Florida Power Corp., Inc. v. State, Dept. of Environmental Regulation, 91-2582

• Decision Date: 08 September 1992
• Docket Number: No. 91-2582,91-2582
• Parties: 17 Fla. L. Week. D2150 FLORIDA POWER CORPORATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

Page 149

605 So.2d 149

17 Fla. L. Week. D2150

FLORIDA POWER CORPORATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Appellee.

No. 91-2582.

District Court of Appeal of Florida,

First

District.

Sept. 8, 1992.

Frank E. Matthews and Michael P. Petrovich, of Hopping Boyd Green & Sams, Tallahassee, for appellant.

Douglas H. MacLaughlin, Asst. Gen. Counsel, Tallahassee, for appellee.

PER CURIAM.

We affirm the circuit court's dismissal of a complaint for declaratory judgment and injunctive relief and petition for writ of mandamus. The circuit court correctly ruled that Florida Power Corporation (FPC) had failed to exhaust its administrative remedies.

FPC owns an easement over property in Osceola County on which it seeks to install an electrical transmission line. The transmission line corridor and alignment covers approximately fourteen miles. Because the alignment encroaches upon areas characterized by the Department of Environmental Regulation (DER) as waters of the state for purposes of wetland resource permitting in three locations, FPC filed an application in December of 1989 with DER for a dredge and fill permit for impacts to .0135 acres of jurisdictional wetlands, necessary to place approximately 353.1 cubic yards of "fill" in three locations to support certain transmission poles. In the summer of 1990, FPC undertook land clearing activities within the transmission line corridor where transmission pole replacements and new installation would occur.

Subsequent to FPC's land clearing activities, DER denied the request for a permit, asserting that the proposed installation activities would actually impact approximately 6.01 acres. DER found that the wetlands area would be impacted by minor trimming of branches within the mature forested canopy and removal of small subcanopy trees beneath the existing corridor. DER also found that the proposed alignment would continue to result in disturbances to hydric soils and vegetation as a result of the tree cutting and maintenance activities and would result in a permanent change in the character of the wetland from a mature mixed forested canopy to a herbaceous wetland. DER concluded that this permanent change is expected to diminish the overall productivity of the system and adversely affect wildlife utilization. In March of 1991, FPC filed a request for a formal administrative hearing in response to DER's proposed agency action.

In June of 1991, FPC filed a complaint for declaratory judgment and injunctive relief together with a petition for writ of mandamus in the Leon County Circuit Court. In the complaint, FPC alleged that it would allow all trimmed vegetation to resume normal uninterrupted growth after the transmission line was in service, except for limiting vegetation height to fourteen feet directly below the 69 kV lines. It was asserted that this maintenance activity would be necessary to provide adequate clearance between vegetation and the transmission line in order to prevent possible fires and to ensure safe working conditions for FPC's maintenance staff. FPC contended that virtually no adverse environmental consequences would result from the work other than temporary displacement during actual pole installation, and the need to trim and maintain surface vegetation in the vicinity of the pole and transmission line. FPC contended that of the 6.01 acres of alleged total impacts, approximately 5.997 acres are alleged by DER to be "secondary impacts" of the clearing already undertaken and that DER was attempting to expand its permitting jurisdiction beyond its statutory mandate because its clearing activity is not subject to DER's permitting jurisdiction.

DER filed a motion to dismiss the complaint. DER noted that no final agency action had been taken with regard to the 120.57 formal hearing FPC had requested and argued that FPC had failed to exhaust its administrative remedies. After a hearing, the circuit court dismissed the complaint with prejudice based on FPC's failure to properly exhaust its administrative remedies. FPC then filed the instant appeal.

FPC argues that the circuit court erroneously dismissed its complaint because it properly alleged lack of agency jurisdiction, which is a recognized exception to the doctrines of primary jurisdiction and exhaustion of administrative remedies. FPC contends DER has neither authority over the vegetative clearing activities nor authority to consider the "secondary impacts" of the vegetative clearing activities, in determining the impact of the proposed dredging and filling for purposes of placement of the transmission poles, because these activities are not within the legislative definition of either "dredging" or "filling." ¹

This Court has on numerous occasions set forth the following test for determining whether an administrative forum may be bypassed once an issue has been raised challenging an agency's jurisdiction to take certain action:

When an agency acts without colorable statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief. A finding of lack of colorable statutory authority provides the necessary limitation on this exception to the requirement of exhaustion of administrative remedies. A jurisdictional claim which has apparent merit, or one which depends upon factual determination in most instances requires exhaustion of administrative remedies before resort to judicial forum.

Department of Envtl. Regulation v....