       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

            BLUEFIELD RANCH MITIGATION BANK TRUST,
                           Appellant,

                                     v.

  SOUTH FLORIDA WATER MANAGEMENT DISTRICT and FLORIDA
            DEPTARTMENT OF TRANSPORTATION,
                       Appellees.

                              No. 4D16-3023

                            [October 31, 2018]

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

   Thomas E. Warner, Dean A. Morande, Matthew Z. Leopold, and Michael
D. Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for
appellant.

   Marc Peoples, Assistant       General Counsel of        Department     of
Transportation, Tallahassee,     for appellee Florida      Department     of
Transportation.

  Susan Roeder Martin, West Palm Beach, for appellee South Florida
Water Management District.

                 ON MOTION FOR REHEARING AND
            MOTION FOR CLARIFICATION OR CORRECTION

FORST, J.

   We deny the Florida Department of Transportation’s motion for
rehearing, but grant the South Florida Water Management District’s
motion for clarification or correction. We thus withdraw our previously
issued opinion and substitute the following.

    Appellant Bluefield Ranch Mitigation Bank Trust (“Bluefield”) sought to
challenge the South Florida Water Management District’s (“District”)
issuance of a permit to the Florida Department of Transportation (“FDOT”)
for a road-widening project. The District dismissed Bluefield’s petition for
a formal administrative proceeding (“petition”) with prejudice, determining
Bluefield lacked standing to challenge the permit. The District’s decision
was based on its determination that the only injury specifically alleged by
Bluefield was economic. We disagree, and conclude that Bluefield has
demonstrated standing beyond mere economic injury. We thus reverse
the District’s dismissal order and remand for a formal administrative
proceeding on Bluefield’s petition.

                               Background

   The District is a government entity created under Chapter 373, Florida
Statutes, which has the responsibility to conserve, protect, manage, and
control water resources within its geographic boundaries.            See §§
373.016, .036, Fla. Stat. (2016). Bluefield is a privately-owned mitigation
bank, established pursuant to section 373.4136, Florida Statutes, for the
purpose of operating and managing the Bluefield Ranch Mitigation Bank.
Mitigation banking is the practice in which a mitigation bank sells “credits”
in exchange for conducting environmental enhancement and preservation
to offset unavoidable adverse impacts to the wetlands and to other
property within its mitigation service area caused by development or
construction projects requiring a permit from the District. See §§
373.403(19), .4136(1), Fla. Stat.

   At the time of receiving a mitigation bank permit, a mitigation bank is
granted a certain number of mitigation credits. § 373.4136(4), Fla. Stat.
Each credit is a unit of measure representing the increase in ecological
value to offset adverse impacts within the bank’s service area. See §
373.403(20), (21), Fla. Stat. A mitigation bank sells its credits to the
permittee of the proposed project, who applies them to meet its mitigation
requirements. Bluefield is a permitted mitigation bank, with property
situated within the service area and regional watershed of the project at
issue. Mitigation service areas can overlap, and mitigation service areas
for two or more mitigation banks may be approved for a regional
watershed. § 373.4136(6), Fla. Stat.

   FDOT applied for a permit, which the District issued, for its project to
widen a section of State Road 710/Beeline Highway. Per the permit, FDOT
was required to purchase mitigation credits as a means of offsetting the
environmental impact to the wetlands from the road-widening project.
FDOT purchased some of the required mitigation credits from Bluefield,
but most of the mitigation was to be provided by Dupuis Reserve
(“Dupuis”).



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   In its petition challenging the use of mitigation credits from Dupuis,
Bluefield argued that Dupuis did not meet certain statutory criteria to be
considered for mitigation on the project. Therefore, FDOT was required to
consider Bluefield for the mitigation credits that would otherwise be
provided by Dupuis. The petition asserted that Bluefield has standing to
challenge FDOT’s permit because, as a mitigation bank, it has a
substantial interest in the enforcement of statutory compliance for
mitigation within its service area and within the same regional watershed
as the project. That “substantial interest,” the petition contends, is to
prevent environmental harm caused by unlawful mitigation. Bluefield
further argued that it had standing because, as a landowner in the affected
area, it has a substantial interest in the protection of the environment and
the continued restoration, enhancement, and preservation of wetlands
within its regional watershed and service area. 1

    The District dismissed Bluefield’s petition with prejudice, concluding
that Bluefield failed to (and could not) allege facts demonstrating it had
substantial interests (other than purely economic interests) that would be
affected by the issuance of the permit. On appeal, Bluefield requests a
reversal of the dismissal and an opportunity to present its challenge at an
administrative hearing.

                                    Analysis

   In reviewing agency determinations on issues which do not require
special agency expertise, such as standing, we accept the allegations in
the petition as true, and are not required to give any deference to the
agency’s legal conclusions. See S. Broward Hosp. Dist. v. State, Agency
For Health Care Admin., 141 So. 3d 678, 680-81 (Fla. 1st DCA 2014). As
such, we review whether a party has standing de novo. See Mid-
Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So. 2d 794, 796
(Fla. 1st DCA 2006); see also Save Our Creeks v. State of Fla. Fish & Wildlife
Conserv. Com’n, 112 So. 3d 128, 129-30 (Fla. 1st DCA 2013) (an agency’s
dismissal of a petition for an administrative hearing is reviewed de novo).

    A. The Agrico test for standing

   Bluefield asserts that it has standing under the Florida Administrative
Procedure Act (“FAPA”), which defines “party,” in pertinent part, as:



1A third proffered rationale for standing, that Bluefield had “preferred status,” is
rejected without further discussion or analysis.

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      Any other person who, as a matter of constitutional right,
      provision of statute, or provision of agency regulation, is
      entitled to participate in whole or in part in the proceeding, or
      whose substantial interests will be affected by proposed
      agency action, and who makes an appearance as a party.

§ 120.52(13)(b), Fla. Stat. (2016).

   A two-part test to determine standing to participate in an
administrative proceeding under this subsection of FAPA was established
in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.
2d 478 (Fla. 2d DCA 1981). The Agrico test looks to whether there is an
injury in fact with sufficient immediacy, and a substantial injury of the
type which the proceeding is designed to protect. Id. at 482. The first
element pertains to the degree of injury and the second element deals with
the nature of the injury. Id.

    It is well established that mere economic interests and the general
interests of citizens are insufficient to establish standing. See Mid-
Chattahoochee River Users, 948 So. 2d at 796-99; City of Sunrise v. S. Fla.
Water Mgmt. Dist., 615 So. 2d 746, 748 (Fla. 4th DCA 1993). The reason,
in part, is because we seek to “limit unwarranted use of judicial resources
in challenges involving discretional decisions of legislative bodies.”
Rosenzweig v. Dep’t of Transp., 979 So. 2d 1050, 1053 (Fla. 1st DCA 2008).
However, we are also cognizant that “one of the major legislative purposes
of the Administrative Procedure Act was the expansion of public access to
the activities of governmental agencies.” Id. (citing Fla. Home Builders
Ass’n v. Dep’t of Labor, 412 So. 2d 351, 352-53 (Fla. 1982)).

   Agrico’s intent was not to preclude participation by parties who stand
to be affected by the actual and foreseeable results of agency action. See
Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18
So. 3d 1079, 1082-83 (Fla. 2d DCA 2009) (“[S]tanding is a legal concept
that requires a would-be litigant to demonstrate that he or she reasonably
expects to be affected by the outcome of the proceedings, either directly or
indirectly.” (quoting Hayes v. Guardianship of Thompson, 952 So. 2d 498,
505 (Fla. 2006))). Instead, Agrico’s intent was to “preclude parties from
intervening in a proceeding where those parties’ substantial interests are
totally unrelated to the issues that are to be resolved in the administrative
proceedings.” Mid-Chattahoochee River Users, 948 So. 2d at 797 (citing
Gregory v. Indian River Cty., 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).
Examples of parties that have been “preclude[d] from intervening in a
proceeding” per this Agrico “substantial interest” test are Mid-
Chattahoochee River Users, 948 So. 2d at 797, and City of Sunrise, 615 So.

                                      4
2d at 748—two cases where the petitioners lacked standing for alleging
mere economic injury, and not the kind of injury for which the proceeding
was designed to protect, namely, the protection and conservation of water
and related land sources.

   B. Bluefield’s alleged “injury”

   Addressing transportation projects with unavoidable impact to wetland
areas, the Florida Legislature expressed its intent that “mitigation to offset
the adverse effects of these transportation projects be funded by [FDOT]
and be carried out by the use of mitigation banks and any other mitigation
options that satisfy state and federal requirements in a manner that
promotes efficiency, timeliness in project delivery, and cost-effectiveness.”
§ 373.4137(1), Fla. Stat. To effectuate this intent, FDOT “must consider
using credits from a permitted mitigation bank” and “must consider the
availability of suitable and sufficient mitigation bank credits within the
transportation project’s area.” § 373.4137(2)(c), Fla. Stat. (emphases
added). Once it has met its “must consider” obligation, FDOT can
“purchase credits for current and future use directly from a mitigation
bank, purchase mitigation services through the water management
districts or the Department of Environmental Protection, conduct its own
mitigation, or use other mitigation options that meet state and federal
requirements.” § 373.4137(3)(a), Fla. Stat.

   To qualify as a permitted mitigation bank, thereby qualifying for “must
consider” status, a mitigation bank is obligated to provide reasonable
assurance that it will meet applicable statutory and regulatory standards,
including its ability to manage and improve the mitigation service area,
and maintain the financial ability to do so, into perpetuity. See §
373.4136(1), Fla. Stat. As such, a mitigation bank provides assurance
that there is “a substantial likelihood that the project will be successfully
implemented.” Metro. Dade Cty. v. Coscan Fla., Inc., 609 So. 2d 644, 648
(Fla. 3d DCA 1992).

   Here, Bluefield’s petition alleges that using Dupuis for mitigation
violated the section 373.4135(1)(b) prohibition of the use of property
previously purchased for conservation. Bluefield maintains that Dupuis
was previously purchased by the District with funding reserved for
conservation projects and was already being utilized for conservation
purposes and thus disqualified for “must consider” status.

   The petition further contends that Dupuis has not provided the
appropriate reasonable assurances for the mitigation of this project that
are required by the statutory provisions governing this process.

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Particularly, Bluefield contends Dupuis failed to meet the public interest
criteria set forth in section 373.414(a), such as whether the use of the
Dupuis acreage would “adversely affect the public health, safety, or welfare
or the property of others,” including Bluefield’s own regional watershed
and service area.

    Whether Dupuis is qualified to be considered for the project’s mitigation
is a disputed question of fact on the merits of Bluefield’s petition. We take
Bluefield’s petition as true for the purposes of reviewing the District’s
dismissal. Whether Bluefield will be successful on the merits is irrelevant
to our inquiry. See Palm Beach Cty. Envtl. Coal. v. Fla. Dep’t. of Envtl. Prot.,
14 So. 3d 1076, 1078 (Fla. 4th DCA 2009).

      C. Bluefield’s “substantial interest”

   Assuming Dupuis is not qualified to provide mitigation on the project,
the question becomes whether Bluefield has a substantial interest in
challenging the permit issued by the District to FDOT, in order to contest
the latter’s choice of Dupuis to be the recipient of the majority of the
mitigation.

   Mere economic injury is not enough, but when a party alleges
“economic injury, in combination with other factors, [it] may provide a
basis for standing in an administrative proceeding.” Fla. Police Benevolent
Ass’n, Inc. v. Fla. Dep’t. of State, Div. of Licensing, 450 So. 2d 283, 284 (Fla.
1st DCA 1984) (citing Fla. Med. Ass’n v. Dep’t of Prof’l Reg., 426 So. 2d
1112, 1115 (Fla. 1st DCA 1983)); see also Ybor III, Ltd. v. Fla. Hous. Fin.
Corp., 843 So. 2d 344, 346 (Fla. 1st DCA 2003).

    In Ybor, a housing developer (Ybor) and its competitor applied for
limited funding to provide affordable housing in Florida. Id. at 345. Ybor’s
application was denied and its competitor’s was accepted. Id. Ybor’s
petition challenged its competitor’s accepted application, and asserted that
its competitor’s application was scored in a manner inconsistent with the
agency’s mandate. Id. Ybor argued that, if its competitor’s application
had been properly scored, then Ybor, rather than the competitor, would
have been entitled to the funding. Id.

    Taking the petition as true, the First District held that Ybor had a
substantial interest in ensuring that the agency was “provid[ing] and
promot[ing] the public welfare by administering the governmental function
of financing . . . housing . . . in Florida.” Id. (quoting §§ 420.504(1), .502(7),
Fla. Stat.). “Common sense and logic dictate that if such a program of
economic incentives . . . is to succeed, the process of determining who is

                                        6
qualified . . . must be administered fairly, honestly, and consistently
according to the rules that [the agency] is charged with implementing.” Id.
at 346. If Ybor lacked standing, “[a]n agency could act fraudulently,
illegally, arbitrarily, dishonestly, or inconsistently with impunity.” Id.

   Following the logic of Ybor, an economic interest in the outcome does
not disqualify Bluefield from standing. Bluefield, like Ybor, is a for-profit
company. The purpose of the statute in Ybor was to provide affordable
housing through financing affordable housing to low income applicants,
provided by private companies that were the recipients of government
grants. The purpose of the statute at issue here is the protection of water
resources and the ecosystem through the use of mitigation, funded by the
sale of mitigation credits. Bluefield’s interests are greater than purely
economic: mitigation banks were created and are regulated for the very
purpose of mitigating the adverse impacts to wetlands caused by
construction and development. Bluefield argues that, by choosing an
unlawful mitigation option, FDOT and the District are subverting the
statutory scheme. Bluefield is a mitigation bank located within the same
regional watershed and service area as the project, creating a substantial
interest in the enforcement of statutory compliance for mitigation for this
project.

   Another case applicable to the instant situation is Town of Palm Beach
v. State Department of Natural Resources, 577 So. 2d 1383 (Fla. 4th DCA
1991). There, we reversed an agency determination that certain property
owners did not have a substantial interest in an agency’s eventual
determination that certain landscaping activities on the beach were
outside of its jurisdiction, thereby not requiring a permit. Id. at 1384-85.
The petitioning parties included the Town of Palm Beach, which owned
Phipps Ocean Park within 1000 feet of the condominium and alleged that
the Park would suffer damage if the landscaping activity continued, and
Dave Darwin, who owned a property within 1000 feet of the condominium
and alleged that his property would be damaged by the continued
disruption of the dune system. Id. at 1385. We found that both of these
petitioners had a substantial interest in challenging the agency’s
determination because

      the statute and administrative proceedings are designed to
      protect the entire beach/dune system of the state of Florida,
      and [the petitioners] allege that [the landscaping activities] will
      harm the dune system in the area of [the condominium’s]
      property. Therefore [the petitioners] have made sufficient
      allegations to meet the test of standing under Agrico and are


                                      7
      entitled to a hearing to present evidence to support their
      allegations of standing.

Id. at 1388.

    As in Town of Palm Beach, the distance from the petitioning party to
the point of environmental damage (here, the FDOT road-widening project)
was sufficiently close that the harm alleged can be reasonably expected.
That is to say, Bluefield, like the petitioners in Town of Palm Beach, are
within the “zone of interest” of the proposed environmental permit. See
Vill. of Key Biscayne v. Dep’t of Envtl. Prot., 206 So. 3d 788, 790 (Fla. 3d
DCA 2016) (citing Hamilton Cty. Bd. of Cty. Comm’rs v. State Dep’t of Envtl.
Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991)). An argument of
potential environmental injury to Bluefield’s conservation acreage is
reasonable based on Bluefield’s location within the same regional
watershed and mitigation service area. That is not to say that mitigation
banks within a service area will have standing to challenge a permit on
that fact alone, but Bluefield is also located in close proximity to the project
within the same regional watershed, and it could reasonably be affected
by the issuance of a permit to allow Dupuis, without the statutory
compliance required, to provide mitigation in the same service area and
regional watershed.

   In Rosenzweig, the First District used the Agrico test to determine
whether a bicyclist organization had standing to challenge FDOT’s
interpretation of a statute specifically relating to bicycle lanes.
Rosenzweig, 979 So. 2d at 1053. The First District noted that the first
prong of the Agrico test was satisfied because the organization’s members
“will not have a delineated path on which to ride their bicycles if bicycle
lanes are not constructed pursuant to [FDOT’s] standards.” Id. at 1054.
The second prong was satisfied because: “Reason dictates that a bicyclist
organization . . . can demonstrate that a substantial number of its
members will be affected by [FDOT’s] decisions relating to the construction
of bicycle paths.” Id. In finding the organization had standing, the First
District stated that “it is clear that if anyone has the ability to challenge
[FDOT’s] interpretation of section 335.065, which specifically relates to
bicycle lanes, it would be those seriously involved in bicycling.” Id.

    Similarly here, should mitigation by Dupuis be unlawful, it subjects the
shared service area and regional watershed to harm, including degradation
of the mitigation bank that Bluefield is entrusted to protect and manage
into perpetuity. Harm to the wetlands is the injury in fact, and Bluefield
has a substantial interest in ensuring compliance with the statutory
scheme. Here too, it can be reasonably argued that if anyone has the

                                       8
ability to challenge FDOT’s compliance with the “must consider” provision,
it would be those permitted mitigation banks like Bluefield, which seek to
challenge a permit that purportedly allows unlawful mitigation within its
service area and regional watershed.

                                Conclusion

   As set forth above, we reverse the District’s dismissal, and find that the
four corners of the petition adequately alleged standing because it was
reasonably foreseeable that Bluefield’s conservation acreage could be
adversely affected by the degradation of the regional watershed and
ecosystem caused by the selection of a purportedly unlawful mitigation
option. We thus remand for a formal administrative proceeding on
Bluefield’s petition.

   Reversed and remanded.

TAYLOR and KLINGENSMITH, JJ., concur.




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