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.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CITIZENS FOR SMART GROWTH, INC., )

14KATHIE SMITH, AND ODIAS SMITH, )

20)

21Petitioner s, )

24)

25vs. ) Case No s. 10 - 3 316

34) 10 - 3317

38DEPARTMENT OF TRANSPORTATION, ) 10 - 3318

45MARTIN COUNTY, AND SOUTH )

50FLORIDA WATER MANAGEMENT )

54DISTRICT, )

56)

57Respondent s. )

60_______________________________ _ )

63RECOMMENDED ORDER

65Pursuant to notice, th ese matter s were heard before the

76Division of Administrative Hearings (DOAH) by its assigned

84Administrative Law Judge, D . R. Alexander, on October 25 - 27,

9620 10, in Stuart, Florida.

101APPEARANCES

102For Petitioner s : Jeffrey W. Appel, Esquire

110Ray Quinney & Nebeker, P.C.

11536 South State Street, Sui te 1400

122Salt Lake City, Utah 84111 - 1451

129For Respondent : Bruce R. Conroy, Esquire

136( DOT) Kathleen P. Toolan, Esquire

142Department of Transportation

145605 Suwannee Street

148Mail Station 58

151Tallahassee, Florida 32399 - 0458

156For Respondent : Keith L. Williams , Esquire

163( District) South Florida Water Management District

1703301 Gun Club Road

174Mail Stop 1410

177West Palm Beach, Florida 33406 - 3007

184For Respondent: David A. Acton, Esquire

190(County) Senior Assistant County Attorney

195Martin County Administrative Center

1992401 Southeast Monterey Road

203Stuart, Florida 34996 - 3322

208John J. Fumero, Esquire

212Rose Sundstrom & Bentley, LLP

217950 Peni n sula Corporate Circle

223Suite 2020

225Boca Raton, Florida 33487 - 1389

231STATEMENT OF THE ISSUE S

236The issue s are whether to (a) issue an Environmental

246Resource Permit (ERP) to the Department of Transportation (DOT)

255and Martin County (County) authorizing construction and

262operati on of a surface water management system to serve a

273project known as the Indian Street Bridge; (b) issue DOT a

284letter of modification of ERP No. 43 - 00785 - S authorizing roadway

297and drainage modifications to the Kanner Highway/Indian Street

305intersection; and (c) issue DOT a letter of modification of ERP

316No. 43 - 01229 - P authorizing roadway and drainage modifications to

328Indian Street between the intersections of Kanner Highway and

337Willoughby Boulevard.

339BACKGROUND

340On May 18, 2010, Respondent, South Florida Water Management

349District (District), by a Staff Report, provided n otice of its

360i nten t to approve Application No. 091021 - 8 filed by DOT and the

375County (Applicants) and to issue ERP No. 43 - 02393 - P authorizing

388the construction and operation of a surface water management

397system to serve 62.06 acres of roadway bridge development ; it

407also authorized an easement for the use of 12.45 acres of

418sovereign submerged lands . Both au thorizations related to a

428project known as the Indian Street Bri d ge. On May 21, 2010, the

442District gave notice of intent to approve Ap plication No.

452100316 - 7 filed by DOT to modify existing ERP No. 43 - 00785 - S

468authorizing roadway and drainage modifications to the Kanner

476Highway/Indian Street intersections . Finally, on the same date ,

485it gave notice of intent to approve Ap plication No. 100316 - 6

498filed by DOT to modify existing ERP No. 43 - 0 1229 - P authorizing

513roadw ay and drainage modifications to Indian Street between the

523intersections of Kanner Highway and Willoughby Boulevard. A

531Revised Staff Report containing minor changes to the first

540application was issued on October 20, 2010.

547On June 1, 2010, Petitioners, Cit izens for Smart Growth,

557Inc., Kathie Smith, and Odias Smith, filed three Petitions for

567Administrative Hearings (Petitions) with the District

573challenging each of the above proposed actions . After

582dismissing certain allegations in the Petitions on the groun d

592they raised issues beyond the Distr ict's jurisdiction, the

601Petitions were forwarded by the D istrict t o DOAH on June 16,

6142010, with a request that an administrative law judge be

624assigned to conduct a hearing. The three Petitions were

633assigned Case Nos. 10 - 3316, 10 - 3317, and 10 - 3318, respectively,

647and were consolidated by Order dated June 18, 2010. That Order

658also authorized Petitioners' out - of - state counsel to appear as a

671qualified representative. The Distric t's dismissal of certain

679allegations was reaffirmed by Order dated August 9, 2010. After

689the initial Petitions were dismissed, without prejudice, for

697various infirmities, Second Petitions for Administrative Hearing

704were filed by Petitioners on September 2 2, 2010. A Third

715Petition for Administrative Hearing directed to the ERP

723application in Case No. 10 - 3316 was filed on September 27, 2010.

736By Notice of Hearing dated June 25, 2010, a final hearing

747was scheduled on October 25 - 27, 2010, in Stuart, Florida. After

759a case management conference was conducted, a n Order prescribing

769discovery timelines and other procedural matters was issued on

778September 20, 2010. A Joint Prehearing Stipulation

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

795At the final hearing, Petitioners Odias and Kathie Smith

804testified on their own behalf and Petitioners jointly presented

813the testimony of David Greg ory Braun, an environmental

822consultant, Executive Director of Audubon of Martin County , and

831accepted as an expert . Also, they offered Petitioners Exhibits

84124, 27, 28, 30, 33 - 35, 39, 42, 53, and 54. Exhibit 54 is the

857deposition of Mr. Braun . A ruling on Exhibit 53 , the deposition

869of Kathie Smith , was reserved, while all others were received in

880evidence except 34 , 3 5 , and 42 . The objection to Exhibit 53 is

894overruled. DOT presented the testimony of Ann L. Broadwell, DOT

904District 4 Environmental Administrator and accepted as an

912expert; Christian B. Jackson, a professional engineer with

920Reynolds, Smith & Hills, Inc. , and accepted as an expert; and

931Gordon Mullen, a Senior Planner II with Post, Buckley, Schuh &

942Jernigan and accepted as an expert. Also, it offered DOT

952Exhibits 8 - 11, which were received in evidence. The County

963presented the testimony of Don G. Donaldson, Jr., County

972Engineer and accepted as an expert . Also, it offered County

983Exhibits 1, 5 - 10, 15 - 17, and 19, which were received in

997evidence. Exhibit 19 is the deposition of Odias Smith. The

1007District presented the testimony of Hugo A. Carter, Senior

1016Supervising Engineer of the Surface Water Management Division

1024and accepted as an expert; Melinda S. Parrott, Science

1033Supervisor - Environmental Analyst in the Natural Resource

1041Management Division and accepted as an expert; and Anita R.

1051Bain, Division Director of Environmental Resource Regulation and

1059accepted as an expert. Also, it offered District Exhibits 1 - 4,

1071which were received in evidence. Finally, Joint Exhibits 1 - 1 9

1083were received in evidence.

1087P ursuant to the District's request, the undersign ed took

1097official recognition of Florida Administrative Code Chapter s 18 -

110721, 40E - 4 , 62 - 302, and 62 - 345 a nd the B asis of Review for

1126Environmental Resource Permit Applications Within the South

1133Florida Water Management District (B OR ) .

1141The T ranscript of the hearing ( seven volumes) was filed on

1153December 2, 20 10 . P roposed Recommended Orders were filed by the

1166parties on December 13, 2010, a nd t hey have been considered in

1179the preparation of this Recommended Order.

1185FINDINGS OF FACT

1188Based on the evidence presented by the parties, the

1197following findings of fact are made:

1203I . The Parties

12071. Petitioner Citizens for Smart Growth, Inc. , is a

1216Florida 501(c) ( 3) corporation with its principal place of

1226business in Palm City, Florida. It was formed by Odias Smith in

1238August 2001 , who serves as its president . The original

1248directors were Kathie Smith, Odias Smith, and Craig Smith , who

1258is the Smiths' son . The composition of the Board has never

1270changed. According to the original Articles of Incorporation,

1278its objectives are "preserving and enhancing the present

1286advantages of living in Martin County (Quality of Life) for the

1297common good, through public education, and the encouragement of

1306reasonable and considered decision making b y full disclosure of

1316impacts and alternatives for the most appropriate use of land,

1326water and resources." The exact number of members fluctuates

1335from time to time. There are no dues paid by any member. At

1348his deposition, Mr. Smith stated that no members hip list exists;

1359however, Kathie Smith stated that she currently has a list of

1370125 names, consisting of persons who at one time or another have

1382made a contribution, have attended a meeting , or asked to be

"1393kept informed of what's going on or asked to be on a mailing

1406list or a telephone list, so they could be advised when we have

1419meetings . " N o meetings have been held since 2006. Therefore,

1430the Petitions filed in these cases have never been discussed at

1441any meetings of th e members , although Ms. Smith indicated that

1452telephone discussions periodically occur with various

1458individuals . Kathie Smith believe s that roughly 25 percent of

1469the members reside in a mobile home park north of the project

1481site on Kanner Highway on the ea stern side of the St. Lucie

1494River, she d oes not know how many members reside on the western

1507side of the St. Lucie River, and she is unaware of any member

1520who reside s on the South Fork of the St. Lucie River immediately

1533adjacent to the project . Although the three Petitions allege

1543that "seventy percent of the members . . . reside and/or

1554recreate on the St. Lucie River," and in greater detail they

1565allege how those members use that water body or depend on it for

1578their livelihood, n o evidence was sub mitted to support the se

1590allegation s that 70 percent (or any other percentage of members)

1601use or depend on the South Fork of the St. Lucie River for

1614recreational or other activities .

16192. Petitioners Odias Smith and Cathie Smith reside in Palm

1629City , a n unincorporated community just south of Stuart in Martin

1640County . They have opposed the construction of the new bridge

1651since they moved to Palm City in 2001. It is fair to infer that

1665Mr. Smith formed the corporation primarily for the purpose of

1675opposing the bridge. Their home faces north, overlooking the

1684South Fork of the St. Lucie River, from which it is separated by

1697Saint Lucie Shores Drive and a narrow strip of common - ownership

1709property. A boat dock extends from the common - ownership

1719property into the St. Lucie River, providing 5 slips for use by

1731the Smiths and other co - owners. The home is located three

1743blocks or approximately 1,000 feet from the proposed western

1753landfall of the new bridge. Due to the direction that the house

1765faces (north) and the si te of the new bridge, the surface water

1778management system elements associated with the bridge will not

1787be visible from their property. Mr. Smith believes, however,

1796that when looking south through a veranda window on the second

1807floor of his home, he will b e able to see at least a part of the

1824new bridge. From the front of their house, they now have an

1836unobstructed view of the existing Palm City Bridge, a large

1846structure that crosses the St. Lucie River approximately six -

1856tenths of a mile north of their home, and which is similar in

1869size to the new bridge now being proposed by the Applicants .

1881The Smiths' home is more than 500 feet from the Project's right -

1894of - way, and they do not know of any impact on its value caused

1909by the Project. Whil e the Smiths currently engage in walking,

1920boating, running, fishing, and watching wildlife in the

1928neighborhood or the South Fork of the St. Lucie River , t here was

1941no credible evidence that the Project would prevent them from

1951doing so after the bridge and o ther improvements are

1961constructed. Also, there was no evidence showing that the ERP

1971Letter Modifications will cause them to suffer any adverse

1980impacts . In fact, as noted below, by DOT undertaking the

1991Project, the neighborhood will be improved through red uc ed

2001flooding, improv ed water quality, and new swales and ponds.

20113. The County i s a political subdivision of the State. It

2023filed one of the applications at issue in this proceeding.

20334. DOT is an agency of the State and filed the three

2045applications being contested.

20485. The District has the power and duty to exercise

2058regulatory jurisdiction over the administration and enforcement

2065of ERP criteria pursuant to Part IV, Chapter 373, Florid a

2076Statutes, and Title 40E of the Florida Administrative Code. The

2086Department of Environment Protection (DEP) has delegated certain

2094authority to the District , including the authority to authorize

2103an applicant to use sovereign submerged lands via a public

2113easement within the District's geographic jurisdiction.

2119II . The Project

21236. Construction of a new bridge over the St. Lucie River

2134has been studied extensively by the Applicants for over twenty

2144years. DOT has awarded the contract and nearly all of th e

2156right - of - way has been purchased. The Project will begin as soon

2170as the remaining permits are acquired. The Project is fully

2180funded through the American Recovery and Reinvestment Act of

21892009 and County funding.

21937. The Project is located in the County and includes 62.06

2204acres of roadway bridge development and 12.45 acres of sovereign

2214submerged lands. The Project begins on the west side of the St.

2226Lucie River on County Road 714, approximately 1,300 feet west of

2238Mapp Road in Palm City and ends on the ea st side of the St.

2253Lucie River approximately 1,400 feet east of Kanner Highway

2263(State Road 76) on Indian Street. It includes construction and

2273operation of a surface water management system to serve the road

2284and bridge project. The total length of the Pro ject is

2295approximately 1.96 miles (1.38 miles of roadway and 0.58 miles

2305of bridge) while the total area is approximately 74.51 acres .

2316After treatment, surface water runoff will discharge to the

2325tidal South Fork of the St. Lucie River.

23338 . The Project encompasses a bridge crossing the South

2343Fork of the St. Lucie River and the Okeechobee Waterway. Both

2354are classified as Class III waters. The bridge transitions from

23644 to 6 lanes east of the Oke e chobee Waterway and will require a

237955 - foot v ertical clearance and a 200 - foot horizontal clearance

2392between the fender systems at the Okeechobee Waterway.

24009 . The bridge will cross over a portion of Kiplinger

2411Island owned and preserved by the County. A part of t he island

2424was donated to the County i n 1993 - 1994 by The Kiplinger

2437Washington Editors, Inc. , and the Kiplinger Foundation, Inc.

2445Audubon of Martin County owns another part of the island . The

2457transfer of title to the County does not include any restriction

2468on the use of the island for conservation purposes only.

2478D ocumentation submitted at hearing refers to a "two hundred foot

2489wide road right - of - way" easement that the bridge will cross and

2503allows the County to designate where on the island parcel such

2514an easement would be. Therefor e, spanning the bridge over a

2525portion of the island owned by the County is clearly

2535permissible.

253610 . The Project also includes the roadway transition and

2546widening/reconstruction of (a) County Road 714 from the

2554beginning of the Project to Mapp Road from 2 - l ane to a 4 - lane

2571divided roadway; (b) Southwest 36th Street from Mapp Road to the

2582beginning of the bridge from a 2 - lane rural roadway to a 4 - lane

2598divided roadway with wide roadway swales; and (c) Kanner Highway

2608(along Indian Street) from a 4 - lane to a 6 - lan e divided urban

2624roadway. Drainage improvements on both sides of the St. Lucie

2634River are associated with the roadway construction.

26411 1 . DOT proposes to provide both on - site and off - site

2656mitigation for wetland and surface waters impacts pursuant to a

2666miti gation plan approved by the District.

2673III . The ERP Permitting Criteria

26791 2 . In order to obtain an ERP, an applicant must satisfy

2692the conditions for issuance set forth in Florida Administrative

2701Code R ules 40E - 4.301 and 40E - 4.302. Besides these rules,

2714certain related BOR provisions which implement the rules must

2723also be considered. The c onditions for i ssuance primarily focus

2734on water quality, water quantity, and environmental criteria and

2743form the basis of the District ' s ERP permit ting program. The

2756p arties have stipulated t hat the Project either complies with

2767the following rule provisions or they are not applicable: Rules

277740E - 4.301(1) (a), (b), ( g ), (g), (h), and (k), and 40E -

27924.302(1)(a) 3. and 6. All other provisions remain at issue.

2802Where conflicting evidence on these issues was submitted, the

2811under signed has resolved all evidentiary conflicts in favor of

2821the Applicants and District.

282513 . Based on the parties ' Stipulation, t he following

2836provisi ons in Rule 40E - 4.301(1) are in dispute and require an

2849applicant to provide reasonable assurances that the

2856construction, alteration, operation, maintenance, removal , or

2862abandonment of a surface water management system:

2869( c ) will not cause adverse impacts to

2878existing surface water storage and

2883conveyance capabilities;

2885(d) w ill not adversely impact the value of

2894functions provided to fish and wildlife and

2901listed species by wetlands and other surface

2908waters;

2909(e) will not adver sely affect the quality

2917of receiving waters such that the water

2924quality standards set forth in chapters 62 -

29324, 62 - 302, 62 - 520, 62 - 522, 62 - 550, F.A.C.,

2946including any anti - degradation provisions of

2953paragraphs 62 - 4.242(1)(a) and (b),

2959subsections 62 - 4.242(2) an d (3), and rule

296862 - 302.300, F.A.C., and any special

2975standards for Outstanding Florida Waters and

2981Outstanding National Resource Waters set

2986forth in subsections 62 - 4.242(2) and (3),

2994F.A.C., will be violated;

2998(f) will not cause adverse secondary impacts to

3006the water resources ;

3009(i) will be capable, based on generally accepted

3017engineering and scientific principles, of being

3023performed and of functioning as proposed;

3029(j) will be conducted by an entity with

3037sufficient financial, legal and administrative

3042capability to ensure that the activity will be

3050undertaken in accordance with the terms and

3057conditions of the permit, if issued;

3063These disputed criteria are discussed s eparately below.

3071A . Surface Water Storage and Conveyance

307814 . Rule 40E - 4.301(1)(c) requires that an applicant

3088provide reasonable assurances that a proposed activity will not

3097cause adverse impacts to existing surface water storage and

3106conveyance capabilities. Through unrefuted evidence, this

3112requirement was shown to be satisfied . The evidence also

3122establishes that the surface water in and around the Project

3132will actu ally improve if the Project is constructed as

3142permitted. Further, it will create improved and upgraded

3150surface water management and treatment in areas that now lack

3160features such as swales, retention/detention ponds, curbs and

3168gutters, and improve the ove rall surface water storage and

3178conveyance capabilities of the Project and surrounding areas.

318615 . In its current pre - development condition, flooding has

3197occurred in certain areas adjacent to and within the Project

3207area due to poor conveyance, low storage v olume, and high

3218tailwater conditions that result from high tides. The Project

3227will remedy historic flooding issues in the O ld Palm City area

3239which lies adjacent to a portion of the Project alignment.

324916 . Surface water runoff will be captured, controlled, and

3259treated by a system of swales, weirs, and retention/detention

3268facilities for pretreatment prior to discharging into the South

3277Fork of the St. Lucie River. Reasonable assurances have been

3287given that existing surface water storage and conveyance

3295capabi lities will not be adversely affected.

3302B . Value of Functions to Fish, Wildlife, and Species

331217 . Rule 40E - 4.301(1)(d) requires that an applicant

3322provide reasonable assurances that a proposed activity will not

3331adversely impact the value of functions pro vided to fish and

3342wildlife and listed species by wetlands and other surface

3351waters. BOR Section 4.2.2 further implements this provision.

3359For the following reasons, the rule and BOR have been satisfied.

337018 . The eviden ce shows that the existing functions to fish

3382and wildlife were assessed and analyzed by a number of federal

3393and state fish and wildlife agencies. There were extensive

3402review and site inspections by the District, DOT, United States

3412Fish and Wildlife Servic e, United States Army Corps of

3422Engineers, and National Marine Fisheries Commission to assess

3430the existence of, and potential impact on, fish and wildlife

3440that may result from the Project. These studies revealed that

3450while portions of the South Fork of the St. Lucie River provide

3462potential habitat for aquatic or wetland - dependent or threatened

3472species of special concern, no nesting or roosting areas within

3482the vicinity of the Project were observed.

348919 . The evidence further supports a finding that "other

3499su rface waters" over and under the Project will not receive

3510unacceptable impacts due to their current condition , the

3518detrimental influences of Lake Okeechobee discharges, and tidal

3526impacts.

35272 0 . Many of the wetlands to be impacted by the Project

3540were shown to have been impacted by historic activities, and

3550they provide diminished functions to fish and wildlife. The

3559wetland functions were assessed through the Uniform Mitigation

3567Assessment Methodology (UMAM). The UMAM is a standardized

3575procedure for assessin g the functions provided by wetlands and

3585other surface waters, the amount that those functions would be

3595reduced by a proposed project, and the amount of mitigation

3605necessary to offset that loss. Detailed UMAM assessments were

3614prepared by the A pplicants an d the District. They demonstrate

3625that while certain functional units w ill be lost, they w ill be

3638fully offset by the proposed mitigation. No credible evidence

3647to the contrary was presented.

3652C . Water Quality of Receiving Waters

36592 1 . Rule 40E - 4.301 (1) (e) requires an applicant to provide

3673reasonable assurances that a project will not adversely affect

3682the quality of receiving waters such that State water quality

3692standards will be violated. BOR Section 4.2.4 implements this

3701rule and requires that " reasona ble assurances regarding water

3710quality must be provided for both the short term and long term ,

3722addressing the proposed construction , . . . [ and ] operation of

3734the system . " The receiving water body is the South Fork of the

3747St. Lucie River , which is designat ed as an impaired water body.

37592 2 . The evidence establishes that the A pplicants will

3770avoid and minimize potential short - term impacts to water quality

3781by using silt screens and turbidity barriers, and implementing

3790other best management practices to contain turbidity during

3798construction of the Project. They will also use a temporary

3808trestle rather than barges in the shallow portions of the South

3819Fork to avoid stirring up bottom sediments. Finally, a

3828turbidity monitoring plan will be implemented during

3835const ruction and dewatering activities for all in - water work.

3846All of these construction techniques will minimize potential

3854impacts during construction.

38572 3. The evidence further establishes that water quality

3866standards will not be violated as a result of the P roject. In

3879fact, in some cases water quality will be enhanced due to the

3891installation and maintenance of new or upgraded surface water

3900management features in areas where they do not exist or have

3911fallen into disrepair.

391424 . Over the long term, the Project is expected to have a

3927beneficial effect on water quality. By improving existing

3935surface water management and adding new surface water treatment

3944features, the Project will provide net improvement to water

3953quality.

3954D . Wetland Delineation and Impacts

396025 . T he Project includes unavoidable impacts to wetlands

3970and other surface waters. A total of 18.53 acres of wetlands

3981and other surface waters within the Project site will be

3991impacted by the Project , including 3.83 acres of wetlands that

4001will be directly impa cted and 14.7 acres of wetlands and other

4013surface waters that will be secondarily impacted .

402126 . The delineated wetlands are depicted in the Staff

4031Report as wetlands 2a, 19a, 19b, 22, 25 - 29, 30a, 30b, and 30c,

4045with each having a detailed UMAM assessment of its values and

4056condition. (Impacts to wetland 25 are not included in this

4066Project because they were accounted for in a separate permit

4076proceeding.)

407727 . Using a conservative assessment and set of

4086assumptions, the District determined that , with the except ion of

4096wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by

4108the Project. However, the wetlands that would be impacted

4117suffer from varying historical adverse impacts that have

4125compromised the functions and values they provide to fish,

4134wildlife, and species. This is due to their proximity to urban

4145development, vegetative connectivity, size, historic impacts,

4151altered hydroperiod, and invasive plant species. Likewise, even

4159though the wetlands to be impacted on Kiplinger Island provide

4169certain resting and feeding functions for birds, the value of

4179these functions is comparatively lower than other wetlands due

4188to the presence of invasive species and lack of management.

419828 . The preponderance of the evidence sup ports a finding

4209that the Applicants provided reasonable assurances that the

4217Project will not cause adverse impacts to fish, wildlife, or

4227listed species. See Fla. Admin. Code R. 40E - 4.301(1)(d).

4237E . Secondary Impacts

424129 . Rule 40E - 4.301(1)(f) and BOR Sections 4.1.1(f) and

42524.2.7 . require a demonstration that the proposed activities will

4262not cause adverse secondary impacts to the water resources, both

4272from a wetlands and water quality standpoint. Secondary impacts

4281are tho se that occur outside the footprint of the project, but

4293which are very closely linked and ca u sally related to the

4305activity to be permitted. De minimis or remotely - related

4315secondary impacts , however, are not considered unacceptable.

4322See § 4.2.7.(a) .

43263 0 . There will be s econdary impacts to 6.83 acres of

4339freshwater wetlands and 7.87 acres of mangroves, or a total of

435014.7 acres. To address these secondary impacts, the Applicants

4359have established extensive secondary impact zones and buffers

4367along the Project alignment, which were based in part on

4377District experience with other road projects and another nearby

4386proposed bridge project in an area where a State Preserve is

4397located.

43983 1 . While Petitioners' expert contended that a 250 - foot

4410buffer on both sides of the roadway's 200 - foot right - of - way was

4426insufficient to address secondary impacts to birds (who the

4435expert opines may fly into the bridge or moving vehicles ), the

4447greater weight of evidence shows that bird mortality can be

4457avoided and mitigated through various measures incorporated into

4465the Project. Further, the bird mortality studies used by the

4475expert involved significantly different projects and designs,

4482and in some cases involv ed projects outside the United States

4493with different species concerned.

4497F . Engineering and Scientific Principles

45033 2 . Rule 40E - 301(1)(i) requires that an applicant give

4515reasonable assurance that a project "be capable, based on

4524generally accepted engineeri ng and scientific principles, of

4532being performed and of functioning as proposed." Unrefuted

4540evidence establishes that the proposed system will function and

4549be maintained as proposed.

4553G . Financial, Legal and Administrative Capability

456033 . Rule 40E - 4.301(1)(j) requires that an applicant give

4571reasonable assurance that it has the financial, legal, and

4580administrative capability to ensure that the activity will be

4589undertaken in accordance with the terms of the permit. The

4599evidence supports a finding that Applicants have complied with

4608this requirement.

4610H . Elimination and Reduction of Impacts

46173 4. Before establishing a mitigation plan, Rule 40E -

46274.301(3) requires that an applicant implement practicable design

4635modifications to eliminate and redu ce wetland and other surface

4645water impacts. In this case, there are unavoidable , temporary

4654wetland impacts associated with the construction of the Project,

4663as well as unavoidable wetland impacts for direct (project

4672footprint), secondary, and cumulative im pacts of the Project.

468135 . The record shows that the Applicants have undertaken

4691extensive efforts to eliminate and reduce wetland and other

4700surface water impacts of the Project. For example, DOT examined

4710and assessed several innovative construction techni ques and

4718bridge designs to eliminate and avoid wetland impacts. To

4727eliminate and reduce temporary impacts occurring during

4734construction, DOT has reduced the effect of scour on the pier

4745foundation and reduced the depth of the footing to minimize the

4756amount of excavation on the mangrove island. Also, during

4765construction, the contractor is prohibited from using the 200 -

4775foot right - of - way on the mangrove island for staging or

4788stockpiling of construction materials or equipment .

479536 . The majority of the bridge width has been reduced to

4807eliminate and avoid impacts. Also, the Project's alignment was

4816adjusted to the north to avoid impacts to a tidal creek.

482737 . Reasonable assurances have been given that all

4836practicable design and project alternatives to the const ruction

4845and placement of the Project were assessed with no practicable

4855alternatives.

4856I. Public Interest Test

486038 . Besides complying with the requirements of Rule 40E -

48714.301, an applicant must also address the seven factors in Rule

488240E - 4. 302(1)(a)1. - 7., which comprise the so - called "public

4895interest" test. See also § 373.414(1)(a), Fla. Stat. In

4904interpreting the seven factors, the District balances the

4912potential positive and negative effect s of a project to

4922determine if it meets the publi c interest criteria. Because

4932Petitioners agree that factors 3 and 6 of the rule are not at

4945issue, only the remaining five factors will be considered. For

4955the following reasons, the Project is positive when the criteria

4965are weighed and balanced, and there fore the Project is not

4976contrary to the public interest.

4981a. Public Health, Safety, and Welfare

498739 . The Appli c ants have provided reasonable assurance that

4998the Project will not affect public health, safety, and welfare.

5008Specifically, it will benefit the h ealth, safety, and welfare of

5019the citizens by improving traffic conditions and congestion,

5027emergency and hurricane evacuation, and access to medical

5035facilities. In terms of safety, navigation markers are included

5044as part of the Project for safe boating by the public. See Fla.

5057Admin. Code R. 40E - 4.302(1)(a)1.

5063b. Conservation of Fish and Wildlife

50694 0 . The activity will not adversely affect the

5079conservati on of fish and wildlife, including endangered or

5088threatened species, or their habitats. The mitigation projects

5096will offset any impacts to fish and wildlife, improve the

5106abundance and diversity of fish and wildlife on Kiplinger

5115Island, create mangrove hab itat, and add to the marine

5125productivity in the area by enhancing water quality. See Fla.

5135Admin. Code R. 40E - 302(1)(a)2.

5141c. Fishing or Recreational Values

51464 1 . The Project has features that allow for pedestrian and

5158bicycle utilization and observation are as which should enhance

5167recreational values. The Old Palm Bridge, approximately one

5175mile north of the Project, has had no adverse impact on the

5187fishing recreation along the South Fork of the St. Lucie River.

5198Navigation will not be affected due to the hei ght and design of

5211the new bridge. Finally, the bridge is expected to be a

5222destination for boating, kayaking, fishing, and bird watching.

5230See Fla. Admin. Code R. 40E - 4.302(1)(a)4.

5238d. Whether the Activity is of a Permanent Nature

524742. The parties have sti pulated that the Project is

5257permanent in nature. No future activities or future phases of

5267the project are contemplated. Temporary and permanent impacts

5275are all being fully mitigated. See Fla. Admin. Code R. 40 E -

52884.302(1)(a)5.

5289e . Values of Functions Bein g Performed in Affected Areas

53004 3 . Due to historic impacts to the areas affected by the

5313Project, the current condition is degraded and t he relative

5323value of functions is minimal. Although Kiplinger Island will

5332have temporary impacts, that island is subject to exotic species

5342and has no recreational use or access by boaters or members of

5354the public. The Applicants propose mitigation which will

5362improve and enhance these we tland functions and values in the

5373areas. See Fla. Admin. Code R. 40E - 4.302(1)(a)7.

5382f . Summary

53854 4 . The evidence supports a finding that the Project is

5397positive as to whether it will affect the public health, safety,

5408welfare, or property of others; that the Project is neutral with

5419respect to navigation, erosion and shoaling, and water flow, as

5429well as to historical and archaeological concerns; and that the

5439Project is positive as to conservation of fish, wildlife,

5448recreational values, marine productivity, permanency, and

5454current values and functions. When weighed and balanced, the

5463Project is not contrary to the public interest.

5471J . Cumulative Impacts

54754 5 . Rule 40E - 4.302(1)(b) requires that an applicant gi ve

5488reasonable assurance that a project will not cause unacceptable

5497cumulative impacts upon wetlands and other surface waters as set

5507forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts

5516are the summation of unmitigated wetland impacts within a

5525dr ainage basin. An analysis is geographically based upon the

5535drainage basins described in BOR Figure 4.4.1 . Petitioners'

5544contention that Figure 4.4.1 is inaccurate or not representative

5553of the basin in which the Project is located has been rejected.

5565In this case, the North St. Lucie Basin was used.

55754 6 . To assess and quantify any potential unacceptable

5585cumulative impacts in the basin, and supplement the analyses

5594performed by the Applicants, the District prepared a Basin Map

5604that depicted all the exist ing and permitted wetland impacts as

5615well as those wetlands under some form of public ownership

5625and/or subject to conservation restrictions or easements. The

5633District's analysis found that the wetlands to be mitigated were

5643of poor quality and provided min imal wildlife and water quality

5654functions. Cumulative impacts from the Project to wetlands

5662within the basin resulted in approximately a four percent loss

5672basin - wide. This is an acceptable adverse cumulative impact.

5682Therefore, the Project will not result in unacceptable

5690cumulative impacts.

5692K . Mitigation

56954 7 . Adverse impacts to wetlands caused by a proposed

5706activity must be offset by mitigation measures. See § 4.3.

5716These may include on - site mitigation, off - site mitigation, off -

5729site regional mitigation, or the purchase of mitigation credits

5738from mitigation banks. The proposed mitigation must offset

5746direct, secondary, and cumulative impacts to the values and

5755functions of the wetlands impacted by the proposed activity.

57644 8 . The ability to provide on - site m itigation for a DOT

5779linear transportation project such as a bridge is limited and in

5790this case consists of the creation of mangrove and other

5800wetlands between the realigned St. Lucie Shores Boulevard and

5809the west shore of the St. Lucie River, north and south of the

5822proposed bridge crossing. BOR Section 4.3.1.2 specifical ly

5830recognizes this limitation and allows off - site mitigation for

5840linear projects that cannot effectively implement on - site

5849mitigation requirements due to right - of - way constraints.

58594 9 . Off - site mitigation will offset the majority of the

5872wetland impacts. B ecause no single on - site or off - site location

5886within the basin was available to provide mitigation necessary

5895to offset all of the Project's impacts, DOT proposed off - site

5907mitigation at two established and functioning mitigation areas

5915known as Dupuis State Reserve (Dupuis) , which is managed by the

5926County and for which DOT has available mitigation credits , and

5936the County's Estuarine Mitigation Site, a/k/a Florida

5943Oceanographic Society (FOS) located on Hutchinson Island.

5950Dupuis is outside the North St. Lucie Basin and was selected to

5962offset direct and secondary impacts to freshwater wetlands.

5970That site meets the ERP criteria in using it for this project.

5982The FOS is within the North St. Lucie Basin and was selected to

5995offset direct and secondary impacts to es tuarine wetlands. Like

6005Dupuis, this site also meets the ERP criteria for the project.

601650 . The preponderance of the evidence establishes that the

6026on - site and off - site mitigation projects fully offset any and

6039all project impacts, and in most instances befo re the impacts

6050will actually occur.

6053IV . Sovereign Submerged Lands and Heightened Public

6061Concern

60625 1. Chapter 18 - 21 applies to requests for authorization to

6074use sovereign submerged lands. The management policies,

6081standards, and criteria used to determin e whether to approve or

6092deny a request are found in Rule 18 - 21.004. For purposes of

6105granting a public easement to the Applicants, the District

6114determined that the Project is not contrary to the public

6124interest and that all requirements of the rule were sa tisfied.

6135This determination was not disputed. The only issue raised by

6145Petitioners concerning the use of submerged lands is whether the

6155application should have been treated as one of "heightened

6164public concern." See Fla. Admin. Code R. 18 - 21.0051( 5 ). If a

6178project falls within the purview of that rule, the Board of

6189Trustees of the Internal Improvement Trust Fund (Board), rather

6198than the District, must review and approve the application to

6208use submerged lands.

62115 2 . Review by the Board is appropriate whenever a proposed

6223activity is reasonably expected to result in a heightened public

6233concern because of its potential effect on the environment,

6242natural resources, or controversial nature or location. Id.

62505 3 . In accordance with established protocol, the ERP

6260application was sent by the District to DEP's review panel in

6271Tallahassee (acting as the Board's staff) to determine whether

6280the Project required review by the Board. The panel concluded

6290that the Project did not rise to the level of heightened public

6302concern. Evidence by Petitioners that "many people" attended

6310meetings and workshops concerning the Project over the last 20

6320years or so is insufficient to trigger the rule. Significantly,

6330except for general project objections lodged by Petitioners and

6339Au dubon of Martin County, which did not include an objection to

6351an easement, no adjacent property owner or other member of the

6362public voiced objections to the construction of a new bridge.

6372V . Revised Staff Report

63775 4 . On October 20, 2010, the District issued a Revised

6389Staff Report that merely corrected administrative errors or

6397information that had been previously submitted to the District.

6406Contrary to Petitioners' assertion, i t did not constitute a

6416material change t o the earlier agency action either individually

6426or cumulatively. Therefore, it was properly considered in this

6435proceeding.

6436V I . Letter Modifications

64415 5 . The Letter Modi fi cations were used as a mechanism to

6455capture minor alterations made to previously iss ued permits for

6465Kanner Highway and Indian Street. Neither Letter Modification

6473is significant in terms of water quality, water quantity, or

6483environmental impacts. Both were issued in accordance with

6491District rules and should be approved .

6498CONCLUSIONS OF LAW

65015 6 . The Division of Administrative Hearings has

6510jurisdiction over this matter pursuant to Sections 120.569 and

6519120.57 (1) , Florida Statutes .

65245 7 . The burden of proof is on the party asserting the

6537affirmative of an issue before an administrative tribunal.

6545Balino v. Dep 't of Health & Rehabilitative Servs. , 348 So. 2d

6557349, 350 (Fla. 1st DCA 1977). Therefore, DOT and the County

6568ha ve the burden of proving by a preponderance of the evidence

6580that they are entitled to a new ERP and modification of two

6592existing ERP s .

65965 8 . The Applicants contend that Petitioners have not

6606demonstrated that their substantial interests are affected by

6614the proposed agency action. The District remains neutral on

6623this issue. To demonstrate standing to participate in an

6632administrative proceeding, t he proof required " is proof of the

6642elements of standing, not proof directed to the elements of the

6653case or to the ultimate merits of the case." Peace River/

6664Manasota Regional Water Supply Authority, et al. v. IMC

6673Phosphates Co . , et al. , 18 So. 3d 1079 , 1084 (Fla. 2nd DCA

66862009) . Therefore, a third par ty challenger must only offer

6697evidence that its "interest could reasonably be affected by [the

6707Applicants'] proposed activities." Id.

67115 9 . Citizens for Smart Growth, Inc. 's standing is

" 6722associational " in nature and derived from the representation of

6731its members. The test for associational standing is set forth

6741in Fl a. Home Builders Ass 'n , et al. v. Dep 't of Labor and

6756Employment Security , 412 So. 2d 351 ( Fla. 1982). Under that

6767test, an association must prove that a substantial number of its

6778members, although not necessarily a majority, are substantially

6786affected by the Project; that the subject matter of the Project

6797is within the general scope of the interests and activities for

6808which the organization w as created; and the relief requested is

6819of the type appropriate for the organization to receive on

6829behalf of its members. Id. at 352 - 53.

683860 . While the organization has demonstrated through its

6847original Articles of Incorporation that the envir onmental

6855ramifications of the Project are arguably within the general

6864scope of interests and activities for which the organization was

6874formed in 2001 , and the relief requested (denial of the permit

6885and permit modification s ) is of the type appropriate for t he

6898organization to receive on behalf of its members, it failed to

6909prove that a substantial number of its members will be affected

6920by the Project. Th is conclusion is based on the fact that there

6933is no evidence regarding the actual or even estimated number of

6944members, if any, who regularly or occasionally use , or recreate

6954on , the South Fork of the St. Lucie River or the areas where the

6968drainage improvements will occur, as alleged in the three

6977Petition s . Given this lack of evidence to support the elements

6989of standing, the organization fails to qualify for association al

6999standing . Even so, it was given the opportunity to fully

7010participate as a party and to litigate all issues raised in its

7022three Petitions.

70246 1 . The Smiths presented evidence , albeit minimal, on how

7035they could reasonably be expected to be affected by the proposed

7046bridge and drainage improvements. Although these concerns

7053ultimately proved to be without merit, they are sufficient to

7063support the elements of standing. See Peace River at 1084.

7073T herefore, the Smiths have standing to participate.

70816 2 . District rules and statutory provisions require that

7091a n applicant give reasonable assurance that the conditions for

7101the issuance of a permit have been met. §§ 373.413 and 373.414,

7113Fla. Sta t.; Fla. Admin. Code R. 40E - 4.301 and 40E - 4.302.

7127Reasonable assurance contemplates a substantial likelihood that

7134the project will be successfully implemented. Metropolitan Dade

7142C ty. v. Coscan Fl a. , Inc. , et al. , 609 So. 2d 644, 648 (Fla. 3d

7158DCA 1992). However, this does not require an absolute guarantee

7168of compliance with environmental standards. See , e.g. , Save Our

7177Suwannee , Inc. v. De p 't of Environmental Protection , et al. ,

71881996 Fla. ENV LEXIS 37 at *17 - 18, Case No s . 95 - 3899 and 95 - 3900

7208(DOAH Dec. 22, 1995, DEP Feb. 5, 1996). "A party seeking a

7220regulatory permit from DEP or a water management district is not

7231required to disprove all 'possibilities, ' ' theoretical impacts,'

7241or 'worst case scenarios' by a permit challenger in order to be

7253entitled to a permit. " Charlotte C ty. , et al. v. IMC - Phosphates

7266Co . , et al. , 2003 Fla. ENV LEXIS 169 at *46, Case No. 02 - 4134

7282(DOAH Aug. 1, 2003, DEP Sept. 15, 2003). W hen these principles

7294are applied to the evidence submitted by the Applicants, it is

7305concluded that reasonable assurances have been given that all

7314criteria have been met, and there is a substantial likelihood

7324that the Project will be successfully implemente d.

73326 3 . For the reasons stated in the Findings of Fact, by a

7346preponderance of the evidence, DOT and the County have

7355established their entitlement to the requested new ERP, and DOT

7365has established its entitlement to modification of two existing

7374ERP s . Therefore, the three application s should be approved.

7385RECOMMENDATION

7386Based on the foregoing Findings of Fact and Conclusions of

7396Law, it is

7399RECOMMENDED that the South Florida Water Management

7406District enter a final order granting Application Nos. 091021 - 8,

7417100316 - 7, and 100316 - 6.

7424DONE AND ENTERED this 28th day of December, 2010, in

7434Tallahassee, Leon County, Florida.

7438S

7439D . R. ALEXANDER

7443Administrative Law Judge

7446Division of Administrative Hearings

7450The DeSoto Building

74531230 Apalachee Parkway

7456Tallahassee, Florida 32399 - 3060

7461(850) 488 - 9675

7465Fax Filing (850) 921 - 6847

7471www.doah.state.fl.us

7472Filed with the Clerk of the

7478Division of Administrative Hearings

7482this 28th day of December , 20 1 0 .

7491COPIES FURNISHED:

7493Carol Ann Wehle, Executive Director

7498South Florida Water Management District

75033301 Gun Club Road

7507West Palm Beach, Florida 33406 - 3007

7514Jeffrey W. Appel, Esquire

7518Ray Quinney and Nebeker , P.C.

752336 South State Street, Suite 1400

7529Salt Lake City, Florida 84111 - 1401

7536Bruce R. Conroy, Esquire

7540Department of Transportation

7543605 Suwannee Street

7546Mail Station 58

7549Tallahassee, Florida 32399 - 0458

7554David A. Acton, Esquire

7558Senior Assistant County Attorney

7562Martin County Administrative Center

75662401 Southeast Monterey Road

7570Stuart , Florida 34996 - 3397

7575John J. Fumero , Esquire

7579Rose, Sundstrom & Bentley, P.A.

7584950 Peninsula Corporate Circle

7588Suite 2020

7590Boca Raton , Florida 33487 - 1389

7596Keith L. Williams , Esquire

7600South Florida Water Management District

76053301 Gun Club Road

7609Mail Stop 1410

7612West Palm Beach, Florida 3340 6 - 3007

7620NOTICE OF RIGHT TO FILE EXCEPTIONS

7626All parties have the right to submit written exceptions within

763615 days of the date of this Recommended Order. Any exceptions

7647to this Recommended Order should be filed with the agency that

7658will render a final order in this matter.

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Date
Proceedings
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Date: 02/14/2011
Proceedings: Agency Final Order
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Date: 02/14/2011
Proceedings: Department of Transportation's Response to Petitioner's Exceptions to the Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: Respondent Martin County's Responses to Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: South Florida Water Management District's Response to Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: Department of Transportation's Exceptions to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: Respondent Martin County's Exceptions and Corrections to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: South Florida Water Management District Exceptions and Corrections to Recommended Order filed.
PDF:
Date: 02/14/2011
Proceedings: Agency Final Order filed.
PDF:
Date: 01/11/2011
Proceedings: Respondent Martin County's Exceptions and Corrections to Recommended Order filed.
PDF:
Date: 12/28/2010
Proceedings: Recommended Order
PDF:
Date: 12/28/2010
Proceedings: Recommended Order (hearing held October 25-27, 2010). CASE CLOSED.
PDF:
Date: 12/28/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/16/2010
Proceedings: Notice of Filing Exhibits (exhibits not available for viewing) .
PDF:
Date: 12/14/2010
Proceedings: Notice of Filing (Martin County's Proposed Recommended Order).
PDF:
Date: 12/14/2010
Proceedings: Petitioner Citizens for Smart Growth, Inc., Kathie Smith and Odias Smith,/Respondent's Proposed Recommended Order filed.
PDF:
Date: 12/14/2010
Proceedings: Martin County's Proposed Recommended Order filed.
PDF:
Date: 12/13/2010
Proceedings: South Florida Water Management District's Proposed Recommended Order filed.
PDF:
Date: 12/13/2010
Proceedings: South Florida Water Management District's Proposed Recommended Order (draft) filed.
PDF:
Date: 12/13/2010
Proceedings: (Respondent`s) Department of Transportation's Proposed Recommended Order filed.
PDF:
Date: 12/10/2010
Proceedings: Petitioners' Motion for Extension of Time to File Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
PDF:
Date: 12/08/2010
Proceedings: Respondent Martin County's Response to Petitioners' Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 12/08/2010
Proceedings: Order (on Petitioners' motion for extension of time to file proposed findings of fact, conclusions of law and recommended order).
PDF:
Date: 12/07/2010
Proceedings: Response to Petitioners' Motion for Extension of Time to File Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
PDF:
Date: 12/07/2010
Proceedings: Petitioners' Motion for Extension of Time to File Proposed Findings of Fact, Conclusions of Law and Recommended Order filed.
Date: 12/02/2010
Proceedings: Transcript Volume I-VII (not available for viewing) filed.
PDF:
Date: 10/25/2010
Proceedings: Petitioners' Memorandum in Opposition to Respondents' Joint Motion in Limine to Preclude or Limit Testimony of Petitioners' Expert Witness filed.
PDF:
Date: 10/25/2010
Proceedings: Petitioners' Memorandum in Opposition to Respondents' Joint Motion to Strike Petitioners' Exhibits 48-57, filed.
Date: 10/25/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/22/2010
Proceedings: Respondents' Joint Motion to Strike Petitioners' Exhibits 48-57 filed.
PDF:
Date: 10/22/2010
Proceedings: Respondents' Joint Motion in Limine to Preclude or Limit Testimony of Petitioners' Expert Witness filed.
PDF:
Date: 10/22/2010
Proceedings: Respondents' Joint Motion to Strike Petitioners' Exhibits 48-57 filed.
PDF:
Date: 10/21/2010
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 10/20/2010
Proceedings: South Florida Water Management District's Notice of Filing Second Amended Exhibit List filed.
PDF:
Date: 10/20/2010
Proceedings: Notice of Corrections to Environmental Resource Permit Staff Report filed.
PDF:
Date: 10/19/2010
Proceedings: Petitioners' Third Amended Witness and Exhibit List filed.
PDF:
Date: 10/18/2010
Proceedings: Notice of Appearance on Behalf of Petitioner for Limited Purpose of Attending Depositions (filed by V.Sherlock).
PDF:
Date: 10/14/2010
Proceedings: Amended Cross-Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 10/14/2010
Proceedings: Order (granting Martin County's motion for extension of time) .
PDF:
Date: 10/13/2010
Proceedings: Re-notice of Taking Deposition (of O. Smith) filed.
PDF:
Date: 10/13/2010
Proceedings: Re-notice of Taking Deposition Duces Tecum (of G. Braun) filed.
PDF:
Date: 10/13/2010
Proceedings: Re-notice of Taking Deposition (of Citizens for Smart Growth, Inc.) filed.
PDF:
Date: 10/13/2010
Proceedings: Re-notice of Taking Deposition (of K. Smith) filed.
PDF:
Date: 10/13/2010
Proceedings: Respondent, Martin County's Motion for Extension of Time filed.
PDF:
Date: 10/13/2010
Proceedings: Cross-notice of Taking Deposition Duces Tecum (of G . Braun, O. Smith, Citizens for Smart Growth, and K. Smith) filed.
PDF:
Date: 10/12/2010
Proceedings: Petitioners' Second Amended Witness and Exhibit List filed.
PDF:
Date: 10/12/2010
Proceedings: Notice of Cancellation of Deposition (of H. Zebuth) filed.
PDF:
Date: 10/12/2010
Proceedings: Re-notice of Taking Deposition Duces Tecum (of R. Zebuth) filed.
PDF:
Date: 10/11/2010
Proceedings: Amended Notice of Taking Deposition Duces Tecum (of G. Braun) filed.
PDF:
Date: 10/11/2010
Proceedings: Notice of Taking Deposition (of H. Zebuth) filed.
PDF:
Date: 10/11/2010
Proceedings: Notice of Taking Deposition (of K. Smith) filed.
PDF:
Date: 10/11/2010
Proceedings: Notice of Taking Deposition (of Citizens for Smart Growth, Inc.) filed.
PDF:
Date: 10/11/2010
Proceedings: Notice of Taking Deposition (of O. Smith) filed.
PDF:
Date: 10/11/2010
Proceedings: Notice of Taking Deposition Duces Tecum (of G. Braun) filed.
PDF:
Date: 10/11/2010
Proceedings: Order (granting the South Florida Water Management District's unopposed motion to take official recognition).
PDF:
Date: 10/11/2010
Proceedings: South Florida Water Management District's Motion to Take Official Recognition filed.
PDF:
Date: 10/06/2010
Proceedings: South Florida Water Management District's Notice of Filing Amended Exhibit List (exhibits not attached) filed.
PDF:
Date: 10/05/2010
Proceedings: Petitioners Amended Witness and Exhibit List (exhibits not attached) filed.
PDF:
Date: 10/05/2010
Proceedings: Petitioners Witness and Exhibit List (exhibits not attached) filed.
PDF:
Date: 10/04/2010
Proceedings: South Florida Water Management District's Disclosure of Witnesses filed.
PDF:
Date: 10/04/2010
Proceedings: South Florida Water Management District's Notice of Filing Exhibit List (exhibits not attached) filed.
PDF:
Date: 10/04/2010
Proceedings: Respondent Martin County's List of Exhibits (exhibits not attached) filed.
PDF:
Date: 10/04/2010
Proceedings: Respondent Martin County's List of Witnesses filed.
PDF:
Date: 10/04/2010
Proceedings: Florida Department of Transportation's Exhibit List (exhibits not attached) filed.
PDF:
Date: 10/04/2010
Proceedings: Respondent, Department of Transportation's Witness List filed.
PDF:
Date: 09/27/2010
Proceedings: Third Amended Petition for Administrative Hearing filed.
PDF:
Date: 09/24/2010
Proceedings: Petitioner's Preliminary Witness and Exhibit List filed.
PDF:
Date: 09/24/2010
Proceedings: Florida Department of Transportation's Preliminary Exhibit List filed.
PDF:
Date: 09/24/2010
Proceedings: Respondent, Department of Transportation's Preliminary Witness List filed.
PDF:
Date: 09/24/2010
Proceedings: Respondent Martin County's Preliminary List of Exhibits filed.
PDF:
Date: 09/24/2010
Proceedings: South Florida Water Management District's Notice of Filing Preliminary Exhibit List filed.
PDF:
Date: 09/24/2010
Proceedings: South Florida Water Management District's Preliminary Disclosure of Witnesses filed.
PDF:
Date: 09/24/2010
Proceedings: Respondent Martin County's Preliminary List of Witnesses filed.
PDF:
Date: 09/22/2010
Proceedings: Second Amended Petition for Administrative Hearing (Application No. 100316-6) filed.
PDF:
Date: 09/22/2010
Proceedings: Second Amended Petition for Administrative Hearing (Application No. 100316-7) filed.
PDF:
Date: 09/22/2010
Proceedings: Second Amended Petition for Administrative Hearing (Application No. 091021-8) filed.
PDF:
Date: 09/21/2010
Proceedings: Petitioners' Submission of Proposed Discovery Timeline and Other Matters filed.
PDF:
Date: 09/20/2010
Proceedings: Certificate of Mailing (Petitioners' Answers and Objections to Respondent Department of Transporations's First Set of Interrogatories to Petitioners Kathie Smith and Odias Smith) filed.
PDF:
Date: 09/20/2010
Proceedings: Certificate of Mailing (Petitioners' Answers and Objections to Respondent Department of Transportation's First Request for Production of Documents to Petitioner, Citizens for Smart Growth, Inc.), filed.
PDF:
Date: 09/20/2010
Proceedings: Certificate of Mailing (Petitioners' Answers and Objections to Respondent Department of Transportation's First Set of Interrogatories to Petitioner Citizens for Smart Growth) filed.
PDF:
Date: 09/20/2010
Proceedings: Certificate of Mailing (Petitioners' Answers and Objections to Respondent Department of Transportation's First Request for Production of Documents to Petitioners Kathis and Odias Smith) filed.
PDF:
Date: 09/20/2010
Proceedings: Order.
Date: 09/14/2010
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 09/13/2010
Proceedings: Respondents' Objections to Petitioner's Alternate Proposal for Discovery Timelines and Other Matters filed.
PDF:
Date: 09/10/2010
Proceedings: Respondents' Joint Submission of Proposed Discovery Timeline and Other Matters filed.
PDF:
Date: 09/03/2010
Proceedings: South Florida Water Management District's Notice of Serving Responses to Petitioners' Request for Production of Documents filed.
PDF:
Date: 09/03/2010
Proceedings: South Florida Water Management District's Notice of Serving Answers to Petitioners' First Set of Interrogatories filed.
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Date: 09/03/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's Responses to Petitioners' First Request for Production of Documents filed.
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Date: 09/03/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's Answers to Pertitioners' First Set of Interrogatories filed.
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Date: 09/02/2010
Proceedings: Respondent Martin County's Objections to Petitioners' First Requests for Production of Documents filed.
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Date: 09/02/2010
Proceedings: Respondent Martin County's Notice of Serving Answers and Objections to Petitioners' First Set of Interrogatories filed.
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Date: 09/02/2010
Proceedings: Order (Respondent's request for case management conference).
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Date: 09/01/2010
Proceedings: Notice of Case Management Conference filed.
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Date: 08/25/2010
Proceedings: Petitioners' Response to Respondent Florida Department of Transportation's Request for Case Mangement Conference filed.
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Date: 08/25/2010
Proceedings: Petitioners' Memorandum in Opposition to Florida Department of Transportation's Motion to Expedite Discovery filed.
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Date: 08/24/2010
Proceedings: Request for Case Management Conference filed.
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Date: 08/23/2010
Proceedings: Respondent, Florida Department of Transportation's, Motion to Expedite Discovery filed.
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Date: 08/19/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's First Set of Interrogatories to Petitioner, Citizens for Smart Growth, Inc. filed.
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Date: 08/19/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's First Request for Production of Documents to Petitioner, Citizens for Smart Growth, Inc. filed.
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Date: 08/19/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's First Request for Production of Documents to Petitioners, Kathe Smith and Odias Smith filed.
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Date: 08/19/2010
Proceedings: Notice of Service of Respondent, Department of Transportation's First Set of Interrogatories to Petitioners, Kathe Smith and Odias Smith filed.
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Date: 08/09/2010
Proceedings: Second Order on Motions.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' Requests for Production of Documents to South Florida Water Management District) filed.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' Requests for Production of Documents to Florida Department of Transportation) filed.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' First Set of Interrogatories to Respondent SFWMD) filed.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' First Set of Interrogatories to Respondent Martin County) filed.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' First Set of Interrogatories to Respondent Florida Department of Transportation) filed.
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Date: 08/04/2010
Proceedings: Certificate of Mailing (Petitioners' Requests for Production of Documents to Martin County) filed.
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Date: 07/30/2010
Proceedings: Petitioners Response to Florida Department of Transportation's Motion to Dismiss Amended Petitions filed.
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Date: 07/30/2010
Proceedings: Petitioners' Consolidated Response in Opposition to South Florida Water Management Districts Motion to Strike Pleadings and Limit the Issues filed.
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Date: 07/28/2010
Proceedings: Respondent Florida Deparment of Transportation's Notice of Appearance (filed by A. Yarbrough, B. Conroy, K. Toolan, M. Childs).
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Date: 07/26/2010
Proceedings: Order (granting Petitioners' opposed motion for extension of time to respond to Martin County's requests for production of documents and first set of interrogatories).
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Date: 07/23/2010
Proceedings: Respondent, South Florida Water Management's Motion to Strike Pleadings and Limit the Issues (Amended Petition 3) (filed in Case No. 10-003318).
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Date: 07/23/2010
Proceedings: Respondent, South Florida Water Management's Motion to Strike Pleadings and Limit the Issues (Amended Petition 2) (filed in Case No. 10-003317).
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Date: 07/23/2010
Proceedings: Respondent, South Florida Water Management's Motion to Strike Pleadings and Limit the Issues (Amended Petition 1) filed.
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Date: 07/23/2010
Proceedings: Respondent Florida Department of Tansportation's Motion to Dismiss Amended Petitions filed.
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Date: 07/23/2010
Proceedings: Certificate of Mailing filed.
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Date: 07/23/2010
Proceedings: Certificate of Mailing filed.
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Date: 07/22/2010
Proceedings: Certificate of Mailing filed.
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Date: 07/22/2010
Proceedings: Certificate of Mailing filed.
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Date: 07/21/2010
Proceedings: Respondent Martin County's Response in Opposition to Petitioners' Motion for Extension of Time filed.
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Date: 07/21/2010
Proceedings: Petitioners' Motion for Extension of Time to Respond to Martin County's Requests for Production of Documents and First Set of Interrogatories filed.
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Date: 07/19/2010
Proceedings: Affidavit of Odias Smith on behalf of Citizens for Smart Growth, Inc. filed.
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Date: 07/14/2010
Proceedings: Amended Petition for Administrative Hearing (Application No. 100316-6) filed.
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Date: 07/14/2010
Proceedings: Amended Petition for Administrative Hearing (Application No. 100316-7) filed.
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Date: 07/14/2010
Proceedings: Amended Petition for Administrative Hearing (Application No. 091021-8) filed.
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Date: 07/08/2010
Proceedings: Reply to FDOT's Response to Petitioners' Motion to Reincorporate and Reconsider Paragraphs 21, 22, 29, 32, 34-38, 41, 42, 49, and 56 of Petition 1 and Paragraphs 23 and 24 of Petition 2 and Petition 3 filed.
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Date: 07/08/2010
Proceedings: Respondent Martin County's Notice of Joinder in Respondent Department of Transportation's Response to Petitioners' Motions to Re-incorporate and Reconsider filed.
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Date: 07/07/2010
Proceedings: Response to Petitioners' Motion to Reincorporate and Reconsider Paragraphs 21, 22, 29, 32, 34-38, 41, 42, 49, and 56 of Petition 1 and Paragraphs 23 and 24 of Petition 2 and Petition 3 filed.
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Date: 07/02/2010
Proceedings: Motion to Reincorporate Paragraphs 21, 22, 29, 32, 34-38, 41, 42, 49, and 56 of Petition 1 and Paragraphs 23 and 24 of Petition 2 and Petition 3 filed.
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Date: 07/01/2010
Proceedings: Motion for Reconsideration of the Dismissal of Paragraph 21, 22, 29, 32, 34-38, 41, 42, 49, and 56 of Petition 1 and Paragraphs 23 and 24 of Petition 2 and Petition 3 filed.
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Date: 06/30/2010
Proceedings: Amended Notice of Hearing (hearing set for October 25 through 27, 2010; 9:00 a.m.; Stuart, FL; amended as to hearing room location).
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Date: 06/29/2010
Proceedings: Order on Motions.
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Date: 06/25/2010
Proceedings: Order of Pre-hearing Instructions.
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Date: 06/25/2010
Proceedings: Notice of Hearing (hearing set for October 25 through 27, 2010; 9:00 a.m.; Stuart, FL).
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Date: 06/24/2010
Proceedings: Consolidated Opposition to Respondent Florida Department of Transportation's Motion to Dismiss Petition and Motion to Strike filed.
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Date: 06/24/2010
Proceedings: Petitioners Consolidated Opposition to Florida Department of Transportation's Motion to Dismiss Petitions, Respndent Martin County's Motion to Dismiss, and Respondent Martin County's Motion to Strike filed.
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Date: 06/24/2010
Proceedings: Joint Response to Initial Order filed.
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Date: 06/23/2010
Proceedings: Notice of Service of Martin County's First Set of Interrogatories to Petitioners, Kathie Smith and Odias Smith filed.
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Date: 06/23/2010
Proceedings: Respondent, Martin County's First Request for Production of Documents to Petitioners, Kathie Smith and Odias Smith filed.
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Date: 06/23/2010
Proceedings: Notice of Service of Martin County's First Set of Interrogatories to Petitioner, Citizens for Smart Growth, Inc filed.
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Date: 06/23/2010
Proceedings: Respondent, Martin County's First Request for Production of Documents to Petitioner, Citizens for Smart Growth, Inc. filed.
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Date: 06/22/2010
Proceedings: Notice of Appearance as Co-counsel (filed by J. Fumero, J. Wharton, D. Acton).
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Date: 06/21/2010
Proceedings: South Florida Water Management District's Notice of Serving First Request for Production of Documents to Petitioners filed.
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Date: 06/21/2010
Proceedings: South Florida Water Management District's Notice of Serving First Set of Interrogatories to Petitioners filed.
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Date: 06/18/2010
Proceedings: Order (of Consolidation of DOAH Case Nos. 10-3316, 10-3317, and 10-3318)).
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Date: 06/16/2010
Proceedings: Respondent Martin County's Motion to Dismiss filed.
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Date: 06/16/2010
Proceedings: Respondent Martin County's Motion to Strike filed.
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Date: 06/16/2010
Proceedings: Florida Department of Transportation's Motion to Dismiss Petitions filed.
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Date: 06/16/2010
Proceedings: Initial Order.
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Date: 06/16/2010
Proceedings: Notice of Rights filed.
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Date: 06/16/2010
Proceedings: Request for Representation by Qualified Representatives filed.
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Date: 06/16/2010
Proceedings: Order on Petitions' Compliance with Requisite Rules, Authorizing Transmittal of Accepted Paragraphs of the Petitions to the Division of Administrative Hearings, and Notice of Preservation of Record filed.
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Date: 06/16/2010
Proceedings: Petition for Administrative Hearing filed.
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Date: 06/16/2010
Proceedings: Agency action letter filed.
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Date: 06/16/2010
Proceedings: Agency referral filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
06/16/2010
Date Assignment:
06/16/2010
Last Docket Entry:
02/14/2011
Location:
Stuart, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (4):

Related Florida Rule(s) (2):