After an exhaustive seven-week trial, an administrative law judge has ruled against the city of West Palm Beach’s challenge of an environmental permit for the extension of State Road 7 alongside the Ibis Golf and Country Club.
In a 134-page ruling, Administrative Law Judge Francine Ffolkes found in favor of the Florida Department of Transportation on every point disputed by the city. FDOT has pursued the 4-mile road extension from 60th Street to Northlake Boulevard since the 1990s.
Palm Beach County and the permitting agency, the South Florida Water Management District, were named in the challenge and stood with FDOT against the city.
City officials have long argued against the extension on environmental grounds, fearing the four-lane roadway would harm the neighboring Grassy Waters Preserve, a 23-square-mile preserve that holds city drinking water before it is treated.
The roadway also is the third-rail of city politics, with elected officials fearing the loss of a key voting bloc at the 1,870-home Ibis community if they were to allow the road to be built.
It is considered a critical alternative for traffic flowing from The Acreage, a community west of Ibis with 15,000 single-family homes between Okeechobee and Northlake boulevards.
Three lawyers from the Tampa firm de la Parte, Gilbert, McNamara & Caldevilla, led by Edward de la Parte, argued for the city. Five attorneys from three offices of Lewis, Longman & Walker, led by Fred Aschauer, represented FDOT.
The county and water management district relied on staff attorneys.
Roadway delayed five years
Construction of the most closely studied road extension in county history had been scheduled to begin in 2023. But as first reported by OnGardens.org in December 2022, FDOT pushed the project back five years to await the outcome of the city’s challenge.
The ruling over a permit granted in 2021 and updated in 2023 goes to the water management district for final review before it can be challenged in the Fourth District Court of Appeal.
It had been approved once before but the decision was thrown out on appeal, stalling the state’s efforts to build the road.
That lost appeal forced the retrial that took place over three weeks in October 2023, three weeks in April 2024 and one week in May 2024.
The delay caused the U.S. Army Corps of Engineers to revoke its 2017 permit for the road extension in 2020.
While West Palm Beach officials touted the corps’ action as a victory, the state can now reapply for the corps permit using the court record as evidence.
Transcripts of the hearing with at least 30 witnesses and hundreds of exhibits filled 33 volumes. Fees for lawyers and expert witnesses undoubtedly will be in the millions of dollars, all paid by taxpayers.
Won’t cause flooding in Ibis
Lawyers presented their recommended orders to the judge in late November and she issued her ruling on May 1.
The city “failed to meet its ultimate burden of persuasion to prove by a preponderance of the evidence” that the road project would cause flooding, harm water quality, pollute neighboring wetlands or impact wildlife, Ffolkes wrote, systematically detailing her reasons for rejecting every point raised by the city.
“The project would not cause adverse flooding to off-site property in the Ibis development because no storm water roadway runoff would be discharged or connected to the Ibis development lake system,” the judge wrote.
She found no adverse flooding to on-site or off-site properties or adverse impacts to surface water storage and conveyance capabilities.
Citing an FDOT expert, Ffolkes concluded that the projected change in water levels north and south of Northlake Boulevard resulting from the project is so small that they would be measured in millimeters, not feet.
Northlake crosses through Grassy Waters, leaving a triangular-shaped section of the pristine swamp north of the boulevard.
To respond to crashes that could result in spills damaging the natural area, Ffolkes deferred to FDOT’s creation of a Spill Response Plan and use of dry retention areas to contain spills.
DuPuis, Pine Glades improvements to offset damage
Ffolkes credited FDOT for reducing the project’s impact by eliminating a proposed pond, reducing the width of drainage treatment areas from 175 feet to about 30 feet, reducing median widths from 42 feet to 15 feet and replacing 24-foot sidewalks and bike lanes with 12-foot shared-use paths.
The plan includes features at the proposed M-Canal and the Ibis Spillway bridges to allow for safe passage of wildlife, using fencing to prevent animals from crossing the road, using a limited lighting system with lights directed downward to reduce light trespass on adjacent wetlands and natural areas and planting a buffer of cabbage palms and other trees along the eastern side of the roadway to encourage birds to fly higher over the road.
To make up for wetlands destroyed to build the road, FDOT pledged to improve 54.5 acres of wetlands at the John G. and Susan H. DuPuis Jr. Wildlife and Environmental Area, a 22,000-acre preserve in northwestern Palm Beach and southwestern Martin counties.
FDOT also would improve 709 acres at Pine Glades Natural Area, an 1,872-acre county-owned preserve 8 miles north of Northlake.
Touching on one of the hot-button issues during the decades long debate over the road — the road’s impact on the endangered Everglades snail kite, Ffolkes wrote that helping DuPuis helps the bird.
“DuPuis contains marsh wetlands that provide similar functions as marsh wetlands that would be impacted by the project, namely, foraging and nesting opportunities for wading birds and snail kites,” Ffolkes wrote. “There are reports of snail kites and evidence of apple snails at DuPuis.”
Additionally, FDOT would preserve 261 acres along the state-owned right of way, which runs along the range line, a north-south mapping designation extending from Okeechobee Boulevard to the Martin County line and beyond.
“This range line preservation ensures that SR7 would not be extended or widened in the future,” Ffolkes wrote. “The applicants did not receive any mitigation credit for the preservation. Therefore, the proposed preservation is above and beyond their mitigation requirements for the project.”
Additionally, she said the road’s path is not pristine.
“From an ecological perspective, the ROW (right of way) is considered poor quality habitat because of the abundance of nuisance and exotic species,” she wrote. “Also, most of the wetlands in the ROW are degraded due to berms and ditching. Indeed, the area including the ROW was cleared for agricultural use, and at one time, an alligator farm was in operation within the project area.”
Snail kite thrives near roads
She dismissed concerns that the roadway would prove harmful to the snail kite, which lives in Grassy Waters.
The project, she wrote, is outside the snail kite’s critical habitat. “Therefore, the project would not affect the snail kite’s critical habitat, and was unlikely to jeopardize the continued existence of the snail kite,” she wrote.
But even more damning, she pointed out, is that roosting surveys revealed the presence of a snail kite colony at the county’s Solid Waste Authority landfill, immediately east of Grassy Waters.
“Despite the lights and noise of industrial activity, and the otherwise disturbed nature of the Solid Waste facility, the roost has been there for years,” she wrote. “Similarly, despite the presence of Northlake Boulevard and the Beeline Highway, and the associated traffic-related noise and lights, the city’s surveys identify snail kites and nests in close proximity to the roads.”
The city argued FDOT would be incapable of building the project as designed, pointing in particular to construction of a retaining wall in a swampy area that would separate the project from the western boundary of Grassy Waters.
To back up its position, the city cited limited access to the construction area, a lack of dry staging areas, dense vegetation and FDOT’s inability to work in wet conditions.
The judge accepted the testimony of an FDOT maintenance engineer who has been involved with the project for 12 years and said the project could be built.
The engineer, Melanie Straub, “made plain that this was a standard road construction project from FDOT specifications, and it can be built in wet or dry conditions,” the judge wrote.
Dewatering, she wrote, is not necessary to install a wall.
The city also failed to make a persuasive argument that the road would harm overall Everglades restoration or water flow to the Northwest fork of the Loxahatchee River, Ffolkes ruled.
