History:
Part IV of Chapter 373, Florida Statutes, addresses the management and storage of surface waters in Florida. Persons engaged in certain agricultural occupations are currently exempted from having to obtain an environmental resource permit (ERP) from a water management district when altering the topography of land unless such alteration is being done for the “sole or predominant purpose of impounding or obstructing surface waters.”
In 2009, two appellate court decisions were entered regarding a challenge by a large agricultural entity (A. Duda & Sons, hereinafter “Duda”) of certain rules of the water management district and its statutory interpretation of s. 373.406(2), Florida Statutes. Duda was cited for constructing numerous drainage ditches without obtaining the proper permits, and later appealed the Administrative Law Judge’s (ALJ) recommended order which was adopted by the District.
The court in Duda I recognized that the exemption allowing for the alteration of topography for agriculture purposes was limited by the statutory provision that such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. The District, however, interpreted that to mean that a landowner is not entitled to an exemption if the alteration has the effect of “more than incidentally trapping, obstructing or diverting surface waters.” After a lengthy analysis, the Duda I court made a finding that that the District’s interpretation rendered the agricultural exemption virtually meaningless and that the ALJ had erred in accepting the District’s erroneous interpretation. That part of the appeal was then remanded for further review.
In Duda II, a panel made up of different judges from the same court found that the District had shown sufficient evidence that wetlands had been impacted, and agreed that the company had to either restore the impacted wetlands or apply for after-the-fact permits. The court also said that the opinion in Duda I did not address the interplay between the agricultural exemption (§ 373.406(2)) and the language in the Warren S. Henderson Wetlands Protection Act (§ 403.91 et seq.), finding that when those two provisions were read together, the agricultural exemption was virtually eliminated as it applies to alterations impacting wetlands. Under section 403.927, agricultural activities that impede or divert the flow of surface waters even incidentally are not exempt from regulation if they impact wetlands. Consequently, Duda was required to restore the impacted wetlands or apply for after-the-fact permits.
2011 Legislation:
HB 421 (Bembry) changes the current agricultural exemption to specify that bona fide agricultural activities may impede or divert the flow of surface waters even if wetlands are adversely impacted, as long as these impacts are not the sole or predominant purpose of the activity. The bill also provides that DACS will be the agency responsible for disputes regarding exemption qualification (formerly the responsibility of the water management districts), and that mitigation is not required if agricultural activities took place on the property for the four years prior to conversion.
FAC worked closely with the regulating entities and the bill sponsors to get amendments on the bill to limit the exemption to “bona fide” agricultural uses. As passed, the bill requires the agricultural activities to be “typical for the area” and to be in compliance with DACS Best Management Practices or with practice standards adopted by the United States Department of Agriculture's Natural Resources Conservation Service.
The bill, if signed by the Governor, takes effect on July 1, 2011.