest that would be affected by the

3467proposed agency action. See § 120.52(13)(b), Fla. Stat.

347551 . The Petitioner presented evidence demonstrating that

3483its inte rest could be affected, which is sufficient to establish

3494standing in this proceeding. See St. Johns Riverkeeper, Inc. v.

3504St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla.

35165th DCA 2011).

3519Burden and Standard of Proof

352452 . The ERP was issued unde r chapter 373. A fter the

3537applicant for a chapter 373 permit has presented its prima facie

3548case for entitlement to the permit by entering into evidence the

3559application, relevant materials supporting the application, and

3566the agency staff report or notice of intent to issue the permit ,

3578the challeng er has the burden of ultimate persuasion to show the

3590applicant is not entitled to the permit. See § 120.569(2)(p),

3600Fla. Stat. The Applicant and SJRWMD presented a prima facie

3610case for entitlement to the ERP. Ther efore, the burden of

3621ultimate persuasion was on the Petitioner to prove their case in

3632opposition to the permit.

363653 . The standard of proof is preponderance of the evidence.

3647See § 120.57)1)(j), Fla. Stat.

365254 . Issuance of an ERP requires a demonstration of

3662reasonable assurance from the applicant that the activities

3670authorized will meet the applicable criteria contained in

3678Florida Administrative Code Rules 62 - 330.301 and 62 - 330.302, and

3690related provisions in the ApplicantÓs Handbook, Vol. I and II.

370055 . The term Ðreasonable assuranceÑ means a demonstration

3709that there is a substantial likelihood of compliance with

3718standards. See Metro. Dade Cnty. v. Coscan Fla., Inc. , 609 So.

37292d 644, 648 (Fla. 3d DCA 1992). It does not mean absolute

3741guarantees.

3742Applicable La ws and Rules

374756 . The parties stipulated that the Project complies with

3757the conditions for issuance in rules 62 - 330.301(1)(a), (d), (e),

3768(f), (g), (h), (i), (j), and (k) and 62 - 330.302. Based on the

3782parties' stipulation, what remains at issue is whether t he

3792Applicant has provided reasonable assurance that the

3799construction, operation, and maintenance of the North Canal

3807Bridge and South Canal Bridge meet the conditions for issuance

3817in rule 62 - 330.301(1)(b) and (c).

382457. This is not a rule challenge proceedin g. Therefore,

3834whether these rules should be amended to better accomplish the

3844regulatory objectives are not questions which can be considered.

385358 . Rule 62 - 330.301 provides in relevant part:

3863To obtain an individual or conceptual

3869approval permit an applic ant must provide

3876reasonable assurance that the construction,

3881alteration, operation, and maintenance

3885removal, or abandonment of the projects

3891regulated under this chapter:

3895* * *

3898(b) Will not cause adverse flooding to on -

3907site or off - site property;

3913(c) Will not cause adverse impacts to

3920existing surface water storage and

3925conveyance capabilities; . . . .

393159 . The Petitioner argues that the Project violates rule

394162 - 330.301(1)(b) and (c) because the Project would cause adverse

3952flooding to offsite propert ies and adverse impacts to existing

3962surface water storage and conveyance capacities. The Petitioner

3970failed to prove that the Project would violate these rules .

398160. The Project complies with the design standards for

3990flood protection in the ApplicantÓs Han dbook. The only

3999hydraulic analyses offered into evidence show the addition of

4008the proposed new bridges would have no impacts on upstream and

4019downstream properties and only de minimis impacts on the

4028conveyance capacity of the canals.

403361 . The Petitioner ar gues that the bridge designs show

4044defects Ðon their faceÑ because of the lack of adequate

4054clearance between the low beam of the bridges and the water

4065elevation in the canals during a 100 - year flood event. By this

4078argument, the P etitioner is suggesting tha t its own one - foot

4091clearance requirement should be an inferred design criterion and

4100must be imposed by SJRWMD. That argument is inconsistent with

4110the prohibition against non - rule policy. See § 120.56(4), Fla.

4121Stat. There is no SJRWMD rule like the Petit ionerÓs rule that

4133imposes a minimum clearance.

413762 . Furthermore, the Petitioner did not demonstrate that

4146the new bridges would cause flooding that would not already

4156occur during a 100 - year storm because of the height of the

4169existing bridges.

4171RECOMMENDATION

4172Based on the foregoing Findings of Fact and Conclusions of

4182Law, it is

4185RECOMMENDED that the St. Johns River Water Management

4193District enter a final order approving the issuance of

4202Environmental Resource Permit No. 135214 - 2 , with the conditions

4212set forth in the Technical Staff Report dated August 26, 2016.

4223DONE AND ENTERED this 30th day of March , 2017 , in

4233Tallahassee, Leon County, Florida.

4237S

4238BRAM D. E. CANTER

4242Administrative Law Judge

4245Division of Administrative Hearings

4249T he DeSoto Building

42531230 Apalachee Parkway

4256Tallahassee, Florida 32399 - 3060

4261(850) 488 - 9675

4265Fax Filing (850) 921 - 6847

4271www.doah.state.fl.us

4272Filed with the Clerk of the

4278Division of Administrative Hearings

4282this 30th day of March , 2017 .

4289ENDNOTE S

42911/ In its p roposed recommended order, the Applicant describes

4301the FEMA 100 - year flood elevations as Ð11.5 to 12.0 ft. NAVD88Ñ

4314(North Canal bridge) and Ð9.0 to 10.0 ft. NAVD88Ñ (South Canal

4325bridge), but there was no explanation why the elevations would

4335be expressed in ranges, rather than as single points. The

4345application documents show single numbers, 11.5 f ee t and

43559.3 f ee t , respectively. See AAF Ex. 12, p. 4, and AAF Ex. 14,

4370p. 5.

43722 / Petitioner did not challenge the proposed new bridge over the

4384Main Canal, presuma bly because there is a clearance of 4.1 feet

4396between the lowest horizontal beam and the FEMA 100 - year flood

4408elevation.

44093/ Because the Petitioner contends there is no clearance when

4419the water in the canals is at the 100 - year flood elevation , it

4433is unclear why floating debris was PetitionerÓs focus at the

4443final hearing, rather than the obstruction of flow caused by the

4454bridges themselves.

4456COPIES FURNISHED:

4458Joe Galletti

4460RAM Land Holdings, LLC

4464Post Office Box 533327

4468Orlando, Florida 32853

4471Jeffrey A. Co llier, Esquire

4476Stearns, Weaver, Miller, Weissler,

4480Alhadeff & Sitterson, P.A.

4484106 East College Avenue , Suite 700

4490Tallahassee, Florida 32301

4493(eServed)

4494Michael O Ó Haire, Esquire

4499O Ó Haire, Quinn, Casalino, Chartered

45053111 Cardinal Drive

4508Vero Beach, Florida 3 2964 - 4375

4515(eServed)

4516Eugene E. Stearns, Esquire

4520Matthew W . Buttrick, Esquire

4525Cecilia Duran Simmons, Esquire

4529Stearns Weaver Miller Weissler

4533Alhadeff & Sitterson, P.A.

4537Museum Tower, Suite 2200

4541150 West Flagler Street

4545Miami, Florida 33130

4548(eServed)

4549James F. Johnston, Esquire

4553Scott A. Glass, Esquire

4557Shutts & Bowen LLP

4561Post Office Box 4956

4565Orlando, Florida 32801

4568(eServed)

4569Kealey A. West, Esquire

4573Erin H. Preston, Esquire

4577St. Johns River Water

4581Management District

45834049 Reid Street

4586Palatka, Florida 32177

4589( eServed)

4591Ann B. Shortelle, Ph.D., Executive Director

4597St. Johns River Water

4601Management District

46034049 Reid Street

4606Palatka, Florida 32177

4609(eServed)

4610NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4616All parties have the right to submit written exceptions within

462615 days from the date of this Recommended Order. Any exceptions

4637to this Recommended Order should be filed with the agency that

4648will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/30/2017
Proceedings: St. Johns River Water Management District's Response to Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 06/30/2017
Proceedings: Respondent All Aboard Florida - Operations, LLC's Response to Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 06/30/2017
Proceedings: Respondent All Aboard Florida - Operations, LLC's Exceptions to Recommended Order filed.
PDF:
Date: 06/30/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 06/27/2017
Proceedings: Agency Final Order
PDF:
Date: 05/09/2017
Proceedings: Reply to Responses to Exceptions to Recommended Order filed.
PDF:
Date: 05/03/2017
Proceedings: Notice of Unavailability filed.
PDF:
Date: 04/14/2017
Proceedings: St. Johns River Water Management District's Exceptions to Recommended Order filed.
PDF:
Date: 04/13/2017
Proceedings: Exceptions to Recommended Order filed.
PDF:
Date: 03/30/2017
Proceedings: Recommended Order
PDF:
Date: 03/30/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 03/30/2017
Proceedings: Recommended Order (hearing held January 20, 2017). CASE CLOSED.
PDF:
Date: 03/10/2017
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 03/10/2017
Proceedings: Respondent All Aboard Florida - Operations, LLC's Proposed Recommended Order filed.
PDF:
Date: 03/10/2017
Proceedings: St. Johns River Water Management District's Proposed Recommended Order filed.
PDF:
Date: 03/10/2017
Proceedings: St. Johns River Water Management District's Notice of Filing Proposed Recommended Order filed.
Date: 02/08/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 01/20/2017
Proceedings: CASE STATUS: Hearing Held.
Date: 01/19/2017
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 01/19/2017
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 20, 2017; 9:30 a.m.; Sebastian and Tallahassee, FL; amended as to hearing time).
Date: 01/13/2017
Proceedings: Petitioner, Indian River Farms Water Control District's Exhibit List (Exhibits not available for viewing) filed.
PDF:
Date: 01/12/2017
Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Filing Proposed Exhibits filed.
Date: 01/12/2017
Proceedings: St. Johns River Water Management District's Exhibit List filed (exhibits not available for viewing).
Date: 01/12/2017
Proceedings: Respondent All Aboard Florida-Operations, LLC's Notice of Filing Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 01/11/2017
Proceedings: Respondent All Aboard Florida - Operations, LLC's Notice of Filing Proposed Exhibits filed.
PDF:
Date: 01/11/2017
Proceedings: Respondent St. Johns River Water Management District's Notice of Filing Proposed Exhibits filed.
PDF:
Date: 01/10/2017
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 01/05/2017
Proceedings: Order.
PDF:
Date: 01/04/2017
Proceedings: St. Johns River Water Management District's Motion for Official Recognition filed.
PDF:
Date: 12/22/2016
Proceedings: Notice of Unavailability filed.
PDF:
Date: 12/20/2016
Proceedings: Indian River Farms Water Control District's Response to St. Johns River Water Management District's First Request for Production of Documents filed.
PDF:
Date: 12/20/2016
Proceedings: Indian River Farms Water Control District's Response to All Aboard Florida-Operations, LLC's First Set of Request for Production filed.
PDF:
Date: 12/20/2016
Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Response to All Aboard Florida-Operations, LLC's First Set of Interrogatories filed.
PDF:
Date: 12/20/2016
Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Response to St. Johns River Water Management District's First Request for Interrogatories filed.
PDF:
Date: 12/19/2016
Proceedings: Petitioner, Indian River Farms Water Control District's Supplemental Exhibit List filed.
PDF:
Date: 12/13/2016
Proceedings: St. Johns River Water Management District's Notice of Taking Deposition Duces Tecum of David E. Gunter filed.
PDF:
Date: 12/13/2016
Proceedings: St. Johns River Water Management District's Notice of Taking Deposition Duces Tecum of George A. Simons, P.E. filed.
PDF:
Date: 12/01/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for January 20, 2017; 9:00 a.m.; Sebastian and Tallahassee, FL).
PDF:
Date: 11/29/2016
Proceedings: Joint Response to Order Continuing the Final Hearing and Requiring a Response filed.
PDF:
Date: 11/28/2016
Proceedings: Order Continuing the Final Hearing and Requiring a Response (parties to advise status by December 2, 2016).
PDF:
Date: 11/23/2016
Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Providing Exhibits filed.
PDF:
Date: 11/23/2016
Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Providing Expert Witness List filed.
PDF:
Date: 11/23/2016
Proceedings: Indian River Farms Water Control District's Response to All Aboard Florida - Operations, LLC's First Set of Request for Admission filed.
PDF:
Date: 11/23/2016
Proceedings: All Aboard Florida - Operations, LLC's Exhibit List filed.
PDF:
Date: 11/23/2016
Proceedings: All Aboard Florida - Operations, LLC's Witness List filed.
PDF:
Date: 11/22/2016
Proceedings: Respondent, J. Acquisitions Brevard, LLC's Witness and Exhibit Disclosure filed.
PDF:
Date: 11/22/2016
Proceedings: Respondent St. Johns River Water Management District's Notice of Expert Witness Disclosure filed.
PDF:
Date: 11/22/2016
Proceedings: St. Johns River Water Management District's Notice of Providing Exhibits filed.
PDF:
Date: 11/18/2016
Proceedings: All Aboard Florida - Operations, LLC's Notice of Serving First Interrogatories to Indian River Farms Water Control District filed.
PDF:
Date: 11/18/2016
Proceedings: All Aboard Florida - Operations, LLC's First Set of Requests for Production to Indian River Farms Water Control District filed.
PDF:
Date: 11/18/2016
Proceedings: All Aboard Florida - Operations, LLC's First Set of Requests for Admission to Indian River Farms Water Control District filed.
PDF:
Date: 11/17/2016
Proceedings: St. Johns River Water Management District's Notice of Service of First Set of Interrogatories to Petitioner Indian River Farms Water Control District filed.
PDF:
Date: 11/17/2016
Proceedings: Respondent St. Johns River Water Management District's First Request for Production of Documents to Petitioner Indian River Farms Water Control District filed.
PDF:
Date: 11/17/2016
Proceedings: Order.
PDF:
Date: 11/16/2016
Proceedings: Respondent St. Johns River Water Management District's Motion to Modify Order of Pre-hearing Instructions filed.
PDF:
Date: 11/15/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/15/2016
Proceedings: Notice of Hearing by Video Teleconference (hearing set for December 13, 2016; 9:00 a.m.; Sebastian and Tallahassee, FL).
PDF:
Date: 11/14/2016
Proceedings: Order.
PDF:
Date: 11/14/2016
Proceedings: Memorandum of Law in Opposition to All Aboard Florida - Operations, LLC's Motion to Dismiss filed.
PDF:
Date: 11/10/2016
Proceedings: Respondent St. Johns River Water Management District's Notice of Joinder in Motion to Dismiss Second Amended Petition filed.
PDF:
Date: 11/09/2016
Proceedings: Respondent All Aboard Florida, Operations, LLC's Motion to Dismiss and Incorporated Memorandum of Law filed.
PDF:
Date: 11/03/2016
Proceedings: Second Amended Petition for Administrative Hearing filed.
PDF:
Date: 10/31/2016
Proceedings: Order of Dismissal.
PDF:
Date: 10/28/2016
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 10/27/2016
Proceedings: Response to Initial Order filed.
PDF:
Date: 10/24/2016
Proceedings: Respondent All Aboard Florida - Operations, LLC's Notice of Joinder in Motion to Dismiss filed.
PDF:
Date: 10/21/2016
Proceedings: Initial Order.
PDF:
Date: 10/21/2016
Proceedings: Notice of Appearance (Kealey West) filed.
PDF:
Date: 10/21/2016
Proceedings: St. Johns River Water Management District's Notice of Related Case filed.
PDF:
Date: 10/21/2016
Proceedings: Respondent St. Johns River Water Management District's Motion to Dismiss and Incorporated Memorandum of Law filed.
PDF:
Date: 10/20/2016
Proceedings: SJRWMD Permit No. 135214-2 filed.
PDF:
Date: 10/20/2016
Proceedings: Technical Staff Report filed.
PDF:
Date: 10/20/2016
Proceedings: Amended Petition for Administrative Hearing filed.
PDF:
Date: 10/20/2016
Proceedings: Notice of Referral filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
10/20/2016
Date Assignment:
10/21/2016
Last Docket Entry:
06/30/2017
Location:
Sebastian, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (3):