) CASE NO. 79-2470 STATE OF FLORIDA, DEPARTMENT )
Intervenor. )
This matter came on for public hearing in Clearwater, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on February 14, 1980. The parties wero represented by counsel:
For Petitioner: Leslie M. Conklin, Esquire
For Respondent: Alfred W. Clark, Esquire
For Intervenor: Joel R. Tew, Esquire and
John T. Blakley, Esquire Post Office Box 1368 Clearwater, Florida 33517
On December 14, 1979, the State of Florida, Department of Environmental Regulation (hereafter "Department" forwarded to the Division of Administrative Hearings, pursuant to the provisions of Section 120.57(1)(b)(3), Florida Sttutes, a petition contesting the Department's intent to issue a permit to the City of Clearwater for a wastewater sewage collection system located in an area known as Tract 59 of Countryside Development located in Pinellas County.
Petitioner objected to the issuance of the permit because of alleged environmental damage to Petitioner's property.
On December 21, 1979, U. S. Home Corporation, the owner of Tract 59, moved to Intervene in this administrative proceeding as a substantially interested and affected person and filed a Motion to Dismiss and Request for Evidential Hearing on the Motion to Dismiss. US Home Corporation was granted leave to intervene
and the Motion to Dismiss was denied on January 14, 1980. In denying US Home Corporation's Motion to Dismiss, the Hearing Officer noted that economy could best be served by allowing US Home Corporation an opportunity to present evidence in support of its Motion to Dismiss at the final hearing.
Proposed Recommended Orders have been submitted by the parties and have been considered by the Hearing Officer. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
On October 31, 1979, the City of Clearwater applied to the Department for permits for the installation of a sewage collection/transmission system in Tract 59 of Countryside Development pursuant to Chapter 403, Florida Statutes. This gravity system was intended to connect to a regional pump station which, at the time of the application, was in the pro- cess of being built. If the gravity system was completed before the pump station, the sewage would be collected at the most downstream manhole and tank-trucked to a waterwaste facility operated by the City of Clearwater. (Intervenor's Exhibit Number 7).
After receipt of the application, the Department recommended on November 30, 1979, issuance of the requested permit for Tract 59 and found that the sewage collection system would be installed according to standard approved specifications. (Intervenor's Exhibit Number 11).
Petitioner contests the proposed issuance of the requested permit on grounds that the collection system may cause serious damage to Petitioner's downstream property in that transportation of sewage by truck is insufficient for the design flow of the facility and that the storage capacity of the lower manhole opening is not sufficient to prevent the pop-off of manhole covers.
Petitioner's property is not adjacent to or contiguous with Tract 59. (Intervenor's Exhibit Number 1).
Although Tract 59 and the Petitioner's property are in the same primary drainage basin area, they are in separate sub-basins of the primary drainage area. Tract 59 is in a drainage area referenced as sub-basin 4 while Petitioner's property is referenced as sub-basin 1. (Intervenor's Exhibit Number 2, Testimony of Zimmerman),
An indistinguished ridge line exists between the two sub-basins which could be characterized as jurisdictional. A jurisdictional line defines the boundaries of wetlands. (Intervenor's Exhibit Number 12, Testimony of Kutash, Testimony of Mazer).
Despite the existence of ditches in an area near the ridge line, there is no discernible surface water flow between the two sub-basins. (Testimony of Zimmerman, Testimony of Mazer).
Sub-basin 4 drains north of Tract 59 to surface outfall 4, beneath Curlew Road then to an outfall canal and eventually to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer).
Sub-basin 1 drains to an outfall in Tract 60 then to Possum Branch Creek and then to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer).
Tract 59 and Petitioner's property are connected by a sewer line which will be physically blocked until the regional pump station is completed and operational. (Testimony of Mazer).
Prior to the hearing, the Intervenor filed Motions to Dismiss and Bifurcate which were both based upon Petitioner's alleged lack of standing to maintain this administrative action. These motions were denied and Petitioner was given the opportunity to present evidence to establish standing. At the close of the hearing, Intervenor again asserted that Petitioner lacked the requisite standing to maintain this action.
CONCLUSIONS OF LAW
The right to a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, is conferred in those instances where the substantial interests of a party are determined by an agency. Thus, a condition precedent to the granting of the relief requested in a petition filed pursuant to Section 120.57(1), Florida Statutes, is that the petitioning party demonstrate that its "substantial interests" will in some manner be affected by proposed agency action.
Chapter 120, Florida Statutes, does not attempt to define "substantial interests", or to catalog interests embraced within the meaning of that term.
As indicated by the court in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1232 (1st DCA 1978), "[a]ny attempt to comprehend in depth the meaning of standing involves a careful study of the pertinent provisions of the new APA, compared with the 1961 Act as well as a comparison with the federal APA and the cases interpreting it." The Jerry court quoted with approval the following definition of `substantial':... consisting of or relating to substance...not imaginary or illusory,...considerably large." The Jerry court also indicated that Federal court decisions dealing with the issue of standing
,`... often turn upon issues pertaining to whether a person seeking relief has shown that his interests are substantial and not illusory." Id. at 1233. Also see School Board of Orange County v. Blackford, 369 So.2d 689 (1st DCA 1979). Thus, in Sierra Club v. Morton, 405, US 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) the United States Supreme Court held that standing to seek review under the Federal Adininistrative Procedures Act existed only for those parties who could show `... that the challenged action had caused them `injury in fact' , and where the alleged injury was to an interest `arguably within the zone of interest to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 US at 733, 92 S.Ct. at 1365. As indicated by the Jerry court, the Sierra Club decision
. . . stressed the importance that a party seeking judicial review must himself be among the injured for it is this require- ment which gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. 355 So.2d at 1233- 1234.
Subsequently, in United States v. S.C.R.A.P., 412 US 669, 93 S.Ct. 2405, 37 L.Ed. 2nd 254 (1973), the United States Supreme Court made clear that its Sierra Club decision requiring a showing of "injury in fact" to establish standing did not require a showing of "economic harm". Rather, actual aesthetic and environmental harm to a party's use and enjoy- ment of natural resources was hold to be sufficient to establish standing. The Court was careful to note, however, that
. . . a plaintiff must allege that he has been or will, in fact, be perceptibly harmed by the challenged agency action, not that he can imagine circumstances
in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. 412 US at 683-689, 93 S.Ct. 2416-2417.
Although Petitioner alleged facts sufficient in the administrative complaint which, if proven, would have established that his "substantial interests" within the meaning of Section 120.57(1), Florida Statutes, would be affected by the proposed agency action, he failed to carry his burden of proof at the final hearing in this cause to establish and substantiate those allegations. See State Department of Health, Etc., v. Alice P., 367 So.2d 1045 (1st DCA 1979) which noted that the burden is upon the challenger to prove standing when it is resisted.
Although not alleged in the Administrative Complaint, Petitioner has asserted in his proposed conclusions of law that as a citizen of Florida, he has statutory standing pursuant to Section 403.412, Florida Statutes, where "...water resources are concerned...".
Section 403.412(5), Florida Statutes, provides as follows:
In any administrative licensing, or other proceeding authorized by law for the protection of the air, water, or other natural resources of the State from pollution, impairment, or destruc- tion, the Department of Legal Affairs, a political subdivision or municipality of the State or a citizen of the State shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct or product to be licensed or permitted has, or will have the effect of impairing, polluting, or otherwise
injuring the air, water, or other natural resources of the State. (Emphasis supplied)
The statute, commonly referred to as the Environmental Protection Act of 1971 (hereafter "EPA") is part of a comprehensive legislative scheme for dealing with environmental problems. It is but one of thirty-five pieces of legislation enacted in 1971 in response to growing statewide environmental concerns. Jacobson, Environmental Law, Survey of [Florida] Environmental Legislation, 26 U. Miami L. Rev. 778, 780 at n. 19. The statute evinces a
legislative intent to make enforcement of environmental laws and restraint of violations thereof the responsibility of ... the government as well as the citizenry". Orange County Audubon Society, Inc., v. Hold, 276 So.2d 542, (4th DCA 1973). As reflected by the title, the act authorizes intervention in all types of proceedings involving injury to natural resources. Chapter 71-343, Laws of Florida. Also see Article II, Section 7, Florida Constitution which adopts as state policy the protection and conservation of natural resources.
Consistent with the broad purposes of the EPA, i.e., that protection of the environment is a collective responsibility1 a corporation has been found to be a "citizen" and granted standing to initiate litigation. Save Our Bay, Inc., v.
Hillshorough County Pollution Control Commission, 285 So.2d 447 (2nd DCA 1973).
Thus, it is apparent that the standing requirements of 120.57(1), Florida Statutes and 403.412(5), Florida Statutes, differ significantly. The question which must then, be resolved, is whether a litigant must show that his "substantial interests" are affected in addition to asserting statutory standing pursuant to 403.412(5), Florida Statutes, in a case involving the protection of the air, water or other natural resources from pollution, impairment or destruction.
It is a well settled rule of statutory construction that a special statute covering a particular subject matter is controlling over a general statute covering the same and other subjects in general terms. The statute relating to the particular part of the general statute will operate as an exception to or qualification of the general terms of the more comprehensive statute. Adams v. Culver, Ill So.2d 665, (Fla 1959); 73 Am Jur. 2d, Statutes,
