How David beat Goliath: Spruce Creek conservationists block I-95 interchange - for now

Port Orange environmentalist Derek LaMontagne is a scientist, not a lawyer.

But for five days last October, he was forced to play one before a judge in a Tallahassee hearing room, where he argued a state agency should not have granted a stormwater permit for a controversial Interstate 95 interchange because it would damage an already impaired Spruce Creek.

And the table across from him was crowded with eight attorneys − eight − representing the Florida Department of Transportation and St. Johns River Water Management District, which oversees environmental permitting from northeast Florida down the Atlantic coast to Indian River County.

LaMontagne found himself in this predicament after the law firm he and his coalition hired, Guilday Law, P.A., resigned from the case citing "fundamental disagreements" with its clients just a few weeks before the hearing was originally scheduled in late August.

"I could say we did this whole case with our hands (tied) behind our backs," LaMontagne said.

However, he said Administrative Law Judge E. Gary Early was "forgiving of our situation." He granted a two-month continuance.

Even still, coalition members raised only a few thousand dollars. They couldn't afford to fly in expensive expert witnesses, or even afford a stenographer for depositions. Instead, they turned to locals with a grasp on Spruce Creek, a 20-mile-long stream that begins in wetlands in Samsula and flows east to the Halifax River, dividing Port Orange from New Smyrna Beach.

Even kayaking upcreek without a paddle, LaMontagne remained confident.

“I, for one, knew we were going to win – I hope I don't sound too arrogant saying that – but I wouldn’t have started this case if I didn’t know there was a problem," he said.

The judge agreed, ruling last month that the stormwater permit for the interchange was "not in the public interest," and that it should be revoked.

Some longtime environmental advocates considered it stunning, a rare victory for a small band of conservationists taking on the state on a project that is a priority of Gov. Ron DeSantis' administration.

“It feels like it should be a Netflix movie because of that David and Goliath quality,” said Lori Sandman, a patent attorney who is a member of the Sweetwater Coalition of Volusia County, one of groups challenging the permit.

Except it's a movie without a conclusion. It appears unlikely the judge's ruling will be a fatal blow to the project. This was David knocking Goliath down, not out.

What's next for long-debated interchange?

The I-95 interchange is proposed for Pioneer Trail, a two-lane road that passes over the interstate. Once the main link between New Smyrna Beach and DeLand, the country road is gaining more and more traffic as residential development has sprouted.

It was first identified as a potential project in 1985, while in 1995, the predecessor to the River to Sea Transportation Planning Organization put it on a 25-year plan, and has had the support of local governments, including the TPO board, for about 15 years.

Proponents of the interchange argue it's needed not just to serve the thousands of new homes that have been built in the last 20 years, but thousands more that are on the way. FDOT, in particular, has identified it as an important next step to take stress off the building traffic on the two nearest interchanges, State Road 421 (Dunlawton Avenue) to the north in Port Orange, and State Road 44 in New Smyrna Beach. They say it will help people get to I-95 as a hurricane evacuation route.

But opposition has been visible along Pioneer Trail and its offshoot, Turnbull Bay Road, where residents have posted signs with the words Pioneer Interchange in a circle with a line through it. They have expressed concerns that the interchange will only speed up the development that threatens their homes' rural setting. Opponents also include environmentalists who say it will harm the Doris Leeper Spruce Creek Preserve, a 2,513-acre conservation area with trails and other recreation amenities, as well as the creek and its tributaries.

With his order, Judge Early's work on the matter is done. The final decision on revoking the permit rests with the St. Johns Water Management District, which has 15 days from the date of the decision, Jan. 29, to file an exception or written objection.

"Once the exceptions and any responses to those exceptions are filed, the statutes require the district to review the record, consider the exceptions and responses, and enter a final order that rules on each exception and makes a final decision to issue or deny the permit," Ashley Evitt, the district's media outreach manager, wrote in an email. "A separate team that was not involved in the litigation work on the review and final order."

The Florida Department of Transportation is "disappointed" in the judge's "recommendation," wrote Cindi Lane, public information director for the department's Central Florida district.

"This project brings tremendous value to the community, enhances safety, ensures resiliency, increases mobility and has been developed and prioritized by the community, local government and TPO," Lane wrote.

Mori Hosseini, chairman and CEO of ICI Homes, which is building Woodhaven, a residential and commercial development near the interchange, said the judge's ruling was surprising, as the interchange would provide “thousands of people” with better access to the interstate, particularly during a hurricane evacuation.

Hosseini has denied accusations of leaning on DeSantis − a politician he has supplied with thousands of dollars worth of political contributions for more than a decade − to push the interchange forward.

“If they think we have so much influence, why has it taken 20 to 30 years for this interchange to be built? That’s lousy influence if it takes that long,” he said.

Hosseini insisted the interchange won't make any difference to the success of Woodhaven.

“No one can stop it. It’s on its way. We are building homes. People are moving in. Kids are playing outside,” he said.

Regardless, many believe the interchange will eventually be built, despite the judge's order.

Wendy Anderson, a biologist and Stetson University professor of environmental science and studies who testified during the hearing, is among them.

"This year, five years from now, 15 years from now, I don’t know," Anderson said, "but I would say every year that wildlife gets to live, these wetlands can cross through this area, … that’s a year that we win. We take our wins one year at a time.”

Lane said FDOT will continue "to work diligently through every federal, state, and local requirement to achieve our mission and deliver impactful projects to our communities.

"A recommendation such as this only further delays the delivery of this critical infrastructure project," she said.

The ruling comes as Florida − as do all recipients − faces deadlines on the expenditure of American Rescue Plan Act (ARPA) of 2021 funds. At one point, the state committed $92 million of its $462 million allotment of ARPA funds to the Pioneer Trail interchange, moving up its timeline. Under the law, the state has until the end of 2024 to commit the funds to a project, while it has until the end of 2026 to fully expend the money.

As of Feb. 3, the $92 million in federal ARPA funds has been reduced to $44 million. However, Lane said the Pioneer Trail interchange remains fully funded.

​"As FDOT’s 5-year work program is funded by multiple funding streams, including state and federal dollars, the department routinely examines and revises the funding sources of each project to ensure all parameters are met," Lane said. "This is part of the department’s normal business practice to accommodate for the stringent requirements for federal funding."

Spruce Creek High valedictorian urged fellow students to allow 'dreaming time'

LaMontagne, a 38-year-old Ph.D. candidate in chemistry at the University of Florida and former candidate for Port Orange mayor is not new to picking fights with much larger, more deep-pocketed institutions.

He's filed petitions against Hosseini's Woodhaven project, the city of Port Orange and the water management district. None of those previous challenges led to a successful ruling like the Pioneer Trail case, but LaMontagne says some have produced results, such as delaying the city's Yorktowne Boulevard extension.

He has persisted.

When he was valedictorian of Spruce Creek High School in 2003, he told fellow students: "As our schedules get more and more packed full of activity, always remember to set aside some dreaming time. This will make the events in life that much more meaningful."

Since those days as a high school student, he has dreamed of a clean Spruce Creek, and a Port Orange less intent on development and more concerned with conserving undeveloped land.

"Spruce Creek Preserve ... it is near and dear to my heart," he said.

When the water management district gave FDOT the stormwater permit on Feb. 28, 2023, LaMontagne looked into the laws and rules governing stormwater management in an Outstanding Florida Waterway, as well as the science and math that went into projections for the system of retention ponds and swales. They didn't buy the state's claims that the project would result in a net reduction of total phosphorous, an element that in overabundance has impaired the creek along with other harmful chemicals.

So LaMontagne, both as an individual and as founder of the Sweetwater Coalition of Volusia County, Bear Warriors United Inc., and Bryon White, a New Smyrna Beach resident, formally asked a Florida Division of Administrative Hearings judge to hear their challenge.

He assembled a number of witnesses including two local professors, Anderson from Stetson and Hyun Jung Cho, professor of integrated environmental science at Bethune-Cookman University.

Volusia County Council Chairman Jeff Brower, an opponent of the interchange, also was among the witnesses.

LaMontagne said another crucial witness was John Baker, a Sierra Club member who in the 1980s filed the paperwork that led to Spruce Creek getting the Outstanding Florida Waters designation in 1991.

Outstanding Florida Waters, or OFWs, have been so designated for special protections due to their natural attributes. Spruce Creek's designation played a crucial role in the case.

Anderson said she challenged FDOT's engineers on a claim that the project would actually reduce phosphorus, nitrogen and other harmful elements being diverted to Spruce Creek.

"Intuitively, you’re like, 'How could this be possible?' and of course, it’s not," Anderson said. "I went back and found their worksheets ... checked their math ... they’ve made some wild assumptions here about how they’re setting the parameters of this model and maybe there's some standard in how they’re choosing that, but it wasn’t based in science. It was based on wishful thinking.”

The state's argument that the permit should be allowed was that the project won't harm Spruce Creek or the fish and wildlife in the vicinity and that it's needed because growth in the area demands another route to the interstate to evacuate during a hurricane and to manage traffic incidents on the interstate.

Judge Early found a precedent that those reasons − hurricane evacuation and traffic incident management − are not environmental factors to determine whether the interchange is "clearly in the public interest."

But he also wrote that the state proved its case on three important points:

• that the project will reduce the amount of phosphorus and other harmful materials bound for Spruce Creek,;

• will not, considering mitigation, impact wetlands and adverse impacts on fish and wildlife;

• and that the mitigation plan, of purchasing credits in two mitigation banks within the Halifax River Drainage Basin is sufficient for taking 49 acres of wetlands, plus secondary impacts on 10 additional acres.

The judge also ruled that because Spruce Creek is an Outstanding Florida Water, the standard requires more.

"If this case did not involve an OFW, and if the standard for issuance was whether the project is not contrary to the public interest, (I) would have no hesitation in recommending issuance of the permit," Early wrote. "However, this case does involve an OFW, and the standard is whether the project is clearly in the public interest."

"... It is concluded that reasonable assurances have not been provided that the activities to be authorized by the permit are clearly in the public interest. Thus application for (the permit) should be denied."

'Nothing short of amazing'

For now, though, the members of Sweetwater, Bear Warriors and other environmentalists who enjoy Spruce Creek and the Leeper preserve are taking a victory lap.

“It’s not over, as environmental fights never are," LaMontagne said. "But this week we got a big win.

"The people of Florida have spoken and we have said we are tired of being invaded by costly and damaging special interest developments," he said.

LaMontagne maintains the interchange is not needed and will only serve to increase traffic on Pioneer Trail, not reduce it on the two nearest interchanges, State Road 421 (Dunlawton Avenue) in Port Orange and State Road 44 in New Smyrna Beach.

"Not only did the Spruce Creek environment finally get a victory this week, but so did our community as now we will have cleaner water, less risk of flooding and no highway trucks being dumped on our families’ streets. It really is a win-win-win.

"By not building this overpriced interchange, which would cut through sensitive wetlands, we as taxpayers will save over $120 million which will be a huge benefit for our small business, local economy and especially ecotourism related to Spruce Creek," he said.

Sandman, who owns property on Spruce Creek, said she joined Sweetwater because it was a small organization comprised of citizens concerned about water quality.

"We were able to stand up to this giant and take on this case from a very grassroots, local perspective and overcome what would have been a very bad decision," she said. "I think you cant underestimate local citizens committed" to doing what's right, and we fought for what was right: protecting our local water quality."

She said the key to the success of their case was LaMontagne.

"He picked up when we had hired counsel and the law firm did back out on us within three weeks of the actual hearing," she said. "Although he's not a lawyer, he did an outstanding job representing us before the judge. ... It was a full five days, long days, of testimony and the amount of material that Mr. LaMontagne was able to present was nothing short of amazing."

Editor's Note: A clarification has been made in this story since its original publication to add context about Derek LaMontagne's previous legal challenges to developments in Port Orange.

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This article originally appeared on The Daytona Beach News-Journal: Citizens get rare win in fight with FDOT over new I-95 interchange