Much of the Applicant's proposed passenger service route, including the portion covered by the ERP Modification, will utilize an existing rail corridor which has been in continuous operation since the late 1800s. The Applicant is upgrading that stretch of the corridor by, among other things, replacing existing railroad ties and tracks, reinstalling a second set of tracks which used to exist, upgrading safety features at grade crossings, and installing Positive Train Control systems which provide integrated command and control of train movements.

The passenger service will be known as Brightline and is scheduled to begin operating between Miami and West Palm Beach later this year. The ERP Modification covers a portion of the second phase of the project - specifically, the segment which will run from just north of West Palm Beach to the northern edge of St. Lucie County.

The challengers in the proceeding before the Division of Administrative Hearings were Martin and St. Lucie Counties, and the Town of St. Lucie Village. They argued, among other things, that the ERP Modification did not satisfy the public interest test, an important ERP requirement. They principally focused on the first element of the public interest test - whether the activities will adversely affect the public health, safety, welfare, or property of others. They argued that the analysis of that element required consideration of non-environmental factors such as rail safety, traffic congestion, and emergency response times.

The Administrative Law Judge rejected that argument in his Recommended Order. He began by examining the history of the Florida Statutes which codified the public interest test, along with a subsequent Senate committee report concerning the ERP Program. He also examined the Applicant's Handbook provision concerning the first element of the public interest test, and pertinent case law. He concluded that, while past administrative decisions have been inconsistent on the issue, the first element of the public interest test does not permit consideration of non-environmental factors. The Judge then notably added, however, that the proposed project would satisfy the first element of the public interest test even if non-environmental factors such as rail safety, traffic congestion, and emergency response times were considered. He also found the other elements of the public interest test to be met as well. He recommended that the South Florida Water Management District enter a final order approving the ERP Modification.

The Recommended Order contains the most thorough analysis to date on the issue of whether the first element of the public interest test permits consideration of non-environmental factors. It provides more predictability and clarity as to the application of the ERP public interest criteria.

Stearns Weaver Miller's Eugene Stearns, Matthew Buttrick, Jeff Collier, and Cecilia Duran Simmons represented the Applicant throughout the proceeding. Our Land Development, Zoning, & Environmental team can assist clients in all types of environmental permitting matters, including environmental and administrative litigation. For more information, please contact us.