16-006165
Indian River Farms Water Control District vs.
All Aboard Florida - Operations, Llc; Ram Land Holdings, Llc; J. Acquisitions Brevard, Llc; And St. Johns River Water Management District
Status: Closed
Recommended Order on Thursday, March 30, 2017.
Recommended Order on Thursday, March 30, 2017.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8INDIAN RIVER FARMS WATER CONTROL
13DISTRICT,
14Petitioner,
15vs. Case No. 16 - 6165
21ALL ABOARD FLORIDA - OPERATIONS,
26LLC; RAM LAND HOLDINGS, LLC;
31J. ACQUISITIONS BREVARD, LLC;
35AND ST. JOHNS RIVER WATER
40MANAGEMENT DI STRICT,
43Respondents.
44_______________________________/
45RECOMMENDED ORDER
47The final hearing in this case was held on January 20, 2017,
59by video teleconference at sites in Sebastian and Tallahassee,
68Florida, before Bram D.E. Canter, an Administrative Law Judge of
78the Division of Administrative Hearings (ÐDOAHÑ).
84APPEARANCES
85For Petitioner Indian River Farms Water Control District:
93Michael OÓHaire, Esquire
96OÓHaire, Quinn, Casalino, Chartered
1003111 Cardinal Drive
103Vero B each, Florida 32964 - 4375
110For Respondent All Aboard Florida Î Operations, LLC:
118Eugene E. Stearns, Esquire
122Matthew W. Buttrick Esquire
126Cecilia Duran Simmons, Esquire
130Stearns, Weaver, Miller, Weissler
134Alhadeff & Sitterson, P.A.
138Museum Tower, Suit e 2200
143150 West Flagler Street
147Miami, Florida 33130
150Jeffrey A. Collier, Esquire
154Stearns, Weaver, Miller, Weissler,
158Alhadeff & Sitterson, P.A.
162106 East College Avenue, Suite 700
168Tallahassee, Florida 32301
171For Respondent J. Acquisitions Brevard , LLC:
177James F. Johnston, Esquire
181Scott A. Glass, Esquire
185Shutts & Bowen LLP
189Post Office Box 4956
193Orlando, Florida 32801
196For Respondent RAM Land Holdings, LLC:
202Joe Galletti
204RAM Land Holdings, LLC
208Post Office Box 533327
212Orlando, Florida 32853
215For Respondent St. Johns River Water Management District:
223Kealey A. West, Esquire
227Erin H. Preston, Esquire
231St. Johns River Water Management District
2374049 Reid Street
240Palatka, Florida 32177
243STATEMENT OF THE ISSUE
247The issue to be determined in t his case is whether All
259Aboard Florida Î Operations, LLC (Ðthe ApplicantÑ) ; Ram Land
268Holdings, LLC (ÐRLHÑ) ; and J. Acquisitions Brevard, LLC (ÐJABÑ) ,
277are entitled to the Environmental Resource Permit (ÐERPÑ) issued
286by the St. Johns River Water Management D istrict (ÐSJRWMDÑ) for
297construction and operation of certain railway facilities within
305the portion of the Florida East Coast Railway corridor known as
316Segment D08 (the ÐProjectÑ).
320PRELIMINARY STATEMENT
322On August 26, 2016, SJRWMD gave notice of its intent to
333issue ERP No. 135214 - 2 to the Applicant, RLH, and JAB, pursuant
346to chapter 373, Florida Statutes (2016) . The Applicant is
356developing an express passenger rail service between Miami and
365Orlando, known as the All Aboard Florida Project. RLH and JAB
376own conservation parcels , which will be used for mitigation of
386wetland and surface water impacts associated with the Project.
395On or about August 29, 2016, the Petitioner , Indian River
405Farms Water Control District , filed a petition challenging the
414ERP , because the proposed new bridges for the Project had not
425been approved by Indian River Farms Ó engineer. SJRWMD dismissed
435the p etition and, on September 26, 2016, the Petitioner filed an
447amended petition.
449SJRWMD referred the amended petition to DOAH and filed a
459m otion to dismiss, in which the Applicant joined. The motion
470argued that the amended petition raised issues that were not
480cognizable in this proceeding. The motion to dismiss was
489granted, but leave was granted to file an amended petition
499containing releva nt factual allegations and citations to relevant
508statutes and rules.
511On November 3, 2016, the Petitioner filed a second amended
521petition, which the Applicant and SJRWMD again moved to dismiss.
531An Order was entered striking all claims in the second amende d
543petition arising under c hapter 298, but otherwise denying the
553motion. The Order limited the issues in the case to
563PetitionerÓs claims that (1) the lowest horizontal beams of the
573proposed bridges would be constructed below flood elevations,
581which would c ause flooding, and (2) the proposed bridges would
592cause sand bars to form in the PetitionerÓs canals, which would
603interfere with canal functions.
607Official recognition was taken of Florida Administrative
614Code Chapters 40C - 4 and 62 - 330, as well as the ERP A pplicantÓs
630Handbook Volume I (ÐA.H., Vol. IÑ), and the SJRWMD Permit
640Information Manual (ÐA.H., Vol. IIÑ).
645At the final hearing, the Applicant presented the testimony
654of its Executive Vice President of Rail Infrastructure , Adrian
663Share, P.E.; Matthew Nedde ff, P.E. , who was accepted as an
674expert in hydrologic and hydraulic engineering and modeling; and
683Jeffrey PeQueen, P.E., who was accepted as an expert in
693hydrologic and hydraulic engineering and modeling. The
700ApplicantÓs Exhibits 1 - 25 were admitted into e vidence.
710The Petitioner presented the testimony of its
717Superintend e nt, Secretary, and Treasurer, David E. Gunter; and
727George A. Simons, P.E., who was accepted as an expert in civil
739engineering. The PetitionerÓs Exhibit 2 was admitted into
747evidence.
748SJRWM D presented the testimony of its Supervising
756Professional Engineer, Fariborz Zanganeh, P.E., who was accepted
764as an expert in water resource engineering; and its Chief
774E ngineer for the Environmental Resource Regulation Program,
782Cameron Dewey, P.E., who was accepted as an expert in water
793resource engineering. SJRWMDÓs Exhibit 23 was admitted into
801evidence.
802The one - volume Transcript of the final hearing was filed
813with DOAH. The Petitioner, the Applicant, and SJRWMD each
822submitted proposed recommended order s which were considered in
831the preparation of this Recommended Order.
837FINDINGS OF FACT
840The Parties
8421 . The Petitioner is a water control district organized
852under chapters 189 and 298 , Florida Statutes . It owns and
863maintains the North, Main, and South Can als in Indian River
874County.
8752 . The Petitioner manages drainage works for approximately
88455,000 acres within Indian River County s ituated west of the
896Indian River Lagoon between U.S. 1 and I - 95, including portions
908of the City of Vero Beach.
9143 . The Applican t, All Aboard Florida Î Operations, LLC, is
926a Delaware limited liability company headquartered in Miami,
934Florida, formed for the principal purpose of developing and
943operating express passenger rail service connecting the four
951largest urban population cente rs in Southern and Central
960Florida -- Miami, Fort Lauderdale, West Palm Beach, and Orlando.
970This project is known as the All Aboard Florida Project.
9804 . Respondents, RAM Land Holdings , LLC, and
988J. Acquisitions Brevard, LLC , are third - party mitigation
997provid ers. The parties stipulated that R LH and JAB are not
1009necessary parties to this proceeding.
10145 . SJRWMD is an independent special district created by
1024c hapter 373 , charged with the duty to prevent harm to the water
1037resources of the District and to administer and enforce
1046chapter 373 and the rules promulgated thereunder. The proposed
1055project is within the boundaries of the District.
1063The Proposed Project
10666 . Most of the ApplicantÓs passenger service route,
1075including the portion which will pass through Indian Ri ver
1085County, will use an existing railroad right - of - way established in
1098the late 1800s by Henry Flagler, the founder of the Florida East
1110Coast Railway (ÐFECRÑ).
11137 . The FECR rail corridor runs along FloridaÓs east coast
1124from Miami to Jacksonville . It was de signed to support passenger
1136and freight operations on shared double mainline tracks and was
1146in use from 1895 to 1968. The passenger service was then
1157terminated and portions of the double track and certain bridge
1167structures were removed. The freight servi ce continued and
1176remains in operation today.
11808 . The Project would restore the passenger service that
1190once existed on the FECR rail corridor . The passenger service
1201route will utilize the FECR right - of - way from Miami to Cocoa
1215Beach and then continue along a new segment to be constructed
1226along a limited - access highway system which runs inland from
1237Cocoa Beach to Orlando.
12419 . The Applicant is proposing to upgrade the portion of
1252the FECR right - of - way between Miami and Cocoa Beach by, among
1266other things, replac ing existing railroad ties and tracks and
1276reinstalling double tracks.
127910 . This proceeding involves only Segment D08 of the
1289proposed Project. Segment D08 runs from the southern edge of
1299Indian River County to Cocoa Beach in Brevard County.
130811 . In Segment DO8, the existing FECR railway includes
1318bridges which cross th e North Canal, Main Canal, and South Canal
1330owned and maintained by the Petitioner . The bridges are
1340r eferred to as the North Canal Bridge, the Main Canal Bridge,
1352and the South Canal Bridge. Eac h bridge supports a single
1363track.
136412 . The P roject calls for adding new bridges alongside the
1376three existing bridges over the canals so that the crossings
1386will again accommodate two tracks.
139113 . The PetitionerÓs objections to the proposed permit are
1401confin ed to the proposed bridges at the North Canal and South
1413Canal.
141414 . The new bridge at the North Canal would be constructed
1426along the west side of the existing bridge. The new bridge at
1438the South Canal would be constructed along the east side of the
1450existi ng bridge.
1453Obstruction of Water Flow
145715 . The PetitionerÓs main objection to the proposed
1466project is that the proposed new bridges over the North Canal
1477and South Canal are too low to allow clearance during a 100 - year
1491storm event, which would cause water fl ow to be obstructed. The
1503Petitioner believes floating debris is likely to be blocked and
1513accumulate at the bridges, causing water to back up and flood
1524lands upstream of the bridges.
152916 . The PetitionerÓs Superintendent, David Gunter,
1536testified that there were Ða couple of events where debris
1546backed up either at a bridge or a culvert.Ñ However, he said
1558none of the PetitionerÓs ratepayers ever had a flooding event
1568that was attributable to the FECR bridges.
157517 . The new bridges would be constructed with the same low
1587chord/beam elevations (lowest part of the bridge) as the
1596existing bridges that would remain. For the existing bridge and
1606the proposed new bridge over the North Canal, the low beam
1617elevation is 13.1 f ee t NAVD88 (North American Vertical Datum
16281988) . For the existing bridge and the proposed new bridge at
1640the South Canal, the low beam elevation is 8.5 f ee t NAVD88.
165318 . Because the proposed new bridges would be at the same
1665height above the canals as the existing bridges, the potential
1675problem the Peti tioner is concerned about -- floating debris being
1686trapped by the bridges -- is already a potential problem. The
1697P etitioner did not claim or present evidence to show that the
1709new bridges would increase the probability that floating debris
1718would be trapped, ov er and above the current probability for
1729such an event.
173219 . The Petitioner argued that Ðtwo wrongs donÓt make a
1743right,Ñ and the new bridges should not be approved even though
1755they are at the same height as the existing bridges . Obviously,
1767the Petitioner wants the existing bridges raised, too.
177520. Based on the FEMA Flood Insurance Rate Maps used by
1786the Applicant, the 100 - year flood elevation at the North Canal
1798bridge is 11.5 f ee t NAVD88, or 1.6 feet below the low beam
1812elevation of the North Canal Bridge. The 100 - year flood
1823elevation at the South Canal Bridge is 9.3 f ee t NAVD88, or 0.8
1837feet below the low beam elevation of the North Canal Bridge. 1/
184921 . The ApplicantÓs consultants performed hydrologic and
1857hydraulic analyses for the proposed new bridges usin g a HEC - RAS
1870model which was adapted to local site - specific conditions and
1881incorporated FEMA flood level data . They determined that in a
1892100 - year storm event, the new bridge at the North Canal would
1905cause no more than a 0.04 - foot (0.48 inch es ) increase in water
1920levels immediately upstream (within 500 feet) of the bridge, and
1930the new bridge at the South Canal would result in no more than a
19440.07 - foot (0.84 inch es ) increase in water levels immediately
1956upstream. These were considered insignificant impacts that
1963would not cause flooding to upstream properties.
197022 . The Petitioner disputes the ApplicantÓs determination
1978that there is a 1.6 - foot clearance at the North Canal Bridge and
1992a 0.8 - foot clearance at the South Canal Bridge. The Petitioner
2004asserts that the F EMA elevations used by the Applicant are not
2016based on the best available data , and the best available data
2027show the 100 - year flood elevations are higher .
203723 . The Petitioner calculated higher 100 - year flood
2047elevations using SJRWMD flood stage gages in the canal near the
2058North bridge and the PetitionerÓs own hydrologic model. The
2067Petitioner determined that the low beam at the North Canal
2077bridge is 0.6 feet below the 100 - year flood level, and the low
2091beam at the South Canal bridge is 1.5 feet below the 100 - y ear
2106flood level. 2 / In other words, the P etitioner contends there is
2119no clearance.
212124 . The PetitionerÓs witness, Simons, testified about why
2130he thought FEMA did not use the PetitionerÓs water level data
2141and analysis in determining 100 - year flood elevation s for the
2153FEMA flood maps , but the testimony was largely hearsay.
216225 . SJRWMDÓs ApplicantÓs Handbook refers to the use of
2172FEMA flood level data for th ese kinds of analyses, but it also
2185refers to the use of Ðdetailed informationÑ possessed by SJRWMD.
2195See S ection 3.3.4, A . H . , Vol II. Information possessed by
2208SJRWMD would likely include data from their own water level
2218gages.
221926 . The Petitioner did not present sufficient evidence to
2229prove their data and modeling was more accurate or reliable than
2240FEMA data a nd the ApplicantÓs modeling. FEMA flood insurance
2250rate maps are a standard reference in the industry. The HEC - RAS
2263model is a generally accepted tool used by engineers for this
2274kind of analysis.
227727 . None of the parties presented evidence to make clear
2288wh at is the usual or industry protocol for choosing between
2299conflicting data of this kind in the permitting process .
230928 . The Petitioner has the burden of proof on disputed
2320issues of fact and failed to carry its burden on this disputed
2332issue. It is found , t herefore, that the ApplicantÓs use of FEMA
2344data and the HEC - RAS model was reasonable.
235329 . The Petitioner admitted that the 100 - year flood
2364elevation in the canals has been increasing over time because of
2375the conversion of land uses in the area from agricul tural to
2387urban. Because the Petitioner regulates discharges to its
2395canals, it has some responsibility for the rising water levels
2405in its canals.
240830 . The Petitioner claimed that reduced clearance was due
2418in part to the bridges from Ðage, use, lack of main tenance,
2430frugality or causes other than design.Ñ However, the Petitioner
2439presented no supporting evidence for this allegation in the
2448record.
244931 . In its regulatory role, the Petitioner requires a
2459minimum clearance of one foot between a bridgeÓs lowest
2468hor izontal beam and the 100 - year flood elevation to avoid
2480obstruction of water flow through the canals.
248732. SJRWMD rules do not specify that bridges be designed to
2498have a minimum clearance above the 100 - year flood elevation.
250933 . T he applicable design standa rds for flood protection
2520in the ApplicantÓs Handbook are set forth in Section 3.3.2(b),
2530A.H., Vol. II, which provides in pertinent part as follows:
2540Floodways and floodplains, and levels of
2546flood flows or velocities of adjacent
2552streams, impoundments or othe r water courses
2559must not be altered so as to adversely impact
2568the off - site storage and conveyance
2575capabilities of the water resource. It is
2582presumed a system will meet this criterion if
2590the following are met:
2594* * *
2597(b) A system may not cause a net reduction
2606in the flood conveyance capabilities provided
2612by a floodway except for structures elevated
2619on pilings or traversing works. Such works,
2626or other structures shall cause no more than
2634a one - foot increase in the 100 - year flood
2645elevation immediately u pstream and no more
2652than one tenth of a foot increase in the 100 -
2663year flood elevation 500 feet upstream.
266934 . The bridges would not cause more than a one - foot
2682increase in the 100 - year flood elevation immediately upstream or
2693more than one tenth of a foot i ncrease in the 100 - year flood
2708elevation 500 feet upstream.
271235 . Therefore, the Applicant is presumed to have provided
2722reasonable assurance that the Project would not cause adverse
2731flooding to on - site or off - site property, or adversely impact
2744the existing s urface water storage and conveyance capabilities of
2754the North Canal or South Canal.
276036 . The Petitioner argues that the SJRWMD criteria fail to
2771account for floating debris. The Petitioner claims that bridge
2780designers are obliged to follow basic design gui delines
2789published by FDOT and other government agencies and provide
2798clearance for floating debris, but Petitioner did not offer into
2808evidence these Ðbasic design standardsÑ or prove their industry -
2818wide acceptance. 3/
282137 . SJRWMDÓs engineer, Fariborz Zangane h, stated that the
2831potential for floating debris to be blocked by a bridge or any
2843other traversing work is considered by SJRWMD to be an operation
2854and maintenance issue, not a design issue.
286138 . The Petitioner referred to some road bridges in the
2872area that , upon reconstruction, were raised by county, state, or
2882federal governments to comply with the PetitionerÓs clearance
2890requirement . First, it is noted that the Applicant does not
2901propose to reconstruct the existing North Canal Bridge and South
2911Canal B ridge . Second, there is a substantial difference between
2922the effort and cost of raising a road and raising a railroad
2934track.
293539. Raising the proposed bridges would require elevating
2943the railroad bed for a considerable distance in each direction
2953so that slopes comply with railway safety criteria.
296140 . The Petitioner failed to prove the Project does not
2972comply with SJRWMD flood control criteria .
2979The Sand Bar
298241 . The Petitioner also objects to the proposed bridge at
2993the North Canal because the Petitioner contend s the existing
3003bridge pilings have caused a sand bar to form, and shoaling and
3015erosion would likely increase with construction of additional
3023pilings. The Petitioner believes the problem is caused by the
3033fact that the existing and proposed pilings, which w ould have
3044the same alignment, are not parallel to water flow in the canal.
305642 . There are sand bars upstream of the bridge which
3067cannot have been caused by the bridge pilings.
307543 . The North Canal, which runs downstream almost due east
3086makes a turn to the northeast under the North Canal Bridge. The
3098record evidence, as well as generally known facts of which the
3109Administrative Law Judge may take official recognition,
3116establish that a change in the direction of water flow in a
3128channel creates non - uniform flow , which can cause erosion and
3139shoaling.
314044 . The Petitioner did not present evidence to distinguish
3150between shoaling and erosion that could be caused by the pilings
3161and shoaling and erosion that could be caused by the turn in the
3174canal. The P etitioner did not call a witness for this subject
3186who had special knowledge of the science of hydraulics and no
3197study was done by the Petitioner to confirm its theory of the
3209cause.
321045 . The Petitioner has the burden of proof on disputed
3221issues of fact and failed to car ry its burden on this disputed
3234issue.
323546 . The Applicant asserts that the conditions of the
3245proposed permit provide for maintenance that would include Ðthe
3254removal of any buildup of siltation that might occur over time
3265and potentially cause the North Canal Bridge structure to cease
3275operating as designed.Ñ However, whether the bridge is
3283operating as designed would not address whether the canal is
3293operating as designed because of shoaling.
329947. There is no condition in the proposed permit that
3309imposes on the Applicant the duty to remove built - up sediment
3321beneath the North Canal Bridge. It is unlikely that such a
3332requirement can be imposed on the Applicant because it does not
3343own or control the canal.
334848. The Petitioner claims the railroad authority denied t he
3358Petitioner access to the right - of - way when it sought permission
3371in the past to remove the sandbar at the North Canal Bridge.
3383Unfortunately, a permit condition that requires the Applicant to
3392cooperate with the Indian River Water Control District in
3401perf orming canal maintenance at the bridges is probably not
3411e nforceable.
3413CONCLUSIONS OF LAW
3416Jurisdiction
341749 . The Division of Administrative Hearings has
3425jurisdiction over the parties and the subject matter of this
3435proceeding. See §§ 120.569 and 120.57, Fla. Stat.
3443Standing
344450 . For a petitioner to have standing, it must show that it
3457has a substantial interest that would be affected by the
3467proposed agency action. See § 120.52(13)(b), Fla. Stat.
347551 . The Petitioner presented evidence demonstrating that
3483its inte rest could be affected, which is sufficient to establish
3494standing in this proceeding. See St. Johns Riverkeeper, Inc. v.
3504St. Johns River Water Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla.
35165th DCA 2011).
3519Burden and Standard of Proof
352452 . The ERP was issued unde r chapter 373. A fter the
3537applicant for a chapter 373 permit has presented its prima facie
3548case for entitlement to the permit by entering into evidence the
3559application, relevant materials supporting the application, and
3566the agency staff report or notice of intent to issue the permit ,
3578the challeng er has the burden of ultimate persuasion to show the
3590applicant is not entitled to the permit. See § 120.569(2)(p),
3600Fla. Stat. The Applicant and SJRWMD presented a prima facie
3610case for entitlement to the ERP. Ther efore, the burden of
3621ultimate persuasion was on the Petitioner to prove their case in
3632opposition to the permit.
363653 . The standard of proof is preponderance of the evidence.
3647See § 120.57)1)(j), Fla. Stat.
365254 . Issuance of an ERP requires a demonstration of
3662reasonable assurance from the applicant that the activities
3670authorized will meet the applicable criteria contained in
3678Florida Administrative Code Rules 62 - 330.301 and 62 - 330.302, and
3690related provisions in the ApplicantÓs Handbook, Vol. I and II.
370055 . The term Ðreasonable assuranceÑ means a demonstration
3709that there is a substantial likelihood of compliance with
3718standards. See Metro. Dade Cnty. v. Coscan Fla., Inc. , 609 So.
37292d 644, 648 (Fla. 3d DCA 1992). It does not mean absolute
3741guarantees.
3742Applicable La ws and Rules
374756 . The parties stipulated that the Project complies with
3757the conditions for issuance in rules 62 - 330.301(1)(a), (d), (e),
3768(f), (g), (h), (i), (j), and (k) and 62 - 330.302. Based on the
3782parties' stipulation, what remains at issue is whether t he
3792Applicant has provided reasonable assurance that the
3799construction, operation, and maintenance of the North Canal
3807Bridge and South Canal Bridge meet the conditions for issuance
3817in rule 62 - 330.301(1)(b) and (c).
382457. This is not a rule challenge proceedin g. Therefore,
3834whether these rules should be amended to better accomplish the
3844regulatory objectives are not questions which can be considered.
385358 . Rule 62 - 330.301 provides in relevant part:
3863To obtain an individual or conceptual
3869approval permit an applic ant must provide
3876reasonable assurance that the construction,
3881alteration, operation, and maintenance
3885removal, or abandonment of the projects
3891regulated under this chapter:
3895* * *
3898(b) Will not cause adverse flooding to on -
3907site or off - site property;
3913(c) Will not cause adverse impacts to
3920existing surface water storage and
3925conveyance capabilities; . . . .
393159 . The Petitioner argues that the Project violates rule
394162 - 330.301(1)(b) and (c) because the Project would cause adverse
3952flooding to offsite propert ies and adverse impacts to existing
3962surface water storage and conveyance capacities. The Petitioner
3970failed to prove that the Project would violate these rules .
398160. The Project complies with the design standards for
3990flood protection in the ApplicantÓs Han dbook. The only
3999hydraulic analyses offered into evidence show the addition of
4008the proposed new bridges would have no impacts on upstream and
4019downstream properties and only de minimis impacts on the
4028conveyance capacity of the canals.
403361 . The Petitioner ar gues that the bridge designs show
4044defects Ðon their faceÑ because of the lack of adequate
4054clearance between the low beam of the bridges and the water
4065elevation in the canals during a 100 - year flood event. By this
4078argument, the P etitioner is suggesting tha t its own one - foot
4091clearance requirement should be an inferred design criterion and
4100must be imposed by SJRWMD. That argument is inconsistent with
4110the prohibition against non - rule policy. See § 120.56(4), Fla.
4121Stat. There is no SJRWMD rule like the Petit ionerÓs rule that
4133imposes a minimum clearance.
413762 . Furthermore, the Petitioner did not demonstrate that
4146the new bridges would cause flooding that would not already
4156occur during a 100 - year storm because of the height of the
4169existing bridges.
4171RECOMMENDATION
4172Based on the foregoing Findings of Fact and Conclusions of
4182Law, it is
4185RECOMMENDED that the St. Johns River Water Management
4193District enter a final order approving the issuance of
4202Environmental Resource Permit No. 135214 - 2 , with the conditions
4212set forth in the Technical Staff Report dated August 26, 2016.
4223DONE AND ENTERED this 30th day of March , 2017 , in
4233Tallahassee, Leon County, Florida.
4237S
4238BRAM D. E. CANTER
4242Administrative Law Judge
4245Division of Administrative Hearings
4249T he DeSoto Building
42531230 Apalachee Parkway
4256Tallahassee, Florida 32399 - 3060
4261(850) 488 - 9675
4265Fax Filing (850) 921 - 6847
4271www.doah.state.fl.us
4272Filed with the Clerk of the
4278Division of Administrative Hearings
4282this 30th day of March , 2017 .
4289ENDNOTE S
42911/ In its p roposed recommended order, the Applicant describes
4301the FEMA 100 - year flood elevations as Ð11.5 to 12.0 ft. NAVD88Ñ
4314(North Canal bridge) and Ð9.0 to 10.0 ft. NAVD88Ñ (South Canal
4325bridge), but there was no explanation why the elevations would
4335be expressed in ranges, rather than as single points. The
4345application documents show single numbers, 11.5 f ee t and
43559.3 f ee t , respectively. See AAF Ex. 12, p. 4, and AAF Ex. 14,
4370p. 5.
43722 / Petitioner did not challenge the proposed new bridge over the
4384Main Canal, presuma bly because there is a clearance of 4.1 feet
4396between the lowest horizontal beam and the FEMA 100 - year flood
4408elevation.
44093/ Because the Petitioner contends there is no clearance when
4419the water in the canals is at the 100 - year flood elevation , it
4433is unclear why floating debris was PetitionerÓs focus at the
4443final hearing, rather than the obstruction of flow caused by the
4454bridges themselves.
4456COPIES FURNISHED:
4458Joe Galletti
4460RAM Land Holdings, LLC
4464Post Office Box 533327
4468Orlando, Florida 32853
4471Jeffrey A. Co llier, Esquire
4476Stearns, Weaver, Miller, Weissler,
4480Alhadeff & Sitterson, P.A.
4484106 East College Avenue , Suite 700
4490Tallahassee, Florida 32301
4493(eServed)
4494Michael O Ó Haire, Esquire
4499O Ó Haire, Quinn, Casalino, Chartered
45053111 Cardinal Drive
4508Vero Beach, Florida 3 2964 - 4375
4515(eServed)
4516Eugene E. Stearns, Esquire
4520Matthew W . Buttrick, Esquire
4525Cecilia Duran Simmons, Esquire
4529Stearns Weaver Miller Weissler
4533Alhadeff & Sitterson, P.A.
4537Museum Tower, Suite 2200
4541150 West Flagler Street
4545Miami, Florida 33130
4548(eServed)
4549James F. Johnston, Esquire
4553Scott A. Glass, Esquire
4557Shutts & Bowen LLP
4561Post Office Box 4956
4565Orlando, Florida 32801
4568(eServed)
4569Kealey A. West, Esquire
4573Erin H. Preston, Esquire
4577St. Johns River Water
4581Management District
45834049 Reid Street
4586Palatka, Florida 32177
4589( eServed)
4591Ann B. Shortelle, Ph.D., Executive Director
4597St. Johns River Water
4601Management District
46034049 Reid Street
4606Palatka, Florida 32177
4609(eServed)
4610NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4616All parties have the right to submit written exceptions within
462615 days from the date of this Recommended Order. Any exceptions
4637to this Recommended Order should be filed with the agency that
4648will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/30/2017
- Proceedings: St. Johns River Water Management District's Response to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 06/30/2017
- Proceedings: Respondent All Aboard Florida - Operations, LLC's Response to Petitioner's Exceptions to Recommended Order filed.
- PDF:
- Date: 06/30/2017
- Proceedings: Respondent All Aboard Florida - Operations, LLC's Exceptions to Recommended Order filed.
- PDF:
- Date: 04/14/2017
- Proceedings: St. Johns River Water Management District's Exceptions to Recommended Order filed.
- PDF:
- Date: 03/30/2017
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/10/2017
- Proceedings: Respondent All Aboard Florida - Operations, LLC's Proposed Recommended Order filed.
- PDF:
- Date: 03/10/2017
- Proceedings: St. Johns River Water Management District's Proposed Recommended Order filed.
- PDF:
- Date: 03/10/2017
- Proceedings: St. Johns River Water Management District's Notice of Filing Proposed Recommended Order filed.
- Date: 02/08/2017
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 01/20/2017
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/19/2017
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 01/19/2017
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 20, 2017; 9:30 a.m.; Sebastian and Tallahassee, FL; amended as to hearing time).
- Date: 01/13/2017
- Proceedings: Petitioner, Indian River Farms Water Control District's Exhibit List (Exhibits not available for viewing) filed.
- PDF:
- Date: 01/12/2017
- Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Filing Proposed Exhibits filed.
- Date: 01/12/2017
- Proceedings: St. Johns River Water Management District's Exhibit List filed (exhibits not available for viewing).
- Date: 01/12/2017
- Proceedings: Respondent All Aboard Florida-Operations, LLC's Notice of Filing Proposed Exhibits filed (exhibits not available for viewing).
- PDF:
- Date: 01/11/2017
- Proceedings: Respondent All Aboard Florida - Operations, LLC's Notice of Filing Proposed Exhibits filed.
- PDF:
- Date: 01/11/2017
- Proceedings: Respondent St. Johns River Water Management District's Notice of Filing Proposed Exhibits filed.
- PDF:
- Date: 01/04/2017
- Proceedings: St. Johns River Water Management District's Motion for Official Recognition filed.
- PDF:
- Date: 12/20/2016
- Proceedings: Indian River Farms Water Control District's Response to St. Johns River Water Management District's First Request for Production of Documents filed.
- PDF:
- Date: 12/20/2016
- Proceedings: Indian River Farms Water Control District's Response to All Aboard Florida-Operations, LLC's First Set of Request for Production filed.
- PDF:
- Date: 12/20/2016
- Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Response to All Aboard Florida-Operations, LLC's First Set of Interrogatories filed.
- PDF:
- Date: 12/20/2016
- Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Response to St. Johns River Water Management District's First Request for Interrogatories filed.
- PDF:
- Date: 12/19/2016
- Proceedings: Petitioner, Indian River Farms Water Control District's Supplemental Exhibit List filed.
- PDF:
- Date: 12/13/2016
- Proceedings: St. Johns River Water Management District's Notice of Taking Deposition Duces Tecum of David E. Gunter filed.
- PDF:
- Date: 12/13/2016
- Proceedings: St. Johns River Water Management District's Notice of Taking Deposition Duces Tecum of George A. Simons, P.E. filed.
- PDF:
- Date: 12/01/2016
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for January 20, 2017; 9:00 a.m.; Sebastian and Tallahassee, FL).
- PDF:
- Date: 11/29/2016
- Proceedings: Joint Response to Order Continuing the Final Hearing and Requiring a Response filed.
- PDF:
- Date: 11/28/2016
- Proceedings: Order Continuing the Final Hearing and Requiring a Response (parties to advise status by December 2, 2016).
- PDF:
- Date: 11/23/2016
- Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Providing Exhibits filed.
- PDF:
- Date: 11/23/2016
- Proceedings: Petitioner, Indian River Farms Water Control District's Notice of Providing Expert Witness List filed.
- PDF:
- Date: 11/23/2016
- Proceedings: Indian River Farms Water Control District's Response to All Aboard Florida - Operations, LLC's First Set of Request for Admission filed.
- PDF:
- Date: 11/22/2016
- Proceedings: Respondent, J. Acquisitions Brevard, LLC's Witness and Exhibit Disclosure filed.
- PDF:
- Date: 11/22/2016
- Proceedings: Respondent St. Johns River Water Management District's Notice of Expert Witness Disclosure filed.
- PDF:
- Date: 11/22/2016
- Proceedings: St. Johns River Water Management District's Notice of Providing Exhibits filed.
- PDF:
- Date: 11/18/2016
- Proceedings: All Aboard Florida - Operations, LLC's Notice of Serving First Interrogatories to Indian River Farms Water Control District filed.
- PDF:
- Date: 11/18/2016
- Proceedings: All Aboard Florida - Operations, LLC's First Set of Requests for Production to Indian River Farms Water Control District filed.
- PDF:
- Date: 11/18/2016
- Proceedings: All Aboard Florida - Operations, LLC's First Set of Requests for Admission to Indian River Farms Water Control District filed.
- PDF:
- Date: 11/17/2016
- Proceedings: St. Johns River Water Management District's Notice of Service of First Set of Interrogatories to Petitioner Indian River Farms Water Control District filed.
- PDF:
- Date: 11/17/2016
- Proceedings: Respondent St. Johns River Water Management District's First Request for Production of Documents to Petitioner Indian River Farms Water Control District filed.
- PDF:
- Date: 11/16/2016
- Proceedings: Respondent St. Johns River Water Management District's Motion to Modify Order of Pre-hearing Instructions filed.
- PDF:
- Date: 11/15/2016
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for December 13, 2016; 9:00 a.m.; Sebastian and Tallahassee, FL).
- PDF:
- Date: 11/14/2016
- Proceedings: Memorandum of Law in Opposition to All Aboard Florida - Operations, LLC's Motion to Dismiss filed.
- PDF:
- Date: 11/10/2016
- Proceedings: Respondent St. Johns River Water Management District's Notice of Joinder in Motion to Dismiss Second Amended Petition filed.
- PDF:
- Date: 11/09/2016
- Proceedings: Respondent All Aboard Florida, Operations, LLC's Motion to Dismiss and Incorporated Memorandum of Law filed.
- PDF:
- Date: 10/24/2016
- Proceedings: Respondent All Aboard Florida - Operations, LLC's Notice of Joinder in Motion to Dismiss filed.
- PDF:
- Date: 10/21/2016
- Proceedings: St. Johns River Water Management District's Notice of Related Case filed.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 10/20/2016
- Date Assignment:
- 10/21/2016
- Last Docket Entry:
- 06/30/2017
- Location:
- Sebastian, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Matthew Wyatt Buttrick, Esquire
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130
(305) 789-3283 -
Jeffrey A. Collier, Esquire
Stearns, Weaver, Miller, Weissler,
Suite 700
106 East College Avenue
Tallahassee, FL 32301
(850) 329-4891 -
Joe Galletti, Esquire
Post Office Box 533327
Orlando, FL 32853 -
Scott A. Glass, Esquire
Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000
Post Office Box 4956
Orlando, FL 32801
(407) 423-3200 -
James F. Johnston, Esquire
Shutts & Bowen LLP
300 South Orange Avenue, Suite 1000
Orlando, FL 32801
(407) 423-3200 -
Michael O'Haire, Esquire
O'Haire, Quinn, Candler & Casalino, Chartered
3111 Cardinal Drive
Vero Beach, FL 329644375
(772) 231-6900 -
Erin H. Preston, Assistant General Counsel
St. Johns River Water Management District
4049 Reid St.
Palatka, FL 32177
(386) 294-4176 -
Eugene E. Stearns, Esquire
Stearns, Weaver, Miller, Weissler,
150 West Flagler Street, Suite 2200
Miami, FL 33130
(305) 789-3200 -
Myles Tobin, Esquire
4th Floor
2855 Le Jeune Road
Coral Gables, FL 33134 -
Kealey A. West, Esquire
St. Johns River Water
4049 Reid Street
Palatka, FL 32177
(386) 312-2317 -
Matthew Wyatt Buttrick, Esquire
Address of Record -
Jeffrey A. Collier, Esquire
Address of Record -
Joe Galletti
Address of Record -
Scott A. Glass, Esquire
Address of Record -
James F. Johnston, Esquire
Address of Record -
Michael O'Haire, Esquire
Address of Record -
Erin H. Preston, Assistant General Counsel
Address of Record -
Eugene E. Stearns, Esquire
Address of Record -
Kealey A. West, Esquire
Address of Record -
Erin H. Preston, Esquire
Address of Record