All Aboard Florida opponents pursue new legal frontier

Posted on October 17, 2016

Martin and Indian River counties have staked millions of dollars on their belief that All Aboard Florida must have financial support from the government to complete its Miami-to-Orlando railroad.

In their federal court case, the counties have presented compelling evidence that the $3.1 billion railroad cannot proceed without tax-exempt bonds, and the U.S. District Court for the District  of Columbia in August confirmed these claims have merit.

But the counties, of course, could be wrong.

If All Aboard Florida manages to raise the capital for its passenger railroad privately, the counties' case would be significantly weakened, if not dead.

And so even as they continue to pursue that major legal action, Martin and Indian River also are are pursuing a number of smaller battles challenging the list of environmental permits All Aboard Florida needs to proceed with its project.

All Aboard Florida officials declined to comment for this article.

So far, the counties have filed legal action on permits issued by two Florida water management districts.

The Indian River County Commission on Tuesday is to hold a private 90-minute attorney-client session regarding its opposition to the issuance of an environmental permit by the St. Johns River Water Management District.

County Attorney Dylan Reingold said challenging the permit could be crucial for the county's stormwater and wetlands.

"It's important to ensure our citizens are protected," he said.

The county, Reingold said, is looking into whether "the project even meets fundamental (environmental) requirements," but stopped short of saying that challenging the permits is an attempt to stop the project.

The environmental permit issued by the St. Johns district would authorize work that impacts about 4 acres of wetlands and 11 acres of surface water, according to court documents.

All Aboard Florida failed to represent "the true impact of the project to the water resources within the county,” Indian River County said in its petition for an administrative hearing, which would be the next step in challenging the permit.

The water management district, however, said its decision is sound.

"We received plenty of information and it passed muster," spokesman Ed Garland said Monday, noting that "our review is limited to matters within our regulatory authority. We don't have the authority to consider other matters, such as noise, property values or traffic-related impacts."

Indian River has taken no formal action — All Aboard Florida needs approval from a number of other agencies, including the Army Corps of Engineers and the U.S. Coast Guard — but last month wrote a letter to the Army Corps reiterating its concerns about the passenger railroad.

The county will continue tracking All Aboard Florida's work, Reingold said.

"We'll analyze each (permit) as it comes through," he said.

Meanwhile, Martin County — with help from St. Lucie County — on Oct. 3 filed an appeal in the Florida Fourth District Court of Appeal against the South Florida Water Management District’s decision to issue All Aboard Florida an environmental permit for a portion of its work in Palm Beach, Martin and St. Lucie counties.

By Friday, the county must file a statement explaining why the case should be heard by the appeals court.

The legal action is meant to ensure that All Aboard Florida follows the “rules and regulations that are designed to protect the health, safety and welfare of the community,” including the water resources and endangered species, County Attorney Michael Durham said Monday,

“We don’t believe the applicant is in compliance,” Durham said. “And that’s what we’re challenging.”

The water management district, however, said the county has inflated the significance of the permit issued to All Aboard Florida.

The permit addresses only stormwater management systems, not the construction or operation of the railway line; it does not authorize All Aboard Florida to perform any work within roadway crossings, spokesman Randy Smith said.

Meanwhile, CARE FL — a leading citizens group opposed to the railroad project — said it may intervene and provide backup support to Martin County. The organization has retained a Miami law firm to research the issue, the group said in a news release last month.

All Aboard Florida already is building the first phase of the railroad, from Miami to West Palm Beach, and service there is to begin next year.

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