STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARTIN A. GREGORY and RICHARD )
WIGGINS, as Trustees, and ) PAUL HOFFMANN, )
)
Petitioners, )
) Case Nos. 90-0862
) 90-0863
INDIAN RIVER COUNTY and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on June 19 and 20, 1990, in Vero Beach, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioners Martin A. Gregory Michael O'Haire
and Richard B. Wiggins as Trustees: Smith, O'Haire, Quinn
& Garris
P.O. Box 4375
Vero Beach, Florida 32964
For Petitioner Paul Hoffmann: J. Alan Cox
105 West 5th Avenue Tallahassee, Florida 32303
For Respondent County: David M. Rogero Blackwell & Walker, PA One Southeast 3rd Ave Miami, Florida 33131
For Respondent Department: Douglas H. MacLaughlin
Assistant General Counsel
Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
The central issue in these cases is whether the Department of Environmental Regulation (Department) should approve the dredge and fill permit and the stormwater discharge facility construction permit which were requested by Indian River County (County).
PRELIMINARY STATEMENT
These cases began on January 12, 1990, when the Department entered an intent to issue which gave notice of its intent to approve the permits requested by the County. Those permits had been requested incidental to the County's proposed road construction project. More specifically, the County sought to dredge and fill certain wetlands and to construct a stormwater discharge facility in conjunction with the extension of Indian River Boulevard. The Petitioners, Martin A. Gregory and Richard B. Wiggins as Trustees of the Van Busch Trust, and Paul Hoffmann (referred to collectively as Petitioners for convenience sake) are adjacent property owners whose land may be affected by the road extension or areas designated for mitigation. The Petitioners timely filed their petitions in opposition to the permits and the cases were forwarded to the Division of Administrative Hearings for formal proceedings on February 7, 1990.
Thereafter, the cases were consolidated for hearing and the matter was scheduled for June 19-20, 1990. At the hearing, the County, as the applicant, presented the testimony of the following witnesses: James W. Davis, public works director of Indian River County; Charles M. Green, an engineer with Boyle Engineering Corporation; Joseph Jerub, a stormwater engineer with the Department; Daniel J. Homblette, an environmental scientist with Boyle Engineering; Douglas Carlson, a biologist with the Indian River Mosquito Control District, and the chairman of the Governor's subcommittee on managed marshes; Roland DeBlois, chief of the environmental planning and code enforcement section of the community development department of Indian River County; and John Bossart, environmental administrator of the wetlands resource regulation section of the Department. The County's exhibits numbered 1 through 28 were admitted into evidence.
The Department presented the testimony of Janet Llewellyn, the chief of the bureau of wetlands resource management for the Department. The Department's exhibits numbered 1 and 2 were admitted into evidence.
Reese H. Kessler, Jr., an environmental consultant with Environmental Consulting Group, Inc., testified on behalf of the Petitioners. The Petitioners' exhibits numbered 1 and 2 were also admitted into evidence.
The transcript of the proceedings was filed with the Division of Administrative Hearings on July 2, 1990. The parties timely filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on their proposed findings of fact are included in the attached appendix.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the evidence received at the hearing, the following findings of fact are made:
The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes.
The County is a political subdivision of the State of Florida. Pursuant to Chapter 127, Florida Statutes, the County has powers of eminent domain and is able to acquire properties for public purposes. Pertinent to these cases, the County has approved the acquisition of right of way to construct a road project which will extend Indian River Boulevard from Royal Palm Boulevard, a the south, to Barber Avenue, at the north. It is intended
that the extension will relieve the traffic congestion along the U.S. 1 corridor by providing an additional north-south route which will also serve as an alternate access to Indian River Memorial Hospital.
In order to complete the extension, the County will have to bridge two existing canals which run east to west and connect to waters of the Indian River Lagoon. The tract of land between the two canals contains a parcel that is known as Mosquito Control Impoundment 22. This impoundment is completely diked, consequently, the interior of the impoundment is completely severed from waters. The proposed right of way is to be located along the western dike of the impoundment.
Impoundment 22 was constructed prior to 1957. Originally, the impoundment was periodically flooded in an effort to limit salt marsh mosquito breeding. Later, insecticides were employed to deter mosquito proliferation. The area within the impoundment contains wetland indicator plant species which suggests that prior to the construction of the dikes, that the tract was a wetlands area.
The Petitioners own parcels of land where the proposed road extension is to be situated. Further, portions of their properties are located within impoundment 22. The County does not currently own any portion of the proposed right of way which is the subject of this dispute. Prior to construction the County would have to acquire the subject parcels in order to comply with the proposed permit terms.
On November 27, 1987, the County applied to the Department for a wetlands dredge and fill permit and a stormwater treatment permit in order to construct the proposed extension. The application indicated that the proposed road would impact approximately 16 acreas of wetlands. While the Petitioners dispute that acreage calculation, they acknowledge that, at the minimum, approximately 8.1 acres to be developed for the roadway impact wetlands.
The dispute over the wetlands calculation arose due to a Department interpretation of the mosquito impoundment. The Department's current policy requires that the impoundment be considered wetlands if it would have been wetlands but for the presence of the mosquito control dikes. On May 24, 1989, the Department advised the County of that interpretation and of the extent of the impacts to wetlands due to the road proposal. The Department asserted that in addition to the 8.1 acres outside of the impoundment to be impacted, approximately 7.12 acres within the impoundment would be effected. The County
acquiesced in that interpretation and agreed to provide mitigation for the project based upon that assumption of jurisdiction. The Petitioners have disputed that jurisdictional interpretation.
On March 6, 1989, the County submitted its plan to mitigate the negative impacts of the road project. That proposal recommended that approximately 90 acres of impoundment 22 be managed by connecting the interior of the impoundment to the existing canals and the Indian River Lagoon. The County proposed to install culverts to breech the diked perimeter. This rotational impoundment management (RIM) plan would allow the tidal waters of the Indian River to periodically wash through the impoundment thereby enhancing the interior for habitat value and controlling mosquito breeding.
In response to additional comments from the Department, the County modified the stormwater discharge system to assure that stormwater will not be discharged into Outstanding Florida Waters. Originally, the County had "over designed" along a section of the roadway but had left other areas open. The modified plan accepted by the Department assures that the entire length of road will have adequate stormwater retention.
The stormwater plan proposed by the County provides for the construction of a series of swales and ditches along the roadway into which the stormwaters are to drain. The design of the swales will allow the first one inch of water that flows on the roadway to be collected. From the swale the water is to percolate into the ground through a filter system before it is ultimately discharged into the canals to the north and south. Those water bodies are not Outstanding Florida Waters.
The St. Johns River Water Management District has issued a permit to allow the proposed drainage. Off-site drainage should not flow into the proposed system. The proposed system complies with state requirements related to stormwater treatment and performance standards.
Without mitigation, the negative impacts associated with the construction of the road extension would cause a loss of habitat and would adversely affect the conservation of fish and wildlife. The area within impoundment 22 is disturbed wetlands in that over the years the parcel has experienced an invasion of exotic species such as melaleuca and Brazilian pepper trees. Because the diked perimeter effectively cut off the natural flows of waters through the area, the native plants (many among the wetlands indicator species) have been adversely affected.
The Department considers undisturbed wetlands to be of a higher quality than disturbed wetlands. Consequently, mitigation proposed for wetland loss considers whether the proposal creates new wetlands, enhances existing wetlands, or simply preserves wetlands. Mitigation ratios for the various catagories range from 1:1 to 5:1, when wetlands are created to replace the lost wetland, to 10:1 to 100:1, when existing wetlands are merely preserved.
In this case, the mitigation RIM plan will eliminate potential negative environmental impacts from spraying larvacides and will enhance the wetlands within the impoundment. The ratio of acreage proposed for mitigation is not unreasonable given the benefits to be derived from the County's proposal.
The mitigation proposed by the County adequately offsets the loss of wetlands that will occur.
The County has complied with the permitting and design requirements of the various regulatory and review agencies, including, the Environmental Protection Agency, the U.S. Wildlife Service, the National Marine Fishery Service, the Florida Fresh Water Fish and Game Commission, the St.
John's River Water Management District, the Treasure Coast Regional Planning Council, the Indian River County Mosquito Control District, and the City of Vero Beach.
The County published the notice of the Intent to Issue in a newspaper in Vero Beach, Indian River County, Florida as required by the Department. The Petitioners timely filed their petitions challenging the proposed permits.
The Petitioners did not present any facts from which it can be established that their environmental interests will be adversely affected by the project. While it is certain that the County will have to acquire the subject lands (which is a condition of the permit), the potential loss of the property alone does not establish an adverse environmental impact.
The permit also requires that the County prevent turbidity water quality violations during the construction of the road. That condition is adequate to assure water quality standards will not be violated.
There are no expected adverse affects to historical or archaeological resources.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
The Department has permitting authority over the construction of new stormwater discharge facilities and has promulgated regulations setting forth design and performance standards to be met in order to provide reasonable assurance that the stormwater discharge facility will not cause a loss of water quality or pollution.
An applicant for a permit bears the burden of proof to establish by a preponderance of the evidence that the project provides reasonable assurance that the proposed activity will not cause a violation of water quality standards and is not contrary to the public interest. Rule 17-103.130, Florida Administrative Code.
Rule 17-25.040(5), Florida Administrative Code, provides:
A showing by the applicant that the facility design will provide treatment equivalent to either retention, or detention with filtration, as described in this Chapter, of the runoff from the first one inch of rainfall; or, as an option for projects or project subunits with drainage areas less than
100 acres, the first one-half inch of runoff, shall be presumed to provide reasonable assurance pursuant to subsection (4) above, provided that adequate provisions have been made for operation and maintenance of the proposed facility. However, facilities which
directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9).
In this case, the County has provided reasonable assurance that the retention and treatment proposed by this project will comply with the foregoing rule.
Section 403.913(1), Florida Statutes, provides:
No person shall dredge or fill in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.
Section 403.918, Florida Statutes, provides, in pertinent part:
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will
adversely affect the public health, safety, or welfare or the property of others;
Whether the project will
adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will
adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will
be of temporary or permanent nature;
Whether the project will
adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and
relative value of functions being performed by areas affected by the proposed activity.
If the applicant is unable to
otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project .
Rule 17-4.070, Florida Administrative Code, provides, in part:
(3) The Department may issue any permit with specific conditions necessary to provide reasonable assurance that Department rules can be met.
In this case, the County has provided reasonable assurances that its road project will not violate water quality standards.
The County has further established that based upon the balancing criteria set forth in Section 403.918, Florida Statutes, that the project is not contrary to the public interest.
Moreover, the mitigation proposed by the County and required by the permit conditions will adequately mitigate any adverse effects caused by the project.
The Petitioners have not established a substantial environmental interest which will be adversely affected by the approval of the County's project. The economic interests which Petitioners have argued must be considered are inadequate, as a matter of law, to show that their interests will be substantially affected by the agency approval of the subject permits. See Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).
Based upon the foregoing, it is RECOMMENDED:
That the Department of Environmental Regulation enter a final order approving the applications of Indian River County for the permits to construct the proposed roadway.
DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida.
JOYOUS D. PARRISH
Hearing Officer
Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed this 22nd day of August, 1990 with the Clerk of the Division of Administrative Hearings.
APPENDIX TO CASE NOS. 90-0862 and 90-0863
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONERS:
Paragraphs 1 and 2 are accepted.
With regard to paragraph 3, it is accepted that the interior areas of impoundment 22 are currently isolated from waters; however, there are indicia of jurisdiction based upon the plants verified and undisputedly present within the impoundment.
Paragraph 4 is accepted but is irrelevant.
Paragraph 5 is rejected as contrary to the weight of the credible evidence.
With regard to paragraph 6 it is accepted that Mr. Ady was the only Department employee to visit the site prior to the issuance of the Intent to Issue and that he observed the invader species listed; the balance of the paragraph is rejected as irrelevant, argument, or contrary to the weight of the evidence.
While the exact acreage figures of paragraph 7 are not accepted (conflicting evidence as to the exact calculations), that there are wetlands both within and outside the impoundment is accepted. See findings as the acreage calculated and accepted.
The first sentence of paragraph 8 is accepted. The remainder of the paragraph is rejected as irrelevant.
With the exception of the last sentence which is rejected as argument or unsupported by the record, paragraph 9 is accepted. The second paragraph within paragraph 9 is rejected as irrelevant.
Paragraph 10 is rejected as repetitive.
Paragraph 11 is accepted but is irrelevant.
Paragraph 12 is accepted.
Paragraph 13 is accepted but is irrelevant since the exotics are considered "invisible" for purposes of determining the characteristics of the wetlands.
The first sentence of paragraph 14 is accepted. The balance of the paragraph is rejected as argument, irrelevant, or contrary to the weight of the evidence.
Paragraph 15 is rejected as contrary to the weight of the evidence.
Paragraph 16 is rejected as contrary to the weight of the evidence.
Paragraph 17 is rejected as contrary to the weight of the evidence, unsupported by the record, or irrelevant.
Paragraphs 18 and 19 are rejected as irrelevant.
Paragraph 20 is rejected as unsupported by the record as to adverse environmental impacts on Petitioners' properties.
Paragraph 21 is accepted.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COUNTY:
Paragraphs 1 and 2 are accepted.
Paragraph 3 is rejected as irrelevant.
Paragraph 4 is accepted.
Paragraph 5 is accepted but is irrelevant.
Paragraph 6 is accepted but is, in part, irrelevant.
Paragraph 7 is accepted.
Paragraph 8 is accepted.
Paragraph 9 is accepted.
Paragraph 10 is accepted.
Paragraphs 11 through 16 are accepted.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:
Paragraph 1 is accepted.
Paragraph 2 is rejected as irrelevant except as to the findings of plant types documented within the impoundment.
Paragraph 3 is accepted.
Paragraph 4 is accepted.
Paragraphs 5 through 13 are accepted.
Paragraph 14 is rejected as recitation of testimony.
Paragraphs 15 through 25 are accepted.
The first sentence of paragraph 26 is accepted. The remainder of the paragraph is rejected as unsupported by the record.
With regard to paragraph 27, it is accepted that the area within the impoundment must have been wetlands prior to the construction of the diked perimeter. In addition to the testimony of the experts, common sense would suggest that the area must have been conducive to wetlands indicator plant species since those types are still found within the impoundment.
Paragraphs 28 through 35 are accepted.
Paragraph 36 is rejected as repetitive.
Paragraphs 37 through 40 are accepted.
Paragraphs 41 and 42 are rejected as contrary to the weight of the evidence or argument. It is accepted that the mitigation proposed adequately offsets the loss of wetlands that will occur.
COPIES FURNISHED:
Douglas H. MacLaughlin Assistant General Counsel Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
J. Alan Cox
105 West 5th Avenue Tallahassee, Florida 32302
Michael O'Haire
Smith, O'Haire, Quinn & Garris
P.O. Box 4375
Vero Beach, Florida 32964
David M. Rogero Blackwell & Walker, P.A.
One Southeast Third Avenue Miami, Florida 33131
Dale H. Twachtmann,Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARTIN A. GREGORY AND
RICHARD B. WIGGINS, as trustees, and PAUL HOFFMAN,
Petitioners,
vs. DOAH Case Nos. 90-0862
90-0863
INDIAN RIVER COUNTY AND OGC Case No. 89-0845
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On August 10, 1990, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Regulation (the Department), Petitioners Martin A. Gregory, Richard B. Wiggins, and Paul Hoffman, and Respondent Indian River County (the County). A copy of the Recommended Order is attached as Exhibit A. The Petitioners timely filed
their exceptions to the Recommended Order on August 27, 1990, along with a request for oral argument. The Department filed a timely response to those exceptions. The matter then came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding arose from the County's seeking a wetlands dredge-and-fill permit and a stormwater treatment permit to construct an extension of Indian River Boulevard in Vero Beach, Florida. The proposed extension of the road would follow the western dike of Indian River Mosquito Impoundment No. 22 and would require dredging and filling both inside the impoundment to the east of the dike and outside the impoundment to the west of the dike. The permit application indicates that the County does not yet own the right-of-way for the extension but will own it before construction begins. The petitioners own much of the land that would be affected by the road extension and concomitant mitigation.
The pivotal and intertwined substantive issues in this proceeding are the location of the Department's jurisdictional line and the amount of mitigation required for the project. The petitioners protest that the Department has made an inaccurate determination of the line, including much land owned by the petitioners that they assert is not jurisdictional. The County does not disagree with the Department's determination of the line. The dispute focuses on the Department's interpretation of the mosquito impoundment. The Department required that the impoundment be considered wetlands if it would have been wetlands but for the presence of the mosquito control dikes. The dike to this impoundment completely severs it from other waters. The Department determined that in addition to 8.1 acres of inside the impoundment, 7.12 acres of jurisdictional wetlands inside the impoundment would be affected by the proposed project. The petitioners argue not only that the line classifies too much of their land as jurisdictional but also that because some of the wetlands are heavily stressed, the mitigation area required should have been smaller. The petitioners complain that the Department's assertion of jurisdiction over portions of their property has put a cloud on their title, impaired the value of their land, and adversely affected their ability to use their property. The Department has urged that the petitioners lack standing to maintain their petitions, on the ground that any adverse impact from approval of the proposed project would affect only their economic interests, not their environmental interests.
On June 19 and 20, 1990, a Hearing Officer from the Division of Administrative Hearings held a formal administrative hearing in this matter. After all parties submitted proposed recommended orders, the Hearing Officer found that the mitigation proposed by the County will adequately offset the loss of wetlands that will occur. She then concluded that the County had met its burden of proof and provided reasonable assurance that the project would not violate water quality standards and would not be contrary to the public interest. Moreover, she stated that the petitioners failed to establish any substantial environmental interest that would be adversely affected by approval of the. County's project. Following the decision in Agrico Chemical Company v.
Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), she concluded that the economic interests asserted by the petitioners were inadequate as a matter of law to show that their interests would be substantially affected by the approval of the requested permits. Accordingly, she recommended approval of the permit.
RULINGS ON EXCEPTIONS TO FINDINGS OF FACT
The introduction to the exceptions filed by the petitioners sets forth one of the two critical issues in this proceeding. It corrects a technically inaccurate statement in the Recommended Order characterizing the petitioners as "adjacent property owners." Rec. Order at 2. The petitioners point out that, as recognized in paragraph 5 of the findings of fact, they own some of the very land that the project will require either for the road extension or the mitigation. The petitioners urge that because the County does not own any of the land needed for the project, it has no right to apply for a permit to use the land. The petitioners take exception to the alleged failure of the Recommended Order to resolve the issue whether the County must own the land before it can even apply for a permit.
In light of the Hearing Officer's own findings in paragraph 5, I must accept this exception to the characterization of the petitioners as merely adjacent property owners. They are owners of some of the property to be occupied by the road project, including its mitigation areas. As for the issue of the County's standing to apply for a permit, the petitioners' third exception to the conclusions of law of the Recommended Order again addresses that point.
This Order therefore will address that issue in resolving the third exception to conclusions of law, below.
In the first exception to the findings of fact, the petitioners attack the finding that "the County has approved the acquisition of right of way to construct a road project." Instead, they argue, the County has approved only the initiation of proceedings to condemn the property in circuit court. It is true that, as they point out, merely starting the action does not ensure that the County will prevail. Yet the finding in question does not prejudge the question. Read together with the finding in paragraph 5 of the findings that before construction "the County would have to acquire the subject parcels in order to comply with the proposed permit terms," the statement that the County has approved the acquisition simply means that the County decisionmakers have approved the proposed acquisition. In context, the language clearly implies the word proposed so interpreted, the finding is impeccable, fully supported by competent substantial evidence in the record. I therefore reject this exception.
Contrary to the claim of the petitioners, competent substantial evidence likewise supports the finding in paragraph 4 of the findings that "[t]he area within the impoundment contains wetland indicator species which suggest that prior to the construction of the dikes, . . . the tract was a wetlands
area," to which the petitioners take their second exception. I therefore reject this exception.
In their third exception, the petitioners do not clearly take exception to any particular finding of fact. They state that the Hearing Officer found that the Department based its jurisdictional determination on "a new interpretation" of section 403.817(2) of the Florida Statutes. Exceptions at 5, par. 3. In fact, in the paragraph cited by the petitioners, the Hearing Officer made no finding that the interpretation was new. Rec. Order at 6, par. 7. The petitioners do not object to the finding at issue. Instead, they quarrel with the County's acquiescence in the Department's interpretation of its jurisdiction. They also raise various legal issues that the Hearing Officer allegedly failed to resolve. These seem to duplicate the issues raised in the exceptions to conclusions of law, especially the first two such exceptions. The Order will address those issues in the section on conclusions of law, below.
The petitioners' only disagreement with the finding at issue appears to derive from the Department's alleged failure to defend its interpretation of the jurisdictional statute. Yet the petitioners do not make any specific attack on that interpretation in this exception. They do not explain what the Department allegedly did wrong. They cite nothing in the record to support their apposition to the finding. I reject this exception.
Exception No. 4 to the findings of fact asserts that the Hearing Officer should not have found that without mitigation, the project would have "negative impacts" on the environment, causing "a loss of habitat and ... adversely affect[ing] the conservation of fish and wildlife." Rec. Order, par. 12 (findings of fact). The petitioners urge that because the wetlands in question are ecologically stressed, less mitigation should be required. But the finding to which the petitioners object does not reach the question of how much mitigation is required. Moreover, the balance of paragraph 12 of the findings of fact expressly takes into account that the wetlands in the impoundment have been disturbed by man. Paragraph 13 then notes that the Department assigns a higher value to undisturbed wetlands than to disturbed wetlands. I reject this exception.
Exception No. 5 challenges two findings of fact. The petitioners state that the Hearing Officer erred in finding that the amount of mitigation acreage "is not unreasonable given the benefits . . . from the County's proposal," in paragraph 14 of the findings, and that the mitigation "adequately offsets the loss of wetlands that will occur," in paragraph 15. The petitioners then repeat their disagreement with the Department's determination of its jurisdiction, "[a]s noted In Exception No. 4." Not adding anything of substance in support, this exception must fall with Exception No. 4. I reject Exception No. 5.
The petitioners' sixth exception takes issue with the finding in Paragraph
16 that the County has complied with the permitting and design requirements of various regulatory and review agencies. Although the petitioners cite no record support for their exception, I am unable to find any competent substantial evidence in the record to support the finding in question. I therefore accept this exception and correct the findings by deleting paragraph 16 from them. Nevertheless, I rule that the error in making this finding was harmless. Exception No. 6 is immaterial, because the requirements of the other agencies are not at issue in this proceeding.
Exception No. 7 asserts error in the finding in paragraph 18 that the petitioners presented no facts to "establish that their environmental interest will be affected adversely by the project." In explanation, the petitioners state that their challenge to the accuracy of the Department's determination of its jurisdiction and the amount of mitigation required reflects their environmental interest. But the common understanding of the phrase "environmental interest" is an interest in protecting the environment.
Although the petitioners have raised issues that are ostensibly "environmental," involving the extent of the Department's jurisdiction to protect the environment and the extent of the protection needed, the issues are not the same as the interests. The interests are the reasons for raising the
issues. The petitioners have not raised these issues to protect the environment. On the contrary, they seek to restrict the Department from protecting the environment to the extent that the Department has proposed. The petitioners have sought that restriction to protect their property from "a substantial adverse impact" caused by the project, "specifically including the excessive mitigation plan." Petitioners' Proposed Rec. Order at 9, par. 20 (proposed
findings of fact). The only adverse impact on their property would be a possible reduction in its value during the condemnation Proceeding. No other adverse impact could result from a mitigation plan that offsets all the adverse environmental impacts of the project and then some (according to the petitioners). The interest asserted by the petitioners is not environmental but economic, as the Hearing Officer found, based on competent substantial evidence. Accordingly, I reject Exception No. 7.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
Exception No. 1 to the conclusions of law challenges a conclusion allegedly to be found in paragraphs 7-9 of the conclusions. The conclusion attacked is "that the application would not adversely affect the welfare or property of Petitioners." In vain have I searched for this conclusion. It is not found in paragraphs 7-9 of the conclusions. It does not appear in paragraphs 1-6 or 10-12, the only other conclusions. I therefore reject this portion of the exception. The petitioners then go on to argue that the Hearing Officer failed to require the Department to meet its burden of proving jurisdiction and failed to evaluate the wetlands in the entire project area correctly. Contrary to the petitioners' assertions, however, it is not true that the Hearing Officer failed "to address the environmental issues raised by Petitioners." The Hearing Officer made findings supported by competent substantial evidence that the project would affect jurisdictional wetlands and require mitigation and that the mitigation proposed by the County would adequately offset the adverse impacts on the wetlands. She also made well-supported findings that the Department had evaluated the disturbed wetlands differently from undisturbed wetlands. The petitioners have not shown any error in the conclusions of law in this exception, which I therefore reject in toto.
Exception No. 2 to the conclusions reaches the dispositive procedural issue in this case. The exception takes issue with paragraph 12 of the conclusions, which states that the petitioners failed to establish a substantial environmental interest that the project would adversely affect and that the economic interests of the petitioners are inadequate to demonstrate their standing in this proceeding on an environmental permit, under the decision in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). Significantly, the petitioners do not question the principle established in Agrico that because a proceeding on an environmental permit under chapter 403 of the Florida Statutes is not intended to redress or prevent injuries to the economic interests of a third party, such a party lacks standing unless he establishes that the proceeding may affect his substantial environmental interests. Economic interests do not suffice to establish the standing of third parties in an environmental proceeding. Apparently accepting that principle, the petitioners insist that their asserted interests are environmental. That claim flies in the face of both fact and logic, as explained above in the discussion of Exception No. 7 to the findings of fact.
The petitioners concede that they are third parties. Under Agrico, then, I have no choice but to reject this exception and uphold the Hearing Officer's conclusion that the petitioners failed to establish their standing in this proceeding.
In reaching this conclusion, I recognize that the petitioners own some of the land that the County must acquire for this project. Besides lacking the authority to carve out an exception to the judicial decision in Agrico, however, I view the various policy considerations as reinforcing the conclusion that the petitioners have no standing to promote their economic interests in this
proceeding. Had the petitioners established any substantial environmental interests that the project would affect, this proceeding would have protected those interests. Had the petitioners sought a permit or a declaratory statement from the Department to establish the jurisdictional line and realize whatever their plans are for using their land, they would not have been subject to the Agrico restriction on the standing of third parties.
They would have been applicants rather than petitioners. They would have automatic standing as the main parties in interest. Their election of other remedies must not be allowed to impair the proper working of the administrative process, in which the Department focuses its expertise and efforts on regulation to protect the environment. The petitioners concede that they "are actively pursuing their remedies in [other] forums." Exception No. 2 (conclusions of law). Those other forums doubtless include the circuit court, in which the condemnation proceeding authorized by statute will presumably protect the economic interests of the petitioners at issue. This agency is not free to question the legislative judgment that the condemnation proceeding is the appropriate and adequate forum for the protection of such economic interests. For an administrative agency, carrying out the tasks delegated by the legislature is the sole mission, and mission enough. I reject Exception No.
2 as without merit in either policy or law.
Exception No. 3 fares no better. In this exception, the petitioners argue that the Hearing Officer should have concluded that rule 17-312.330(6) of the Florida Administrative Code "requires the County to secure title or permission from the owners to profer [sic] the area intended for mitigation of its roadway project." The rule requires documentation of the applicant's interest in the land before the applicant may obtain the permit. It does not require such documentation at the time of the application or the initial proffer of the area for mitigation. The petitioners have cited no case and offered no analysis of the language of the rule in support of their interpretation. When the applicant is a public entity with condemnation authority, as is the County, it makes more sense for the applicant to apply for the permit and make the proffer of the mitigation area before starting the condemnation, to learn first how much (and which) property the project will require. I therefore reject this exception.
The fourth exception raised by the petitioners is a broad objection to the Hearing Officer's alleged failure to include various findings of fact and conclusions of law proposed by the petitioners, as well as their recommendation, in the Recommended Order. The petitioners do not point to any particular finding or conclusion omitted. The appendix to the Recommended Order addresses all twenty-one paragraphs of the petitioners' proposed findings. The Hearing Officer rejected some of those proposed findings as irrelevant or contrary to the weight of the evidence. The petitioners have not shown any error in those determinations. Moreover, the Hearing Officer had no obligation to accept or even comment on any particular conclusion of law, including the recommendation proposed by the petitioners. I likewise reject this exception as lacking merit.
RULING ON REQUEST FOR ORAL ARGUMENT
The petitioners have also requested oral argument before me in support of their exceptions. The petitioners have not explained the need for such oral argument or offered any argument or other support for the request. They have, however, presented ample argument before the Hearing Officer and in their
exceptions, to make their position clear on the issues discussed above. In these circumstances, oral argument would be redundant. The request for oral argument is denied.
CONCLUSION
Having ruled on all the exceptions, it is ORDERED that
Except as otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated here by reference.
The petitions for a hearing are denied.
The Department shall immediately issue the dredge-and- fill permit and stormwater treatment permit requested by the County.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this order under section 120.68 of the Florida Statutes by filing a notice of appeal under rule 9.110 of the Florida Rules of Appellate Procedure with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within thirty days from the date when this order is filed with the Clerk of the Department.
DONE AND ORDERED on this 21st day of September 1990 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
Dale Twachtmann Secretary
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I CERTIFY that a true copy of the foregoing was mailed to Joyous D. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, J. Alan Cox, Esq., 105 West 5th Avenue, Tallahassee, Florida 32303, Michael O'Haire, Esq., Smith, O'Haire, Quinn & Garris, P.O. Box 4375, Vero Beach, Florida 32964, and David M. Rogero, Blackwell & Walker, P.A., One Southeast Third Avenue, Miami, Florida 33131, on this 24th day of September 1990.
Timothy A. Smith Assistant General Counsel
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
MARTIN GREGORY and RICHARD NOT FINAL UNTIL TIME EXPIRES TO WIGGINS, as Trustees, and PAUL FILE MOTION FOR REHEARING AND HOFFMAN, DISPOSITION THEREOF IF FILED.
Appellants, CASE NO. 90-3135
DOAH Case No. 90-0862
vs.
INDIAN RIVER COUNTY and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Appellees.
/ Opinion filed December 4, 1992.
Appeal from an order of the Department of Environmental Regulation.
Michael O'Haire of Smith, O'Haire, Quinn & Smith, Vero Beach; J. Alan Cox, Tallahassee; Will J. Richardson of Richardson Law Offices, Tallahassee, for appellants.
David M. Rogero and Arthur F. Heller of Blackwell & Walker, Tallahassee; Douglas
H. MacLaughlin, Assistant General Counsel, Department of Environmental Regulations Tallahassee, for appellees.
WOLF, J.
Appellants, Martin Gregory and Richard Wiggins as trustees, and Paul H. Hoffman challenge a final administrative order of the Department of Environmental Regulation (DER) granting a permit to appellee, Indian River County (County), to construct a stormwater treatment system and to engage in certain dredge and fill activities. The permit was sought in connection with the proposed extension of Indian River Boulevard, a road within Indian River County. The appellants are the owners in fee simple of the property upon which the county proposed to conduct a substantial portion of the activities which are the subject of the permit.
Appellants argue three issues on appeal: 1) Whether the appellants were improperly denied standing in a proceeding to determine whether to issue a permit for dredge and fill activities on the appellants' property; 2) whether DER has dredge and fill jurisdiction within the land in question; and 3) whether the mitigation required by DER exceeded that warranted by the extent and conditions of the wetlands impacted. While we hold that the appellants were improperly denied standing, we affirm the decision of the department because the hearing officer allowed all parties an opportunity to fully participate in the hearing and gave full and appropriate consideration to the issues which were properly before her.
The appellee, Indian River County, applied to the Florida Department of Environmental Regulation on November 27, 1987, for permits to construct a stormwater treatment facility and to engage in certain dredge and fill activities related to construction of the county's proposed extension of Indian River Boulevard. The proposed extension of the road would follow the western dike of Indian River Mosquito Impoundment No. 22 and would require dredging and filling both inside the impoundment to the east of the dike and outside the impoundment to the west of the dike.
The county was not the owner of the land in question, but sought to determine the extent of environmental mitigation required by the permitting agencies before deciding what property should be acquired through condemnation. Initially, DER indicated that it did not have wetlands jurisdiction over the mosquito control impoundment area because of the lack of a direct service connection with the waters of the state. While the county was developing a mitigation plan, DER clarified its policy on jurisdiction within mosquito control impoundments.
The department determined that land which would have been considered wetlands but for the presence of mosquito control dikes, would be wetlands. The county did not challenge the interpretation, nor the amount of mitigation required. The county submitted a plan which DER accepted.
DER issued an intent to grant the requested permits on January 12, 1990. The appellants moved to intervene and petitioned for a formal administrative hearing pursuant to section 120.57, Florida Statutes, on January 12, 1990. 1/
The appellants filed similar petitions to intervene which, in pertinent part, alleged
Petitioner is the record titleholder to significant portions of the real property upon which the Applicant intends to construct its project (i.e., the Indian River Boulevard north extension). Petitioner's ability to use, enjoy, and develop his own property would be substantially affected if the Applicant received the subject permit. Despite the pending effort to secure a permit for dredging and filling activities on the Petitioner's land, the Applicant does not possess any right, title, or interest in the subject property. The Applicant's project, if constructed, permanently would prohibit Petitioner's use of his own property.
The issues of material fact upon which the Department's proposed action is based that Petitioner disputes include, but are not limited to, the following:
that the Department has wetlands resource regulatory jurisdiction over the width and breadth of the area(s) asserted by the Department and acquiesced in by the Applicant.
that the Rotational Impoundment Management (RIM) plan and other mitigative measures required by the Department and acquiesced in by the Applicant are necessary or appropriate to offset the loss of purported wetlands due to filling activities associated with the proposed project.
that the Applicant's right-of-way, plan of development for the road and associated bridges, and mitigation efforts represent the least adverse impact on the Petitioner's property or on the environment.
A hearing was held before a hearing officer from the Division of Administrative Hearings on June 19 and 20, 1990. Appellants participated in said hearing and had an opportunity to present and cross-examine witnesses. Appellants presented one expert witness who testified that the mitigation accepted by the department was excessive. As a result of this, the appellants argued that a greater portion of their lands would be taken by the county to complete its projects, and the appellants would be deprived of the use and enjoyment of the property.
After the hearing, the hearing officer made the following pertinent findings of fact concerning standing of the appellants, the wetlands jurisdiction, and sufficiency of the proposed mitigation:
4. Impoundment 22 was constructed prior to 1957. Originally, the impoundment was periodically flooded in an effort to limit salt marsh mosquito breeding. Later, insecticides were employed to deter mosquito proliferation.
The area within the impoundment contains wet land indicator plant species which suggests that
prior to the construction of the dikes, that the tract was a wetlands area.
7. The dispute over the wetlands calculation arose due to a Department interpretation of the mosquito impoundment. The Department's current policy requires that the impoundment be considered wetlands if it would have been wetlands but for the presence of the mosquito control dikes. On May 24, 1989, the Department advised the County of that interpretation and of the extent of the impacts to wetlands due to the road proposal. The Department asserted that in addition to the 8.1 acres outside of the impoundment to be impacted, approximately 7.12 acres within the impoundment would be effected. The County acquiesced in that interpretation and agreed to provide mitigation for the project based upon that assumption of jurisdiction. The Petitioners have disputed that jurisdictional interpretation.
Without mitigation, the negative impacts associated with the construction of the road extension would cause a loss of habitat and would adversely affect the conservation of fish and wildlife. The area within impoundment 22 is disturbed wetlands in that over the years the parcel has experienced an invasion of exotic species such as melaleuca and Brazilian pepper trees. Because the diked perimeter effectively cut off the natural flows of waters through the area, the native plants (many among the wetlands indicator species) have been adversely affected.
The Department considers undisturbed wetlands to be of a higher quality than disturbed wetlands. Consequently, mitigation proposed for wetland loss considers whether the proposal creates new wetlands, enhances existing wetlands, or simply preserves wetlands. Mitigation ratios for the various categories range from 1:1 to 5:1, when wetlands are created to replace the lost wetland, to 10:1 to 100:1, when existing wetlands are merely preserved.
In this case, the mitigation RIM plan will eliminate potential negative environmental impacts from spraying larvacides and will enhance the wetlands within the impoundment. The ratio of acreage proposed for mitigation is not unreasonable given the benefits to be derived from the County's proposal.
The mitigation proposed by the County adequately offsets the loss of wetlands that will occur.
The hearing officer also made the following pertinent conclusions of law
In this case, the County has provided reasonable assurances that its road project will not violate water quality standards.
The County has further established that based upon the balancing criteria set forth in Section 403.918, Florida Statutes, that the project is no$ contrary to the public interest.
Moreover, the mitigation proposed by the County and required by the permit conditions will adequately mitigate any adverse effects caused by the project.
The Petitioners have not established a substantial environmental interest which will be adversely affected by the approval of the County's project. The economic interests which Petitioners have argued must be considered are inadequate, as a matter of law, to show that their interests will be substantially affected by the agency approval of the subject permits. See Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).
The final order of the department adopted all material findings and conclusions of the hearing officer. The department also fully addressed appellants' exception to the findings of fact and conclusions of law.
The difficulty in this case arises because of the interrelationship between the necessity for obtaining environmental permits from administrative agencies in connection with a proposed governmental project, and the necessity for a circuit court determination of the amount of land necessary to complete the project in accordance with all environmental regulations. See Seadade Industries, Inc. v. Florida Power & Light Co., 245 So.2d 209 (Fla. 1971). In order for this court to resolve the issues presented (including the standing issue), it must first determine which matters should be resolved through an administrative environmental permitting procedure, and which matters should be resolved in a circuit court eminent domain proceeding. Department of Business Regulation v. Ruff, 16 F.L.W. 5778 (Fla. Dec. 19, 1991). 2/
A governmental entity may only utilize the powers of eminent domain to obtain ownership of land to the extent that it has shown a reasonable necessity for acquiring the land in question. Pasco County v. Franzel, 569 So.2d 877 (Fla. 2nd DCA 1990). The final determination of the extent of land which must be utilized in order to comply with environmental regulations, however, can only be determined through the administrative permitting process. The courts, therefore, have allowed condemning authorities to pursue condemnation prior to obtaining environmental permits upon a showing of a reasonable probability of obtaining the necessary permits. Seadade Industries, Inc. v. Florida Power and Light Co., supra; Maples v. State of Florida, Dep't of Transp., 588 So.2d 25 (Fla. 1st DCA 1991).
In the instant case, it appears that the governmental entity chose to pursue the condemnation and environmental permitting simultaneously rather than initially pursuing the eminent domain action. 3/ It is, therefore, necessary to determine the proper scope of both proceedings.
In this administrative proceeding, the appellants sought to have the hearing officer determine 1) the extent of the department's wetlands jurisdiction over appellants' land, and 2) whether the mitigation plan agreed to by the department and the county was unreasonable in that a plan of mitigation could have been promulgated which would have involved condemnation of less of appellants' land. It appears that all parties agree that the issue of wetlands jurisdiction of the department is properly resolved in the administrative process. The department and the county assert that the second issue should be resolved in the circuit court as part of the eminent domain proceedings. We agree.
The reasonableness of the exercise of the power of eminent domain and the reasonable necessity for taking the land are matters that have traditionally been resolved in circuit court. Canal Authority of Florida v. Miller, 243 So.2d
131 (Fla. 1970); see Pasco County v. Franzel, 569 So.2d 877 (Fla. 2nd DCA 1990); School Bd. of Broward County v. Viele, 459 So.2d 354 (Fla. 4th DCA 1984), rev. denied, 467 So.2d 1000 (Fla. 1985). The issue of necessity for the taking of the property in the instant case is not as appellants suggest, whether there were other satisfactory plans of mitigation which would have utilized less of appellants' land. In fact,
a landowner cannot object merely because some other location might have been made or some other property would have been suitable for the purpose.
Wilton v. St. John's County, 98 Fla. 26, 49, 123 So. 527, 535 (1929).
The availability of alternative means or routes is not the sole criteria by which to measure discretion of the condemning authority. Hillsborough County v. Sapp, 280 So.2d 443 (Fla. 1973). The decision made by the local elected body concerning what and how much land is to be taken involves many factors and is essentially legislative or quasi-legislative in nature. City of St. Petersburg
v. Vinoy Park Hotel Co., 352 So.2d 149 (Fla. 2nd DCA 1977). Cf. Pasco County
v. Franzel, supra at 879. 4/ The decision may not only involve environmental factors, but also factors such as cost and safety, as well as general long-range planning concerns. See concurring opinion of Judge Spector in Chipola Nurseries, Inc. v. Division of Administration, Dep't of Transp., 294 So.2d 357 (Fla. 1st DCA 1974). See also School Bd. of Broward County v. Viele, supra.
The decision of a condemning authority concerning necessity should not be
disturbed, "unless a condemning authority acts illegally, in bad faith or it abuses its discretion." School Bd. of Broward County, supra at 356. The issue to be determined, therefore, must be restated: Whether an administrative body (DER) has the power to review the discretionary decision of the local elected body concerning the reasonable necessity for lands to be condemned. This question must be answered in the negative.
The hearing officer and the agency have limited jurisdiction of what may be determined in a wetlands permitting procedure. See Miller v. Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987); Council of the Lower Keys v. Charley Topping and Sons, Inc., 429 So.2d 67 (Fla. 3rd DCA 1983). The issues which are properly determined in this administrative process are 1) the extent of wetlands involved, and 2) whether the mitigation plan proposed by the county was adequate. Neither DER nor the hearing officer should consider issues which are not properly considered in the administrative proceeding.
Department of Business Regulation v. Ruff, supra; Buckley v. Department of Health and Rehabilitative Servs., 516 So.2d 1008 (Fla. 1st DCA 1987).
Absent specific legislative authorization, an administrative agency lacks the authority to exercise oversight of a decision of a local elected body concerning reasonable necessity. Cataract Surgery Center v. Health Care Cost Containment Bd., 581 So.2d 1359 (Fla. 1st DCA 1991); Florida League of Cities, Inc. v. Department of Ins., 540 So.2d 850 (Fla. 1st DCA 1989), rev. denied, 545 So.2d 1367 (Fla. 1989). These issues are properly determined in circuit court. 5/ Issues such as whether there might be another mitigation plan involving less land which is acceptable, or whether the county may have acted in bad faith by attempting to condemn more land than is reasonably necessary are not properly determined in the administrative process. Thus, the department did not err by refusing to address the issue of whether the mitigation proposed by DER and accepted by the county was excessive.
DER and the county assert that the hearing officer was correct in denying the landowners' standing to intervene in the administrative process under the test established in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981), rev. denied, Freeport Sulphur Co.
Agrico Chemical Co., 415 So.2d 1359 (Fla. 1982); and rev. denied, Sulphur Terminals Co. v. Agrico Chemical Co., 415 So.2d 1361 (Fla. 1982). In Agrico Chemical Co., the court set forth the test for standing of a third party to intervene in another party's request for a permit. The Second District Court of Appeal noted that a person can attain party status by, among other things, either being a named party, being given a statutory right to participate, or by having its "substantial interests affected by the proposed agency action. 120.52(12), Fla. Stat. (1989). In this case, the appellants were neither named parties nor given a statutory right to participate. Therefore, in order to attain standing, the appellants must demonstrate that they have a substantial interest in this proceeding. Thus, a potential intervenor must demonstrate
that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of the type or nature which the proceeding is designed to protect.
Agrico, supra at 482. The Agrico test has been adopted by this court in a number of cases. Florida Society of Opthalmology v. State Bd. of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (Fla. 1989); North Ridge Gen. Hosp. v. NME Hosps., Inc., 478 So.2d 1138 (Fla. 1st DCA 1985). In
the instant case, the seriousness, degree, or timeliness of injury to be suffered by the petitioner, if their land is declared to be wetlands or needed for mitigation, is not seriously disputed.
The dispute concerns the second prong of the Agrico test. In determining how to apply this second prong of the Agrico test, we must analyze the appropriate purpose and scope of the proceeding, the type and nature of the injury, as well as the reasons for the Agrico test.
As we have previously stated, one of the issues to be determined within the scope of this permitting procedure was the extent of wetlands which were involved. The potential injury to appellants concerns their ability to use the land if it is determined to be wetlands. The issue of standing, thus, may be rephrased to read: Does a landowner have a substantial interest involved in a determination of the amount of environmentally sensitive land which is located on his property. Clearly, the answer is yes.
In applying the Agrico test, we must not lose sight of the reason for requiring a party to have standing in order to participate in a judicial or administrative proceeding. The purpose is to ensure that a party has a "sufficient interest in the outcome of the litigation which warrants the court's entertaining it" and to assure that a party has a personal stake in the outcome so he will adequately represent the interest he asserts. See General Dev. Corp.
v. Kirk, 251 So.2d 284, 286 (Fla. 2nd DCA 1971). In referring to a case involving standing in a judicial proceeding, we are not unmindful that standing in administrative proceedings, unlike judicial proceedings, is defined by statute. We do, however, feel that such analysis is helpful in deciding how Agrico should be applied.
The obvious intent of Agrico was to preclude parties from intervening in a proceeding where those parties' substantial interests are totally unrelated to the issues which are to be resolved in the administrative proceedings. In Agrico, the only real interest of the proposed intervenor was to preclude competition. That interest was totally unrelated to the environmental issues to be decided in the permitting proceedings. That is not the situation in this case. The landowner has a direct and substantial interest in determining how much of his property should be considered to be wetlands.
DER and the county attempt to discount the landowner's interest in the use of his property by asserting that such an interest is merely economic, as in Agrico, rather than environmental. We reject the idea that the interests of the parties are comparable. The interests asserted by a landowner are more directly implicated in an environmental proceeding than the mere interest in precluding competition. We reject any interpretation of Agrico which would preclude a landowner from participating in proceedings involving the use of his own property.
While it was error to deny standing, an error involving standing to intervene in an administrative proceeding may be harmless where the party is provided a full opportunity to participate and present evidence, and the hearing officer rules on all issues which the intervenor may properly contest. First Hosp. Corp. of Florida v. Department of Health and Rehabilitative Servs., 589 So.2d 310 (Fla. 1st DCA 1991). Such is the case in the instant proceeding.
Appellants were allowed to participate and present evidence. In addition, the hearing officer made specific findings of fact and conclusions of law concerning
the extent of wetlands on appellants' property. The appellants were also allowed to file exceptions to the recommended order. Under these circumstances, the erroneous ruling concerning standing was harmless.
The last issue raised by the appellant which needs to be addressed concerns an allegation that DER improperly asserted wetlands jurisdiction over a portion of their property. The dispute focuses on the department's interpretation that the impoundment be considered wetlands, if it would have been wetlands but for the presence of mosquito control dikes.
As to this issue, the hearing officer found that "the area within the impoundment contains wetland indicator species which suggest that prior to the construction of the dikes ... the tract was a wetland area." The hearing officer also made several additional findings concerning the agency's jurisdiction over the area in dispute.
An agency may not extend its jurisdiction beyond its statutory authority.
Cataract Surgery Center v. Health Care Cost Containment Bd., 581 So.2d 1359, 1360-1361 (Fla. 1st DCA 1991). The Florida Supreme Court, however, has specifically ruled that DER's dredge and fill jurisdiction as set forth in section 403.817 should be liberally interpreted in favor of the public. DER v. Goldring, 477 So.2d 532 (Fla. 1985). An agency's construction of the statutes it administers as to technical matters is entitled to great weight and is not to be overturned unless clearly erroneous. Pan American Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Shell Harbor Group, Inc.
v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). DER's interpretation of section 403.817, Florida Statutes, is reasonable. This interpretation allows for certain wetlands not to be considered jurisdictional, for instance, when a governmental mosquito control program caused the wetland. It also allows for certain lands to be considered wetland, and, therefore, subject to departmental jurisdiction, when the wetlands would have been considered jurisdictional but for the governmental mosquito control activity. This DER construction of section 403.817 can certainly not be considered clearly erroneous, especially considering the public's interest in protection of natural wetlands.
We therefore affirm. BARFIELD, J., concurring with written opinion; ZEHMER, J., dissenting in part with written opinion.
BARFIELD, J., concurring.
I concur in affirming the final order of the Department of Environmental Regulation (DER); however, in restating the issue concerning extent of mitigation I would carefully limit it to the facts of this case. I agree with Judge Wolf's conclusion that an administrative body does not have the power to review the discretionary decision of the local elected body concerning the reasonable necessity for lands to be condemned. This should not preclude the landowner from questioning the extent of mitigation required by DER in all administrative proceedings for dredge and fill permits ancillary to eminent domain proceedings. Quantity of mitigation was simply not an issue in this case over which DER had jurisdiction because of the discretion vested in the condemning authority.
In this case the condemnation of land was predicated on a quantity of land for mitigation agreed upon by the governing body and DER, the reasonableness of which the landowner could challenge in circuit court by attempting to show that
DER in approving the project would have been satisfied with less land than called for in the proposed project. However, should the project call for less land than DER demanded, I suggest that the landowner would have standing in the administrative hearing to contest the quantity of mitigation.
One troubling scenario is presented when the landowner successfully challenges in circuit court the extent of mitigation upon a showing of bad faith or abuse of discretion before permitting is completed, and then DER sets the extent of mitigation in excess of that approved in circuit court. It is at this point that traditional legal proceedings do not always neatly accommodate evolution in law. We should try to reconcile and accommodate the administrative and legal processes that affect environmental concerns in the state. This will be a recurring problem with the legislative concern for ecology. When the administrative process is determined by the legislature to be the more appropriate vehicle because of areas of expertise, the judiciary should consider giving way to those administrative determinations and having those determinations collaterally binding in the judicial arena.
Such an approach in this case would have deferred the question of quantity of mitigation to DER with the resulting binding effect of this factual determination on the court when it considered the issue of necessity for the overall project. In this case, all that had to be shown was that the condemning authority did not abuse its discretion, although the quantity of mitigation could exceed the minimum that would be required to obtain a dredge and fill permit.
ZEHMER, J. (Dissenting in part)
The issues presented in this case have been difficult to resolve, and despite extensive efforts to arrive at a consensus opinion in which all three panel members could agree, I remain unable to concur in several aspects of the majority's disposition of this case.
I concur with the majority opinion's holding that the administrative order under review erred in denying appellants standing to appear and litigate issues properly raised in this administrative permitting proceeding. I agree that appellants are persons substantially affected by the DER permitting order made necessary by the county's proposed road extension project due to the county's need for additional land from appellants to provide appropriate mitigation for injury to wetlands. I likewise concur in the holding that appellants were entitled to litigate the disputed issues concerning the extent of wetlands situated on their property and DER's jurisdiction over such lands.
Unlike the majority, however, I would also hold that appellants had standing in this administrative proceeding to litigate the scope and extent of the proposed mitigation-- specifically, whether the county's proposed plan of mitigation accepted by DER required excessive use of land to accomplish the mitigation required by law. The majority has concluded that any issue concerning excessiveness of the proposed mitigation is appropriately litigated in the county's condemnation proceeding filed in circuit court to determine the necessity of the taking. I do not agree with the majority on this issue because, in my view, they have reached this conclusion by incorrectly restating the issue and then erroneously applying to the restated issue the otherwise unquestioned principle that an administrative agency cannot pass on the legality of the county's quasi-legislative decision to determine what lands are to be taken in an eminent domain proceeding.
The issue raised in this administrative proceeding by appellants is whether the county's mitigation plan accepted by DER calls for an excessive use of lands for mitigation in addition to the land necessary for the road project itself, so that the county is being compelled to condemn more of appellants' lands than may be necessary under the law governing the DER permitting process. The majority opinion, however, erroneously restates the issue to be: "Whether an administrative body (DER) has the power to review the discretionary decision of the local elected body concerning the reasonable necessity for lands to be condemned." This restated issue begs the question because the county's decision to take appellants' land is premised on the DER requirement that the county provide a specified level of additional lands for mitigation, and appellants challenge this plan as excessive. A decision on the correct extent of necessary mitigation in the administrative permitting action, i.e., whether DER is accepting a plan calling for excessive mitigation, can be made only in this administrative proceeding. Manifestly, a decision on that question does not interfere at all with the county's exercise of its eminent domain power to condemn lands reasonably necessary to construct the road project.
Obviously, in the eminent domain suit, the county's taking of appellants' land for mitigation purposes can be shown to be reasonably necessary only by asserting that such land is required by the DER permit for mitigation purposes. Proof of the necessity to take appellants' land for mitigation is wholly dependant upon DER's administrative decision as to the land required under the permitting statutes it administers. This administrative decision is an inherent part of the permitting process and cannot be made in the eminent domain action. In view of appellants' challenge to the plan of mitigation, whether DER is requiring too little or too much land can be litigated only in a section 120.57 proceeding such as this one initiated by appellants to contest the county's application for the permit. The reasonable extent of required mitigation cannot be litigated in the circuit court condemnation proceeding, as held by the majority, because: (1) only the county and appellants are parties to the condemnation proceeding, and DER is not a party; (2) the county proves reasonable necessity for the condemnation by establishing that the DER permit requires the additional land for mitigation purposes; and (3) once the mitigation requirements have been finally determined administratively in a DER order, the circuit court has no jurisdiction to overturn that determination, since judicial review of DER's decision is limited in section 120.68 to review in an appropriate district court of appeal. Thus, this administrative proceeding is the only available avenue whereby appellants, as substantially affected property owners who have standing to participate in the permitting proceeding, can challenge the excessiveness of the mitigation being required by the DER permit.
To illustrate the fallacy underlying the procedure mandated in the majority opinion, let us suppose that in the county's eminent domain action the circuit court received evidence on and accepted appellants' challenge to the excessiveness of the mitigation plan, found that the extent of land being condemned for mitigation purposes was excessive under chapter 403 (the law being administered by DER in this permitting process), and declined to approve, as reasonably necessary, condemnation of all the land required under the DER permit. The county is thereby placed on the horns of a dilemma---it is not authorized to acquire the land needed under the DER permit, yet it cannot comply with conditions of the DER permit without obtaining the land to meet DER's mitigation requirements. The only rational solution to this quandary, it seems to me, is not litigation of the excessive mitigation issue in the court condemnation action as part of the constitutional issue of reasonable necessity,
but litigation of all issues relating to excessive mitigation in the administrative permitting proceeding. No one disputes that the county can prove reasonable necessity in the condemnation proceeding for its proposed road project by establishing what is required under the DER permit. Since the county's determination of the additional land needed for mitigation is necessarily predicated on the DER permit requirements, having the excessive mitigation issue decided in the administrative action does not interfere in the slightest with the county's discretionary decision to determine the extent of property reasonably necessary to complete the proposed road project.
The hearing officer in this case ruled that appellants had no standing to litigate excessive mitigation in this proceeding. Although the hearing officer made findings of fact relevant to the extent of DER's jurisdiction over the wetlands in the mosquito impoundment area and appellants' land, no findings of fact were made on the disputed issues raised by appellants regarding excessive mitigation. DER approved and adopted the hearing officer's finding of facts and recommended conclusions of law, including appellants' lack of standing, and issued its final order based thereon. Thus, the disputed issues over excessive mitigation have not been litigated in this proceeding, and no factual findings relevant to that issue have been made. Since the excessiveness issues cannot be appropriately litigated in the court condemnation suit and must be decided in this administrative proceeding (to which both DER and the county are parties), I would reverse and remand for further proceedings before the hearing officer at which appellants would be accorded the right to adduce evidence and to have findings of fact and conclusions of law made on their excessive mitigation dispute.
ENDNOTES
1/ The county had not acquired title to the land at the time of the administrative proceedings below, but initiated a condemnation proceeding on July 10, 1990. An order of taking was issued on November 21, 1990. The order was appealed, and the case was pending before the Fourth District Court of Appeal at the time of oral argument. The fourth district has now affirmed the trial court's decision without opinion.
2/ A full discussion of the interrelationship between standing and the issues to be resolved in the administrative proceeding as required pursuant to Agrico Chemical Co. v. Department of Environmental Regulation, supra, will be undertaken later in this opinion.
3/ The authority of the governmental agency to seek the environmental permits prior to obtaining the necessary lands is not raised in this appeal. While it would appear that there may be a number of legitimate reasons for proceeding in this fashion (i.e., time limitations, desire for a more definite estimate of the land needed to accommodate project), it is unnecessary for us to reach this question.
4/ This is especially true when the discretion is being exercised by a local elected body of a home rule entity such as a county or city. See art. VII, Fla. Const.
5/ It may be argued that potential conflict between the agency and the circuit court could be avoided by allowing the administrative agency to expand its jurisdiction to consider both the proposed plan submitted by the appellant and alternatives submitted by the landowner; however, this would not actually
resolve potential conflict. The circuit court and the agency would still be considering two different issues: The agency would be considering whether other alternatives would meet the permitting criteria, and the court would be determining, after all the factors have been considered, whether the local governing body abused its discretion in opting for the permitted plan. In addition, conflict has been kept to a minimum in the past when the condemning authority has proceeded in the traditional manner by first condemning the property. During the condemnation proceedings, the condemning authority can present testimony of agency officials or other experts in the field to demonstrate the reasonably contemplated conditions tied to the issuance of permit. Seadade Industries, supra. The procedure utilized in the instant case does not preclude either party from calling these same witnesses in a circuit court condemnation proceeding.
| Issue Date | Proceedings |
|---|---|
| Aug. 10, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 04, 1992 | Opinion | |
| Sep. 21, 1990 | Agency Final Order | |
| Aug. 10, 1990 | Recommended Order | County provides reasonable assurance project will not violate water quality and project not contrary to public interest. Proposed mitigation adequate |
