Bluefield Ranch Mitigation Bank Trust v. South Florida Water Management District, 4D16-3023
| Decision Date | 31 October 2018 |
| Docket Number | No. 4D16-3023,4D16-3023 |
| Citation | 263 So.3d 125 |
| Parties | BLUEFIELD RANCH MITIGATION BANK TRUST, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT and Florida Department of Transportation, Appellees. |
| Court | Florida District Court of Appeals |
Thomas E. Warner, Dean A. Morande, Matthew Z. Leopold, and Michael D. Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
Marc Peoples, Assistant General Counsel of Department of Transportation, Tallahassee, for appellee Florida Department of Transportation.
Susan Roeder Martin, West Palm Beach, for appellee South Florida Water Management District.
CORRECTED OPINION
ON MOTION FOR REHEARING AND MOTION FOR CLARIFICATION OR CORRECTION
We deny the Florida Department of Transportation's motion for rehearing, but grant the South Florida Water Management District's motion for clarification or correction. We thus withdraw our previously issued opinion and substitute the following.
Appellant Bluefield Ranch Mitigation Bank Trust ("Bluefield") sought to challenge the South Florida Water Management District's ("District") issuance of a permit to the Florida Department of Transportation ("FDOT") for a road-widening project. The District dismissed Bluefield's petition for a formal administrative proceeding ("petition") with prejudice, determining Bluefield lacked standing to challenge the permit. The District's decision was based on its determination that the only injury specifically alleged by Bluefield was economic. We disagree, and conclude that Bluefield has demonstrated standing beyond mere economic injury. We thus reverse the District's dismissal order and remand for a formal administrative proceeding on Bluefield's petition.
The District is a government entity created under Chapter 373, Florida Statutes, which has the responsibility to conserve, protect, manage, and control water resources within its geographic boundaries. See §§ 373.016, .036, Fla. Stat. (2016). Bluefield is a privately-owned mitigation bank, established pursuant to section 373.4136, Florida Statutes, for the purpose of operating and managing the Bluefield Ranch Mitigation Bank. Mitigation banking is the practice in which a mitigation bank sells "credits" in exchange for conducting environmental enhancement and preservation to offset unavoidable adverse impacts to the wetlands and to other property within its mitigation service area caused by development or construction projects requiring a permit from the District. See §§ 373.403(19), .4136(1), Fla. Stat.
At the time of receiving a mitigation bank permit, a mitigation bank is granted a certain number of mitigation credits. § 373.4136(4), Fla. Stat. Each credit is a unit of measure representing the increase in ecological value to offset adverse impacts within the bank's service area. See § 373.403(20), (21), Fla. Stat. A mitigation bank sells its credits to the permittee of the proposed project, who applies them to meet its mitigation requirements. Bluefield is a permitted mitigation bank, with property situated within the service area and regional watershed of the project at issue. Mitigation service areas can overlap, and mitigation service areas for two or more mitigation banks may be approved for a regional watershed. § 373.4136(6), Fla. Stat.
FDOT applied for a permit, which the District issued, for its project to widen a section of State Road 710/Beeline Highway. Per the permit, FDOT was required to purchase mitigation credits as a means of offsetting the environmental impact to the wetlands from the road-widening project. FDOT purchased some of the required mitigation credits from Bluefield, but most of the mitigation was to be provided by Dupuis Reserve ("Dupuis").
In its petition challenging the use of mitigation credits from Dupuis, Bluefield argued that Dupuis did not meet certain statutory criteria to be considered for mitigation on the project. Therefore, FDOT was required to consider Bluefield for the mitigation credits that would otherwise be provided by Dupuis. The petition asserted that Bluefield has standing to challenge FDOT's permit because, as a mitigation bank, it has a substantial interest in the enforcement of statutory compliance for mitigation within its service area and within the same regional watershed as the project. That "substantial interest," the petition contends, is to prevent environmental harm caused by unlawful mitigation. Bluefield further argued that it had standing because, as a landowner in the affected area, it has a substantial interest in the protection of the environment and the continued restoration, enhancement, and preservation of wetlands within its regional watershed and service area.1
The District dismissed Bluefield's petition with prejudice, concluding that Bluefield failed to (and could not) allege facts demonstrating it had substantial interests (other than purely economic interests) that would be affected by the issuance of the permit. On appeal, Bluefield requests a reversal of the dismissal and an opportunity to present its challenge at an administrative hearing.
In reviewing agency determinations on issues which do not require special agency expertise, such as standing, we accept the allegations in the petition as true, and are not required to give any deference to the agency's legal conclusions. See S. Broward Hosp. Dist. v. State, Agency For Health Care Admin. , 141 So.3d 678, 680-81 (Fla. 1st DCA 2014). As such, we review whether a party has standing de novo. See Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.2d 794, 796 (Fla. 1st DCA 2006) ; see also Save Our Creeks v. State of Fla. Fish & Wildlife Conserv. Com'n , 112 So.3d 128, 129-30 (Fla. 1st DCA 2013) ().
Bluefield asserts that it has standing under the Florida Administrative Procedure Act ("FAPA"), which defines "party," in pertinent part, as:
Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
§ 120.52(13)(b), Fla. Stat. (2016).
A two-part test to determine standing to participate in an administrative proceeding under this subsection of FAPA was established in Agrico Chemical Co. v. Department of Environmental Regulation , 406 So.2d 478 (Fla. 2d DCA 1981). The Agrico test looks to whether there is an injury in fact with sufficient immediacy, and a substantial injury of the type which the proceeding is designed to protect. Id. at 482. The first element pertains to the degree of injury and the second element deals with the nature of the injury. Id.
It is well established that mere economic interests and the general interests of citizens are insufficient to establish standing. See Mid-Chattahoochee River Users , 948 So.2d at 796-99 ; City of Sunrise v. S. Fla. Water Mgmt. Dist. , 615 So.2d 746, 748 (Fla. 4th DCA 1993). The reason, in part, is because we seek to "limit unwarranted use of judicial resources in challenges involving discretional decisions of legislative bodies." Rosenzweig v. Dep't of Transp. , 979 So.2d 1050, 1053 (Fla. 1st DCA 2008). However, we are also cognizant that "one of the major legislative purposes of the Administrative Procedure Act was the expansion of public access to the activities of governmental agencies." Id. (citing Fla. Home Builders Ass'n v. Dep't of Labor , 412 So.2d 351, 352-53 (Fla. 1982) ).
Agrico 's intent was not to preclude participation by parties who stand to be affected by the actual and foreseeable results of agency action. See Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. , 18 So.3d 1079, 1082-83 (Fla. 2d DCA 2009) . Instead, Agrico 's intent was to "preclude parties from intervening in a proceeding where those parties' substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings." Mid-Chattahoochee River Users , 948 So.2d at 797 (citing Gregory v. Indian River Cty. , 610 So.2d 547, 554 (Fla. 1st DCA 1992) ). Examples of parties that have been "preclude[d] from intervening in a proceeding" per this Agrico "substantial interest" test are Mid-Chattahoochee River Users , 948 So.2d at 797, and City of Sunrise , 615 So.2d at 748 —two cases where the petitioners lacked standing for alleging mere economic injury, and not the kind of injury for which the proceeding was designed to protect, namely, the protection and conservation of water and related land sources.
Addressing transportation projects with unavoidable impact to wetland areas, the Florida Legislature expressed its intent that "mitigation to offset the adverse effects of these transportation projects be funded by [FDOT] and be carried out by the use of mitigation banks and any other mitigation options that satisfy state and federal requirements in a manner that promotes efficiency, timeliness in project delivery, and cost-effectiveness." § 373.4137(1), Fla. Stat. To effectuate this intent, FDOT "must consider using credits from a permitted mitigation bank" and "must consider the availability of suitable and sufficient mitigation bank credits within the transportation project's area." § 373.4137(2)(c), Fla. Stat. (emphases added). Once it has met its "must consider" obligation, FDOT can "purchase credits for current and future use directly from a mitigation bank, purchase mitigation services through the water management districts or the Department of...
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