Environmentalists say they intend to continue fight over Pioneer Trail interchange permit

The St. Johns River Water Management District's decision this week to issue a permit allowing the state to construct a new $120 million interchange at Interstate 95 and Pioneer Trail will likely face more legal hurdles, local environmentalists say, including a possible federal lawsuit.

The granting of an environmental resource permit to the Florida Department of Transportation came in spite of a judge's determination in January that the long-planned, long-controversial project is not in the public interest.

Administrative Law Judge E. Gary Early's ruling followed a five-day hearing in Tallahassee last October. It came as a result of a challenge to the initial approval of a permit a little more than a year ago.

A group of environmentalists that included the Sweetwater Coalition of Volusia County, its founder Derek LaMontagne, Bear Warriors United and area resident Bryon White filed the challenge. They say the project will cause harm to Spruce Creek and surrounding land, much of which is part of the Doris Leeper Spruce Creek Preserve.

They're not the only opposition. Property owners − particularly along Turnbull Bay Road to the east of the proposed interchange − have for years posted yard signs opposing the project.

However, state officials contend the interchange is needed to enhance safety, address traffic concerns at neighboring I-95 interchanges and provide residents who use Pioneer Trail − a two-lane county road anchoring a growing area where Port Orange meets New Smyrna Beach − with an additional hurricane evacuation route. The project has been made a priority by the River to Sea Transportation Planning Organization, whose board is comprised of county and city officials and has been advanced by the Gov. Ron DeSantis administration with COVID relief funds.

Early, the judge, found that the FDOT plans to address stormwater will reduce phosphorus and other harmful runoff to Spruce Creek and will not impact wetlands, fish and wildlife because of a mitigation plan. However, he also determined that the project isn't in the public interest because it will impact an unnamed canal that connects to Spruce Creek, deemed an Outstanding Florida Water, or a body of water designated by law as worthy of special protections because of its natural attributes.

How the district can overrule the judge

Florida law, though, gives the final say on the permit to the water management district director, which, in this case, was handled by Mary Ellen Winkler, the district's assistant executive director.

Winkler and other district officials scrutinized Early's findings and found a previous case where a judge had ruled that because the 517-mile Sabal Trail natural gas pipeline that runs from Alabama to Orange County, Florida, "clearly demonstrated compliance with all applicable regulatory criteria, the project is clearly in the public interest," she said.

District and FDOT lawyers said the Pioneer Trail interchange plans passed all tests for it to be considered "in the public interest," except for the judge's finding about it being constructed on part of an Outstanding Florida Water.

“The ultimate findings were there were no adverse impacts. The agency is not permitted to require extra measures, and in such circumstances, the applicant has provided reasonable assurance of compliance, and therefore the project is clearly in the public interest,” Winkler said.

St. Johns River Water Management District Board Chairman Rob Bradley, a former state senator, took issue with Early's finding that the benefits the project will provide, including serving as an additional hurricane evacuation route, are non-environmental factors and should not be weighed in the question of public interest.

“I could not disagree more with that statement that was made in this opinion by the judge," Bradley said, "because ... we live in such a vulnerable state where hurricanes are a fact of life, and we are growing just faster than any other state and we’re having to manage all these people coming in with the impacts that it has on the environment. ... We need to keep people safe, and I really believe it’s important when considering these public interest tests that not only as agencies but as jurists who review these matters, this cannot stand.”

Board member Myriam Ghyabi-White, a Volusia County transportation engineer, did not participate in the discussion, citing a conflict of interest. Her brother, ICI Homes chairman and CEO Mori Hosseini, is developing Woodhaven, a community adjacent to the Pioneer Trail interchange.

Can FDOT prevent runoff from damaging Spruce Creek?

Winkler's presentation noted that the FDOT plan goes above and beyond what's required, a system capable of handling a 25-year, 24-hour storm. She said the system will be equipped to handle a 100-year, 24-hour storm.

LaMontagne, a Port Orange native and petitioner who argued the matter before Early, also made his case to the district board Tuesday.

The state's project designs did not acknowledge the project was going to be built in an Outstanding Florida Water until long after the permit was originally issued in February 2023, he said.

"This whole area is going to be leveled," LaMontagne said. " ... What we really take great exception, and almost offense, to is the fact that they said, ‘We’re providing extra stormwater capacity.’"

Part of the state's stormwater plan will be "destroying a wetland or forest," he said, questioning the notion that the state is "overdesigning" the stormwater plan.

"We want it underdesigned," LaMontagne said.

Kathleen Toolan, an FDOT attorney, told the board the state has heard the petitioners' concerns and has designed the stormwater system to handle more water than is required by law, and will treat runoff prior to it reaching the canal and creek.

“The project does in fact discharge to an Outstanding Florida Water, and we have ... 150% increased treatment, which is required for OFWs," she said.

Petitioners reject state's settlement overture

When Winkler announced the district's decision to grant FDOT the permit, she also explained that she wanted to give the board an opportunity to weigh in, should it object.

Bradley asked board members if anyone wanted to make a motion, and no one did. So the district staff's ruling stands.

At one point, Bradley said he wanted district and FDOT lawyers to discuss a potential settlement with those objecting to the permit.

Katrina Shadix, founder and director of Bear Warriors United, a Seminole County-based organization that aims to protect bears and other wildlife, was part of the brief talks and provided a photo of the proposed settlement she and LaMontagne were offered.

"(FDOT) shall submit revised plans prior to the commencement of construction demonstrating that there will be no direct impacts to wetlands within those portions of the Unnamed Canal designated as an Outstanding Florida Water," the proposal reads.

Shadix said the petitioners rejected the offer because the state's lawyers couldn't explain how they would engineer around impacting the unnamed canal, and wouldn't agree to other demands, such as creating a wildlife crossing.

Talk of a federal legal challenge

Those petitioners say they intend to continue the fight, suggesting they intend to file a federal lawsuit to stop the project because they say it will undoubtedly damage Spruce Creek.

Shadix said her coalition has "such a great federal case now," after the district granted the permit despite the judge's finding.

“We don’t want to be too negative and call it a banana republic and a kangaroo court," Shadix said. "... It’s ridiculous they used this vehicle, this tool, to permit the damage to wetlands and the environmental wildlife. I just didn’t think it was a fair process.”

White, who grew up near Spruce Creek and for several years served as caretaker of the adjacent Doris Leeper Preserve, called the granting of the permit "disappointing" and vowed a federal court fight.

"I think it’s just a joke that we went through this whole process of going through this legal review, and this judge offered a very thoughtful order and they said, ‘Yeah, well, we don’t care. We’re going to do whatever we want.’ That’s the type of democracy we live in today."

White also expressed disdain for the state's plans to mitigate 48 acres of wetlands near the interchange. Mitigation allows a project developer to take wetlands in one area by purchasing credits to establish new wetlands in another area. White called it a "total scam" that will be destructive to the Spruce Creek/Leper preserve area.

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This article originally appeared on The Daytona Beach News-Journal: FDOT gets I-95/Pioneer Trail interchange permit; water advocates react