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Bluefield Ranch Mitigation Bank Trust v. South Florida Water Management District

Florida Court of Appeals, Fourth District

July 11, 2018

BLUEFIELD RANCH MITIGATION BANK TRUST, Appellant,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT and FLORIDA DEPARTMENT OF TRANSPORTATION, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the South Florida Water Management District; L.T. Case No. 2016-050-FOF-ERP.

          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.

          FORST, JUDGE

         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.

         Background

         The District is an executive branch agency that 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 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 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 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 ...


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