16-005718 Martin County And St. Lucie County vs. All Aboard Florida Operations, Llc; Florida East Coast Railway, Llc; And South Florida Water Management District Status: Closed Recommended Order on Friday, September 29, 2017.

Summary: Applicants demonstrated their entitlement to an Environmental Resource Permit Modification and a Verification of Exemption for a stormwater management system to serve express passenger train facilities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN COUNTY AND ST. LUCIE

COUNTY,

Petitioners,

and

TOWN OF ST. LUCIE VILLAGE,

Intervenor,

vs. Case Nos. 16 - 5718

17 - 2566

ALL ABOARD FLORIDA - OPERATIONS,

LLC; FLORIDA EAST COAST RAILWAY,

LLC; AND SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on May 30 to

June 2, 2017 , in West Palm Beach ; on June 8 and 9 in Tallahassee ;

and on June 12 through 15, 2017, in West Palm Beach, before

Bram D.E. Canter, an Administrative Law Judge of the Division of

Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioners Martin County and St. Lucie Count y :

Segundo J. Fernandez, Esquire

Timothy P. Atkinson, Esquire

Timothy J. Perry, Esquire

Sidney C. Bigham, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32303

For Intervenor Town of St. Lucie Village:

Richard V. Neill, Jr ., Esquire

Neill, Griffin, Tierney, Nei l l & Marquis

Post Office Box 1270

Fort Pierce, Florida 34954

For Respondents All Aboard Florida Î Operations, LLC and

Florida East Coast Railway, LLC:

Eugene E. Stearns, Esquire

Matthew W. Buttrick Esquire

Cecilia Duran Simmons, Esquire

Stearns, Weaver, Miller, Weissler

Alhadeff & Sitterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130

Jeffrey A. Collier, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P.A.

401 East Jackson St reet , Suite 2200

Tampa, Florida 33602

For Respondent South Florida Water Management District:

Bridgette Nicole Thornton, Esquire

Julia Gilcher Lomonico, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUES

The issues to be determined in these consolidated cases are

whether All Aboard Florida Î Operations, LLC (Ðthe ApplicantÑ) ,

and Florida East Coast Railway, LLC (ÐFECRÑ) , are entitled to an

Environmental Resource Permit Modificati on authorizing the

construction of a stormwater management system and related

activities to serve railway facilities, and a verification of

exemption for work to be done at 23 roadway crossings

(collectively referred to as Ðthe projectÑ).

PRELIMINARY STATE MENT

On August 19, 2016, the South Florida Water Management

District (ÐDistrictÑ) gave notice of its intent to grant

Environmental Resource Permit Modification No. 13 - 05321 - P (Ðthe

ERP ModificationÑ). The original ERP authorized the construction

and opera tion of a stormwater management system and bridge

modifications within the portion of the FECR corridor between

Miami and West Palm Beach. The ERP Modification authorizes the

construction and operation of a stormwater management system and

certain culvert and bridge modifications within Segment D09,

which extends from West Palm Beach to the northern border of

St. Lucie County.

On March 31, 2017, the District issued a separate notice of

its intent to issue a Verification of Exemption to the Applicant

for i mprovements to 23 roadway crossings within Segment D09 (Ðthe

2017 ExemptionÑ).

Martin County and St. Lucie Count y jointly filed petitions

challenging the ERP Modification and the 2017 Exemption. The two

cases were consolidated. The Town of St. Lucie Vill age was

granted leave to intervene in opposition to the challenged agency

actions.

At the final hearing, Petitioners presented the testimony of

Andrew Woodruff, an expert in wetlands and environmental,

wildlife, and biological assessments; Catherine Riiska , M.S.,

P.W.S., an expert in ecology and county planning; Janet M.

Peterson, P.G., an expert in geology and site contamination

assessment and remediation; Jonathan T. Ricketts, P.E., an expert

in stormwater engineering; Patrick Dayan, P.E., an expert in

pr ofessional and civil engineering; Michael OÓBrien, P.S.M., an

expert in surveying; Kenneth R. Craig, P.E., an expert in

navigable channel maintenance; Richard T. Creech, P.E., P.S.M.,

an expert in civil engineering and surveying; George A. Gavalla,

an expe rt in rail safety; Ronald Parish, an expert in emergency

services planning and public safety administration; and Daniel

Wouters, an expert in emergency services planning and public

safety administration. Petitioners also presented the deposition

testimony of Douglas Rogers, Chris Vandello, and Rob Rossmanith.

PetitionersÓ Exhibits 1a3, 1b, 1c, 1d, 2c1, 2c22, 2c29, 3t, 5a,

5b, 5c, 5h, 7f, 8n, 8t, 9b, 10x, 16aa, 16bb, 16gg, 17c, 17d, 17e,

17f, 17s, 19a, 40, 57, 60 - 73, and 78 were admitted into evidence.

Int ervenor Town of St. Lucie Village presented the testimony

of William G. Theiss. IntervenorÓs Exhibits 3k and 3m were

admitted into evidence.

The Applicant presented the testimony of Adrian Share, P.E.;

Bruce H. McArthur, P.E., an expert in stormwater engi neering;

W. Michael Dennis, Ph.D., an expert in ecology; Shannon McMorrow,

an expert in ecology; and Jeremy Paris, an expert in ecology.

The testimony of Mr. Paris was presented by depositi on. The

ApplicantÓs Exhibits 6 - 30, 35 - 40, 70, 74 , 75, 128, 140, 156 , and

1 57 were admitted into evidence.

The District presented the testimony of Barbara Conmy, an

expert in wetland ecology; Trisha Stone, an expert in wetland

ecology; and Jesse Markle, an expert in stormwater engineering.

District Exhibits 1, 2, and 4 were admitted into evidence.

Joint Exhibits 1 through 25 were also admitted into evidence

and official recognition was taken of sections 120.569, 120.57,

163.3161(3), 163.3177(6)(d), and chapters 373 and 403, Florida

Statutes; Florida Administrative Code C hapters 40E - 4 and 62 - 4 ;

Florida Administrative Code Rules 62 - 302, 62 - 303, 62 - 304, 62 - 330,

62 - 345, 62 - 520, 62 - 550, and 62 - 777; and the ERP ApplicantÓs

Handbook, Volumes I and II.

The 17 - volume Transcript of the final hearing was filed with

DOAH. The parti es submitted proposed recommended orders which

were considered in preparing this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioners Martin County and St. Lucie County are

political subdivisions of the State of Florida. Petitioners have

subs tantial interests that could be affected by the DistrictÓs

proposed authorizations.

2. Intervenor Town of St. Lucie Village is a political

subdivision of the State of Florida. Intervenor has substantial

interests that could be affected by the DistrictÓs proposed

authorizations.

3. The Applicant, All Aboard Florida Î Operations, LLC, is a

Delaware limited liability company based in Miami. All Aboard

Florida is part of a group of corporate entities formed for the

principal purpose of developing and operat ing express passenger

train service in Florida.

4. Co - applicant Florida East Coast Railway, LLC , is a

Florida limited liability company based in Jacksonville. FECR

owns the existing railway corridor the passenger train service

will use between Miami and Cocoa.

5. South Florida Water Management District is a regional

agency granted powers and assigned duties under chapter 373,

p art IV, Florida Statu t es, including powers and duties related to

the regulation of construction activities in wetlands. The

pro posed activities are within the boundaries of the District.

Background

6. The objective of the All Aboard Florida Project is to

establish express passenger t rai n service connecting four large

urban areas: Miami, Fort Lauderdale, West Palm Beach, and

Orla ndo.

7. Most of the passenger service route, including the

portion which will pass through Martin County and St. Lucie

County, will use an existing railroad right - of - way used since the

late 1800s.

8. The FECR rail corridor runs along FloridaÓs east coast

from Miami to Jacksonville. It supported passenger and freight

operations on shared double mainline tracks from 1895 to 1968.

The passenger service was terminated in 1968 and portions of the

double track and certain bridge structures were removed. The

freight service continued and remains in operation today.

9. The passenger service will use the FECR right - of - way

from Miami to Cocoa and then turn west on a new segment to be

constructed from Cocoa to Orlando. The railway corridor will be

operated as a joint facility, with passenger and freight trains

sharing the double mainline tracks.

10. The Applicant is upgrading the portion of the corridor

between Miami and Cocoa by, among other things, replacing

existing railroad ties and tracks, reinstalling doub le mainline

tracks, and improving grade crossings. The Applicant is also

installing Positive Train Control systems which provide

integrated command and control of passenger and freight train

movements and allow the trains to be directed and stopped

remote ly or automatically in the event of operator error or

disability, or an obstruction on the track.

11. The All Aboard Florida Project is being developed in

two phases, Phase I extends from Miami to West Palm Beach, and

Phase II from West Palm Beach to Orla ndo. This proceeding

involves a segment within Phase II, known as Segment D09, which

runs from just north of West Palm Beach to the northern boundary

of St. Lucie County.

12. The railway corridor in Segment D09 passes through

Jonathan Dickinson State Par k in Martin County and the Savannas

Preserve State Park, parts of which are in both Martin County and

St. Lucie County. Surface waters within these state parks are

Outstanding Florida Waters (ÐOFWsÑ). The railway in Segment D09

also passes over the St. L ucie River using a bridge that can be

opened to allow boats to pass.

13. The Applicant plans to run 16 round trips per day

between Miami and Orlando, which is about one train an hour in

each direction, starting early in the morning and continuing to

mid - e vening.

14. In 2013, the District issued the Applicant an exemption

under section 373.406(6), which exempts activities having only

minimal or insignificant adverse impacts on water resources. The

2013 exemption covers proposed work in approximately 48 of the 65

miles which make up Segment D09, and includes replacement of

existing tracks and re - establishment of a second set of mainline

tracks where they were historically located. The 2013 exemption

covers all but 24 of the roadway crossings within Segment D09

where work is to be done in connection with the All Aboard

Florida Project.

15. In 2015, the District issued the Applicant a general

permit under r ule 62 - 330.401, which authorizes activities that

are expected to cause minimal adverse impacts to water resources,

for the installation of fiber optic cable along the rail bed

within Segment D09.

16. The 2013 exemption and 2015 general permit were not

challenged and became final agency action.

The Proposed Agency Actions

17. The ERP Modification covers wo rk to be done in

approximately 17 of the 65 miles which make up Segment D09. The

work will consist primarily of r eplacing existing tracks,

installing new tracks, making curve modifications in some

locations to accommodate faster trains, culvert modificati ons,

and work on some fixed bridge crossings over non - navigable

waters.

18. The 2017 Exemption at issue in this proceeding covers

improvements to 23 of the 24 roadway crossings that were not

covered by the 2013 exemption. Proposed improvements at

S outhea st Florida Street in Stuart will be permitted separately.

The improvements covered by the 2017 Exemption include upgrading

existing safety gates and signals; installing curbs, guardrails,

and sidewalks; resurfacing some existing paved surfaces; and

adding some new paving.

19. Petitioners argue that, because the DistrictÓs staff

report for the ERP Modification states that the ERP does not

cover work at roadway crossings, track work at roadway crossings

has not been authorized. However, the staff report wa s referring

to the roadway improvements that are described in the 2017

Exemption. The proposed track work at the roadway crossings was

described in the ERP application and was reviewed and authorized

by the District in the ERP Modification.

ÐSegmentationÑ

20. Petitioners claim it was improper for the District to

separately review and authorize the proposed activities covered

by the 2013 exemption, the 2015 general permit, the ERP

Modification, and the 2017 Exemption. Petitioners contend that,

as a conseq uence of this ÐsegmentationÑ of the project, the

District approved Ðroads to nowhere,Ñ by which Petitioners mean

that these activities do not have independent functionality.

21. PetitionersÓ argument is based on section 1.5.2 of the

ApplicantÓs Handbook, Volume 1 , 1/ which states that applications

to construct phases of a project can only be considered when each

phase can be constructed, operated, and maintained totally

independent of future phases. However, the activities authorized

by the four agency act ions are not phases of a project. They are

all parts of Phase II of the All Aboard Florida Project, which is

the passenger railway from West Palm Beach to Orlando.

22. Section 1.5.2 is not interpreted or applied by the

District as a prohibition against s eparate review and approval of

related activities when they qualify under the DistrictÓs rules

for exemptions, general permits, and ERPs.

23. Much of Phase II is outside the DistrictÓs geographic

boundaries and, therefore, beyond its regulatory jurisdicti on.

The District can only review and regulate a portion of Phase II.

The District is unable to review this portion as a stand - alone

railway project that can function independently from other

project parts.

The Proposed Stormwater Management System

24. W here the Applicant is replacing existing tracks or re -

establishing a second set of tracks, i t will be laying new ties,

ballast, and rail on previously - compacted earth. In those areas,

no stormwater management modifications were required by the

District.

2 5. The ApplicantÓs new proposed stormwater management

system will be located in a five - mile area of the corridor where

an existing siding will be shifted outward and used as a third

track. In this area, swales with hardened weir discharge

structures and skimmers will be installed to provide stormwater

treatment beyond what currently exists. The weir discharge

structures will serve to prevent erosion at discharge points.

The skimmers will serve to capture any floating oils or refuse.

26. Because the FEC R right - of - way is not wide enough in some

three - track areas to also accommodate swales, the proposed

stormwater management system was oversized in other locations to

provide compensating volume. The District determined that this

solution was an accepted e ngineering practice for linear systems

such as railroads.

27. Petitioners argue that the ApplicantÓs proposed

stormwater management system is deficient because some of the

proposed swales do not meet the definition of ÐswaleÑ in

section 403.803(14) as hav ing side slopes equal to or greater

than three feet horizontal to one foot vertical (3:1).

28. The statute first defines a swale to include a manmade

trench which has Ða top width - to - depth ratio of the cross - section

equal to or greater than 6:1.Ñ Th e swa les used in the proposed

stormwater management system meet this description.

29. Petitioners showed that the plans for one of the 46

proposed swales included some construction outside the FECR

right - of - way. In response, the Applicant submitted revised pl an

sheets to remove the swale at issue.

The Emergency Access Way

30. The ERP application includes proposed modifications to

portions of an existing unpaved emergency access way which runs

along the tracks in some areas. The access way is a private dirt

r oad for railroad - related vehicles and is sometimes used for

maintenance activities.

31. At the final hearing, Petitioners identified an

inconsistency between an application document which summarizes

the extent of proposed new access way construction and t he

individual plan sheets that depict the construction. The

Applicant resolved the inconsistency by correcting the

construction summary document.

32. Petitioners also identified an individual plan sheet

showing proposed access way modifications to occur outside of the

FECR right - of - way. This second issue was resolved by eliminating

any proposed work outside the right - of - way.

33. Petitioners believe the proposed work on the access way

was not fully described and reviewed because Petitioners believe

the a ccess way will be made continuous. However, the access way

is not continuous currently and the Applicant is not proposing to

make it continuous. No District rule requires the access way

segments to be connected as a condition for approval of the ERP.

Wat er Quantity Impacts

34. An applicant for an ERP must provide reasonable

assurance that the construction, operation, and maintenance of a

proposed project will not cause adverse water quantity impacts to

receiving waters and adjacent lands, adverse floodin g to on - site

or off - site property, or adverse impacts to existing surface

water storage and conveyance capabilities.

35. The DistrictÓs design criterion to meet this requirement

for water quantity management is a demonstration that the

proposed stormwater system will capture the additional runoff

caused during a 25 - year/3 - day storm event. The ApplicantÓs

proposed stormwater system meets or exceeds this requirement.

36. Petitioners argue that the Applicant failed to provide

reasonable assurance because th e ERP application materials did

not include a calculation of the discharge rates and velocities

for water discharging from the swales during the design storm.

37. The ERP application contains the information required to

calculate the discharge rates and v elocities and the ApplicantÓs

stormwater expert, Bruce McArthur, performed the calculations and

testified at the final hearing that in the areas where there will

be discharges, the discharge rates and velocities would be

ÐminorÑ and would not cause adverse impacts. The DistrictÓs

stormwater expert, Jesse Markle , shared this opinion.

38. Petitioners argue that this information should have been

provided to the District in the permit application, but this is a

de novo proceeding where new evidence to establi sh reasonable

assurances can be presented. Petitioners did not show that

Mr. McArthur is wrong.

39. Petitioners failed to prove that the proposed project

will cause adverse water quantity impacts, flooding, or adverse

impacts to surface water storage an d conveyance capabilities.

Water Quality Impacts

40. To obtain an ERP, an applicant must provide reasonable

assurance that the construction, operation, and maintenance of a

regulated project will not adversely affect the quality of

receiving waters, such that state water quality standards would

be violated.

41. The DistrictÓs design criteria for water quality

required the Applicant to show that its proposed stormwater

system will capture at least 0.5 inches of runoff over the

developed area. To be conser vative, the Applicant designed its

proposed system to capture 1.0 inch of runoff in most areas.

42. Under District rules, if a stormwater system will

directly discharge to impaired waters or O FW s, an additional

50 percent of water quality treatment volum e is required. The

proposed stormwater system will not directly discharge to either

impaired waters or OFWs.

43. In some locations, there is the potential for stormwater

discharged from the proposed stormwater system to reach OFWs by

overland flow, after the stormwater has been treated for water

quality purposes. The Applicant designed its proposed stormwater

system to provide at least an additional 50 percent of water

quality treatment volume in areas where this potential exists.

44. To ensure that the proposed construction activities do

not degrade adjacent wetlands, other surface waters, or off - site

areas due to erosion and sedimentation, the Applicant prepared an

Erosion and Sediment Control Plan. Temporary silt fences and

turbidity barriers will be installed and maintained around the

limits of the construction.

45. The DistrictÓs design criteria for water quality do not

require an analysis of individual contaminants that can be

contained in stormwater, except in circumstances that do not

apply to t his project. Compliance with the design criteria

creates a presumption that water quality standards for all

potential contaminants are met. See ApplicantÓs Handbook, V. II ,

§ 4.1.1 .

46. Although not required, the Applicant provided a loading

analysis fo r the proposed swales which could potentially

discharge overland to impaired waters or OFWs. The analysis

compared pre - and post - development conditions and showed there

would be a net reduction in pollutant loading.

47. Petitioners believe the pollutant loading analysis was

inadequate because it did not specifically test for arsenic and

petroleum hydrocarbons. However, the analysis was not required

and adequate treatment is presumed. Petitioners did not conduct

their own analysis to show that water qual ity standards would be

violated.

48. PetitionersÓ expert, Patrick Dayan, believes the

compaction of previously undisturbed soils in the emergency

access way would increase stormwater runoff. However, he did not

calculate the difference between pre - and p ost - construction

infiltration rates at any particular location. His opinion on

this point was not persuasive.

49. Petitioners failed to prove that the proposed project

will generate stormwater that will adversely affect the quality

of receiving waters su ch that state water quality standards would

be violated. The preponderance of the evidence shows the project

complies with District design criteria and will not cause water

quality violations.

Soil and Sediment Contamination

50. Petitioners argue that th e ERP Modification does not

account for the disturbance of existing contaminants in soils and

sediments that could be carried outside of the right - of - way and

into OFWs. PetitionersÓ argument is based on investigations by

their geologist, Janet Peterson, w ho collected soil, sediment,

and surface water samples at 13 sites along the FECR rail

corridor in the vicinity of OFWs, or surface waters that

eventually flow into OFWs.

51. During her sampling visits, Ms. Peterson saw no visual

evidence of an oil spill, fluid leak, or other release of

hazardous materials.

52. Ms. Peterson compared her soil sample results to the

Residential Direct Exposure Soil Cleanup Target Levels (ÐSCTLsÑ)

established in rule 62 - 777. The SCTLs are the levels at which

toxicity becomes a human health concern and the residential SCTLs

assume soil ingestion of 200 mg/day for children, and 100 mg/day

for adults, 350 days a year, for 30 years.

53. Some of the soil sampling results showed exceedances of

SCTLs, but the SCTLs are not applicab le here because none of the

sample sites are locations where children or adults would be

expected to ingest soil at such levels for such lengths of time.

Petitioners did not show that the contaminants are likely to

migrate to locations where such exposure would occur.

54. Ms. Peterson compared her soil sample results to the

Marine Surface Water Leachability SCTLs, but she did not develop

site - specific leachability - based SCTLs using DEPÓs approved

methodology. Nor did she show that the proposed project wi ll

cause the soils to leach the contaminants.

55. Ms. Peterson collected sediment samples from shorelines,

but not where construction activities are proposed. She compared

her sediment sample results to the Florida Department of

Environmental ProtectionÓ s (ÐDEPÑ) Sediment Quality Assessment

Guidelines (ÐSQAGsÑ). These guidelines are not water quality

standards. Any exceedance of these guidelines requires further

analysis to determine potential water quality impacts.

Ms. Peterson did not conduct the an alysis.

56. Ms. Peterson acknowledged that there are numerous

sources for these pollutants at or near her sample sites, such as

high - traffic roads, vehicular bridges, commercial and industrial

facilities, boatyards, and golf courses. She did not establis h

baselines or controls.

57. Ms. Peterson collected surface water samples at seven

sites, some of which were located outside the FECR right - of - way.

The results showed levels of phosphorous and nitrogen above the

criteria for nutrients at some locations. Phosphorous, nitrogen,

and the other nutrients are prevalent in the waters of Martin

County and St. Lucie County and come from many sources.

58. PetitionersÓ evidence focused on existing conditions and

not expected impacts of the proposed project. The e vidence was

insufficient to prove the proposed project will cause or

contribute to water quality violations.

Functions Provided by Wetlands and Other Surface Waters

59. An applicant for an ERP must provide reasonable

assurance that a proposed project w ill not adversely impact the

value of functions provided to fish and wildlife and listed

species by wetlands and other surface waters.

60. Petitioners claim the Applicant and District should not

have relied on Florida Land Use Cover and Forms Classification

System (ÐFLUCCSÑ) maps to identify and characterize wetlands and

other habitat areas because the maps are too general and

inaccurate. However, the FLUCCS maps were not used by the

Applicant or District to evaluate impacts to wetlands or other

habitats.

61 . The Applicant began its evaluation of impacts to

wetlands and other habitat areas by field - flagging and surveying

the wetland and surface water boundaries in the project area

using a GPS device with sub - meter accuracy. It then digitized

the GPS delinea tions and overlaid them with the limits of

construction to evaluate anticipated direct impacts to wetlands

and other surface waters. The District then verified the

delineations and assessments in the field.

62. T he Applicant and District determined that there are a

total of 4.71 acres of wetlands within the FECR right - of - way,

including tidal mangroves, freshwater marsh, and wet prairie.

They also determined the proposed project will directly impact

0.35 acres of wetlands, consisting of 0.09 acres of fres hwater

marsh and 0.26 acres of mangroves.

63. Petitioners contend that the Applicant failed to account

for all of the projectÓs wetland impacts, based on the wetland

delineations made by their wetland expert, Andrew Woodruff. M ost

of the impacts that Mr. Woodruff believes were not accounted for

are small, between 0.01 and 0.05 acres. The largest one is

0.20 acres.

64. The ApplicantÓs delineations are more reliable than

Mr. WoodruffÓs because the methodology employed by the Applicant

had greater precis ion. It is more likely to be accurate.

65. Petitioners argue that the 2013 exemption and the 2015

general permit did not authorize work in wetlands and, therefore,

the impacts they cause must be evaluated in this ERP

Modification. However, Petitioners d id not prove that there are

unaccounted - for wetland impacts associated with those

authorizations .

66. Any impacts associated with best management practices

for erosion control, such as the installation of silt fences,

would be temporary. The District doe s not include such temporary

minor impacts in its direct, secondary, or cumulative impacts

analyses.

67. Most of the wetlands that would be directly impacted by

the ERP Modification are degraded due to past hydrologic

alterations and soil disturbances fro m the original construction

and historical use of the FECR railway corridor, and infestation

by exotic plant species. Most of these wetlands are also

adjacent to disturbed uplands within or near the rail corridor.

The functional values of most of the wet lands that would be

affected have been reduced by these disturbances.

68. The Applicant provided reasonable assurance that the

project w ill not adversely impact the value of functions provided

to fish and wildlife and listed species by wetlands and other

surface waters.

Secondary Impacts

69. Section 10.2.7 of the ApplicantÓs Handbook requires an

applicant to provide reasonable assurance that the secondary

impacts from construction, alteration, and intended or reasonably

expected uses of a proposed activit y (a) will not cause or

contribute to violations of water quality standards or adverse

impacts to the functions of wetlands or other surface waters;

(b) will not adversely impact the ecological value of uplands for

bald eagles, and aquatic or wetland - depe ndent listed animal

species for nesting or denning by these species; (c) will not

cause impacts to significant historical or archaeological

resources; and (d) additional phases for which plans have been

submitted, and closely linked projects regulated unde r

chapter 373, p art IV, will not cause water quality violations or

adverse impacts to the functions of wetlands or other surface

waters.

70. The proposed work will be entirely within the limits of

the existing railway corridor where s econdary impacts to w etlands

and other surface waters caused by n oise, vibration,

fragmentation of habitats, and barriers to wildlife have existed

for decades. The preponderance of the evidence shows that any

increase in these kinds of impacts would be insignificant a nd

would not reduce the current functions being provided.

71. Because the affected wetlands are not preferred habitat

for wetland - dependent, endangered, or threatened wildlife

species, or species of special concern, and no such species were

observed in the area, no adverse impacts to these species are

expected to occur.

72. Petitioners contend that adverse impacts will occur to

the gopher tortoise, scrub jay, and prickly apple cactus. These

are not aquatic or wetland - dependent species. However, the

preponderanc e of the evidence shows any increase in impacts to

these species would be insignificant.

73. When the train bridges are closed, boats with masts or

other components that make them too tall to pass under the train

bridges must wait for the bridge to open b efore continuing.

Petitioners contend that the current ÐstackingÑ of boats waiting

for the bridges to open would worsen and would adversely impact

seagrass beds and the West Indian Manatee.

74. However, it was not shown that seagrass beds are in the

area s where the boats are stacking. The available manatee

mortality data does not show a link between boat stacking and

boat collisions with manatees. Mr. WoodruffÓs opinion about

increased injuries to manatees caused by increased boat stacking

was speculati ve and unpersuasive.

75. The preponderance of the evidence shows that the adverse

effects on both listed and non - listed wildlife species, caused by

faster and more numerous trains would be insignificant.

76. The activities associated with the 2013 exempt ion and

the 2015 general permit for fiber optic cable were based on

determinations that the activities would have minimal or

insignificant adverse impacts on water resources. These

determinations are not subject to challenge in this proceeding.

77. The A pplicant provided reasonable assurance that the

secondary impacts of the project will not cause or contribute to

violations of water quality standards, adversely impact the

functions of wetlands or other surface waters, adversely impact

the ecological valu e of uplands for use by listed animal species,

or cause impacts to significant historical or archaeological

resources .

Elimination and Reduction of Impacts

78. Under section 10.2.1.1 of the ApplicantÓs Handbook, if a

proposed activity will result in adver se impacts to wetlands and

other surface waters, the applicant for an ERP must implement

practicable design modifications to eliminate or reduce the

impacts, subject to certain exceptions that will be discussed

below.

79. Petitioners argue that this rule requires the Applicant

and District to evaluate the practicability of alternative routes

through the region, routes other than the existing railway

corridor in Segment D09. As explained in the Conclusions of Law,

that argument is rejected. The evaluation of project

modifications to avoid impacts was appropriately confined to the

railway corridor in Segment D09.

80. The Applicant implemented practicable design

modifications in the project area to reduce or eliminate impacts

to wetlands and other surface w aters. Those modifications

included the shifting of track alignments, the elimination of

certain third - track segments, and the elimination of some

proposed access way modifications.

81. However, the project qualified under both Ðopt outÑ

criteria in sect ion 10.2.1.2 of the ApplicantÓs Handbook so that

design modifications to reduce or eliminate impacts were not

required: (1) The ecological value of the functions provided by

the area of wetland or surface water to be adversely affected is

low, and the pro posed mitigation will provide greater long - term

ecological value; and (2) t he applicant proposes mitigation that

implements all or part of a plan that provides regional

ecological value and provides greater long - term ecological value.

Mitigation

82. The A pplicant proposes to mitigate for impacts to

wetlands by purchasing mitigation credits from four District -

approved mitigation banks: the Bluefield Ranch, Bear Point,

Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a

regional off - site mitigat ion area which implements a detailed

management plan and provides regional long - term ecological value.

83. The number of mitigation credits needed to offset loss

of function from impacts to wetlands was calculated using the

Modified Wetland Rapid Assessme nt Procedure (ÐMWRAPÑ) or Wetland

Assessment Technique for Environmental Review (ÐWATERÑ), as

prescribed in the state permit for each mitigation bank.

Applying these methods, the Applicant is required to purchase

0.21 mitigation credits.

84. The Applican t proposed to mitigate the adverse impacts

to freshwater marsh wetlands by purchasing 0.01 freshwater

herbaceous credits from the Bluefield Ranch Mitigation Bank, and

0.06 freshwater herbaceous credits from the Loxahatchee

Mitigation Bank. The adverse imp acts to tidal mangrove wetlands

would be mitigated by purchasing 0.12 saltwater credits from the

Bear Point Mitigation Bank, and 0.02 saltwater credits from the

F.P.L. Everglades Mitigation Bank.

85. The Applicant committed to purchase an additional

0.29 freshwater herbaceous credits from the Bluefield Ranch

Mitigation Bank, for a total of 0.50 mitigation credits.

86. The proposed mitigation implements a plan that will

provide greater long - term ecological value than is provided by

the wetlands that will be impacted.

87. The Applicant proved by a preponderance of the evidence

that the project complies with the DistrictÓs mitigation

requirements.

Cumulative Impacts

88. To obtain an ERP, an applicant must provide reasonable

assurance that a regulated act ivity will not result in

unacceptable cumulative impacts to water resources. This

assurance can be provided by proposing to fully mitigate the

impacts within the same basin. However, when an applicant

proposes mitigation in another drainage basin, the ap plicant must

demonstrate that the regulated activity will not cause

unacceptable cumulative impacts.

89. The proposed project will adversely impact 0.02 acres of

freshwater marsh wetlands and 0.21 acres of tidal mangrove

wetlands in the St. Lucie River ba sin. The impacts to the

freshwater marshes must be mitigated out - of - basin because there

are no mitigation banks in the basin which offer freshwater

herbaceous mitigation credits.

90. The proposed project will adversely impact 0.07 acres of

the freshwater marshes and 0.05 acres of the mangrove wetlands in

the Loxahatchee River basin. Those impacts must also be

mitigated out - of - basin because there are no mitigation banks in

the Loxahatchee River basin.

91. Because some of the ApplicantÓs proposed mitigati on must

be provided out - of - basin, the ERP application included a

cumulative impact analysis. The analysis evaluated whether the

proposed project, when considered in conjunction with other

possible development within the St. Lucie River and Loxahatchee

Riv er drainage basins, would result in unacceptable cumulative

impacts considering each basin as a whole.

92. There are approximately 10,068 acres of freshwater

marshes within the St. Lucie basin, of which an estimated

4,929 acres are not preserved and woul d be at risk of potential

future development. The proposed project will adversely impact

0.02 of those acres, which is only 0.0004 percent of the total

at - risk acreage.

93. There are about 34,000 acres of freshwater marshes

within the Loxahatchee River b asin, of which an estimated

7,463 acres are at risk of future development, and approximately

564 acres of tidal mangrove wetlands, of which an estimated

75 acres are at risk of future development. The project will

adversely impact 0.07 acres of the fres hwater marshes

(0.0009 percent), and 0.05 acres of the tidal mangrove wetlands

(0.0667 percent).

94. Petitioners contend the ApplicantÓs analysis did not

account for impacts from proposed activities authorized in the

2013 and 2015 general permit. Howeve r, Petitioners failed to

prove there are unaccounted - for wetland impacts.

95. The preponderance of the evidence supports the

DistrictÓs determination that the proposed project will not cause

unacceptable cumulative impacts to wetlands and other surface

wa ters.

Public Interest

96. When an applicant seeks authorization for a regulated

activity in, on, or over wetlands or surface waters, it must

provide reasonable assurance that the activity will not be

contrary to the public interest, or if the activity is within or

significantly degrades an OFW, is clearly in the public interest,

as determined by balancing the following criteria set forth in

section 373.414(1)(a):

(1) Whether the activities will adversely

affect the public health, safety, or welfare

or th e property of others;

(2) Whether the activities will adversely

affect the conservation of fish and wildlife,

including endangered or threatened species,

or their habitats;

(3) Whether the activities will adversely

affect navigation or the flow of wate r or

cause harmful erosion or shoaling;

(4) Whether the activities will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity;

(5) Whether the activities will be of a

temporary or permanent nature;

(6) Whether the activities will adversely

affect or will enhance significant historical

and archaeological resources; and

(7) The current condition and relative value

of functions being performed by areas

affected by the proposed activities.

97. The p roposed work is not within an OFW, but entirely

within the FECR corridor. The potential for overland flow and

indirect impacts to OFWs is addressed by additional treatment of

the stormwater prior to discharge. The proposed project would

not significantly degrade an OFW. Therefore, the applicable

inquiry is whether the project is contrary to the public

interest.

Factor 1: Public Safety, Safety, and Welfare

98. Petitioners contend that the proposed project will

adversely affect public health, safety, and welfare by impacting

water quantity, water quality, and certain non - environmental

matters such as emergency response times, traffic congestion, and

potential train collisions with pedestrians and vehicles.

99. Potential environmental impacts have been ad dressed

above and, by a preponderance of the evidence, the District and

the Applicant showed that such impacts would be insignificant or

would be mitigated.

100. As to the potential for non - environmental impacts

associated with train operations, it is exp lained in the

Conclusions of Law that the public interest test does not include

consideration of non - environmental factors other than those

expressly articulated in the statute , such as navigation and

preservation of historical or archaeological resources. However,

because evidence of non - environmental impacts was admitted at the

final hearing, the issues raised by Petitioners will be briefly

addressed below.

101. The regulatory agency with specific responsibility for

railroad safety is the Federal Railro ad Administration (ÐFRAÑ).

The FRA reviewed the safety features associated with the proposed

passenger train operations , and approved them .

102. Public safety will be enhanced at roadway crossings

because of the proposed improvements and the use of moder n

technology in monitoring and managing the movement of trains.

103. Petitioners contend that the addition of the passenger

rail service will impede emergency response times in Martin

County and St. Lucie County due to more frequent roadway

closures. How ever, freight trains currently impede emergency

response times due to their length and slow speed. The passenger

trains will be much shorter in length and faster so that roadway

crossing closures for passing passenger trains will be much

shorter than for freight trains. The ERP Modification and 2017

Exemption do not affect freight train operations. The

preponderance of the evidence shows that passenger rail service

is unlikely to cause a material increase in the occurrence of

circumstances where an emerg ency responder is impeded by a train.

The current problem must be addressed through changes in freight

train operations.

104. Petitioners also contend that the passenger rail

service will interfere with hurricane evacuation. The persuasive

evidence does not support that contention. Train service would

cease when a hurricane is approaching.

105. Petitioners contend the trains will have to be ÐstagedÑ

on either side of the two moveable bridges while other trains

cross, thereby blocking road intersections . However, this was a

matter of speculation. The Applicant does not propose or want to

stage trains at the bridges.

106. Petitioners contend that the project will cause hazards

to boaters on the St. Lucie River be cause there will be more

times when the train bridge will be closed to allow the passage

of passenger trains. Although there were many statistics

presented about the number of boats affected, the evidence was

largely anecdotal with respect to the current hazard associated

with boaters waiting f or the passage of freight trains and

speculative as to the expected increase in the hazard if shorter

and faster passenger trains are added.

Factor 2: Conservation of Fish and Wildlife

107. As previously found, the proposed activities will not

adversely affect the conservation of fish and wildlife, including

threatened or endangered species. The preponderance of the

evidence shows the project will have only insignificant adverse

impacts on water resources and wildlife.

Factor 3: Navigation of the Flow o f Water

108. Petitioners claim the project will hinder navigation on

the St. Lucie and Loxahatchee Rivers because of the increase in

bridge closures if passenger trains are added. The U.S. Coast

Guard is the agency with clear authority to regulate the op ening

and closing of moveable train bridges over navigable waters in

the interests of navigation. PetitionersÓ insistence that the

District address the bridge openings is novel. No instance was

identified by the parties where this District, any other wat er

management district, or DEP has attempted through an ERP to

dictate how frequently a railroad bridge must open to accommodate

boat traffic.

109. The Coast Guard is currently reviewing the projectÓs

potential impacts on navigation and will make a determ ination

about the operation of the moveable bridges. It has already made

such a determination for the moveable bridge which crosses the

New River in Ft. Lauderdale.

110. Petitioners point to section 10.2.3.3 of the

ApplicantÓs Handbook, which states that the District can consider

an applicantÓs Coast Guard permit, and suggest that this shows

the District is not limited to what the Coast Guard has required.

However, S ection 10.2.3.3 explains the navigation criterion in

terms of preventing encroachments in to channels and improving

channel markings, neither of which encompasses the regulation of

train bridges.

111. The preponderance of the evidence shows the project

would not cause harmful erosion or shoaling or adversely affect

the flow of water.

Facto r 4: Fishing, Recreational Values, and Marine

Productivity

112. The preponderance of the evidence shows that there

would be no adverse impacts or only insignificant impacts to

fishing or recreational values and marine productivity.

Factor 5: Permanent Impact

113. The proposed project will have both temporary and

permanent impacts. The temporary impacts include the

installation of silt fences and turbidity barriers designed to

reduce water quality impacts and impacts to functions provided by

wetlands a nd surface waters. The impacts due to track

installation, construction and rehabilitation of the non - moveable

bridges, at - grade crossing improvements, and stormwater system

improvements are permanent in nature. The permanent impacts have

been minimized a nd mitigated.

Factor 6: Historical or Archaeological Resources

114. Petitioners do not contend that the project will

adversely affect significant historical or archaeological

resources.

Factor 7: Wetland Functions in Areas Affected

115. Because the pro posed work is within the limits of an

existing railway corridor where impacts have been occurring for

decades, and the majority of the wetlands to be affected are of a

low to moderate quality, there would be only a small loss of

functional values and that loss would be fully mitigated.

Public Interest Summary

116. When the seven public interest factors are considered

and balanced, the proposed project is not contrary to the public

interest. Even if PetitionersÓ non - environmental issues are

included, the project is not contrary to the public interest.

Compliance With Other Permit Conditions

117. The project is capable, based on accepted engineering

and scientific principles, of performing and functioning as

proposed.

118. The Applicant demonstrated suffi cient real property

interests over the lands upon which project activities will be

conducted. It obtained the required consent for proposed

activities relating to bridge crossings over state - owned

submerged lands.

119. The Applicant provided reasonable a ssurance of

compliance with all other applicable permit criteria.

Exemption Verification for Roadway Crossings

120. The ApplicantÓs ERP application included a mixture of

activities which required an individual permit, as well as

activities in roadway cros sings which the Applicant claimed were

exempt from permitting. Pursuant to section 5.5.3.4 of the

ApplicantÓs Handbook, the Applicant requested a verification of

exemption as to certain work to be done within 23 of those

24 roadway crossings. The Distri ct determined that the

improvements for which an exemption was sought were exempt from

permitting under rule 62 - 330.051(4)(c) for minor roadway safety

construction, rule 62 - 330.051(4)(d) resurfacing of paved roads,

and rule 62 - 330.051(10) for Ðconstruction , alteration,

maintenance, removal or abandonment of recreational paths for

pedestrians, bicycles, and golf carts.Ñ

121. The preponderance of the evidence shows the proposed

work qualifies for exemption under these rules.

CONCLUSIONS OF LAW

Jurisdiction

1 22. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. See § 120.569, Fla. Stat.

123. This is a de novo proceeding designed to formulate

final agency action. See § 120.57(1)(k), Fla. Stat. (2017);

Capeletti Bros. v. DepÓt of Gen. Servs. , 432 So. 2d 1359, 1363 - 64

(Fla. 1st DCA 1983).

Standing

12 4 . Respondents stipulated that Petitioners and Intervenor

have substantial interests which could be affected by the

proposed activities within their respective geographic limits.

T herefore, Petitioners and Intervenor have standing to challenge

the ERP Modification and 2017 Exemption. See St. Johns

Riverkeeper, Inc. v. St. Johns River Water Mg m t. Dist. , 54 So. 3d

1051, 1054 (Fla. 5th DCA 2011).

12 5 . Petitioners lack standing to cha llenge proposed

activities outside their respective boundaries unless they can

show an injury within their boundaries. See Osceola Cnty . v. St.

Johns River Water Mgmt. Dist. , 486 So. 2d 616, 617 (Fla. 5th DCA

1986); Vill. of Key Biscayne v. Dep't of Envtl . Prot. , 206 So. 3d

788, 790 (Fla. 3d DCA 2016)(A municipality must demonstrate an

interest that exceeds the general interest of its citizens.).

Burden and Standard of Proof

12 6 . The ERP Modification is a license issued pursuant to

chapter 373 and, theref ore, this proceeding is governed by

section 120.569(2)(p), Florida Statutes, which provides for an

abbreviated procedure for satisfying an applicantÓs prima facie

case that it is entitled to a permit, and places the burden of

ultimate persuasion on the cha llenger to prove its case in

opposition to the permit.

12 7 . M odifications can be made to an application after an

agency issues its notice of intent to approve or deny a permit ,

even during the course of a final hearing , as long as due process

is preserved . The modifications made by the Applicant before the

final hearing and during the course of the hearing were made

without violating the due process rights of Petitioners and

Intervenor to prepare and offer evidence in rebuttal.

12 8 . The 2017 Exemption Ve rification was also issued

pursuant to chapter 373. It meets the definition of a license in

section 120.52(10) because it is an authorization required by

law. It is required by section 5.5.3.4 of the ApplicantÓs

Handbook. Therefore, the 2017 Exemption i s subject to the

abbreviated presentation and burden - shifting described in

section 120.569(2)(p).

12 9 . The Applicant made a prima facie showing that it meets

all applicable requirements for issuance of the ERP Modification

and the 2017 Exemption by enter ing into evidence the ERP

application and supporting materials, the DistrictÓs original and

proposed amended staff reports, the request for verification of

exemption and supporting materials, and the DistrictÓs notice of

intent to issue the permit and exem ption. Therefore, Petitioners

have the burden of ultimate persuasion in their case in

opposition to the permit and exemption.

1 30 . A challenger cannot meet its burden of ultimate

persuasion merely by showing that the applicantÓs information

does not prec lude the possibility of contrary physical factors or

effects. The challenger must prove by competent and substantial

evidence that reasonable assurance has not been provided. Id .

13 1 . Section 120.569(2)(p) does not mention surrebuttal, but

judges have t he discretion to allow surrebuttal when appropriate.

Surrebuttal was determined to be appropriate in this case and was

granted to Petitioners.

13 2 . The applicable standard of proof is a preponderance of

the evidence. § 120.57(1)(j), Fla. Stat. (2017). Petitioners

and Intervenor must prove by a preponderance of the evidence that

the Applicant did not provide reasonable assurance of compliance

with applicable requirements.

13 3 . The term "reasonable assurance" means a demonstration

that there is a substan tial likelihood of compliance with

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

2d 644, 648 (Fla. 3d DCA 1992). It does not require absolute

guarantees. See Save Anna Maria, Inc. v. DepÓt of Transp. , 700

So. 2d 113, 117 (Fla. 2d DCA 19 97).

ÐSegmentationÑ

13 4 . The DistrictÓs interpretation of Section 1.5.2 of the

ApplicantÓs Handbook , as not prohibiting the separate review of

related activities that qualify for an exemption, general permit,

or individual permit, is a reasonable interpre tation of the rule.

It is also consistent with section 5.5.3.4, which specifically

allows for both permits and exemptions for related activities.

The District was not required by section 1.5.2 to review as part

of a single individual ERP permit applicati on, the activities

covered by the 2013 exemption, 2015 general permit, and 2017

Exemption.

13 5 . The 2013 exemption was issued pursuant to

s ection 373.406(6), which provides for the exemption from

permitting of activities that the district determines will have

only minimal or insignificant individual or cumulative adverse

impacts on the water resources of the district. The 2015 general

permit was issued pursuant to rule 62 - 330.401, which is also for

activities the District has determined will cause minima l

individual and cumulative adverse impacts to the water resources.

The minimal impacts from these activities and the 2017 Exemption

do not require mitigation by the Applicant and do not have to be

considered in the cumulative impacts analysis.

ERP Criter ia

13 6 . For an applicant to be entitled to an ERP, it must

provide reasonable assurance that the proposed activities meet

the conditions for issuance set forth in rules 62 - 330.301 and

62 - 330.302, and the applicable provisions within the Applicant's

Handb ook, Volumes I and II.

13 7 . Petitioners contend the Applicant and FECR failed to

comply with r ules 62 - 330.301(1)(a) - (f), (i), and (k), and rules

62 - 330.302(1)(a)(1) - (5) and (7), (1)(b), and (1)(c).

Water Quantity

13 8 . Rules 62 - 330.301(1)(a), (b), and (c) require reasonable

assurance that the construction, operation, and maintenance of a

proposed project will not cause adverse water quantity impacts to

receiving waters and adjacent lands, adverse flooding to on - site

or off - site property, or adverse impacts to surface water storage

and conveyance capabilities.

13 9 . The Applicant provided reasonable assurance of

compliance with all applicable rules for managing water quantity

and preventing flooding.

Water Quality Impacts

1 40 . Rule 62 - 330.301(1)(e) requires reasonable assurance

that the construction, operation, and maintenance of a project

will not adversely affect the quality of receiving waters such

that state water quality standards, including anti - degradation

standards and any special standards for OFWs, would be violated.

14 1 . The proposed project complies with District design

criteria for water quality protection, creating a presumption

that the proposed project meets state water quality standards.

See ApplicantÓs Handbook, Vol. I, £ 8.3.3, Vol. II, £ 4.1.1.

Petitioners failed to rebut that presumption.

14 2 . The Applicant provided reasonable assurance of

compliance with all applicable District requirements to protect

water quality.

Functions Provided by Water Resources

14 3 . Rules 62 - 330.301(1)(d) an d (f) require reasonable

assurance that a proposed project w ill not adversely impact the

value of functions provided to fish and wildlife and listed

species by wetlands and surface waters, or cause adverse

secondary impacts to water resources.

14 4 . In eva luating compliance with these rules and

corresponding provisions of the ApplicantÓs Handbook, de minimis

or remotely related secondary impacts are not considered. See

ApplicantÓs Handbook, Vol. I, ££ 10.2.2, 10.2.7.

14 5 . The Applicant provided reasonable assurance of

compliance with all applicable requirements to protect water

resource functions, taking into account secondary impacts.

Elimination and Reduction of Impacts

14 6 . Section 10.2.1.1 of the ApplicantÓs Handbook requires

an applicant to implement practicable design modifications to

eliminate or reduce impacts to wetlands and other surface waters,

unless the applicant qualifies to Ðopt outÑ pursuant to

S ection 10.2.1.2.

14 7 . The requirement of Section 10.2.1 that an applicant

consider Ð alignment alternativesÑ to avoid or reduce impacts does

not require an evaluation of alternative routes in other areas of

the region or state. An applicantÓs selection of a linear route

involves many factors other than potential impacts on water

resources, not lea st of which is project costs. The District

cannot force an applicant to choose a route based on a single

factor - - impacts on water resources - Î solely because water

resources are the basis of the DistrictÓs regulatory

jurisdiction. In this case, the eva luation of measures to

eliminate or reduce water resource impacts was appropriately

confined to the railway corridor in Segment D 09, within which the

project is proposed.

14 8 . The Applicant implemented practicable design

modifications to eliminate or redu ce impacts to wetlands and

other surface waters. Furthermore, t he Applicant qualified under

the opt out provisions of section 10.2.1.2 so that it was not

required to implement design modifications . T he Applicant showed

that t he ecological value of the fu nctions provided by the

impacted wetlands and other surface waters is low, and that the

proposed mitigation is part of a plan that will provide greater

regional long - term ecological value.

Mitigation

14 9 . If a proposed activity will cause a net adverse impact

to the functions of wetlands or other surface waters, the impact

must be offset by mitigation. See A.H. Vol. I, § 10.2.1.

1 50 . Petitioners failed to prove that the ApplicantÓs

proposed mitigation is inadequate. The preponderance of the

evidence s upports the DistrictÓs determination that adverse

impacts will be fully offset by mitigation.

Cumulative Impacts

15 1 . Rule 62 - 330.302(1)(b) requires reasonable assurance

that a regulated activity w ill not result in unacceptable

cumulative impacts to wetla nds and other surface waters. By a

preponderance of the evidence, the Applicant showed that it

satisfied this requirement.

Public Interest

15 2 . Under section 373.414(1)(a), an applicant proposing to

engage in a regulated activity in, on, or over wetlands or surface

waters must provide reasonable assurance that the activity will

not be contrary to the public interest, or if the activity is

within or significantly degrades an OFW, is clearly in the public

interest. The ApplicantÓs proposed project will not be within or

significantly degrade an OFW, so the relevant showing is that the

project is not contrary to the public interest.

15 3 . The rules that govern the public interest test refer

only to the Ðregulated activity.Ñ See § 373.414(1)(a), Fla.

Stat.; F la. Admin. C ode R . 62 - 330.302(1)(a); A pplicantÓs

Handbook, Vol. I, §§ 10.1.1(b). Section 2.0(a)(2) of the

ApplicantÓs Handbook defines the term ÐactivityÑ to mean the

construction, alteration, operation, maintenance, abandonment, or

removal of any stormwa ter management system. For the ERP

Modification, the Ðregulated activityÑ consists of the

construction and operation of a stormwater management system and

certain culvert and bridge modifications.

15 4 . However, Petitioners and Intervenor were allowed to

argue and present evidence in support of their position that the

public interest test requires the District to consider

non - environmental matters , especially public safety associated

with the operation of high - speed passenger trains. A

considerable amount of the final hearing was taken up with these

matters.

15 5 . The public interest test was created in 1985 and first

codified in section 403.918 . W hen the ERP Program was adopted in

1993, the public interest test was transferred to section

373.414(1). The ÐwhereasÑ clauses in the law as it appeared in

ch apter 93 - 213, Laws of Florida, have environmental themes.

15 6 . In section 373.414(1), the Legislature added a preamble

stating that the test is to be Ðpart of an applicantÓs

demonstration that an activity regulated under this part will not

be harmful to the water resources or will not be inconsistent

with the overall objectives of the district.Ñ

§ 373.414(1), Fla. Stat. (1993). The overall objectives of a

district relate to water resources, their managemen t and

protection for flood control, water supply, and maintaining

environmental quality. See § 373.016(3), Fla. Stat. (2017).

15 7 . In a 2011 report of the Senate Committee on

Environmental Preservation and Conservation regarding the ERP

Program, it is st ated that the first public interest criterion

Ðconsiders only environmental factors, not economic or social

factors.Ñ Fla. S. Comm. on Envtl. Pres. & Conservation,

Statewide ERP Interim Report 2012 - 121, at 3 n.18 (2011) .

15 8 . The DistrictÓs interpretatio n of the public interest

test to limit the question Ð[w]hether the activity will adversely

affect the public health, safety, or welfare of the property of

othersÑ to consideration of only environmental issues is clearly

shown in Section 10.2.3.1 of t he App licantÓs Handbook:

In reviewing and balancing the criterion

regarding public health, safety, welfare and

the property of others in section 10.2.3(a),

above , the Agency will evaluate whether the

regulated activity located in, on, or over

wetlands or other s urface waters will cause:

(a) An environmental hazard to public health

or safety or improvement to public health or

safety with respect to environmental issues.

Each applicant must identify potential

environmental public health or safety issues

resulting from their project. Examples of

these issues include: mosquito control;

proper disposal of solid, hazardous, domestic

or industrial waste; aids to navigation;

hurricane preparedness or cleanup;

environmental remediation, enhancement or

restoration; and similar environmentally

related issues. For example, the

installation of navigational aids may improve

public safety and may reduce impacts to

public resources;

(b) Impacts to areas classified by the

Department of Agriculture and Consumer

Services as ap proved, conditionally approved,

restricted or conditionally restricted for

shellfish harvesting. Activities that would

cause closure or a more restrictive

classification or management plan for a

shellfish harvesting area would result in a

negative factor in the public interest

balance with respect to this criterion;

(c) Flooding or alleviate existing flooding

on the property of others. There is at least

a neutral factor in the public interest

balance with respect to the potential for

causing or alleviat ing flooding problems if

the applicant meets the water quantity

criteria in Part III of Volume II ; and

(d) Environmental impacts to the property of

others. For example, construction of a ditch

that lowers the water table such that off -

site wetlands or o ther surface waters would

be partly or fully drained would be an

environmental impact to the property of

others. The Agency will not consider impacts

to property values.

15 9 . In construing the public interest test in

section 403.918, the First District C ourt held that the reference

to impacts on the Ðproperty of othersÑ is confined to

environmental impacts. Miller v. DepÓt of EnvtÓl Reg. , 504 So.

2d 1325, 1327 (Fla. 1st DCA 1987) .

1 60 . In Save Anna Maria, Inc. v. Department of

Transportation , 700 So. 2d 113, 116 (Fla 2d DCA 1997), the Second

District Court held that the Ð[r]eview of the public interest

criteria is limited to environmental impacts.Ñ

1 6 1 . Although the case of Avatar Development Corporation v.

State , 723 So. 2d 199, 207 (Fla. 1998), involv ed a challenge to

DEPÓs authority to enforce permit conditions, the opinion of the

Supreme Court is important for this discussion. In Avatar , the

appellant argued that DEPÓs authority to enforce permit

conditions pursuant to section 403.161 was an unconst itutional

delegation of legislative authority because DEP was not

adequately guided by statute. In holding that the Legislature

had provided sufficient guidance for the exercise of DEPÓs

authority, the Court pointed to the Ðspecific policiesÑ in

section 4 03.021. Those policies relate exclusively to

environmental matters. The Court noted that the public interest

test in section 373.414 allows DEP to consider public health,

safety, and welfare, but explained that DEPÓs authority is

limited to Ðspecific leg islative intentÑ and gave examples of

this intent in provisions of chapter 403 that articulate specific

environmental objectives.

16 2 . In Avatar , the Supreme Court determined that, despite

the expansive connotation that may be associated with Ðpublic

heal th, safety, and welfare,Ñ these words must be given a limited

meaning in section 373.414 in order for the LegislatureÓs

delegation of authority to be constitutional. The delegation is

constitutional because DEPÓs authority (and the authority of the

water management districts) is limited to environmental matters

for which there is legislative guidance in the statutes. There

are no Ðspecific policiesÑ and there is no Ðspecific legislative

intentÑ in chapters 373 or 403 to guide DEP or the water

management d istricts in making regulatory decisions based on non -

environmental factors associated with public health, safety, and

welfare.

16 3 . In Florida Wildlife Federation v. South Florida Water

Management District , Case No. 04 - 3064 ( Fla. DOAH Dec. 03, 2004;

SFWMD Dec. 08, 2004), the Administrative Law Judge rejected an

attempt to interject non - environmental factors in the public

interest analysis:

The application of the public interest test

does not involve consideration of non -

environmental factors other than tho se

expressly set forth in the statute such as

navigation or preservation of historical or

archaeological resources. Specifically,

traffic concerns, congestion, quality of

rural life, and school overcrowding are not

within the seven factors contained in Se ction

373.414(1)(a).

R.O. at 49, ¶ 116. The District adopted th e R ecommended O rder in

toto, and the Fourth District Court affirmed per curiam, without

opinion. Fla. Wildlife Fed. v. So. Fla. Water Mgmt. Dist. , 902

So. 2d 812 (Fla. 4th DCA 2005) .

164. D espite the case law, administrative orders have not

been consistent on this issue. Some agency orders that were not

appealed did not follow the judicial precedent. See e.g. ,

Goldberg v. So. Fla. Water Mgmt. Dist. , Case No. 16 - 1018 ( Fla.

DOAH Nov. 8, 2016 ; SFWMD Jan. 10, 2017)( c oncluding that public

health, safety, and welfare allowed consideration of the public

safety benefits of a proposed roadway project) .

16 5 . Although administrative orders addressing this issue

have not been consistent, it is conclud ed that the consideration

of public health, safety, and welfare must be confined to

environmental matters.

16 6 . The preponderance of the record evidence shows the

proposed project is not contrary to the public interest, even if

PetitionersÓ and Intervenor Ós non - environmental factors are also

considered.

Other ERP C riteria

16 7 . The Applicant provided reasonable assurance of

compliance with all other applicable permit criteria.

16 8 . The Applicant demonstrated its entitlement to the ERP

Modification.

The Ex emption

16 9 . Petitioners argue that the Applicant does not qualify

for the 2017 Exemption issued under rule 62 - 330.051(4)(c), which

applies to Ðminor roadway safety construction,Ñ because

Petitioners claim the proposed work will not make the crossings

saf e. However, to qualify for this exemption, it is only

necessary to show that the proposed work meets the description of

Ðminor roadway safety construction.Ñ It is unnecessary to

demonstrate how safe the resulting improvements will be. That is

not within the DistrictÓs expertise and is appropriately left to

other agencies to determine. The proposed roadway crossing

improvements meet the description in the rule and qualify for the

exemption.

1 70 . The Applicant demonstrated that it qualifies for the

2017 Exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the South Florida Water Management District

enter a final order that:

(1) approves Environmental Resource Permit Modification

No. 13 - 05321 - P on the terms and conditions set forth in the

DistrictÓs Corrected Proposed Amended Staff Report of May 11,

2017 ; and

(2) approves the Verification of Exemption dated March 31,

2017 .

DONE AND ENTERED this 29th day of September , 2017 , in

Tallahassee, Leon C ounty, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of September , 2017 .

ENDNOTE

1/ All references to the ApplicantÓs Handbook are to Volume I

unless otherwise indicated.

COPIES FURNISHED:

Segundo J. Ferna ndez, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Richard V. Neill, Jr.

Neill, Griffin, Tierney, Neill & Marquis

Post Office Box 1270

Fort Pierce, Florida 34954

(eServed)

Jeffrey A. Colli er, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff & Sitterson, P.A.

Suite 2200

401 East Jackson Street

Tampa, Florida 33602

(eServed)

Bridgette Nicole Thornton, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, F lorida 33406

(eServed)

Eugene E. Stearns, Esquire

Stearns, Weaver, Miller, Weissler,

Alhadeff, and Sitterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130

(eServed)

Ian Osking, Associate Attorney

Neill, Griffin, Tierney, Neill & Marq uis, Chartered

311 South 2nd Streeet

Fort Pierce, Florida 34950

(eServed)

James Edward Nutt, Senior Practice Expert

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Ernest Marks, E xecutive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

(eServed)

Brian Accardo, General Counsel

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

(eSe rved)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Fin al Order in this case.