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 
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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 MidChattahoochee 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:

 

1 A third proffered rationale for standing, that Bluefield had “preferred status,” is 

rejected without further discussion or analysis.
4

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 MidChattahoochee 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 MidChattahoochee River Users, 948 So. 2d at 797, and City of Sunrise, 615 So. 
5

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 
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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 
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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 
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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.