ELR Citation: ELR 20280
No(s). 89-2517 (Fla. Dist. Ct. App. Feb 26, 1991)

The court upholds the Florida Department of Environmental Regulation's (DER's) final order authorizing issuance of a state dredge and fill permit for a marina expansion project, but vacates the DER's determination that a challenge to its certification of compliance with the Federal Water Pollution Control Act (FWPCA) could not be adjudicated in the administrative hearing. The court first holds that the DER's decision to issue the state permit is supported by substantial evidence and is within its statutory discretion. Although the water quality in the lagoon did not meet state standards, the Florida statute authorizes the DER to issue a permit if the applicant performs mitigation measures that cause "net improvement" of the lagoon's water quality. The court next holds that the DER improperly concluded that its certification of compliance with the FWPCA cannot be challenged in an administrative proceeding initiated by a substantially affected person. That the DER's action was based in part on the application of a federal statute does not detract from the affected party's rights to a hearing. The court notes that the DER's authority to issue the FWPCA certification is not a foregone conclusion if the record supports issuance of the state permit in reliance on the "net improvement" language in the state statute. "Net improvement" is not a state-adopted wetlands water quality standard under state law or FWPCA §303. On remand, the DER should determine whether theproposed project complies with state-adopted water quality standards that have been submitted to the U.S. Environmental Protection Agency under FWPCA §303. If the DER's certification relies on the net improvement concept, it should explain how it reached the conclusion that new improvement is a state-adopted water quality standard.

Counsel for Appellants
Thomas W. Reese
Nelson, Beckett & Nelson
123 8th St. N., St. Petersburg FL 33701
(813) 822-4084

Counsel for Appellee
Joseph W. Landers Jr., Richard A. Lotspeich
Landers & Parsons
310 W. College Ave., P.O. Box 271, Tallahassee FL 32302
(904) 681-0311