Originally, the Department of Environmental Protection ("DEP" or "Department") handled both wetland resource ("dredge and fill" or "WR") and Management and Storage of Surface Waters ("MSSW") permitting.  It was thereafter delegated by the State to four of the five Water Management Districts.  DEP retained permitting within the Northwest Florida Water Management District.  In the early 90s, there began a realization that there was a lot of overlap between the dredge and fill permitting program implementation by DEP and the MSSW implemented by the water management districts.  In an effort to streamline, in approximately 1992, DEP implemented delegation agreements with some of the water management districts.  Pursuant to these agreements, an applicant could either go to the District or the Department, depending on the kind of activity that was proposed, to get both an MSSW and a dredge and fill permit. Certain kinds of activities were regulated by the water management districts and certain kinds by the Department.  DEP maintained an oversight role, and the rules with respect to dredge and fill permits remained the rules of the Department.  Eventually, further streamlining was mandated by statute.

     Chapter 93-213, Laws of Florida, contains the Florida Environmental Reorganization Act of 1993.   It consolidated the dredge and fill permit, previously provided for in Chapter 403, Florida Statutes, and MSSW permit, previously provided for in Chapter 373, Florida Statutes, and their permitting criteria, into a single permitting program, which resulted in the creation of the Environmental Resource Permit ("ERP").  Part IV of Chapter 373, Florida Statutes, now contemplates a comprehensive permit system and combines the two.  The new permit is issued by one entity, rather than multiple entities.

      There is a grandfathering provision that allows persons who submitted applications on or before June 15, 1994, to have their permits processed under rules adopted prior to those adopted pursuant to the new law.  Section 373.414(11) - (16), Fla. Stat. (1997).   Practitioners may still yet find themselves litigating under the former statutory and rule schemes and may find the discussion of those schemes contained herein useful in that respect.  However, more importantly, the case law relating to the former dredge and fill and MSSW permits developed over the years remains persuasive with  respect to secondary impacts analysis under the ERP regulatory program.

     Subsequent to passage of the ERP legislation, DEP and the water management districts developed new rules to implement the ERP.  One component of those rules is a codification of the required secondary impacts analysis.  Ostensibly, the intention was to codify the analysis which had been implemented through interpretation of the doctrine of secondary impacts as it had developed through case law. 

     Closer scrutiny of the ERP rules, however, reveals differences between the rules and the judicially developed doctrine.  However, the case law which has developed with respect to WR and MSSW permitting certainly continues to be relevant and highly persuasive with respect to ERP permits.  The following is a discussion of secondary impacts analysis under State of Florida law, and to a lesser extent cumulative impacts, a concept which is often lumped in with, or confused with, concept of secondary impacts.

SECONDARY IMPACTS ANALYSIS IN WETLAND RESOURCE AND MANAGEMENT AND STORAGE OF SURFACE WATERS PERMITTING AND THE TRANSITION TO ENVIRONMENTAL RESOURCE PERMITTING

     Dredge and fill permits and MSSW permits were permitting tools prior to 1993.  See Chapters 403 and 373, Fla. Stat. (1991 and 1992 supp.).  Both permits had a required secondary impacts analysis.  Both were replaced by the Environmental Resource permit (“ERP”) pursuant to 93-213, Laws of Florida.  However the analysis involved in dredge and fill and MSSW permitting remains highly persuasive in the ERP permitting context because of an expressed legislative intent to rely primarily on existing rules of DEP and the districts in implementing the ERP program.  §373.414(9), Fla. Stat. (1997).

     The secondary impact analysis was first developed in the context of dredge and fill permitting as a judicially created doctrine in the case of del Campo v. State Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984).  There the court instructed the Department of Environmental Regulation (one of the predecessors of the current Department of Environmental Protection), in reviewing a dredge and fill permit for a bridge, to consider not only the wetland impacts of the bridge construction but also the potential impacts on the island to be bridged.

     Since the del Campo case, DER, and its successor DEP, have been considering secondary impacts in dredge and fill permitting, and the courts have continued to refine how the concept of secondary impacts should be applied.  An important case to consider when evaluating secondary impacts is Conservancy, Inc. v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1994).  In that case, the court indicated:
 

[F]or purposes of applying and balancing the statutory public interest criteria in Wetland Resource ("WR") and Management and Storage of Surface Waters ("MSSW") §403.918 [DER’s policy is ] to look at the actual jurisdictional area to be dredged and filled, and any other relevant activities that are very closely linked or causally related to the proposed dredging and filling. (Emphasis added)

     As for MSSW permitting, case law which existed at the time of the enactment of Chapter 93-213, Laws of Florida, had established that water management districts must also consider secondary impacts when issuing MSSW permits under Chapter 373, Part IV, Florida Statutes (1991 and 1992 supp.).  The requirement was first established as a requirement in an order of the Governor and Cabinet, acting as the Land and Water Adjudicatory Commission (“FLWAC”), reviewing a final order of the St. Johns River Water Management District.  Sierra Club v. St. Johns River Water Management District and the Department of Transportation, ER FALR 92-131 (Case No. RFR-92-001, July 22, 1992).  FLWAC indicated that the Florida Legislature had, in effect, “copied” into Chapter 373, Florida Statutes, the “identical policy statements” from Section 403.021, Florida Statutes, relating to dredge and fill permits.  FLWAC then indicated that “[t]he consideration of impacts of other relevant activities that are very closely linked or causally related to the permitted activity is essentially a secondary impact analysis.”  Id. at 3.  Further, FLWAC ordered the water management districts to develop rules providing for secondary impact analysis as part of their MSSW permitting evaluation.  Development of the ERP rules eliminated the need for the water management districts to develop secondary impact rules for MSSW permits distinct from, or identical to, DEP dredge and fill requirements.

Burden of Proof in Permitting Cases

     In any permitting case, the applicant has the burden of proof to demonstrate entitlement, by a preponderance of the evidence, to the sought permits.  FDOT v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).  This includes the burden to show that there will be no adverse cumulative or secondary impacts.  Concerned Citizens League of America, Inc. et al. v. IMC Fertilizer, Inc. and Department of Environmental Protection, 89 ER FALR 41 (Final Order issued March 29, 1989).
 
Wetland Resource Permitting Criteria

     The pre-ERP WRM program regulates activities taking place within the wetland jurisdiction of the DEP -- i.e., within the landward extent of waters of the state -- as delineated in accordance with the pre-ERP rules of the DEP.  Section 373.414(12), Fla. Stat.; Rule 62-312.090, F.A.C.  Issuance of a WRM permit is based upon an applicant's providing reasonable assurances that the project will comply with the permit criteria, including the public interest test, contained in Section 403.918, Florida Statutes (1991 and 1992 supp.), and rules promulgated thereunder. 

     Further, in order to determine whether an applicant has met its burden of proof and demonstrated entitlement to a dredge and fill permit, Rule 62-4.070, Florida Administrative Code established a standard of review that the applicant provide “reasonable assurance” that the proposed activity will not “cause pollution in contravention of Department standards or rules.”  62-4.070, F.A.C.  Reasonable assurance “contemplates . . . a substantial likelihood that the project will be successfully implemented.”  Metro Dade County v. Coscan Florida, Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992).

     The public interest test set forth in Section 403.918, Florida Statutes (1991 and 1992 supp.), is as follows:
 

(a) In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department [or a water management district when the authority is delegated] shall consider and balance the following criteria:

1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

3. Whether the project will adversely affect navigation or the flow of water, cause harmful erosion or shoaling;

 4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

5. Whether the project will be of a temporary or permanent nature;

6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of §267.061; and

7. The current condition and relative value of functions being performed by areas affected by the proposed activity.
 

     Under the case law interpreting the public interest test, the permitting entity cannot consider non-environmental factors under the "public health, safety, or welfare or property of others" prong of the public interest test.  Miller v. Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987)(property of others); Taylor v. Cedar Key Sewage District, 590 So.2d 481 (Fla. 1st DCA 1991)(compliance with land use restrictions); Grove Isle Ltd. v. Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984)(limits public interest analysis to pollution); Council of the Lower Keys v. Charlie Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983)(excludes consideration of zoning, land use and long range development plans).  There is, however, some contrary case law with respect to this matter.  See e.g. VanWaggoner v. Department of Transportation and Department of Environmental Protection, 96 ER FALR 78 (Final Order dated May 14, 1996), aff’d Save Anna Maria v. Dept. of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997) (a fairly recent case with internal contradictions on the issue of consideration of non-environmental factors.  The consideration of non-environmental safety factors was allowed in this case.)

     Specific rules for wetland resource permits were contained in Chapter 62-302, Florida Administrative Code relating to water quality standards, and in Chapter 62-312, Florida Administrative Code, relating to dredge and fill permitting, as that rule existing prior to the ERP rules.

Secondary and Cumulative Impacts Analysis Under Wetland Resource Permitting Criteria

     In determining whether a proposed project satisfies the requirements of law, the doctrines of "secondary" and "cumulative" impacts are applied to dredge and fill permitting.  See Conservancy, Inc. v. A. Vernon Alan Builder, 580 So.2d 772 (Fla. 1st DCA 1991)(with regard to secondary impacts the court said, "such evidence would be highly relevant to the consideration of whether the applicant has carried its burden of giving reasonable assurances under section 403.918 that water quality standards will not be violated and the project is not contrary to the public interest [or clearly in the public interest]."), review denied, 591 So.2d 631 (Fla. 1991).  Secondary impacts are those indirect impacts outside the project area, whereas cumulative impacts are those created by the cumulative effects of existing or future projects.

     The cumulative impacts' test was codified in Section 403.919, Florida Statutes (1991), and requires the permitting entity to consider the following:
 

(a) The impact of the project for which the permit is sought.

(b) The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.

(c) The impact of projects which are under review, approved, or vested pursuant to §380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

     Cumulative impacts are basically those impacts that may result from the added effects of many existing or future projects.  Conservancy, 580 So.2d at 777-778.  The purpose of the cumulative impact analysis is to prevent piecemeal destruction of the environment, Florida Power Corp. v. Department of Environmental Regulation, 92 ER FALR 56 (Final Order issued April 1, 1992).  The term "reasonably likely" to occur does not mean that there needs to be a permit or even a pending application.  del Campo, 452 So.2d at 1006 (Smith specially concurring and dissenting in part, cited with authority in A. Vernon Allen, 580 So.2d at 778).

     Integral to the dredge and fill permitting process is a requirement that there be an assessment of, and mitigation for, the secondary impacts, or off-site impacts, associated with a project.  This judicially created doctrine was first developed in the context of dredge and fill permitting in the case of del Campo v. State Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984)(Hearing Officer erroneously excluded evidence of the possible environmental impacts on an island of a proposed residential development during hearing regarding dredge and fill permit for construction of a bridge to the island).  In that case, the Court held that when DER was reviewing a dredge and fill permit, it had to consider not only the wetland impacts of the bridge construction, but also the potential impacts of development on the island to which the bridge was being built.  Since del Campo, courts have continued to discuss, refine, and develop, the concept of secondary impacts.

     It is also clear from the DEP's decision in McCormick v. City of Jacksonville 12 FALR 960, 980 (January 22, 1990), that the agency is willing to apply a secondary impact analysis and to consider the impacts of the total development authorized by the proposed dredge and fill permit and those very closely linked or causally related.  This consideration is essential to the agency's evaluation of whether the applicant has provided the requisite "reasonable assurances" required by Section 403.918, Fla. Stat. (1991).  See Conservancy, Inc. v. A. Vernon Alan Builder, 580 So.2d 772 (Fla. 1st DCA 1991)

     The Conservancy case held that if a project facilitates development, the impacts of that development must be considered in the secondary impacts analysis.  Conservancy, 580 So.2d at 777 (the determination of the permittability of the project must consider its secondary impacts, or "those outside the project area caused or enabled by the project. . . ."  Conservancy, 580 So.2d at 779.)  Further, under that same case, proof of a direct causal connection is not necessary for secondary impacts to be considered.   Instead, the closeness of causality helps to determine the weight given to a secondary impact.  The Court in Conservancy quoted the Secretary of DER as follows:
 

Specifically in the context of permitting access roads and bridges, it has been the policy of the Department to consider what will be at the end of the bridge or road. . . . Of course, if the activities or impacts at the end of the bridge or road are remote in distance or conceptual relationship from the dredge and fill activity, those activities or impacts should be weighed accordingly in applying the statutory balancing test.

Id. at 778 (emphasis added).  Thus, rather than being a condition precedent to consideration, even if a secondary impact is not directly causally related to the project, it must still be considered, just weighed accordingly.  An applicant has the legal duty to analyze for secondary impacts and either show reasonable assurances that there are none or plan to mitigate for them.  See Conservancy, Inc. et al. v. A. Vernon Allen Builder, Inc. and DER, 15 FALR 292 (Final Order issued January 4, 1993)(the impacts of subsequent residential development on the island, which were secondary impacts associated with the construction of a subaqueous sewer line to Keewaydin Island were mitigated by the preservation of a conservation easement on 2,270 acres).

     In Pine Island Properties, Ltd. v. DEP, (DEP Case 92-0460, May 5, 1994), 1994 WL 497287, a dredge and fill permit was denied based upon the secondary and cumulative impacts from boat traffic.  Although not part of the permit application, in that case the construction of boat docks in the canal was determined to be a secondary impact that could be reasonably be expected to occur as a result of the issuing of a permit for the proposed activity.  In that case, the applicant failed to provide reasonable assurance that boats crossing the area between the canal and the sound will not cause violations of water quality, including turbidity and loss of diversity, and loss of wetland resources, seagrass beds.  Hence the permit was denied.

     Water pollution from septic tank effluent is yet another secondary impact of dredge and fill permits that must be evaluated.  Cape Cave Corporation v. Department of Environmental Regulation, 489 So.2d 1309 (Fla. 1st DCA 1987), which affirmed Environmental Confederation of Southwest Florida, Inc. v. Cape Cave Corporation and DER, 8 FALR 317 (Final Order DER 1985).  While Chapter 381, Florida Statutes, delegates permitting authority over individual septic tanks elsewhere, DEP retains authority "to consider septic tank impacts on water quality when such impacts are being reviewed in conjunction with a Department permit."  See also, Taylor v. Cedar Key Special Water and Sewer District and Department of Environmental Regulation, 91 ER FALR 15 (Final Order issued December 18, 1990).

     Applicants have the responsibility to assess and propose mitigation for any secondary impacts associated with a project prior to obtaining a permit.  This must be done either in its permit application or at a hearing in order to provide reasonable assurances that a project will meet all applicable standards and criteria.  Evaluation of secondary impacts cannot be put off to a later date.  Metropolitan Dade County v. Coscan Florida, Inc and Department of Environmental Regulation, 609 So.2d 644 (Fla. 3d DCA 1992); Rudloe and Gulf Specimen Co. Inc. v. Dickerson Bayshore, Inc. and Department of Environmental Regulation, 10 FALR 3426 (Final Order issued June 9, 1988); Concerned Citizens, supra. at 5.

     In Coscan, the Court reversed the Hearing Officer and DER, which had recommended approval of a dredge and fill permit to construct a marina in phases conditioned upon the monitoring of water quality prior to each phase.  The Court said, "We do not think that the statute [Section 403.918, Fla. Stat. (1987)] allows the agency to proceed without an analysis, in advance of (1) the likely effects of the project and (2) the question whether the applicant has provided reasonable assurances that water quality standards will be met." (emphasis added) Id. at 647.  It went on to state:
 

The statute is prohibitory:  it requires reasonable assurances before the project is started that water quality in the affected area will not be violated.  It is not within the hearing officer's province to allow a developer to proceed with a project of this magnitude with no idea as to what the effect on water quality will be.  (emphasis added)

Id.

MSSW Permitting Criteria and Cumulative and Secondary Impacts Requirements

     Chapter 373, Florida Statutes, concerns water resources and governs the management and storage of surface waters.  Part IV of the chapter is of particular importance.  That chapter, as it existed prior to the statutory reform of the permitting program, and the implementing rules of the water management districts governed issuance of MSSW permits.  Section 373.413, Florida Statutes required that the applicant provide reasonable assurances that the project complies with the statute and rules and "not be harmful to the water resources of its district."  Different water management districts had different sets of rules in the Florida Administrative Code implementing this statutory provision.

     The secondary impacts analysis is also applicable to the MSSW permitting process.  The secondary impacts' analysis for surface water management permits, as previously discussed, was first established as a requirement in an Order of the Governor in Cabinet sitting as the Florida Land and Water Adjudicatory Commission ("FLWAC") and reviewing a Final Order of the St. Johns Water Management District. 

      Under Chapter 373 F.S., the only express requirement for considering the cumulative and secondary impacts in management and storage of surface water permitting concerned small isolated wetlands that are not within DEP's dredge and fill jurisdiction.  However, FLWAC, citing Booker Creek Preservation, Inc. v. S.W. Fla. Water Mgmt. District, 534 So.2d 419 (FLA. 5th DCA 1988), and Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985), noted that statutes enacted to protect the environment (including Chapter 373) must be liberally construed.  FLWAC cites Perry v. City of Jacksonville (FLWAC Case No. RFR-91-001, Feb. 14, 1990) as representing the proposition that a review of MSSW permits should consider the impacts on habitats of wetland dependent upland species.  In addition, the FLWAC encouraged the passage of an amendment, later adopted by the St. John's River Water Management District, expanding review from impacts to aquatic and wetland dependent species, to impacts to all wildlife. 

     FLWAC recognized that cumulative impact analysis is necessary to "prevent piecemeal destruction of the environment."  FLWAC went on to say that "without the ability to consider the long term impacts of a project in combination with past and reasonably likely similar projects in the area, the MSSW permitting agency would be helpless to prevent the gradual elimination of environmental resources through MSSW permits."  Therefore, FLWAC held that "Chapter 373, F.S., authorizes the MSSW permitting agency to consider and evaluate cumulative and secondary impacts for both isolated and non-isolated wetlands."  Furthermore, the Commission directed the District to amend its MSSW rules to consider cumulative and secondary impacts for both isolated and non-isolated wetlands.  The FLWAC position entrenches the notion that effective environmental regulation requires an expansive and forward-looking view of effects on an integrated ecosystem.  McCormick v. City of Jacksonville, 12 FALR 960 (January 22, 1990). 

     Sierra Club also represents a movement toward a broader and more inclusive view of the effects of environmental regulation.  FLWAC rejected the idea that the impact of individual components of a larger project should be reviewed independently.  By unifying the decision making process, a more comprehensive view of the effects of a project may be taken.
 
SECONDARY IMPACTS ANALYSIS IN ENVIRONMENTAL RESOURCE PERMITTING

     The 1993 legislation effectively repealed and transferred relevant portions of the Warren S. Henderson Wetland Protection Act (403.91-403.929, Florida Statutes), moving them from Chapter 403, Florida Statutes, to Chapter 373, Part IV, Florida Statutes.  Most notably, Sections 403.918 (the public interest test) and 403.919 (cumulative impact provision), Florida Statutes, have been integrated into Section 373.414, Florida Statutes.  It provided that a single entity should issue a single permit for construction activities which have been historically regulated under individual dredge and fill, management and storage of surface water, stormwater and mangrove alteration permitting programs.  The sovereign submerged lands program has been integrated as well. Depending on the activity to be conducted, an ERP permit must be obtained from either the DEP or a water management district pursuant to operating agreements.
 
     The cumulative impact provision previously in Section 403.919, Florida Statutes was modified and transferred to Section 373.414(8), Florida Statutes .  The revised cumulative impact analysis was limited to projects and impacts in the same drainage basin and based on the local government's adopted comprehensive plan.  The statute did much more than described herein, but the merger of the dredge and fill and MSSW permitting programs and the secondary impacts analysis are most relevant for our discussion here.

     The statute required that the Florida Environmental Reorganization Act be implemented pursuant to rule, which would merge existing programs no later than July 1, 1994.  Pursuant to the Act, the 1994 Legislature adopted a state-wide wetlands delineation rule which became effective July 1, 1994.  Other implementation was delayed during the summer of 1994, when the various proposed ERP rules approved by the Environmental Regulation Commission and water management district governing boards were challenged by the Florida Electric Power Coordinating Group, Florida Chamber of Commerce, Florida Developers and Florida Home Builders Association in DOAH Case No. 94-2722RU; Gerald Ward, in DOAH Case No. 94-2930RP; Florida Phosphate Council, in DOAH Case No. 94-2935RP; and St. Joe Paper Company and Florida Waste Coast Industries, in DOAH Case No. 94-2936RP. 

      The Florida Environmental Reorganization Act idea was intended to streamline the process but maintain the substance.  The statute indicates "[t]his section shall not be construed to diminish the jurisdiction or authority granted prior to the effective dates of this act . . . ."  §373.414(7), Fla. Stat. (1997)  Petitioners argued that the proposed ERP rule was an effort by DEP and the districts to increase jurisdiction.  Environmental groups argued DEP and the districts were receding from existing authority.  Annual Environmental and Land Use Law Update, August 1995, Wetlands/MSSW/ERP Update by Daniel H. Thompson et al at 8.4.

     After litigation in the fall and winter, while still awaiting the final order of the hearing officer, most of the parties entered into a settlement agreement.  Id. at 8.4.  Among the subjects of that settlement was secondary impacts.  Later, in April, the ERC and WMD Governing Boards approved the changes to the proposed ERP rules essentially as contained in the settlement.  Id. at 8.4.   A few non-settlors continued to litigate the revised version in a rule challenge.  The challenge was decided in favor of the Department, and the decision was affirmed on appeal in May of 1996, although the program became effective on October 3, 1995.

     In order to receive an ERP, an applicant must provide reasonable assurance that the permitting criteria provided in the ERP rules and the statute are met.  The rule criteria are found in rules 40X-4.301 and .302, Florida Administrative Code.   ERP permits are issued on an activity based split with DEP.  DEP has adopted its own rules and has adopted by reference portions of the districts' rules. 

      The ERP rules adopt by reference either an Applicant's Handbook (AH) or Basis of Review (BOR) (look for BORs when you have cases grandfathered as well).  These documents explain in greater depth what will be considered during review of a permit application, and what an applicant must do to meet the permitting criteria.

       The ERP rules include changes to secondary impact analysis.  The major change deals with how the permitting authorities consider impacts to listed species and the geographic scope of consideration. In the ERP program, the secondary impact review provision was ostensibly an attempt to harmonize differences between the DEP and water management district approaches to this review.  Only aquatic or wetland dependent species will be considered under the ERP review.  The ERP also now includes the buffer concept.  There is now a presumption that habitat conditions will not be affected when certain buffer requirements are met.

     Another identifiable departure from previous secondary impacts doctrine is the adoption of the "but for" test.  The ERP rules seem to limit the impacts considered under the secondary impacts analysis to impacts that would not occur "but for" the proposed project.  See e.g. SJRWMD's Handbook for ERP Permits at 12.2.7(d).  This is a new test not previously enunciated in case law except for with respect to the recent case relating to the widening of U.S.1 in the Florida Keys.  It has, however, been argued that this "but for" requirement already existed in the secondary impacts doctrine.

The Proposed Widening of U.S. 1 in the Florida Keys

     The following is a discussion of the proposed widening of U.S. 1 in the Florida Keys.  This author is an attorney for parties to the appeal of the order issuing the state permits necessary to widen the road.  It is included, because the case raises some interesting and cutting-edge issues regarding the scope of secondary impacts review.  The discussion represents our position that the project is not permittable and that the Final Order departed from existing law.

      The Florida Department of Transportation ("FDOT") applied to the South Florida Water Management District ("SFWMD") for the permits necessary to widen 20.4 miles of two-lane U.S. 1 in southern Dade and northern Monroe Counties to a road on a four-lane road bed, with a four-lane embankment, which has variously three and four lanes of pavement along the project (much of the 20.4 mile road would be four lanes).  The permits necessary to execute the project are an MSSW permit, a Wetland Resource permit, and a modification to a Right of Way/Occupancy permit ("ROW").  Pursuant to the previously discussed grandfathering provision, FDOT requested that the permits be reviewed under the pre-ERP statutory framework.

     The SFWMD issued "Staff Reports" on October 24, 1995, with an addendum dated November 3, 1995.  The SFWMD staff recommended issuance of the permits subject to general and special conditions.   Based on the Staff Reports, SFWMD issued its notice of intent to issue the permits with conditions.

     Thereafter, 1000 Friends of Florida, Inc. ("1000 Friends"), Florida Bay Initiative, Inc., the Florida Keys Fishing Guides Association, Michael Collins, Charles W. Causey (collectively "FBII"), the Florida Keys Citizens Coalition, Inc. ("FKCC"), and A.G. Intus, Inc. ("Intus"), timely filed petitions pursuant to Section 120.57, Fla. Stat. (1995), objecting to the District's intent to issue the Management and Storage of Surface Waters and Wetland Resource permits for the proposed project, and requesting formal administrative hearings.  FBII additionally objected to the District's intent to modify a Right of Way/Occupancy permit for the proposed project.

     The District referred the cases to the Division of Administrative Hearings ("DOAH") where they were assigned case numbers.  On December 4, 1995, the petitions were consolidated.  On December 29, 1995, Monroe County filed a Petition for leave to Intervene.  That petition was granted in January of 1996.

     Intus voluntarily dismissed its case, and the hearing regarding the issues raised by the other petitioners went to trial.  A lengthy trial followed.  The parties submitted Proposed Recommended Orders, and on April 11, 1997, the ALJ issued a Recommended Order "RO".  It is the contention of Petitioners/Appellants that the RO, and Final Order which adopted it, departed from numerous requirements of law.

     The most central feature of this case was the consideration of the secondary and cumulative impacts requirements.  The Administrative Law Judge's Recommended Order and the South Florida Water Management District's Final Order, with respect to this matter both found a direct causal connection existed between the widening of U.S.1. and additional development.  They then proceeded to find that Monroe County's Comprehensive Plan and land development regulations and the Department of Community Affair's scrutiny of those regulations "are intervening factors that break any causal relation . . ."  (RO-FOF at 54,  149; RO-COL at 95,  291)  They specifically found that hundreds of new building permits to be issued throughout the Florida Keys were secondary impacts caused by the project.  The ALJ then determined, as a matter of law, that FDOT was relieved from the obligation to consider the impacts of these additional residential units. 

     The ALJ and SFWMD also improperly placed on the Petitioners the burden of proving that environmental impacts would occur from the secondary impacts of the development caused by the road widening project, stating as follows:
 

148.  Although Petitioners established there is a causal relation between the project and the existing status of the law governing the number of building permits that can [sic] issued in the future, the evidence was insufficient to establish at a level above speculation that adverse environmental impacts will result because of the issuance of those building permits. (RO-FOF at 54,  148)

     This burden should have been placed on FDOT, the applicant.  The shifting of the burden to the Petitioners was error.  The ultimate burden of proof to show that it has met all the requirements of law, of entitlement to a permit, is always on the applicant.  See, FDOT JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). 

     Further, still the ALJ and the District erred in concluding as a matter of law that the FDOT did not have to assess the secondary impacts associated with the second south bound lane.  The project at issue contemplates a four lane road bed with three lanes of pavement.  The second south bound lane would not yet be paved.  The ALJ wrote in his Recommended Order as follows:
 

267.  Modifying the project at a later date to pave the second southbound lane would require a District ERP permit.  The addition of impervious surface triggers the District's SWM jurisdiction in this regard.

268.  However, FDOT established that it had no current plans for further widening.  The permit conditions require secondary and cumulative impacts associated with the increased capacity be addressed in accordance with the rules and criteria in effect at the time of any future widening.  In addition, the permits require that FDOT must comply with any more stringent water quality criteria in affect at the time of any future widening.

     It is FDOT's responsibility to provide reasonable assurances prior to the issuance of the permits that the entire build-out of the project will meet all applicable standards and criteria.  The agency cannot wait to study secondary impacts later, when the second south bound lane is installed.  Fla. Keys Citizens Coalition and City of Key West v. 1800 Atlantic Developers and Department of Environmental Regulation, 8 FALR 5564 (Final Order dated October 17, 1986).  Rudloe and Gulf Specimen Co., Inc. v. Dickerson Bayshore, Inc. and Department of Environmental Regulation, 10 FALR 3426 (Final Order issued June 9, 1988), Concerned Citizens, supra at 5.  The FDOT has failed in its burden, and it is the position of Petitioners/Appellants that the permits should not have been issued.  These issues are on appeal to both FLWAC and the Third District Court of Appeals.  The appeal to the District Court is stayed pending resolution of the review by FLWAC.

Conclusion

     The secondary impacts analysis in wetland and surface water permitting, is and has been, an evolving area of environmental law.  The requirement is a potent tool for environmental protection.  It will be interesting to see how the analysis is treated in future cases under the ERP.